United States v. Russell Caso, Jr., 723 F.3d 215

Caso, a former congressional chief of staff, pleaded guilty to conspiracy to commit honest-services wire fraud after failing to disclose his wife’s $19,000 in payments from a consulting firm on a mandated financial disclosure form.
His plea admitted nondisclosure based on a known conflict of interest; he was sentenced to three years’ probation (including home confinement).
After sentencing, the Supreme Court’s Skilling decision narrowed § 1346 (honest-services fraud) to bribery/kickbacks, rendering Caso "actually innocent" of the honest-services offense he admitted to.
Caso filed a § 2255 motion to vacate his conviction; the government conceded he was actually innocent under Skilling but argued his collateral challenge was procedurally defaulted.
The district court denied relief, holding that under Bousley a petitioner must show actual innocence not only of the convicted offense but also of any separate, forgone charge of equal or greater seriousness (here, an alleged uncharged § 1001 false-statement offense).
On appeal the D.C. Circuit considered whether (1) Bousley’s ‘‘more serious’’ requirement applies to uncharged but forgone offenses, (2) ‘‘seriousness’’ should be measured by statutory maximums or the Sentencing Guidelines, and (3) whether the government had forgone a more serious charge in this case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Bousley require showing innocence of an uncharged forgone offense?	Caso: No; Bousley’s "charges" means actual charges; he was never charged under §1001.	Gov.: Yes; prosecutors may forgo charges in plea bargaining and post hoc evidence (affidavit + plea papers) shows §1001 was forgone.	Court: Assumes arguendo the gov’t forwent §1001 but does not decide scope; Caso prevails on other grounds.
Does Bousley extend to offenses of equal seriousness or only more serious?	Caso: Only "more serious" as written.	Gov.: Extends to equal or greater seriousness; district court adopted that view.	Court: Leaves the ambiguity unresolved because Caso wins even assuming equal-or-greater rule.
How to measure "seriousness" for Bousley (statutory max vs. Guidelines)?	Caso: Use Sentencing Guidelines — they drive plea bargaining and likely sentence.	Gov.: Use statutory maximums (Congress’ judgment).	Court: Use Sentencing Guidelines as the proper measure.
Did the government forgo a more serious charge here?	Caso: Even if gov’t forgone §1001, that offense is less serious under the Guidelines.	Gov.: §1001 and §371 have equal statutory maxima (5 years), so §1001 is not less serious.	Court: Under the Guidelines, §1001 (Guidelines range 0–6 months) is less serious than the §371 conspiracy (Guidelines 18–24 months); therefore no more serious forgone charge existed and Caso wins.

Skilling v. United States, 561 U.S. 358 (2010) (narrowed §1346 honest-services fraud to bribes and kickbacks)
Bousley v. United States, 523 U.S. 614 (1998) (procedural-default gateway: actual innocence must extend to more serious forgone charges)
Frady v. United States, 456 U.S. 154 (1982) (habeas: failure to raise claim on direct review constitutes procedural default)
Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence standard for overcoming procedural default)
Carafas v. LaVallee, 391 U.S. 234 (1968) (collateral consequences preserve live controversy post-sentence)
Peugh v. United States, 569 U.S. 530 (2013) (Guidelines remain central to sentencing and inform plea decisions)