1. Federal Rule of Criminal Procedure 33 permits a district court to order a new trial "if the interest of justice so requires." The district court here exercised its discretion under Rule 33 to order a new trial, concluding that the entirely circumstantial evidence weighed so heavily against the verdict that there was a "real concern that [Petitioner] is innocent" and that letting his "guilty verdict stand would be a manifest injustice." On the government's interlocutory appeal, the Second Circuit reversed, holding that—contrary to the approach taken in every other Circuit—district courts lack discretion to grant a new trial under Rule 33 based on the weight of the evidence unless there is also some evidentiary or instructional error, or "the evidence was patently incredible or defied physical realities." United States v. Archer, 977 F.3d 181, 188 (2d Cir. 2020) ("Archer I"), annexed as Appendix C. Absent such circumstances, a district court "must defer to the jury's resolution of conflicting evidence." App. 31a. Following remand, sentencing, and final judgment, the Court of Appeals adhered to the rule announced in Archer I.

The first question presented is whether Rule 33 affords district courts discretion to reweigh the evidence when evaluating a new trial motion, as eleven other federal courts of appeals have held to varying degrees, or whether the rule requires a district court to defer to the verdict unless there is some concern beyond the weight of the evidence, as the Second Circuit held in this case?

2. The second question presented is whether a criminal defendant can forfeit an argument of plain error from a conceded Guidelines miscalculation. The district court here made a simple arithmetic error in calculating Petitioner's guidelines, resulting in a higher sentencing range. The error went unnoticed until argument on Petitioner's appeal. Following supplemental briefing, the government conceded error but argued that it was waived. The Second Circuit disagreed, holding that the argument was forfeited rather than waived, but nonetheless refused to consider the argument at all, declining to engage in plain error review. United States v. Archer, 2023 WL 3860530, at *6 n.2 (2d Cir. June 7, 2023) ("Archer II"), annexed as Appendix A.

Whether district courts have discretion under Federal Rule of Criminal Procedure 33 to order a new trial based on the weight of the evidence, even in the absence of evidentiary or instructional error