Opposition Brief — Carlos Granda, Petitioner v. United States

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No. 21-6171

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

CARLOS GRANDA, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

TYLER ANNE LEE

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTION PRESENTED

Whether

petitioner

entitled

collaterally

undo

his

conviction for conspiring to use or carry a firearm during and in

relation to a crime of violence or a drug-trafficking crime, in

violation of 18 U.S.C. 924(o), based on a claim that it might rest

invalid

predicate

offense,

where

the

court

appeals

determined that the invalid predicate was inextricably intertwined

with valid ones.

(II)

ADDITIONAL RELATED PROCEEDING

Supreme Court of the United States:

Granda v. United States, No. 14-7805 (Feb. 23, 2015)

(III)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-6171

CARLOS GRANDA, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1) is reported

at 990 F.3d 1272.

The order of the district court (Pet. App. A3)

and the report of the magistrate judge (Pet. App. A4) are not

reported in the Federal Supplement but are available at 2017 WL

6554412 and 2017 WL 6550900.

JURISDICTION

The judgment of the court of appeals was entered on March 11,

2021.

A petition for rehearing was denied on June 2, 2021 (Pet.

App. A2).

The petition for a writ of certiorari was filed on

November 1, 2021 (Monday).

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Florida, petitioner was convicted of

conspiring to possess cocaine with the intent to distribute it, in

violation of 21 U.S.C. 846; attempting to possess cocaine with the

intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and

846, and 841(b)(1)(A) (2006); conspiring to commit Hobbs Act

robbery, in violation of 18 U.S.C. 1951(a); attempted Hobbs Act

robbery, in violation of 18 U.S.C. 1951(a); attempted carjacking,

in violation of 18 U.S.C. 2119; and conspiring to use or carry a

firearm during and in relation to a crime of violence or a drugtrafficking crime, in violation of 18 U.S.C. 924(o).

see Pet. App. A1, at 12.

Judgment 1;

The district court sentenced petitioner

to 360 months of imprisonment, to be followed by five years of

supervised release.

Judgment 3-4.

The court of appeals affirmed,

346 Fed. Appx. 524 (per curiam), and this Court denied a writ of

certiorari, 561 U.S. 1018.

In 2011, petitioner filed a motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. 2255, which the district

court denied.

11-cv-21283 D. Ct. Doc. 12 (Dec. 22, 2011).

The

district court also denied petitioner’s request for a certificate

of appealability (COA), 11-cv-21283 D. Ct. Doc. 22 (July 3, 2012),

and the court of appeals dismissed the appeal, 12-13189 C.A. Order

(Nov. 19, 2012).

In 2013, petitioner filed an application for a writ of audita

querela pursuant to 28 U.S.C. 1651(a).

1 (May 20, 2013).

13-cv-21801 D. Ct. Doc.

The district court denied the application, 13-

cv-21801 D. Ct. Doc. 10 (June 19, 2013), and denied petitioner’s

request for a COA, 13-cv-21801 D. Ct. Doc. 21 (June 13, 2014).

The court of appeals similarly denied a COA.

(Aug. 21, 2014).

14-10307 C.A. Order

This Court denied a writ of certiorari.

574

U.S. 1176.

In 2015, petitioner moved for a sentence reduction pursuant

to 18 U.S.C. 3582(c)(2).

2015).

07-cr-20155 D. Ct. Doc. 348 (Feb. 23,

The district court granted petitioner’s motion and reduced

his sentence to 324 months of imprisonment.

07-cr-20155 D. Ct.

Doc. 352 (Mar. 23, 2015).

In 2016, the court of appeals granted petitioner leave to

file a successive Section 2255 motion.

8, 2016).

16-14674 C.A. Order (Aug.

The district court denied petitioner’s successive

Section 2255 motion, Pet. App. A3, but granted petitioner’s request

for a COA, id. at 7.

The court of appeals affirmed.

Pet. App.

A1.

In 2020, while petitioner’s appeal was pending, petitioner

obtained leave from the court of appeals to file another successive

Section 2255 motion.

20-cv-22610 D. Ct. Doc. 1 (June 24, 2020);

20-12136 C.A. Order (July 1, 2020).

The district court ordered

the motion to be held in abeyance pending the resolution of

petitioner’s petition for a writ of certiorari in this case.

20-

cv-22610 Docket entry No. 21 (June 21, 2021).

In 2007, petitioner agreed to participate in a robbery

arranged by his brother, Paulino Granda, that was in fact part of

a reverse sting operation.

Pet. App. A1, at 11-12.

An undercover

agent, posing as a drug trafficker, had told Paulino that he knew

the location of a tractor-trailer filled with 60 to 80 kilograms

of cocaine, and Paulino orchestrated a plan in which he and a crew

consisting of petitioner and several accomplices would steal the

tractor-trailer and the drugs.

Id. at 11.

The crew planned to

approach the tractor-trailer, remove the driver at gunpoint, and

take the truck and the drugs, shooting the driver and anyone else

who resisted if necessary.

Ibid.

Petitioner was to serve as a

lookout, and Paulino asked him to bring a gun.

Ibid.

On the appointed day, petitioner and the rest of the crew met

up and packed guns and construction ties (to use as handcuffs).

Pet. App. A1, at 12.

The crew then drove to the warehouse where

the

purportedly

tractor-trailer

located.

Ibid.

the

cocaine

was

Petitioner stationed himself in his car near the

entrance to the warehouse.

approached

containing

Ibid.

tractor-trailer,

As one of the accomplices

police

officers

themselves and attempted to arrest the robbers.

Ibid.

revealed

One of the

accomplices raised his firearm, leading to a shootout between the

robbers and the police.

Ibid.

During the shootout, petitioner attempted to flee in his car

but

encountered

police

blockade.

Pet.

App.

A1,

12.

Petitioner was arrested after his car struck a police vehicle while

he was attempting to evade the blockade.

Ibid.

A subsequent

search revealed handcuffs in petitioner’s car and a loaded ninemillimeter semiautomatic pistol in Paulino’s car.

Ibid.

A federal grand jury in the Southern District of Florida

charged petitioner with conspiring to possess cocaine with the

intent to distribute it, in violation of 21 U.S.C. 846; attempting

to possess cocaine with the intent to distribute it, in violation

of 21 U.S.C. 841(a)(1) and 846, and 841(b)(1)(A) (2006); conspiring

to commit Hobbs Act robbery, in violation of 18 U.S.C. 1951(a);

attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a);

attempted carjacking, in violation of 18 U.S.C. 2119; conspiring

to use or carry a firearm during and in relation to a crime of

violence or a drug-trafficking crime, in violation of 18 U.S.C.

924(o); and possessing a firearm in furtherance of a crime of

violence or a drug-trafficking crime, in violation of 18 U.S.C.

924(c)(1)(A).

Section

Pet. App. A1, at 12; Superseding Indictment 1-6.

924(o)

criminalizes

offense under subsection (c).”

“conspir[ing]

18 U.S.C. 924(o).

commit

Section 924(c),

as relevant here, prescribes criminal penalties for “any person

who, during and in relation to any crime of violence or drug

trafficking crime[,]

* * *

uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm.”

18 U.S.C.

924(c)(1)(A).

Section 924(c)(3) defines a “crime of violence” as

a felony offense that “has as an element the use, attempted use,

or threatened use of physical force against the person or property

of another,” 18 U.S.C. 924(c)(3)(A), or that, “by its nature,

involves a substantial risk that physical force against the person

or property of another may be used in the course of committing the

offense,”

U.S.C.

924(c)(3)(B).

Section

924(c)(3)(A)

sometimes referred to as the “elements clause,” while Section

924(c)(3)(B) is referred to as the “residual clause.”

Petitioner proceeded to trial.

The district court instructed

the jury that to find petitioner guilty on the Section 924(o)

count, it could rely on any of the drug, Hobbs Act, or carjacking

offenses charged in the indictment as predicate crimes of violence

or drug-trafficking crimes, so long as it “‘unanimously agree[d]

upon the way in which [petitioner]’ violated [Section] 924(o).”

Pet. App. A1, at 19; see id. at 11, 12; Superseding Indictment 45.

The jury returned a general verdict of guilt on all counts

except the substantive violation of Section 924(c).

Pet. App. A1,

at 12.

The district court sentenced petitioner to a total of 360

months of imprisonment, to be followed by five years of supervised

release.

Judgment 3-4.

The court of appeals affirmed, 346 Fed.

Appx. at 529, and this Court denied a writ of certiorari, 561 U.S.

1018.

In 2011, petitioner filed a motion to vacate, set aside,

or correct his sentence pursuant to 28 U.S.C. 2255, alleging

ineffective assistance of counsel. 11-cv-21283 D. Ct. Doc. 1 (Apr.

11, 2011).

The district court denied the motion, 11-cv-21283

D. Ct. Doc. 12, and denied petitioner’s request for a COA, 11-cv21283 D. Ct. Doc. 22.

The court of appeals dismissed the appeal

for want of prosecution.

12-13189 C.A. Order (Nov. 19, 2012).

In 2013, petitioner filed an application for a writ of audita

querela

pursuant

indictment was invalid.

U.S.C.

1651(a),

asserting

13-cv-21801 D. Ct. Doc. 1.

that

the

The district

court denied the application, 13-cv-21801 D. Ct. Doc. 10, and

denied petitioner’s request for a COA, 13-cv-21801 D. Ct. Doc. 21.

The court of appeals similarly denied a COA, 14-10307 C.A. Order

(Aug. 21, 2014), and this Court denied a writ of certiorari, 574

U.S. 1176.

In 2015, petitioner moved for a sentence reduction pursuant

to 18 U.S.C. 3582(c)(2).

07-cr-20155 D. Ct. Doc. 348.

The

district court granted the motion, reducing petitioner’s sentence

to 324 months of imprisonment.

application

2255 motion.

2016,

for

the

leave

court

07-cr-20155 D. Ct. Doc. 352.

file

appeals

granted

petitioner’s

second-or-successive

16-14674 C.A. Order (Aug. 8, 2016).

Section

In his new

Section 2255 motion, petitioner argued for the first time that his

Section 924(o) conviction was invalid because the jury could have

relied on conspiracy to commit Hobbs Act robbery as the underlying

crime-of-violence

predicate

offense.

Pet.

App.

A1,

12.

Specifically, petitioner contended that following this Court’s

decision in Johnson v. United States, 576 U.S. 591 (2015), it was

clear that conspiracy to commit Hobbs Act robbery is not a “crime

of violence” under 18 U.S.C. 924(c)(3) and therefore could not

serve as the predicate offense for a violation of Section 924(o).

Pet. App. A1, at 12.

In Johnson, this Court invalidated on vagueness grounds the

“residual clause” of the Armed Career Criminal Act of 1984 (ACCA),

18 U.S.C. 924(e), which defines a sentence-enhancing “violent

felony” to include any crime punishable by a term of imprisonment

exceeding one year that “otherwise involves conduct that presents

a serious potential risk of physical injury to another.” 18 U.S.C.

924(e)(2)(B)(ii); see Johnson, 576 U.S. at 604-606; see also Welch

v. United States, 578 U.S. 120, 129-130 (2016) (holding that

Johnson announced a new rule with retroactive effect on collateral

review).

Petitioner contended that Johnson also should apply to

Section 924(c)(3)(B)’s definition of a “crime of violence” as an

offense “that by its nature, involves a substantial risk that

physical force against the person or property of another may be

used

the

course

committing

the

offense.”

U.S.C.

924(c)(3)(B).

The

motion.

district

court

Pet. App. A3.

denied

petitioner’s

new

Section

2255

It reasoned that Johnson did not apply to

Section 924(c), and Johnson thus did “not apply to [Section]

924(o), which is simply conspiracy to commit an offense under

[Section] 924(c).”

Id. at 4-5.

The court also found that even if

Johnson did apply to petitioner’s conviction, petitioner “failed

to meet his burden of proving entitlement to relief.”

Id. at 5.

The court explained that petitioner’s offenses other than Hobbs

Act conspiracy, including his two drug-trafficking crimes, were

valid predicates for his Section 924(o) conviction, and that

petitioner had not demonstrated any likelihood that the jury relied

solely on the Hobbs Act conspiracy count as a predicate offense.

Id. at 5-6.

The district court granted petitioner’s request for a COA.

Pet. App. A3, at 7.

Shortly thereafter, this Court held in United

States v. Davis, 139 S. Ct. 2319 (2019), that Section 924(c)(3)(B)

is unconstitutionally vague.

The

court

Id. at 2334, 2336.

appeals

affirmed

the

district

court’s

denial of petitioner’s motion, determining that petitioner had

procedurally defaulted his claim and that even if he could overcome

that default, his claim would fail on the merits.

Pet. App. A1.

The court of appeals recognized that this Court’s holding in

Davis “extended the reasoning of Johnson” and resolved “a question

central

[petitioner’s]

petition:

whether

the

[Section]

924(c)(3)(B) residual clause is unconstitutionally vague.”

App. A1, at 13.

Pet.

The court of appeals also recognized that

“conspiracy to commit Hobbs Act robbery[] is not a valid potential

predicate for [petitioner’s Section 924(o)] conviction,” because

it does not categorically require the use, attempted use, or

threatened use of physical force as necessary to be a predicate

under the elements clause in Section 924(c)(3)(A).

Id. at 14.

The court of appeals determined, however, that petitioner had

procedurally

defaulted

his

challenge

his

Section

924(o)

conviction by not raising it on direct appeal, and that he was

therefore required to “(1) show cause to excuse the default and

actual prejudice from the claimed error, or (2) show that he is

actually innocent of the [Section] 924(o) conviction,” before that

claim could be considered on collateral review.

15.

Pet. App. A1, at

And the court found that petitioner had not satisfied either

of those requirements.

Id. at 15-20.

The court of appeals recognized that a defendant has “cause”

to excuse a procedural default where a constitutional claim is “so

novel that its legal basis [was] not reasonably available to

counsel” at the time of direct appeal. Pet. App. A1, at 15 (quoting

Howard v. United States, 374 F.3d 1068, 1072 (11th Cir. 2004), in

turn quoting Reed v. Ross, 468 U.S. 1, 16 (1984)).

The court

observed that this Court’s decision in Reed v. Ross had identified

“three circumstances” in which novelty might provide cause for a

default, and reasoned that petitioner’s claim “fit[] most neatly”

into the third category, which provides cause “when a Supreme Court

decision disapproves of ‘a practice [the Supreme Court] arguably

has sanctioned in prior cases.’”

Ibid. (quoting Reed, 458 U.S. at

17) (brackets in original). And it noted that petitioner contended

he had demonstrated cause under that standard because, at the time

of his appeal, this Court’s precedent had “directly rejected the

argument that the ACCA’s residual clause was unconstitutionally

vague.”

Id. at 16 (citing James v. United States, 550 U.S. 192

(2007), overruled

Johnson

United

States,

576

U.S.

591

(2015)).

The court of appeals explained, however, that “James did not

consider the [Section] 924(c) residual clause,” which was held

unconstitutionally vague in Davis, “at all,” and that “[u]nlike

the Johnson ACCA decision” that overruled James, Davis “did not

overrule any prior Supreme Court precedents holding that the

[Section]

vague.”

924(c)

residual

clause

Pet. App. A1, at 16.

was

not

unconstitutionally

The court further explained that,

in any event, James indicated that Justices of this Court were

“interested in entertaining vagueness challenges” to the ACCA, and

observed that “other defendants did challenge the ACCA’s residual

clause on vagueness grounds after James.”

appeals

accordingly

reasoned

that

“if

Ibid.

James

did

The court of

not

deprive

litigants of the tools to challenge even the ACCA’s residual clause

on vagueness grounds, it surely did not deprive them of the tools

to challenge the [Section] 924(c) residual clause, a clause to

which James did not even apply.”

Ibid.

The court of appeals further determined that “the case law

extant at the time of [petitioner’s] appeal confirms that he did

not then lack the ‘building blocks of’ a due process vagueness

challenge to the [Section] 924(c) residual clause.”

Pet. App. A1,

at 16-17 (quoting United States v. Bane, 948 F.3d 1290, 1297 (11th

Cir. 2020)).

The court observed that “due process vagueness

challenges to criminal statutes were commonplace” at the time of

petitioner’s direct appeal, and that “litigants had for years

before [petitioner’s] appeal argued

* * *

that various other

provisions of [Section] 924(c) were unconstitutionally vague.”

Id. at 17.

The court therefore found that petitioner was unable

to show cause to excuse his procedural default, because the “tools

existed” to “support a

* * *

challenge to [Section 924(c)’s]

residual clause” at the time of petitioner’s direct appeal.

The

court

appeals

further

determined

that,

Ibid.

even

petitioner could show cause, “he still could not overcome the

procedural default of his vagueness claim” because he could not

show “actual prejudice” or “actual innocence.”

17-20.

Pet. App. A1, at

The court explained that, for petitioner to prevail, he

was required to “establish a substantial likelihood that the jury

relied only

the

conviction”

[conspiracy

predicate

for

commit

Hobbs

petitioner’s

Act

Section

robbery]

924(o)

conviction, because reliance on other counts -- including the drug

counts -- “would have provided a wholly independent, sufficient,

and legally valid basis to convict on [the Section 924(o) count].”

Id. at 17.

And the court determined that petitioner “[could not]

make this showing” because each of the predicate offenses “arose

from the same plan and attempt to commit armed robbery of a

tractor-trailer full of cocaine,” such that the “tightly bound

factual

relationship

the

predicate

offenses”

precluded

“a

substantial likelihood that the jury relied solely on [conspiracy

to commit Hobbs Act robbery] to predicate its conviction on [the

Section 924(o) count].”

Id. at 18, 20.

The court added that, for

similar reasons, petitioner could not demonstrate that he was

actually innocent of a Section 924(o) offense.

Finally,

the

court

appeals

Id. at 20.

determined

that

even

petitioner could overcome his procedural default, any error was

harmless, because even if the court were to “assume that the

overlap between the valid and invalid predicates did not bar

[petitioner’s]

claim

procedural

default

grounds,

problem would rear its head again on the merits.”

at 20; see id. at 20-23.

the

same

Pet. App. A1,

The court found “little doubt that if

the jury found that [petitioner] conspired to possess a firearm in

furtherance of his conspiracy to commit Hobbs Act robbery, it also

found that he conspired to possess a firearm in furtherance of the

other crime-of-violence and drug-trafficking predicates of which

the jury convicted him,” and thus the “invalid predicate” did not

have “a substantial influence in determining the jury’s verdict.”

Id. at 21.

And the court explained that “[t]he inextricability of

the alternative predicate crimes compels the conclusion that the

error [petitioner] complains about -- instructing the jury on a

constitutionally invalid predicate as one several of potential

alternative predicates -- was harmless.”

Id. at 20.

court

In 2020, while his appeal was still pending before the

appeals,

petitioner

obtained

leave

file

another

successive Section 2255 motion challenging his Section 924(o)

conviction under Davis, supra.

20-cv-22610 D. Ct. Doc. 1; 20-

12136 C.A. Order (July 1, 2020).

The district court ordered the

motion

held

abeyance

pending

the

resolution

petitioner’s petition for a writ of certiorari in this case.

20-

cv-22610 Docket entry No. 21.

ARGUMENT

Petitioner contends (Pet. 14-23) that he established cause

for the procedural default of his vagueness challenge to 18 U.S.C.

924(c)(3)(B).

contention,

The

which

court

does

appeals

correctly

not

implicate

any

rejected

circuit

that

conflict

warranting this Court’s review. Moreover, even if petitioner could

demonstrate cause, he cannot demonstrate (Pet. 24-36) that the

jury relied on an invalid predicate in finding him guilty on the

Section 924(o) count.

Accordingly, petitioner cannot establish

prejudice sufficient to overcome his default, and any error would

be harmless even if it were considered on the merits.

Further

review is therefore unwarranted.

Petitioner

does

not

dispute

that

procedurally

defaulted his vagueness claim by failing to raise it on direct

review.

See Pet. App. A1, at 15.

Nor does petitioner challenge

the court of appeals’ determination that he cannot show actual

innocence. See id. at 20. Petitioner accordingly does not dispute

that to pursue his claim on collateral review, he must therefore

demonstrate “cause” for his failure to raise the claim and “actual

prejudice” resulting from the constitutional error.

See ibid.;

Bousley v. United States, 523 U.S. 614, 622 (1998).

And as the

court of appeals correctly determined, petitioner’s claim fails at

the outset because he cannot show “cause” for his default.

This Court has explained that “cause” may exist where a

claim “[wa]s so novel that its legal basis [wa]s not reasonably

available to counsel,” such that counsel could not have been acting

based on “strategic motives of any sort” by failing to raise the

claim.

Reed v. Ross, 468 U.S. 1, 15-16 (1984).

“[T]he question

is not whether subsequent legal developments have made counsel’s

task [in raising a particular claim] easier, but whether at the

time of the default the claim was ‘available’ at all.”

Murray, 477 U.S. 527, 537 (1986).

Smith v.

To answer that question, this

Court has considered whether, at the time of the default, other

litigants

were

raising

similar

claims;

such

claims

were

repeatedly raised, then “it simply is not open to argument that

the legal basis of the claim petitioner now presses on federal

habeas was unavailable to counsel at the time.”

Ibid.; see

Bousley, 523 U.S. at 622-623 (rejecting a novelty-based “cause”

argument in part because the “Federal Reporters were replete with

cases” considering the purportedly “novel” claim “at the time”

petitioner should have raised it).

the

court

appeals

determined,

demonstrate “cause” under that standard.

dispute

that

“for

years

before

petitioner

cannot

Petitioner does not

[petitioner’s]

appeal,”

other

defendants had argued “that various other provisions of [Section]

924(c) were unconstitutionally vague.”

Pet. App. A1, at 17.

Even

though “few, if any” litigants had challenged Section 924(c)(3)(B)

specifically,

“due

statutes

commonplace,”

were

process

vagueness

challenges

ibid.,

and

case

criminal

“deprive[d]

[litigants] of the tools to challenge the [Section] 924(c) residual

clause,” id. at 16. Petitioner therefore had the “building blocks”

for a due process vagueness challenge to Section 924(c)(3)(B) at

the time of his direct appeal, id. at 17 (citation omitted), and

thus his claim was not “so novel that its legal basis [wa]s not

reasonably available to counsel,” Reed, 468 U.S. at 16.

And one

reason for counsel to have eschewed such a claim would have been

recognition

that

because

the

intertwined

nature

the

charges, it was implausible that instructions identifying only a

subset of the charges as valid Section 924(c) predicates would

make a difference to the jury’s resolution of the Section 924(o)

count.

Petitioner

errs

contending

(Pet.

12,

23)

that,

notwithstanding that the claim he forfeited was available at the

time of his direct appeal, he can nevertheless show “cause” for

his procedural default under this Court’s decision in Reed v. Ross.

In Reed, the Court stated that it had previously identified, for

purposes of novelty analysis, three circumstances “in which a ‘new’

constitutional rule, representing ‘a clear break with the past’

might emerge from this Court”:

“First, a decision of this Court

may explicitly overrule one of our precedents”; “[s]econd, a

decision may ‘overtur[n] a longstanding and widespread practice to

which this Court has not spoken, but which a near-unanimous body

of lower court authority has expressly approved’”; and third, a

decision may “‘disapprov[e] [of] a practice this Court arguably

has sanctioned in prior cases.’”

468 U.S. at 17 (quoting United

States v. Johnson, 457 U.S. 537, 549, 551 (1982)) (second and third

sets of brackets in original).

This Court’s discussion of those

three circumstances in Reed does not benefit petitioner here.

As the court of appeals recognized (Pet. App. A1, at 16),

petitioner’s “claim fits most neatly into th[e] third category,”

which is also the only category that was directly at issue in Reed

itself, see Reed, 468 U.S. at 18 (“This case is covered by the

third category.”).

The Court in Reed observed that claims of

“cause” premised on the Court’s mere “disapprov[al] [of] a practice

[it] arguably has sanctioned in prior cases” necessarily will

“depend[] on how direct this Court’s sanction of the prevailing

practice had been, how well entrenched the practice was in the

relevant jurisdiction at the time of defense counsel’s failure to

challenge it, and how strong the available support is from sources

opposing

omitted).

the

prevailing

practice.”

Id.

17-18

(citation

And this Court determined that the defendant in Reed

had established cause under that standard where he failed to object

to North Carolina jury instructions supported by “over a century”

of state court decisions, “arguably sanctioned” by this Court, id.

at 18; no defendant in North Carolina had ever challenged the

instructions at the time of the defendant’s trial and initial

appeal, ibid.; only two cases elsewhere in the country (a federal

case from the Eighth Circuit and a state case from Connecticut)

had provided even “indirect support” for the defendant’s claim,

id. at 19; and the relevant substantive decisions of this Court

were part of a jurisprudence that started several years later and

expanded over time, id. at 3-5, 19-20.

As the court of appeals explained, petitioner’s claims of

novelty are weaker than those at issue in Reed in multiple,

significant respects. Pet. App. A1, at 16. This Court’s decisions

concerning the constitutionality of the ACCA’s residual clause

indicated that multiple Justices were “interested in entertaining

vagueness

challenges”

the

ACCA;

longstanding

vagueness

principles already provided all the necessary “‘building blocks’”

for petitioner’s claim; and “other defendants did challenge the

ACCA’s residual clause,” as well as provisions of Section 924(c),

on vagueness grounds.

Ibid. (emphasis added; citation omitted).

Given that backdrop, the court of appeals correctly recognized

(id. at 16-17) that, unlike in Reed, petitioner could not establish

he lacked any “‘reasonable basis’ upon which to develop a legal

theory” unless and until this Court issued decisions “so novel” as

to provide one.

Reed, 468 U.S. at 16-17.

Petitioner likewise cannot establish cause by relying on the

other two categories discussed (but not applied) in Reed.

As an

initial matter, Reed based its discussion of those categories on

this

Court’s

determined

decision

that

in United

new

States

constitutional

rule

Johnson,

which

does

apply

not

retroactively, even to cases on direct review, if the new rule

represented a “clear break with the past.”

457 U.S. at 549

(citation omitted); see Reed, 468 U.S. at 17.

But after Reed,

this Court overruled that aspect of United States v. Johnson in

Griffith v. Kentucky, 479 U.S. 314, 325-326 (1987).

The Court

does not appear to have relied on Reed’s dicta about the first two

categories derived from Johnson since that time.

even if those categories retain significance,

In any event,

petitioner cannot

show “cause” under either of them.

Reed’s first category addressed the circumstance in which “a

decision of this Court

precedents.”

* * *

explicitly overrule[s] one of [its]

468 U.S. at 17 (citation omitted).

But as the court

of appeals recognized here, although this Court’s decision in

Johnson v. United States, 576 U.S. 591 (2015), overruled precedent

that foreclosed vagueness challenges to the ACCA’s residual clause

in 18 U.S.C. 924(e)(2)(B)(ii), no precedent of this Court directly

addressed petitioner’s vagueness challenge to Section 924(c)(3)(B)

at the time of his direct appeal.

See Pet. App. A1, at 16.

Accepting

petitioner’s

current

vagueness

argument

accordingly

would not have required this Court to “explicitly overrule one of

[its] precedents.”

Petitioner

Reed, 468 U.S. at 17.

does

not

contend

otherwise,

instead

asserting

(Pet. 14) only that Johnson was a “marked break” in the law.

But

that assertion is insufficient to establish cause for his default.

A movant seeking to show novelty under Reed must show not only

that “the new rule was a sufficiently clear break with the past,”

but also that “an attorney representing [the movant] would not

reasonably have had the tools for presenting the claim.”

Pet.

App. A1, at 16 (citation and internal quotation marks omitted).

And

discussed

above,

petitioner’s

vagueness

challenge

was

“reasonably available to counsel” at the time of his default, Reed,

468 U.S. at 16, because “due process vagueness challenges to

criminal statutes were commonplace” and the “tools existed” to

“support a

* * *

challenge” to Section 924(c)(3)(B).

Pet. App.

A1, at 17; see Bousley, 523 U.S. at 622.

Petitioner similarly cannot show cause under Reed’s second

category, which would be applicable only if a new decision of this

Court “overtur[ned] a longstanding and widespread practice to

which this Court ha[d] not spoken, but which a near-unanimous body

of lower court authority ha[d] expressly approved.”

(quoting Reed, 468 U.S. at 17); see Pet. 17-23.

Pet. 16

As the court of

appeals recognized, and petitioner does not dispute, “few courts,

if any, had addressed a vagueness challenge to the [Section] 924(c)

residual clause before the conclusion of [petitioner’s] direct

appeal.”

Pet.

App.

A1,

17.

There

was

accordingly

“widespread” and “near-unanimous body” of precedent “expressly”

rejecting the particular vagueness claim that petitioner now seeks

to advance.

Reed, 468 U.S. at 17 (citation omitted).

And even

assuming that the Eleventh Circuit would have concluded that

petitioner’s challenge was foreclosed by circuit precedent at the

time of petitioner’s direct appeal, this Court has held that

“futility cannot constitute cause if it means simply that a claim

was ‘unacceptable to that particular court at that particular

time.’”

Bousley, 523 U.S. at 623 (citation omitted); see Smith,

477 U.S. at 535 (emphasizing that “perceived futility alone cannot

constitute cause”) (citation omitted).

Petitioner contends (Pet. 16-23) that the circuits are

divided over whether a claim of the sort raised in his successive

Section 2255 motion is sufficiently novel to demonstrate cause to

excuse

procedural

default.

This

Court

has

recently

repeatedly declined to review that purported conflict.

and

See, e.g.,

Blackwell v. United States, 142 S. Ct. 139 (2021) (No. 20-8016);

Gatewood v. United States, 141 S. Ct. 2798 (2021) (No. 20-1233).

The same result is appropriate here.

Two of the cases on which petitioner relies pre-date the

invalidation of Section 924(c)(3)(B) in United States v. Davis,

139 S. Ct. 2319 (2019).

They instead address distinct challenges

to the ACCA’s residual clause under Johnson, or to mandatory

sentences imposed under the federal Sentencing Guidelines before

United States v. Booker, 543 U.S. 220 (2005).

States,

892

F.3d

288,

295-296

(7th

Cir.

See Cross v. United

2018)

(mandatory

Guidelines); United States v. Snyder, 871 F.3d 1122, 1127 (10th

Cir. 2017) (ACCA), cert. denied, 138 S. Ct. 1696 (2018).

Those

cases therefore do not address whether the reasoning in Davis was

sufficiently novel to excuse the procedural default of a claim

that Section 924(c)(3)(B) was unconstitutionally vague -- the

issue that the court of appeals considered in its decision here.

Petitioner’s reliance on Gatewood v. United States, 979 F.3d

391 (6th Cir. 2020), cert. denied, 141 S. Ct. 2798 (2021), is

likewise misplaced.

Gatewood concerned a federal prisoner’s claim

that this Court’s decision in James v. United States, 550 U.S. 192

(2007), which declined to hold that the ACCA’s residual clause was

unconstitutionally

vague,

had

also

foreclosed

vagueness

challenge to the definition of a “serious violent felony” in the

federal

three-strikes

statute,

Gatewood, 979 F.3d at 397-398.

U.S.C.

3559(c)(2)(F)(ii).

The court of appeals determined

that the defendant’s claim failed at the outset because his direct

appeal occurred before James was decided, and therefore this Court

“had not yet foreclosed” even an ACCA vagueness challenge “at the

time of default,” let alone a vagueness challenge to Section

3559(c)(2)(F)(ii).

Id. at 398.

In light of that holding, the

court determined that it “need not decide whether James’ rejection

of a vagueness challenge to the ACCA foreclosed the argument” that

the distinct definition of a “serious violent felony” in the threestrikes

statute

was

likewise

“unconstitutionally

procedural-default purposes.”

Id. at 397 n.3.

address

any

question

the

vague

for

Nor did the Court

invalidation

Section

924(c)(3)(B) in Davis.

Section

Petitioner

924(o)

further

conviction

contends

rests

(Pet.

the

24-36)

predicate

that

his

offense

conspiracy to commit Hobbs Act robbery, which no longer qualifies

as a “crime of violence” following Davis.

That contention would

be relevant only if petitioner could, in fact, demonstrate cause

for his procedural default. But even if he could, petitioner would

not

entitled

relief

because,

the

court

appeals

explained, the absence of any likelihood that the jury relied

solely on an invalid predicate for his Section 924(o) offense

precludes petitioner from showing either the “prejudice” component

of overcoming a procedural default or that the error would warrant

relief on the merits.

Pet. App. A1, at 17-23.

establish

“prejudice”

sufficient

overcome

procedural default, a defendant must show “actual prejudice” from

the alleged error.

United States v. Frady, 456 U.S. 152, 168

(1982) (emphasis added).

That standard requires a defendant to

prove “not merely that the errors at

* * *

trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.”

Id. at 170; see Murray v. Carrier,

477 U.S. 478, 494 (1986).

It imposes “a significantly higher

hurdle” than would exist had the defendant preserved his claim for

review on direct appeal.

Frady, 456 U.S. at 166; see Murray, 477

U.S. at 493-494 (explaining that “[t]he showing of prejudice”

necessary to excuse a procedural default also is

“significantly

greater” than that required for an unpreserved claim reviewed for

plain error).

As the court of appeals correctly determined, petitioner

cannot make that showing here.

See Pet. App. A1, at 17-20.

Petitioner’s claim of error depends on the argument that his

conviction for conspiring to use or carry a firearm during and in

relation to a crime of violence or drug-trafficking offense, in

violation of 18 U.S.C. 924(o), must be vacated because the jury

relied on an invalid underlying predicate offense -- conspiracy to

commit Hobbs Act robbery -- in returning a general verdict.

24-36.

Pet.

Petitioner’s charge, however, was premised on several

alternative predicate offenses.

petitioner

does

not

dispute

Superseding Indictment 4-5.

that

two

those

offenses

And

conspiracy to possess cocaine with the intent to distribute it, in

violation of 21 U.S.C. 846, and attempting to possess cocaine with

the intent to distribute it, in violation of 21 U.S.C. 841(a)(1)

and 846, and 21 U.S.C. 841(b)(1)(A) (2006) -- qualify as predicate

“drug trafficking crime[s]” under 18 U.S.C. 924(c)(2), and thus

would support his Section 924(o) conviction irrespective of the

application

the

statute’s

alternative

“crime

violence”

definition.

See ibid. (defining drug-trafficking crime to include

“any felony punishable under the Controlled Substances Act (21

U.S.C. 801 et seq.)”). 1

As the court of appeals explained, petitioner’s drug offenses

“arose from the same plan and attempt to commit armed robbery of

tractor-trailer

offenses.

full

cocaine”

Pet. App. A1, at 20.

petitioner’s

As a result, “the alternative

predicate offenses [were] inextricably intertwined.”

that

“tightly

bound

factual

robbery

relationship

the

Ibid.

And

predicate

offenses” forecloses any logical possibility -- much less an actual

and substantial probability -- that the jury’s verdict on the

Section 924(o) count rested solely on an invalid predicate.

Ibid.

Accordingly, petitioner cannot show that any error relating to the

specification of the alternative predicate offenses “worked to his

actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions.”

Frady, 456 U.S. at 170.

For similar reasons, any error would be harmless even if

considered on the merits.

See Pet. App. A1, at 20 (explaining

that, even if “the overlap between the valid and invalid predicates

did not bar [petitioner’s] claim on procedural default grounds,

the same problem would rear its head again on the merits”).

When

Petitioner’s other predicate offenses were attempted

Hobbs Act robbery and attempted carjacking. This Court has granted

a writ of certiorari in United States v. Taylor, No. 20-1459

(argued Dec. 7, 2021), to consider whether attempted Hobbs Act

robbery qualifies as a crime of violence. In light of petitioner’s

drug-trafficking predicates, however, no reason exists to hold

this case for the decision in Taylor.

jury instructions permit conviction on alternative theories of

guilt, one of which is legally invalid, the error is subject to

harmless-error review.

Skilling v. United States, 561 U.S. 358,

414 (2010); Hedgpeth v. Pulido, 555 U.S. 57, 60-62 (2008) (per

curiam); see Fed. R. Crim. P. 52(a).

This Court has viewed that

type of error as akin to the instructional error in Neder v. United

States, 527 U.S. 1 (1999), in which the trial court failed to

instruct the jury on an element of the offense.

U.S. at 60-61.

See Hedgpeth, 555

On collateral review, such an error is deemed

nonprejudicial if it did not have a “substantial and injurious

effect or influence in determining the jury’s verdict.”

Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted).

As explained, the court of appeals correctly determined that

“[petitioner’s]

conspiracy

commit

Hobbs

Act

robbery

was

inextricably intertwined with the other predicate offenses,” and

found “little doubt that if the jury found that [petitioner]

conspired to possess a firearm in furtherance of his conspiracy to

commit Hobbs Act robbery, it also found that he conspired to

possess a firearm in furtherance of the other crime-of-violence

and drug-trafficking predicates of which the jury convicted him.”

Pet. App. A1, at 21.

This case accordingly presents “no grave

doubt about whether the inclusion of the invalid predicate had a

substantial influence in determining the jury’s verdict.”

Ibid.

Petitioner contends (Pet. 33-34) that the court of appeals’

harmlessness

alternative

merits

determination

“directly

contravenes” decisions of this this Court requiring vacatur “where

valid

and

invalid

intertwined.”

theories

offense

are

factually

But this Court has expressly rejected the notion

that a conviction based on a general verdict must be set aside

based on the mere possibility that the jury may have relied on an

invalid theory of guilt.

Hedgpeth, 555 U.S. at 61-62.

Petitioner

relies principally on Stromberg v. California, 283 U.S. 359 (1931),

which set aside a “general verdict on a single-count indictment or

information” where it “rested on both a constitutional and an

unconstitutional ground,”

Zant v. Stephens, 462 U.S. 862, 881-

882 (1983), on the premise that such a situation involved an

“unacceptable danger that the trier of fact will have regarded the

two acts as ‘intertwined’ and have rested the conviction on both

together.”

Street v. New York, 394 U.S. 576, 588 (1969); see

Stromberg, 283 U.S. at 367-368.

This Court has made clear,

however, that Stromberg would “appl[y] only in cases in which the

State has based its prosecution, at least in part, on a charge

that constitutionally protected activity is unlawful.”

U.S. at 883-884 (emphasis added).

Hobbs

Act

conspiracy

protected’ conduct.”

Petitioner

Zant, 462

And as petitioner acknowledges,

“obviously

not

asserts

(Pet.

‘constitutionally

Pet. 34.

additionally

30-32)

that

the

circuits are in “disarray” over the proper standard of prejudice

review where a jury has been instructed on both valid and invalid

theories of guilt.

In particular, he contends that a conflict

exists

over

approach”

the

circuits’

assess

whether

application

jury’s

the

reliance

“categorical

invalid

predicate for a Section 924(c) conviction was harmless.

Ibid.

Petitioner misapprehends the categorical approach, which is an

analytical methodology that assists courts in assessing whether a

given predicate offense meets a federal legal definition of a type

of offense, such as a “crime of violence” or a “violent felony.”

See generally Shular v. United States, 140 S. Ct. 779, 783 (2020)

(citing Taylor v. United States, 495 U.S. 575, 600 (1990); Mathis

v. United States, 136 S. Ct. 2243, 2251 (2016)).

As the court of

appeals observed (Pet. App. A1, at 22), petitioner “cites no

authority that justifies extending the categorical approach -- a

method for determining whether a conviction under a particular

statute

qualifies

predicate

offense

under

particular

definitional clause -- to the context of determining on which of

several alternative predicates a jury’s general verdict relied.”

Petitioner contends (Pet. 31-32) that the court of appeals’

decision conflicts with three decisions from other circuits, but

none of the decisions on which he relies “assume[s] that the jury

rested its conclusion on the least culpable of the alternative

offenses,” as petitioner urged the court below to do.

A1, at 22.

Pet. App.

Instead, in each case, the court properly examined

case-specific circumstances to determine whether the challenged

errors were prejudicial.

75,

84-85

(2d

Cir.

See United States v. Heyward, 3 F.4th

2021)

(finding,

based

“specific

circumstances,” including that the invalid predicate “was not

inextricably intertwined with the drug conspiracy conduct,” that

defendant’s “[Section] 924(c) conviction may very well have been

premised

unconstitutionally

vague

provision

that

statute”); United States v. Jones, 935 F.3d 266, 273 (5th Cir.

2019) (per curiam) (finding a “reasonable probability

* * *

that

the jury relied upon [the invalid predicate] RICO conduct separate

from the drug conspiracy

* * *

to convict [a]ppellants of the

challenged [Section] 924 offenses”); United States v. McClaren, 13

F.4th 386, 413-414 (5th Cir. 2021) (concluding that vacatur was

warranted where court was unable to determine whether jury likely

relied on valid or invalid predicate under Section 924(c)).

Those factbound decisions do not conflict with the decision

below, much less require courts to apply the categorical approach

in the manner that petitioner suggests. This Court recently denied

review of a similar claim, see Ali v. United States, No. 21-482

(Nov. 15, 2021), and should follow the same course here. 2

To the extent petitioner suggests (Pet. 36) that his

indictment was duplicitous, he relinquished that claim by not

raising it prior to trial. See Fed. R. Crim. P. 12(b)(3)(B)(i)

(requiring defendants to challenge before trial “a defect in the

indictment or information, including * * * joining two or more

offenses in the same count (duplicity)”).

Petitioner also

procedurally defaulted any such claim by failing to raise it on

direct appeal, providing an additional reason not to consider it

on collateral review. See Bousley, 523 U.S. at 621.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

TYLER ANNE LEE

Attorney

FEBRUARY 2022

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