NOT PRECEDENTIAL

OPINION*

JORDAN, Circuit Judge.

Tomas Lirano Castillo appeals the sentence imposed on him by the District Court of the Virgin Islands. We will affirm.

I. BACKGROUND

In 2016, Castillo, carrying a backpack filled with several kilograms of cocaine, boarded a ship in Tortola headed for St. Thomas. Unbeknownst to Castillo, Drug Enforcement Administration agents in St. Thomas had been tipped off about the smuggling and were waiting for his arrival. They apprehended him after he disembarked.

Following a trial, a jury found Castillo guilty of conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846; possession with intent to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1); and illegal entry, in violation of 8 U.S.C. § 1325(a). The District Court imposed a sentence of 121 months' imprisonment for all three counts. Castillo appealed, and we vacated that sentence on the ground that it exceeded the statutory maximum for the illegal entry charge. United States v. Castillo, 742 F. App'x 610, 615-16 (3d Cir. 2018). We accordingly remanded for resentencing. Id. at 616.

That resentencing hearing was scheduled for November 8, 2018. The day before, November 7, 2018, Attorney General Jeff Sessions resigned from office, and the President named Matthew Whitaker, who had been the Attorney General's Chief of Staff, to be the Acting Attorney General.1

Castillo's resentencing took place as scheduled. He did not object to being resentenced while Mr. Whitaker was serving as Acting Attorney General. Six days later, however, Castillo filed a motion to vacate his sentence.2 In that motion, he argued for the first time that Whitaker's designation as Acting Attorney General violated both federal law and the Constitution and, in turn, rendered his sentence invalid. The next week, while the motion to vacate was still pending, the District Court entered its written judgment. Castillo immediately appealed.

II. Discussion3

Castillo's sole claim on appeal is that his sentence must be vacated because it was imposed on him while Whitaker was serving as Acting Attorney General — illegally and unconstitutionally, in Castillo's view. Because he did not raise that argument at his resentencing, we review it for plain error.4 United States v. Fulton, 837 F.3d 281, 294 n.112 (3d Cir. 2016). "To demonstrate plain error, an appellant must establish that (1) there is an error; (2) the error is clear or obvious; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity[,] or public reputation of judicial proceedings." Id. at 294 (quotation marks, citations, and alterations omitted).

Castillo argues that Mr. Whitaker'sdesignation as Acting Attorney General violated both the Attorney General Succession Act ("AGSA"), 28 U.S.C. § 508, and the Appointments Clause of the Constitution, U.S. Const. Art. II, § 2, cl. 2, and that, as a result, the sentence at issue is invalid. In other words, he contends that Whitaker's appointment was improper, that it infected the entire Department of Justice, and that it thus rendered invalid every sentence imposed during Whitaker's tenure. That argument fails.

For an error to be "plain," it must be "clear" or "obvious" at the time of appellate review. United States v. Olano, 507 U.S. 725, 734 (1993); Henderson v. United States, 568 U.S. 266, 269 (2013). We have not previously addressed the legality of Mr. Whitaker's designation as Acting Attorney General. Nor have we addressed more generally the means by which the President may properly appoint an Acting Attorney General. That lack of precedent alone may suggest that any error on this point was not plain. Cf. United States v. Dahl, 833 F.3d 345, 358 (3d Cir. 2016) (concluding an error was plain given Supreme Court precedent addressing the issue). More tellingly, in the time since Whitaker's designation, other courts have been asked to address the validity of his designation and have, thus far, uniformly concluded that it was proper.5 In view of that case law, it was certainly not "clear" or "obvious" that Castillo's sentence was somehow flawed if imposed during the Acting Attorney General's tenure.

Beyond that, many courts have held that the legality of Whitaker's service as Acting Attorney General has no bearing on the validity of criminal prosecutions or sentences.6 Castillo was prosecuted by Assistant United States Attorneys who were supervised by the duly appointed United States Attorney for the Virgin Islands, who has independent statutory authority to "prosecute ... all offenses against the United States[.]"7 28 U.S.C. § 547(1). That United States Attorney was supervised in the exercise of her independent prosecutorial power by the Senate-confirmed Deputy Attorney General. Id. § 504; see also 28 C.F.R. § 0.15(a) (authorizing the Deputy Attorney General "to exercise all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally"); see also United States v. Peters, No. 6:17-CR-55-REW-HAI-2, 2018 WL 6313534, at *6 (E.D. Ky. Dec. 3, 2018) ("Former-AG Sessions, as the D[epartment of Justice]'s organizational structure indicates, delegated supervisory authority over all United States Attorneys ... to the Deputy AG."). Mr. Whitaker had no direct involvement in Castillo's case and certainly no role in deciding the fact of his conviction or appropriate sentence. Cf. Ryder v. United States, 515 U.S. 177, 182-83 (1995) ("We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred." (emphasis added)). And Castillo has not explained how Whitaker's service had any impact on the jurisdiction of the District Court to pronounce sentence. Cf. 48 U.S.C. § 1612; 18 U.S.C. § 3241; United States v. Plesinski, 912 F.2d 1033, 1038 (9th Cir. 1990) (concluding that, even though the Special Assistant U.S. Attorney's appointment was invalid, his "unauthorized appearance on behalf of the government did not deprive the district court of jurisdiction over the criminal proceedings").

Accordingly, resentencing Castillo while Mr. Whitaker was serving as Acting Attorney General did not constitute plain error.

III. CONCLUSION

For the foregoing reasons, we will affirm the sentence imposed by the District Court.