26 F.4th 653
4th Cir.2022Background
- In April 2010 Mohamed Ali Said and others attacked the USS Ashland (after an earlier encounter with HMS Chatham); Said was indicted on ten counts, including multiple § 924(c) firearm counts (Counts 4, 9, 10) that listed seven alternative predicate "crimes of violence."
- The jury convicted Said on all counts; the verdict form did not identify which predicate(s) supported the § 924(c) convictions. Sentencing produced a multi-count aggregate sentence; neither party appealed the sentence.
- After United States v. Davis (2019) invalidated § 924(c)(3)(B)’s residual clause, Said filed a § 2255 petition arguing Counts 1–3 (conspiracy counts) could no longer qualify as predicate crimes of violence and that the jury had been wrongly instructed it could rely on those invalid predicates for Counts 4, 9, and 10.
- The district court agreed, vacated Counts 4, 9, and 10, and resentenced Said; the government conceded vacatur of Count 9 but appealed vacatur of Counts 4 and 10.
- The Fourth Circuit assumed some predicates (Counts 5–8) were valid, conceded Counts 1–3 were invalid post-Davis, but held Said failed to satisfy the Brecht harmless-error standard on collateral review because he did not show more than a reasonable possibility that the jury convicted on Counts 4 and 10 solely because of invalid predicates.
- The court reversed the district court as to Counts 4 and 10 and remanded with instructions to deny Said’s § 2255 petition on those counts; the vacatur of Count 9 remains undisturbed.
Issues
| Issue | Plaintiff's Argument (Said) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether § 924(c) convictions (Counts 4 & 10) must be vacated because jury was instructed it could rely on predicates (Counts 1–3) that are invalid after Davis | Instructional error prejudiced Said because jury may have relied solely on invalid conspiracy predicates | Any instructional error was harmless on collateral review because jury also convicted Said of valid predicate offenses and nothing shows jurors relied only on invalid predicates | Reversed district court: Said failed to show "substantial and injurious" effect under Brecht; Counts 4 & 10 reinstated |
| Whether lack of a unanimity instruction on which predicate supported the § 924(c) verdicts (Richardson issue) requires relief | Jury was not instructed to unanimously agree on the specific predicate(s), so a single juror could have based a conviction on an invalid predicate | Unanimity error is speculative here because overwhelming factual and verdict context make it implausible any juror relied solely on invalid predicates | Rejected: ambiguity alone insufficient; no Brecht prejudice shown, so no relief |
Key Cases Cited
- United States v. Smith, 723 F.3d 510 (4th Cir. 2013) (discussing applicable harmless-error standards)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard on federal habeas review)
- United States v. Davis, 139 S. Ct. 2319 (2019) (holding § 924(c)(3)(B) residual clause void for vagueness)
- United States v. Ali, 991 F.3d 561 (4th Cir. 2021) (instructive precedent on ambiguous predicate instructions and burden to show prejudice)
- United States v. Hare, 820 F.3d 93 (4th Cir. 2016) (§ 924(c) conviction may stand if jury relied on at least one valid predicate)
- United States v. Crawley, 2 F.4th 257 (4th Cir. 2021) (reaffirming Hare post-Davis)
- Richardson v. United States, 526 U.S. 813 (1999) (unanimity requirement where alternate acts constitute single offense)
- United States v. Robinson, 627 F.3d 941 (4th Cir. 2010) (ambiguity in jury basis insufficient to establish actual prejudice)