Opposition Brief — Nadarius Barnes, Petitioner v. United States

No. 25-936

In the Supreme Court of the United States

NADARIUS BARNES, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

A. TYSEN DUVA

Assistant Attorney General

JAVIER A. SINHA

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether petitioner is entitled to claim on appeal that

his conduct did not violate 18 U.S.C. 924(c), notwithstanding his unconditional guilty plea to a violation of

Section 924(c).

(I)

PARTIES TO THE PROCEEDING

Petitioner (defendant-appellant below) is Nadarius

Barnes.

Respondent (plaintiff-appellee below) is the United

States.

ADDITIONAL RELATED PROCEEDING

United States Court of Appeals (10th Cir.):

United States v. Butler, No. 24-3067 (June 26,

2025)

(II)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 15

TABLE OF AUTHORITIES

Cases:

Aquart v. United States, 145 S. Ct. 1071 (2025) .............. 6

Blackledge v. Perry, 417 U.S. 21 (1974) ........................... 7

Borden v. United States, 593 U.S. 420 (2021) ................. 3, 14

Brady v. United States, 397 U.S. 742 (1970) .................... 6

Class v. United States, 583 U.S. 174 (2018) .............. 5, 7-9

Grzegorczyk v. United States:

997 F.3d 743 (7th Cir. 2021),

cert. denied, 142 S. Ct. 2580 (2022) ........................ 5, 7

142 S. Ct. 2580 (2022) ........................................................ 8

Jackson v. United States, 142 S. Ct. 513 (2021) ............... 6

Malik v. United States, 589 U.S. 1210 (2020) .................. 6

Masilotti v. United States, 574 U.S. 1078 (2015) ............. 6

Menna v. New York, 423 U.S. 61 (1975) ........................... 7

Morrison v. National Austl. Bank Ltd.,

561 U.S. 247 (2010) ......................................................... 9

Newman v. United States, 145 S. Ct. 163 (2024) ................ 15

Ricketts v. Adamson, 483 U.S. 1 (1987) ......................... 10

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ........................................................... 8

Stewart v. United States, 538 U.S. 908 (2003) ................. 6

Supervisors v. Stanley, 105 U.S. 305 (1882) ....................... 14

Tollett v. Henderson, 411 U.S. 258 (1973) ........................ 6

(III)

IV

Cases—Continued:

Page

United States v. Al Hedaithy,

392 F.3d 580 (3d Cir. 2004), cert. denied,

544 U.S. 978 (2005).............................................................. 12

United States v. Broce, 488 U.S. 563 (1989) .................. 6-9

United States v. Brown,

752 F.3d 1344 (11th Cir. 2014) ........................................... 14

United States v. Brown,

875 F.3d 1235 (9th Cir. 2017) ............................................. 13

United States v. Butler,

141 F.4th 1136 (10th Cir. 2025), cert. denied,

No. 25-863 (Feb. 23, 2026) ............................................ 14, 15

United States v. Cothran,

302 F.3d 279 (5th Cir. 2002) ......................................... 13, 14

United States v. Cotton, 535 U.S. 625 (2002) ........... 5, 6, 8-10

United States v. De Vaughn:

694 F.3d 1141 (10th Cir. 2012),

cert. denied, 569 U.S. 976 (2013) ...................... 5, 8, 11

569 U.S. 976 (2013) ............................................................ 6

United States v. Delgado-Garcia,

374 F.3d 1337 (D.C. Cir. 2004),

cert. denied, 544 U.S. 950 (2005) ....................................... 11

United States v. George,

676 F.3d 249 (1st Cir. 2012) ......................................... 11, 12

United States v. Gonzalez-Mercado,

402 F.3d 294 (1st Cir. 2005) ............................................... 11

United States v. Jones,

75 F.4th 502 (5th Cir.), cert. denied,

144 S. Ct. 515 (2023) ........................................................... 13

United States v. Kendall,

876 F.3d 1264 (10th Cir. 2017), cert. denied,

584 U.S. 945 (2018).......................................................... 3, 15

United States v. Meacham,

626 F.2d 503 (5th Cir. 1980) ............................................... 14

V

Cases—Continued:

Page

United States v. Muresanu,

951 F.3d 833 (7th Cir. 2020) ............................................... 11

United States v. Peter,

310 F.3d 709 (11th Cir. 2002) ....................................... 13, 14

United States v. Pittman,

125 F.4th 527 (4th Cir. 2025) ............................................... 5

United States v. Porter, 933 F.3d 226 (3d Cir. 2019) ......... 12

United States v. Reasor, 418 F.3d 466 (5th Cir. 2005) ....... 13

United States v. Rosa-Ortiz,

348 F.3d 33 (1st Cir. 2003) ................................................. 11

United States v. Rubin, 743 F.3d 31 (2d Cir. 2014) ........... 11

United States v. Scruggs:

714 F.3d 258 (5th Cir.),

cert. denied, 571 U.S. 889 (2013) ........................ 11, 13

571 U.S. 889 (2013) ............................................................ 6

United States v. St. Hubert,

909 F.3d 335 (11th Cir. 2018), cert. denied,

586 U.S. 1256 (2019), and 509 U.S. 985 (2020),

abrogated on other grounds by United States v.

Taylor, 596 U.S. 845 (2022) .......................................... 13, 14

United States v. Torres, No. 24-1042,

2025 WL 1275773 (3d Cir. May 2, 2025) ........................... 12

United States v. Turner,

94 F.4th 739 (8th Cir.), cert. denied,

145 S. Ct. 216 (2024) ........................................................... 11

United States v. Velasco-Medina,

305 F.3d 839 (9th Cir. 2002), cert. denied,

540 U.S. 1210 (2004)............................................................ 11

Vanwinkle v. United States,

645 F.3d 365 (6th Cir. 2011) ............................................... 11

Statutes, rules, and guidelines:

18 U.S.C. 2 ............................................................................ 2, 3

VI

Statutes, rules, and guidelines—Continued:

Page

18 U.S.C. 111 .......................................................................... 15

18 U.S.C. 111(a)(1) ............................................................... 1, 3

18 U.S.C. 111(b) ................................................1, 3, 4, 8, 14, 15

18 U.S.C. 924(c)..................................................... 3-6, 8, 14, 15

18 U.S.C. 924(c)(1)(A)(iii) .................................................... 2, 3

18 U.S.C. 924(c)(3)(A).............................................................. 3

Fed. R. Crim. P:

Rule 11(a)(2) ..................................................................... 10

Rule 12(b)(3)(B) (2000).................................................... 12

Rule 12 advisory committee’s note

(2014 Amendment) .................................................... 12

United States Sentencing Guidelines

§ 3E1.1, comment. (n.2) ...................................................... 10

In the Supreme Court of the United States

No. 25-936

NADARIUS BARNES, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-12a)

is reported at 141 F.4th 1156.

JURISDICTION

The judgment of the court of appeals was entered on

June 25, 2025. A petition for rehearing was denied on

October 7, 2025 (Pet. App. 13a). On November 20, 2025,

Justice Gorsuch extended the time within which to file

a petition for a writ of certiorari to and including February 4, 2026, and the petition was filed on that date.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the District of Kansas, petitioner was convicted

on one count of forcibly assaulting a federal officer, in violation of 18 U.S.C. 111(a)(1) and (b), and one count of

(1)

2

discharging a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. 924(c)(1)(A)(iii) and 2.

Pet. App. 14a-15a. The district court sentenced petitioner to 156 months of imprisonment, to be followed by

five years of supervised release. Id. at 16a-17a. The

court of appeals affirmed. Id. at 1a-12a.

1. On August 3, 2020, Kansas City police officers responded to a drive-by shooting at the Kansas City, Kansas, home of two brothers, G’Ante and Zarion Butler.

Pet. App. 2a. The brothers were affiliated with a gang

called the “Tasha Gang”; another Tasha Gang affiliate

was injured during the shooting. Ibid. Law enforcement identified the suspected shooter as Isaiah Shields,

who was a member of the rival “BBUx2 Gang.” Ibid.

That evening, several Kansas City officers and federal

agents drove to Shields’s home, where they took Shields

into custody and then executed a search warrant on the

home. Ibid.

At 11:20 p.m. that night, while exiting Shields’s residence, the officers were fired upon by multiple shooters

from an alley west of the home. Pet. App. 2a. One federal agent was struck in his hand by a bullet, and a civilian was shot and injured in both hands. Ibid. Police

vehicles and nearby homes were also damaged by the

gunfire. Ibid. Over 100 shell casings were found in the

nearby alley. Id. at 3a.

Officers suspected that five individuals associated

with the Tasha Gang, including petitioner, were responsible for the shooting at Shields’s house, which they

believed to have been in retaliation for the BBUx2

Gang’s earlier shooting at the Butler home. Pet. App.

3a. Zarion Butler was later arrested in connection with

the shooting. Ibid. After receiving Miranda warnings,

3

Butler confirmed that petitioner was among the Tasha

Gang members who carried out the shooting. Ibid.

2. A federal grand jury in the District of Kansas returned an indictment charging petitioner with forcibly

assaulting a federal officer, in violation of 18 U.S.C.

111(a)(1), 111(b), and 2, and discharging a firearm during and in relation to a crime of violence, in violation of

18 U.S.C. 924(c)(1)(A)(iii) and 2. C.A. ROA 43-44.

Petitioner and his codefendants moved to dismiss the

Section 924(c) charge on the theory that it failed to state

an offense. C.A. ROA 48-59. They argued that the offense of forcibly assaulting an officer under 18 U.S.C.

111(b) is not a “crime of violence” for purposes of Section 924(c) because it does not have “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); see C.A. ROA 49, 55-57. They acknowledged that the Tenth Circuit had “held that § 111(b) is

a crime of violence” in United States v. Kendall, 876

F.3d 1264, 1271 (10th Cir. 2017), cert. denied, 584 U.S.

945 (2018). C.A. ROA 48. But they contended that

“Kendall does not survive” this Court’s decision in Borden v. United States, 593 U.S. 420 (2021). C.A. ROA 48.

The district court denied the motion, explaining that

Borden “has no bearing on Kendall.” C.A. ROA 186;

see id. at 183-188. The court recognized that, under

Borden, “offenses with a minimum mens rea of ordinary

recklessness do not have as an element the ‘use, attempted use, or threatened use of physical force against

the person of another,’ ” and thus do not qualify as

crimes of violence under Section 924(c). Ibid. (citation

omitted). But the court observed that Borden is inapposite to Section 111(b) because the Section 111(b) of-

4

fense “cannot be committed with a mens rea of ordinary

recklessness.” Id. at 187.

3. Petitioner unconditionally pleaded guilty to both

counts of the indictment without a plea agreement. Pet.

App. 14a; see 1 C.A. Supp. ROA 4-10. During his plea

colloquy, petitioner stated that he had been provided

with a copy of the indictment, understood the charges

against him, had reviewed those charges with his attorney, and had voluntarily agreed to plead guilty. 2 C.A.

Supp. ROA 6-7. The district court explained to petitioner that the Section 924(c) count identified forcible

assault on federal officers as the predicate crime of violence and asked petitioner whether he “in fact” violated

Section 924(c). Id. at 19; see id. at 18-19. Petitioner

responded in the affirmative. Id. at 19.

The district court found that petitioner’s plea was

“knowingly and voluntarily made and supported by an

independent basis in fact,” and accepted petitioner’s unconditional guilty plea. 2 C.A. Supp. ROA 21. The court

sentenced petitioner to 156 months of imprisonment, to

be followed by five years of supervised release. Pet.

App. 16a-17a.

4. The court of appeals affirmed. Pet. App. 1a-12a.

On appeal, petitioner reraised his theory, which the district court had rejected prior to his entry of a guilty plea

to a Section 924(c) offense, that a Section 111(b) offense

is not a crime of violence under Borden and so he did

not violate Section 924(c). The court of appeals observed that petitioner’s unconditional guilty plea had

relinquished his challenge to his Section 924(c) conviction. Id. at 6a-9a.

The court of appeals explained that “[i]t is wellestablished that ‘a voluntary and unconditional guilty

plea waives all non-jurisdictional defenses.’ ” Pet. App.

5

6a (quoting United States v. De Vaughn, 694 F.3d 1141,

1145 (10th Cir. 2012), cert. denied, 569 U.S. 976 (2013)).

The court noted that “[t]here are a few narrow exceptions for constitutional claims including ‘due process

claims for vindictive prosecution and double jeopardy

claims that are evident from the face of the indictment’ ”

and “challenges asserting that the statute of conviction

is unconstitutional.” Id. at 7a (quoting De Vaughn, 694

F.3d at 1146; citing Class v. United States, 583 U.S.

174, 181-183 (2018)). But the court observed that petitioner’s challenge to his Section 924(c) conviction was “a

statutory interpretation argument” that did “not fall

into any of these categories.” Id. at 7a-8a.

The court of appeals acknowledged that in earlier decisions, it had reasoned that a guilty plea does not preclude claims that the admitted conduct does not constitute the admitted crime, on the premise that such challenges are “jurisdictional in nature.” Pet. App. 7a (citing cases). But the court observed that it had abandoned that approach after this Court’s decision in

United States v. Cotton, 535 U.S. 625, 630 (2002), which

held that “indictment defects are not jurisdictional because they ‘do not deprive a court of its power to adjudicate a case.’ ” Pet. App. 8a (quoting Cotton, 535 U.S.

at 630); see De Vaughn, 694 F.3d at 1149 n.4. The court

noted that the Fourth and Seventh Circuits had also

“recently held that unconditional guilty pleas waive

similar challenges to convictions.” Pet. App. 8a (citing

Grzegorczyk v. United States, 997 F.3d 743, 745-748

(7th Cir. 2021), cert. denied, 142 S. Ct. 2580 (2022);

United States v. Pittman, 125 F.4th 527, 530-531 (4th

Cir. 2025)).

6

ARGUMENT

Petitioner contends (Pet. 12-23) that he is entitled to

challenge his conviction under 18 U.S.C. 924(c) notwithstanding his unconditional guilty plea. This Court has

repeatedly denied review of other petitions that, like

this one, allege a conflict involving the application of

this Court’s decision in United States v. Cotton, 535 U.S.

625 (2002). See, e.g., Aquart v. United States, 145 S. Ct.

1071 (2025) (No. 24-5754); Jackson v. United States, 142

S. Ct. 513 (2021) (No. 21-6034); Malik v. United States,

589 U.S. 1210 (2020) (No. 19-6087); Masilotti v. United

States, 574 U.S. 1078 (2015) (No. 14-565); Scruggs v.

United States, 571 U.S. 889 (2013) (No. 13-206); De

Vaughn v. United States, 569 U.S. 976 (2013) (No. 127537); Stewart v. United States, 538 U.S. 908 (2003) (No.

02-1165). The Court should follow the same course here.

1. a. An unconditional guilty plea, by its nature,

forecloses inquiry into the merits of most claims challenging a defendant’s conviction. That is because a plea

“ ‘is more than a confession which admits that the accused did various acts.’ It is an ‘admission that he committed the crime charged against him.’ ” United States

v. Broce, 488 U.S. 563, 570 (1989) (citations omitted); see

Brady v. United States, 397 U.S. 742, 748 (1970) (“[T]he

plea is more than an admission of past conduct; it is the

defendant’s consent that judgment of conviction may be

entered without a trial.”). By voluntarily choosing to

plead guilty, a defendant relinquishes his right to litigate most of the “possible defenses” that he might have

otherwise pursued at trial or on appeal. See Tollett v.

Henderson, 411 U.S. 258, 268 (1973).

This Court has recognized only narrow exceptions to

that general principle for certain claims that “would ex-

7

tinguish the government’s power to ‘constitutionally

prosecute’ the defendant if the claim were successful.”

Class v. United States, 583 U.S. 174, 183 (2018) (quoting

Broce, 488 U.S. at 575). In Blackledge v. Perry, 417 U.S.

21 (1974), the Court held that defendants who pleaded

guilty could nevertheless challenge their convictions

based on preplea claims of unconstitutionally vindictive

prosecution. Id. at 30. In Menna v. New York, 423 U.S.

61 (1975) (per curiam), the Court held that a doublejeopardy claim could likewise go forward. Id. at 63.

And most recently, in Class, this Court held that a defendant’s guilty plea does not inherently preclude a

challenge to the constitutionality of the statute of conviction. 583 U.S. at 181.

A claim that a defendant’s offense conduct is not covered by his statute of conviction does not fall within that

narrow category of exceptions. Such a claim is grounded

in “statutory construction,” not “constitutional immunity from prosecution.” Grzegorczyk v. United States,

997 F.3d 743, 748 (7th Cir. 2021), cert. denied, 142 S. Ct.

2580 (2022). Accordingly, a claim that the statute of

conviction should not be interpreted to cover particular

conduct does not go to “the government’s power to ‘constitutionally prosecute’ the defendant.” Class, 583 U.S.

at 183 (citation omitted). To the contrary, a defendant

who claims that his statute of conviction does not cover

his conduct is essentially claiming that he is innocent of

the offense to which he pleaded guilty. Such a claim

“would contradict the ‘admissions necessarily made

upon entry of a voluntary plea of guilty.’ ” Ibid. (quoting

Broce, 488 U.S. at 573-574). By its very nature, a “valid

guilty plea relinquishes” such a claim. Ibid.

b. The court of appeals correctly applied those principles here to find that petitioner’s unconditional guilty

8

plea precluded his challenge to his conviction for discharging a weapon during a crime of violence under 18

U.S.C. 924(c). Pet. App. 6a-9a. On appeal, petitioner

reraised his claim, rejected by the district court prior to

the plea, that his forcible assault of a federal officer in

violation of 18 U.S.C. 111(b) was not a “crime of violence” for purposes of a conviction under Section 924(c).

See Pet. App. 6a. The court of appeals correctly recognized that adopting that argument “would contradict

the ‘admissions necessarily made’ in his plea,” id. at 9a

(quoting Class, 583 U.S. at 183)—specifically, his “admission that he committed the crime charged against

him,” Broce, 488 U.S. at 570. And it likewise correctly

recognized that “[s]uch challenges do not fit within the

narrow category of claims which are not waived by a

guilty plea.” Pet. App. 9a (citing United States v. De

Vaughn, 694 F.3d 1141, 1145-1146 (10th Cir. 2012), cert.

denied, 569 U.S. 976 (2013)); cf. Grzegorczyk v. United

States, 142 S. Ct. 2580 (2022) (statement of Kavanaugh,

J., joined by four other Justices, respecting the denial

of certiorari) (noting that the court of appeals in that

case had “correctly concluded that the defendant’s unconditional guilty plea precluded any argument based

on the new caselaw”).

The court of appeals also correctly explained that this

Court’s decision in Cotton, supra, forecloses the contention that petitioner’s challenge is a “jurisdictional” challenge that cannot be relinquished. Pet. App. 7a. In Cotton, the Court explained that the term “jurisdiction”

means “the courts’ statutory or constitutional power to

adjudicate the case.” 535 U.S. at 630 (quoting Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998))

(emphasis omitted). And it made clear that “defects in

an indictment do not deprive a court of its power to ad-

9

judicate a case.” Ibid. Instead, an objection that “the

indictment does not charge a crime against the United

States goes only to the merits of the case.” Id. at 630631 (citation omitted); see Morrison v. National Austl.

Bank Ltd., 561 U.S. 247, 254 (2010) (“[T]o ask what conduct [a statute] reaches is to ask what conduct [it] prohibits, which is a merits question.”).

c. Petitioner’s counterarguments lack merit. Petitioner asserts (Pet. 7) that in the early-to-mid-twentieth

century, courts “regularly entertained arguments that

the facts admitted by a guilty plea did not satisfy the

statutory elements of the offense.” But to the extent

that may be so, he acknowledges (Pet. 8) that at least

“some federal courts” explicitly “recast” that practice

“in ‘jurisdictional’ terms,” and he does not show that

other courts understood the practice differently. As explained above, an understanding premised on the “jurisdictional” nature of such claims cannot survive Cotton. And petitioner additionally fails to engage with this

Court’s subsequent case law, never citing Broce or

Brady or attempting to square his theory with those decisions. See Class, 583 U.S. at 183 (reaffirming Broce).

Petitioner also contends (Pet. 22) that it is “nonsensical” to expect defendants to “refuse to plead guilty” in

order to preserve the argument “that the conduct alleged in the indictment is not a crime at all.” But it

makes perfect sense to require that defendants who

wish to maintain their innocence of a particular crime

must not unconditionally plead guilty to that crime. By

entering a guilty plea, a defendant does not “simply

stat[e] that he did the discrete acts described in the indictment”; he “admit[s] guilt of a substantive crime.”

Broce, 488 U.S. at 570; see Pet. App. 45a (petitioner’s

agreement that “I am ‘GUILTY’ and do not believe I am

10

innocent”). A defendant who wishes to preserve a claim

that his conduct did not violate the statute can seek to

enter a conditional plea, see Fed. R. Crim. P. 11(a)(2),

or else can preserve his rights through a bench trial on

stipulated facts. Cf. Sentencing Guidelines § 3E1.1,

comment. (n.2) (expressly acknowledging the possibility of an acceptance-of-responsibility adjustment to the

guidelines range in such cases).

Petitioner errs in asserting (Pet. 19) that the decision below would render express appeal waivers in written plea agreements “utterly superfluous.” See Pet. 1920. An unconditional guilty plea inherently relinquishes

most challenges to a defendant’s conviction, but a defendant can waive the ones that remain, such as a doublejeopardy claim. See, e.g., Ricketts v. Adamson, 483 U.S.

1, 9-10 (1987) (upholding plea agreement’s waiver of

right to raise double-jeopardy defense). And he may

also waive rights with respect to his sentence. See generally U.S. Br., Hunter v. United States, No. 24-1063

(Jan. 14, 2026).

2. Petitioner asserts (Pet. 12-19) that the decision

below conflicts with the decisions of other courts of appeals. The asserted conflict is overstated and does not

warrant this Court’s review. The vast majority of the

courts of appeals to have considered the issue have

properly read Cotton as holding that defects in an indictment “do not deprive a court of its power to adjudicate a case,” 535 U.S. at 630, without distinguishing between whether the alleged defect was an omission of a

factual allegation or some other failure to properly state

11

a claim.* And his specific assertions of a circuit conflict

are overstated and do not warrant this Court’s review.

Petitioner asserts (Pet. 13) that the First Circuit

held otherwise in United States v. Rosa-Ortiz, 348 F.3d

33 (2003). There, the court found that the defendant’s

unconditional guilty plea “did not waive his right to argue that he has been imprisoned for conduct that Congress did not proscribe in the crime charged,” because

that was a “jurisdictional challenge[ ].” Id. at 36. The

court did not mention, let alone attempt to distinguish,

this Court’s decision in Cotton. And subsequently, the

First Circuit has both distinguished and questioned the

continuing validity of Rosa-Ortiz.

Two years later, in United States v. Gonzalez-Mercado,

402 F.3d 294 (2005), the First Circuit found that a defendant’s unconditional guilty plea precluded his argument that his conduct “does not amount to a violation of

the statute of conviction” and that “the district court

lacked jurisdiction to convict him,” id. at 300, rejecting

his reliance on Rosa-Ortiz, id. at 300-301. And in

United States v. George, 676 F.3d 249 (2012), the First

Circuit identified Rosa-Ortiz as a “paradigmatic example” of a court using the term “jurisdiction” in a “ ‘less

than meticulous’ ” manner, and again distinguished it.

* See United States v. George, 676 F.3d 249, 259-260 (1st Cir.

2012); United States v. Rubin, 743 F.3d 31, 36-38 (2d Cir. 2014);

United States v. Scruggs, 714 F.3d 258, 262-264 (5th Cir.), cert.

denied, 571 U.S. 889 (2013); Vanwinkle v. United States, 645 F.3d

365, 368-369 (6th Cir. 2011); United States v. Muresanu, 951 F.3d

833, 837-839 (7th Cir. 2020); United States v. Turner, 94 F.4th 739,

742 (8th Cir.), cert. denied, 145 S. Ct. 216 (2024); United States v.

Velasco-Medina, 305 F.3d 839, 845-846 (9th Cir. 2002), cert. denied,

540 U.S. 1210 (2004); De Vaughn, 694 F.3d at 1147; United States v.

Delgado-Garcia, 374 F.3d 1337, 1341-1342 (D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005).

12

Id. at 259 (citation omitted). Those subsequent decisions

undercut petitioner’s contention that the First Circuit

has charted a different course from its sister circuits—

or that the First Circuit would have reached a different

conclusion in petitioner’s case.

Petitioner’s reliance (Pet. 14) on the Third Circuit’s

decision in United States v. Al Hedaithy, 392 F.3d 580

(2004), cert. denied, 544 U.S. 978 (2005), is similarly misplaced. The court there stated that the then-current

Federal Rule of Criminal Procedure 12(b)(3)(B) (2000)

“permit[s] a defendant who enters an unconditional

guilty plea to argue on appeal that the specific facts alleged in the charging document do not amount to a criminal offense.” Al Hedaithy, 392 F.3d at 586. At the time,

Rule 12(b)(3)(B) provided that “at any time while the

case is pending, the court may hear a claim that the

indictment or information fails to invoke the court’s

jurisdiction or to state an offense.” Fed. R. Crim. P.

12(b)(3)(B) (2000).

That language was subsequently removed from the

Rule in light of this Court’s decision in Cotton. See Fed.

R. Crim. P. 12 advisory committee’s note (2014 Amendment). The Third Circuit has subsequently held that

“whether a claim survives an unconditional guilty plea

depends on whether the claim is constitutionally relevant to the defendant’s conviction.” United States v.

Porter, 933 F.3d 226, 229 (2019). And it has determined

in an unpublished decision that a defendant “waived his

challenges to non-constitutional defects in the indictment by entering an unconditional guilty plea.” United

States v. Torres, No. 24-1042, 2025 WL 1275773, at *3

(3d Cir. May 2, 2025). Those developments undercut

petitioner’s suggestion that the Third Circuit would re-

13

solve his statutory claim differently from the court of

appeals below.

Although the Fifth Circuit has concluded that a

guilty plea did not preclude a defendant from arguing

on appeal that “the facts set forth in the record do not

constitute a federal crime,” United States v. Jones, 75

F.4th 502, 508, cert. denied, 144 S. Ct. 515 (2023), it cited

a decision that relied solely on pre-Cotton precedent,

see ibid. (quoting United States v. Reasor, 418 F.3d 466,

470 (5th Cir. 2005)). And its post-Cotton decisions have

recognized that “standard waiver principles apply to defects in the indictment,” and thus challenges to the indictment are relinquished by an unconditional guilty

plea. United States v. Cothran, 302 F.3d 279, 283 (5th

Cir. 2002); see United States v. Scruggs, 714 F.3d 258,

263 (5th Cir.), cert. denied, 571 U.S. 889 (2013). To the

extent that the Fifth Circuit’s cases exhibit an internal

disagreement over the proper application of Cotton,

that court should decide the issue in first instance.

While petitioner notes (Pet. 13) that in United States

v. Brown, 875 F.3d 1235, 1238 (2017), the Ninth Circuit

concluded that an unconditional guilty plea did not preclude a defendant’s claim that the facts of his case fell

outside the statute of conviction, on the premise that the

defendant’s claim “qualif [ied] as jurisdictional,” ibid.,

the court did not cite, let alone distinguish Cotton. Petitioner also asserts (Pet. 13-14) that the decision below

conflicts with the Eleventh Circuit’s decision in United

States v. St. Hubert, 909 F.3d 335 (2018), cert. denied,

586 U.S. 1256 (2019), and 509 U.S. 984 (2020), abrogated

on other grounds by United States v. Taylor, 596 U.S.

845 (2022). In St. Hubert, the court stated that it was

“bound by [its] circuit precedent” in United States v.

Peter, 310 F.3d 709 (11th Cir. 2002) (per curiam), to con-

14

clude that the defendant’s unconditional guilty plea did

not preclude a statutory challenge. St. Hubert, 909 F.3d

at 343. Peter had held that “a district court is without

jurisdiction to accept a guilty plea to” conduct that does

not qualify as a statutory offense. 310 F.3d at 713.

But the Eleventh Circuit has subsequently described

Peter as a “specific and narrow” exception to Cotton.

United States v. Brown, 752 F.3d 1344, 1353 (2014).

And the court has suggested that it harbors some doubt

on Peter’s continuing viability, noting that Peter relied

on precedent from when it was part of the Fifth Circuit

(United States v. Meacham, 626 F.2d 503 (5th Cir.

1980)) that the Fifth Circuit itself has since overruled.

St. Hubert, 909 F.3d at 343 n.5 (citing Cothran, 302 F.3d

at 283). In light of those developments, any disagreement between the Tenth and Eleventh Circuits on

the proper application of Cotton has become increasingly narrow and does not warrant the Court’s review

in this case.

3. At all events, this case is not a suitable vehicle for

resolving the question presented because a decision in

petitioner’s favor would have no effect on his conviction.

See Supervisors v. Stanley, 105 U.S. 305, 311 (1882) (explaining that this Court does not grant a writ of certiorari to “decide abstract questions of law * * * which, if

decided either way, affect no right” of the parties). Petitioner’s underlying contention is that 18 U.S.C. 111(b)

is not a “crime of violence” under Section 924(c) after

this Court’s decision in Borden v. United States, 593

U.S. 420 (2021). The Tenth Circuit expressly rejected

that argument in United States v. Butler, 141 F.4th

1136 (2025), cert. denied, No. 25-863 (Feb. 23, 2026), a

case arising out of the same facts as this case.

15

Butler explained that the court had previously held

in United States v. Kendall, 876 F.3d 1264 (10th Cir.

2017), cert. denied, 584 U.S. 945 (2018), that Section

111(b) is a crime of violence. Butler, 141 F.4th at 1150.

After careful analysis, the court then reaffirmed that

“Kendall remains good law after Borden.” Ibid. Accordingly, even if this Court were to hold that petitioner

may pursue his Section 924(c) claim notwithstanding

his unconditional guilty plea, he necessarily would not

obtain relief in the Tenth Circuit under binding precedent. See Newman v. United States, 145 S. Ct. 163

(2024) (denying a petition for a writ of certiorari challenging the Tenth Circuit’s understanding of Section

111’s mens rea).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

A. TYSEN DUVA

Assistant Attorney General

JAVIER A. SINHA

Attorney

MAY 2026