Petition for Writ of Certiorari — Patrick Wayne McHenry, Petitioner v. United States

No. 26IN THE

Supreme Court of the United States

_____________

P ATRICK W AYNE M C H ENRY ,

Petitioner,

v.

U NITED S TATES OF A MERICA ,

Respondent.

_____________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

SHIRA KIEVAL

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

633 17th Street, Ste. 1000

Denver, CO 80202

shira.kieval@fd.org

JEFFREY T. GREEN

DANIELLE HAMILTON

THE CARTER G. PHILLIPS/

SIDLEY AUSTIN LLP

SUPREME COURT CLINIC

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

TOBIAS S. LOSS-EATON

Counsel of Record

BROOKE E. BOYD

MICHAEL LOEDEL

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8427

tlosseaton@sidley.com

Counsel for Petitioner

July 31, 2026

QUESTIONS PRESENTED

When Petitioner Patrick McHenry robbed a motel

guest, his shotgun stayed in a car parked outside. Mr.

McHenry’s girlfriend later drove away from the motel

in that car, while Mr. McHenry left in a different vehicle. Mr. McHenry was charged with carrying a firearm

during a crime of violence under 18 U.S.C. § 924(c). At

trial, the government argued only that he personally

carried the firearm before and after the takings—

when he drove it to the motel and after he had already

left. Neither the government’s arguments nor the jury

instructions suggested that flight from the scene can

be part of a robbery for § 924(c) purposes, or that Mr.

McHenry violated § 924(c) when he told his girlfriend

to drive away in the car with the shotgun.

The Tenth Circuit nonetheless affirmed, holding

that a robbery continues at least through any immediate post-taking flight—even though the offense-element conduct is already over—so Mr. McHenry constructively carried the shotgun “during” the robbery by

having his girlfriend drive away with it after the takings. The court acknowledged that the government did

not make this argument at trial, but it concluded (in

the two-judge concurrence’s words) that the jury had

enough “puzzle pieces” to convict on this theory.

The questions presented are:

1. Whether the decision below should be summarily

reversed for affirming a conviction on a theory that

“the Government[] fail[ed] to argue,” App. 23a, and the

court never submitted to the jury.

2. Whether a defendant violates § 924(c) by carrying

a firearm “during” a crime of violence if he does not

carry the firearm while committing the offense’s conduct elements—only after the elements are complete.

(i)

ii

PARTIES TO THE PROCEEDING

Petitioner is Patrick Wayne McHenry.

Respondent is the United States of America.

No corporate parties are involved in this case.

iii

RELATED CASES

This case arises from the following proceedings in

the District Court for the Eastern District of Oklahoma and the Court of Appeals for the Tenth Circuit:

United States v. McHenry

No. 24-7048 (10th Cir.); and

United States v. McHenry

No. 6:21-cr-326-RAW-2 (E.D. Okla.).

No other proceedings directly relate to this case.

iv

TABLE OF CONTENTS

Page

Questions presented .................................................... i

Parties to the proceeding ............................................ ii

Related cases ............................................................. iii

Petition for a writ of certiorari ................................... 1

Opinions and orders below ......................................... 1

Statement of jurisdiction ............................................ 1

Constitutional and statutory provisions

involved .................................................................. 1

Introduction ................................................................ 2

Statement .................................................................... 4

Reasons for granting the petition .............................. 7

I. The Tenth Circuit’s affirmance on grounds

never presented to the jury warrants

summary reversal.................................................. 7

A. The decision below directly contravenes

this Court’s trial-waiver precedents. ............... 7

B. Ordinary certiorari criteria favor

intervention too. ............................................. 13

II. The Court should alternatively grant

certiorari on the § 924(c) issue. ........................... 17

A. The circuits are split. ..................................... 18

B. The decision below is wrong. ......................... 22

C. This case is an ideal vehicle to resolve an

important and recurring issue....................... 25

Conclusion ................................................................. 28

v

CASES

TABLE OF AUTHORITIES

Page

Abouammo v. United States,

146 S. Ct. 1571 (2026) ..................... 4, 23, 24, 26

Barrett v. United States,

607 U.S. 128 (2026) ................................... 25, 26

Carter v. United States,

530 U.S. 255 (2000) ............................... 4, 23, 24

Chambers v. McCaughtry,

264 F.3d 732 (7th Cir. 2001) ........................... 25

Chiarella v. United States,

445 U.S. 222 (1980) ................................. 7, 8, 13

Ciminelli v. United States,

598 U.S. 306 (2023) ..... 2, 8, 9, 10, 12, 13, 16, 17

Delligatti v. United States,

604 U.S. 423 (2025) ......................................... 26

Dunn v. United States,

442 U.S. 100 (1979) ..................................... 7, 16

Erlinger v. United States,

602 U.S. 821 (2024) ......................................... 16

Hewitt v. United States,

606 U.S. 419 (2025) ......................................... 26

Lora v. United States,

599 U.S. 453 (2023) ......................................... 26

McCormick v. United States,

500 U.S. 257 (1991) ............................. 2, 8, 9, 13

Muscarello v. United States,

524 U.S. 125 (1998) ......................................... 10

Rutherford v. United States,

608 U.S. ___ (2026).......................................... 26

Toussie v. United States,

397 U.S. 112 (1970) ......................................... 24

United States v. Ashburn,

20 F.3d 1336 (5th Cir. 1994) ........................... 25

vi

TABLE OF AUTHORITIES—continued

United States v. Askia,

893 F.3d 1110 (8th Cir. 2018) ......................... 24

United States v. Andrews,

442 F.3d 996 (7th Cir. 2006) ........................... 21

United States v. Baker,

155 F.4th 1188 (10th Cir. 2025) ............... 13, 14

United States v. Cecil,

615 F.3d 678 (6th Cir. 2010) ........................... 20

United States v. Clark,

115 F.4th 895 (8th Cir. 2024) ......................... 19

United States v. Davis,

588 U.S. 445 (2019) ............................. 24, 25, 26

United States v. Dinkane,

17 F.3d 1192 (9th Cir. 1994) ........................... 25

United States v. Edwards,

No. 23-5007, 2025 WL 789558

(6th Cir. Mar. 12, 2025) ...................... 20, 21, 23

United States v. Haymond,

588 U.S. 634 (2019) ........................................... 7

United States v. Irving,

437 F.2d 649 (D.C. Cir. 1970) ......................... 24

United States v. Johnson,

19 F.4th 248 (3d Cir. 2021) ....................... 14, 15

United States v. Long Pumpkin,

56 F.4th 604 (8th Cir. 2022) ..................... 11, 18

United States v. McCaskill,

676 F.2d 995 (4th Cir. 1982) ........................... 25

United States v. Smith,

415 F.3d 682 (7th Cir. 2005) ........................... 21

United States v. Taylor,

596 U.S. 845 (2022) ......................................... 26

United States v. Williams,

344 F.3d 365 (3d Cir. 2003) ...................... 19, 20

vii

TABLE OF AUTHORITIES—continued

United States v. Winfield,

997 F.2d 1076 (4th Cir. 1993) ................... 15, 16

STATUTES

18 U.S.C. § 924(c)(1).............................................. 1

18 U.S.C. § 2111 .................................................... 2

18 U.S.C. § 2119 .................................................... 2

28 U.S.C. § 1254(1)................................................ 1

CONSTITUTION

Sixth Amendment ................................................. 1

OTHER AUTHORITIES

During, Merriam-Webster Dictionary,

https://www.merriamwebster.com/dictionary/during ....................... 23

U.S. Sent’g Comm’n, Section 924(c) Firearms,

https://www.ussc.gov/research/quickfacts/section-924c-firearms ............................. 26

PETITION FOR A WRIT OF CERTIORARI

Petitioner Patrick Wayne McHenry respectfully petitions for a writ of certiorari to review the judgment

of the U.S. Court of Appeals for the Tenth Circuit.

OPINIONS AND ORDERS BELOW

The Tenth Circuit’s opinion is reported at 161 F.4th

1194 and reproduced at App. 1a–26a. The unreported

order denying panel rehearing and rehearing en banc

is reproduced at App. 27a–28a.

STATEMENT OF JURISDICTION

The Tenth Circuit issued its judgment on December

12, 2025 and denied a timely rehearing petition on

April 2, 2026. On May 29, 2026, Justice Gorsuch extended the time to file this petition to July 31, 2026.

The Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury . . . .

18 U.S.C. § 924(c)(1) provides:

[A]ny person who, during and in relation to any

crime of violence or drug trafficking crime . . . or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or

drug trafficking crime . . . be sentenced to a term of

imprisonment of not less than 5 years.

2

18 U.S.C. § 2111 provides:

Whoever, within the special maritime and territorial jurisdiction of the United States, by force and

violence, or by intimidation, takes or attempts to

take from the person or presence of another anything of value, shall be imprisoned not more than

fifteen years.

18 U.S.C. § 2119 provides:

Whoever, with the intent to cause death or serious

bodily harm takes a motor vehicle that has been

transported, shipped, or received in interstate or

foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall . . . be fined under this title or

imprisoned not more than 15 years, or both[.]

INTRODUCTION

This case raises two important issues of federal criminal law, one warranting summary reversal.

First: May a court of appeals affirm a criminal conviction on a theory that was never presented to the

jury or articulated in the jury instructions, so long as

the instructions do not foreclose that theory outright?

It cannot. Under this Court’s longstanding waiver

precedents, a defendant’s jury-trial right is violated

“when an appellate court retries a case on appeal under different instructions and on a different theory

than was ever presented to the jury.” McCormick v.

United States, 500 U.S. 257, 270 n.8 (1991). Thus, the

government cannot “cherry-pick facts presented to a

jury charged on” one theory and use them to sustain a

conviction on a different theory. Ciminelli v. United

States, 598 U.S. 306, 316–17 (2023). That is true even

if the jury instructions do not foreclose the new theory.

3

Yet the Tenth Circuit did exactly that. It affirmed

Mr. McHenry’s § 924(c)(1) conviction on the novel theory that he indirectly carried a shotgun “during” a robbery by telling his girlfriend to drive off in the car containing the shotgun after the takings were complete.

As the two-judge concurrence conceded, “the Government[] fail[ed] to argue” this theory, and the jury instructions did not articulate it. App. 23a. But the

court concluded that “this potential trial waiver” was

not a problem because the evidence and instructions

gave the jury the “puzzle pieces” it needed to convict

on this unargued ground. Id. at 24a, 26a.

Thus, under the decision below, a conviction may be

affirmed on any theory the facts support, so long as the

jury instructions do not explicitly foreclose it. That is

just the kind of trial-by-appeal that this Court’s precedents forbid. Summary reversal is proper.

Even under standard certiorari criteria, review is

warranted. Just last year, under similar reasoning, a

divided Tenth Circuit panel affirmed a conviction on a

theory not articulated at trial. This outlier approach

conflicts directly with other circuits’ decisions. Absent

summary reversal, the Court should grant plenary review to resolve this conflict.

Second, the Tenth Circuit’s substantive holding independently warrants review. The court resolved an

important, recurring question: For purposes of determining whether a firearm was carried “during” a

§ 924(c) predicate offense, does the predicate last only

as long as it takes to complete the proscribed conduct,

or does it continue however long “common sense” may

dictate? App. 15a. In line with three other circuits,

the Tenth Circuit adopted the latter approach, treating flight as part of a predicate robbery offense even

4

though the charged statutory predicates have no element of flight or asportation (carrying away). See App.

14a. The Eighth Circuit, by contrast, holds that a

predicate offense ends—and the window for § 924(c) liability closes—once its elements are complete.

The Eighth Circuit is right. Section 924(c)’s reach

must be defined by a predicate offense’s elements, not

by the duration of post-element conduct. This Court

made clear in Carter v. United States, 530 U.S. 255

(2000), that courts may not read an asportation element into a robbery statute that Congress chose not to

include. Nor can the decision below be squared with

Abouammo v. United States, 146 S. Ct. 1571 (2026),

which recently confirmed that a crime is complete once

its elements are satisfied. Under the correct approach,

Mr. McHenry’s robberies were complete—and his

§ 924(c) exposure concluded—before he supposedly

carried the shotgun by telling his girlfriend to drive

away with it. His § 924(c) conviction should be set

aside.

STATEMENT

1. In late summer 2021, Mr. McHenry drove to a

Motel 6 in Muskogee, Oklahoma, in a silver Honda

containing a sawed-off shotgun. App. 3a. He parked

around back—leaving the shotgun in the car—and

walked with his codefendant, Ashton Clark, to a room

occupied by Charles Jarman. Id. Mr. McHenry then

threatened Mr. Jarman, took his property, and obtained possession of his Subaru. Id. at 4a.

The robbery and carjacking took place inside and in

the parking lot in front of Mr. Jarman’s motel room.

App. 3a–4a. During the takings, the shotgun never

left the Honda, which was parked in a different lot. Id.

at 3a. No witness testified that Mr. McHenry had the

5

shotgun on his person, in the room, or anywhere

within his reach, and Ms. Clark testified that it remained in the parked Honda throughout. Id. at 6a.

The government told the jury the same thing in closing

argument, acknowledging that the shotgun “was in

[the Honda] the whole time.” D. Ct. Dkt. 133 at 632.

After the robbery, Mr. McHenry told Ms. Clark to

follow him in the Honda, while he drove away in Mr.

Jarman’s Subaru. App. 4a. At the time, the shotgun

was still in the Honda. Id. A short distance from the

motel, the two switched vehicles and Mr. McHenry

drove away in the Honda with the shotgun inside. Id.

2. Mr. McHenry was indicted for conspiracy to commit kidnapping, kidnapping, carjacking, robbery in Indian country, and carrying a firearm during and in relation to a crime of violence under § 924(c)(1)(A). The

§ 924(c) count alleged that Mr. McHenry “carried” the

shotgun during the robbery and carjacking. App. 6a.

Indeed, the government initially charged Mr.

McHenry under § 924(c) on the theory that he “brandished a firearm [at Mr. Jarman]” during the course of

the robbery. D. Ct. Dkt. 96 at 3. When it became clear

that this did not happen, the government pivoted to

the theory that Mr. McHenry personally moved the

firearm before and after the encounter. App. 80a–81a.

At the close of the government’s case, Mr. McHenry

moved for a judgment of acquittal on the § 924(c)

count, arguing that it failed to prove he carried a firearm during the robbery because the shotgun remained

in the Honda the whole time. App. 6a. The government responded that Mr. McHenry transported the

shotgun to the Motel 6 and then left it in the Honda

while robbing Mr. Jarman. Id. The district court denied the motion. Id.

6

During closings, the government conceded that the

shotgun was in the Honda “the whole time” that Mr.

McHenry was taking Mr. Jarman’s belongings. D. Ct.

Dkt. 133 at 632. But it argued that Mr. McHenry violated § 924(c) still because he drove the shotgun to the

Motel 6, and because he personally moved it to other

locations later on. App. 80a–81a.

Mr. McHenry was convicted on all counts. App. 6a.

The jury found that he carried—but did not use—a

firearm during the robbery and carjacking. Id. The

district court imposed a thirty-five-year sentence, including the mandatory consecutive five-year sentence

required by § 924(c). Id. at 6a–7a.

3. The court of appeals affirmed on a different theory. It agreed that Mr. McHenry did not personally

transport the shotgun during the robbery. But, adopting its own new theory, it concluded that he indirectly

carried the shotgun by directing Ms. Clark to drive the

Honda after the takings were complete. App. 10a.

Holding that the robbery continued during Mr.

McHenry’s flight from the scene, the court found this

constructive post-taking carrying sufficient to satisfy

§ 924(c)’s “during” requirement. Id. at 13a. The majority barely tried to show that this theory had been

sufficiently presented to the jury.

Judge Federico, joined by Judge McHugh, concurred.

The concurrence conceded that “the Government[]

fail[ed] to argue to the jury at trial that McHenry constructively possessed the shotgun during his flight

when he instructed his girlfriend to follow him in the

car . . . contain[ing] the shotgun,” which thus presented “tricky waiver questions.” App. 22a–23a. Yet

the concurrence still concluded that affirmance on that

theory was proper. It reasoned that, even absent an

express argument or specific jury instructions, the

7

court’s general “instruct[ion] . . . on constructive possession,” “[c]ombined with the testimony from [Mr.]

McHenry’s girlfriend that [Mr.] McHenry . . . directed

her to follow in a separate vehicle with the shotgun,”

gave “the jury . . . the puzzle pieces needed to convict.”

Id. at 26a.

The Tenth Circuit denied rehearing en banc. App.

29a.

REASONS FOR GRANTING THE PETITION

I. The Tenth Circuit’s affirmance on grounds

never presented to the jury warrants summary reversal.

“Only a jury, acting on proof beyond a reasonable

doubt, may take a person’s liberty.” United States v.

Haymond, 588 U.S. 634, 637 (2019) (plurality opinion).

Thus, an appellate court “cannot affirm a criminal conviction on the basis of a theory not presented to the

jury.” Chiarella v. United States, 445 U.S. 222, 236

(1980). Even so, the Tenth Circuit affirmed Mr.

McHenry’s conviction on a theory of indirect carriage

during post-taking flight that “the Government[]

fail[ed] to argue,” App. 23a, and the district court

never submitted to the jury. That clear violation of

this Court’s longstanding precedents warrants summary reversal. Even under ordinary certiorari criteria, this Court should grant review to correct the Tenth

Circuit’s outlier approach, which undermines the

Sixth Amendment’s protections.

A. The decision below directly contravenes

this Court’s trial-waiver precedents.

1. “Few constitutional principles are more firmly established than a defendant’s right to be heard on the

specific charges of which he is accused.” Dunn v.

8

United States, 442 U.S. 100, 106 (1979). Determining

whether a defendant is guilty of those charges is quintessentially “[a] function of” the “jury”—not an appellate court. Ciminelli, 598 U.S. at 317. That “right to

a jury trial” is thus violated “when an appellate court

retries a case on appeal under different instructions

and on a different theory than was ever presented to

the jury.” McCormick, 500 U.S. at 270 n.8 (1991). This

“trial waiver” rule is clear and longstanding. App. 24a.

Chiarella set forth the modern doctrine. The defendant was convicted for “fail[ing] to disclose [an] impending [corporate] takeover before trading in the target

company’s securities,” in violation of the Exchange

Act. Id. at 224. The theory “submitted to the jury” at

trial was that the defendant violated his duty to disclose material, nonpublic information to sellers of the

target company’s securities. Id. at 233, 236. That theory turned out to be legally improper. Id. at 234–35.

On appeal, the government advanced the “alternative

theory” that the defendant “breached a duty to the acquiring corporation when he acted upon” material,

nonpublic information. Id. at 235–36.

This Court refused to consider that theory because it

“was not submitted to the jury.” Id. at 236. The “jury

instructions demonstrate[d] that [the defendant] was

convicted merely because of his failure to disclose material, nonpublic information to sellers.” Id. The jury

was “not instructed on the nature or elements of a duty

owed by petitioner to anyone other than the sellers.”

Id. Because appellate courts “cannot affirm a criminal

conviction on the basis of a theory not presented to the

jury,” the Court refused to consider the government’s

new theory. Id. at 236–37.

9

McCormick built on this rule. There, the defendant

was convicted of accepting illegal payments under

color of official right, in violation of the Hobbs Act.

McCormick, 500 U.S. at 259. At trial, the jury was instructed generally that “voluntary campaign contributions were not vulnerable under the Hobbs Act.” Id. at

269. But it was not instructed “that the difference between legitimate and illegitimate campaign contributions was to be determined by the intention of the parties after considering specified factors.” Id. In upholding the conviction, the Fourth Circuit applied its own

multi-factor test and reviewed the record for evidence

that would “support findings . . . that the parties never

intended any of the payments to be campaign contributions.” Id. at 270.

This Court reversed the attempt to affirm a conviction “under different instructions and on a different

theory than was ever presented to the jury.” Id. at

269–70 & n.8. A general instruction that voluntary

campaign contributions are permissible under the

Hobbs Act, without more, was insufficient to apprise

the jury of the government’s theory on appeal. Id. at

269–70. Nor did it matter that the underlying factual

record “support[ed]” the Fourth Circuit’s “findings.”

Id. at 270. “Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were

presented to the jury.” Id. at 270 n.8. Because the jury

was never instructed on the specific “legal and factual

theories” on which the Fourth Circuit affirmed, the

conviction could not stand. Id. at 270 & n.8.

Most recently, Ciminelli refused to affirm a wirefraud conviction on a theory that was not “articulated

below.” 598 U.S. at 316. There, after abandoning its

prior “right-to-control theory,” the government urged

10

the Court to affirm the defendant’s convictions “on the

alternative ground that the evidence was sufficient to

establish wire fraud under a traditional propertyfraud theory.” Id. That theory was neither “presented” at trial nor “charged” to the jury in the instructions. Id. The government nonetheless offered “profuse citations” to the factual records below to support

its alternative theory. Id.

The Court swiftly rejected that end-run. It would

not “cherry-pick facts presented to a jury charged on

the right-to-control theory and apply them to the elements of a different wire fraud theory in the first instance.” Id. at 316–17 (emphasis omitted). That would

mean assuming “the function of a . . . jury,” which is

“not [an appellate court’s] role.” Id. at 317.

2. The decision below violates these trial-waiver

precedents. To convict Mr. McHenry of carrying a firearm during a crime of violence under § 924(c)(1), the

government was required to prove—and the jury was

required to find—that he “knowingly possesse[d] and

convey[ed]” a firearm during the robbery offense. Muscarello v. United States, 524 U.S. 125, 127 (1998). The

Tenth Circuit concluded that these elements were satisfied because Mr. McHenry “carr[ied]” the shotgun indirectly when he ordered Ms. Clark to drive the Honda

“during” their flight from the Motel 6, after the taking

was complete. App. 10a, 16a. But as the two-judge

concurrence recognized, “the Government[] fail[ed] to

argue to the jury at trial that [Mr.] McHenry constructively possessed the shotgun during his flight when he

instructed his girlfriend to follow him in the car that

contained the shotgun.” Id. at 23a. That failure reflected two distinct omissions.

11

First, the government did not explain when, in its

view, the robbery crimes began and ended. Most notably, it did not argue that the robbery “continued” during the period of immediate flight, App. 16a, after Mr.

McHenry had “secured initial control over the property” and the violent taking had thus ended. See

United States v. Long Pumpkin, 56 F.4th 604, 614 (8th

Cir. 2022). As a result, it never articulated the theory

that Mr. McHenry’s possession and conveyance of a

firearm during immediate flight could constitute carrying a firearm “during” a crime of violence.

Second, the government did not put forward the concepts of indirect carrying: it never argued that Mr.

McHenry violated § 924(c)(1) by “‘exercis[ing] dominion and control over [Ms. Clark] and the [Honda]’ during the time” of immediate flight. App. 10a (citation

omitted). Rather, the government’s carrying theory focused only on Mr. McHenry’s direct carriage of the firearm. The government maintained that Mr. McHenry

“transport[ed] or move[d] the firearm from one place to

another” because he personally moved the firearm. Id.

at 80a–81a. It never invoked the period when Ms.

Clark drove the Honda away from the Motel 6, which

happened after the taking and before Mr. McHenry

reentered the Honda.

Nor was the jury instructed on the Tenth Circuit’s

theory. For one thing, the instructions nowhere suggested that flight is part of robbery, such that a defendant can commit a § 924(c)(1) offense by carrying a firearm only “during” his post-taking flight. Rather, the

jurors were told that the conduct elements of the robbery offenses involved only the taking of property by

force and violence or by intimidation. App. 59a–62a.

Absent any instruction on how to determine the predicate robbery’s duration, the jurors would naturally

12

look to what they were told about the robbery itself—

that it constitutes the conduct captured by its elements, and thus lasts only as long as they do. See id.

at 59a–65a.

The instructions likewise failed to cover indirect carriage. The jury was instructed only on constructive

possession, the first element of the Tenth Circuit’s indirect-carriage theory. App. 69a. But it was not instructed that § 924(c)(1)’s conveyance element can be

satisfied by indirect transportation through another

person. As a result, the instructions never articulated

one of the elements of the Tenth Circuit’s theory (indirect conveyance), and they certainly never connected

it to the other element (constructive possession) as a

cognizable theory of indirect carriage.

3. The majority opinion barely tried to justify its

wholly new theory. It said only that the “government

argued to the jury that Mr. McHenry . . . violated

§ 924(c)(1)(A)” by “transporting the shotgun away from

the Motel 6 to the house in Braggs,” “retrieving [the

gun] from the Honda,” and then driving “back up to

Tulsa.” App. 20a (cleaned up). But each of those instances occurred well after Mr. McHenry and Ms.

Clark’s immediate flight from the scene, when Mr.

McHenry either drove the Honda himself or carried

the firearm on his person. So this was not the theory

the Tenth Circuit itself adopted. The majority also

pointed to arguments made “on appeal,” id., but appellate arguments are irrelevant to trial waiver. See Ciminelli, 598 U.S. at 316.

The two-judge concurrence’s reasoning was little

better. The concurrence conceded that “the Government[] fail[ed] to argue to the jury at trial that [Mr.]

McHenry constructively possessed the shotgun during

13

his flight when he instructed his girlfriend to follow

him in the car that contained the shotgun.” App. 23a.

That admission “should [have been] the end of the

case,” Ciminelli, 598 U.S. at 316—especially since the

government’s theory was also absent from the jury instructions. See Chiarella, 445 U.S. at 236.

The concurrence nonetheless tried to justify affirmance by narrowing this Court’s trial-waiver precedents to a vanishing point. In its view, a court of appeals may affirm based on a theory that the government never articulated at trial, so long as the jury has

enough to “piece” together “the puzzle” and the theory

is not outright foreclosed by the jury instructions.

App. 26a. Applying that rule, the Tenth Circuit concluded that the instruction on constructive possession

and the testimony from Mr. McHenry’s girlfriend,

viewed in “[c]ombin[ation],” gave “the jury . . . the puzzle pieces needed to convict” on a theory never presented. Id.

That reasoning cannot be squared with McCormick’s

holding that generalized and incomplete jury instructions do not suffice to raise a theory supporting affirmance, 500 U.S. at 269–70 & n.8, or with Ciminelli’s

recent admonition against “cherry-pick[ing] facts presented to a jury charged on” a different theory, 598

U.S. at 316. Summary reversal is warranted.

B. Ordinary certiorari criteria favor intervention too.

1. In recent years, the Tenth Circuit has become an

outlier in its failure to adhere to this Court’s trialwaiver precedents.

Just last year, the court similarly affirmed a conviction on a theory not presented to the jury. United

States v. Baker, 155 F.4th 1188, 1206 (10th Cir. 2025).

14

The Baker defendant was convicted of wire fraud. Id.

at 1190. On appeal, the majority and dissent split on

whether the government ever articulated to the jury

its appellate theory about the relevant property interest. The majority held that the government set forth

its theory in its opening statement, but it went on to

hold alternatively that “even if the prosecution had not

presented this theory of the case,” no trial waiver occurred. Id. at 1194 n.3. In the majority’s view, “the

jury instructions . . . simply required the jury to find

that [the defendant] schemed to deprive his victims of

money or property,” and did not “specif[y] or delimit[]

what could be considered as the property targeted by

the fraudulent scheme.” Id. From there, the majority

concluded that the court’s “task on appeal” was “only

to determine whether there was a factual basis for the

jury to find that some form of property was targeted.”

Id. (emphasis added).

As Judge Phillips explained in dissent, that approach violates controlling precedent. Id. at 1209. Indeed, Baker’s rationale resembles the concurrence’s erroneous reasoning here. Like the concurrence below,

the Baker majority embraced the rule that an appellate court may affirm on any theory so long as the jury

instructions do not foreclose the theory and there is an

adequate “factual basis” to support it. Id. at 1194 n.3.

That is not the law.

2. The Tenth Circuit’s extreme stance on trial

waiver conflicts with other circuits’ approaches.

The Third Circuit’s decision in United States v.

Johnson is illustrative. There, the defendant was

charged with filing a fabricated court document in violation of 18 U.S.C. § 1001. 19 F.4th 248, 252 (3d Cir.

2021). To prove materiality, the government’s “trial

15

theory” focused entirely on the document’s capacity to

influence the “Judge, and the Judge alone.” Id. at 257.

The Third Circuit found the evidence insufficient to

support that theory. Id. at 261. On appeal, the government advanced a new theory of materiality based

on the document’s influence on the clerk of the court.

Id.

The Third Circuit refused to consider that “new theory” because “the jury never heard” it. Id. Because the

government had only and “repeatedly argu[ed] that

materiality” was based on the document’s capacity to

influence the judge, the jury never had the opportunity

“to pass on” the government’s clerk-focused theory. Id.

at 261–262 (quotation marks omitted). That failure to

argue and charge the jury on the alternative theory

alone sufficed to defeat the government’s case. The

court could “not consider in the first instance arguments” that “were not presented to the jury.” Id. at

262 (quotation omitted). The Third Circuit did not

pause to consider whether this unargued theory was

nevertheless reconcilable with the evidence and the

jury instructions.

The Fourth Circuit likewise holds that a conviction may not be affirmed on a theory never presented

to the jury. United States v. Winfield reversed a conviction for conspiracy to defraud the United States under 18 U.S.C. § 371. 997 F.2d 1076, 1081 (4th Cir.

1993). At trial, the jury was instructed on the theory

that the defendants conspired to obstruct currency

transaction reporting requirements—a theory the

Fourth Circuit rejected. Id. The government attempted to argue, in the alternative, that the defendants also conspired to defraud the United States by engaging in money laundering. Id.

16

That theory failed. Any instruction concerning a

“conspiracy to violate the involved money laundering

statutes” was “[a]bsent” from the jury charge. Id. Rather, “[t]he court’s only discussion of money laundering

was a passing reference to the money laundering theory in its instruction on the burdens of proof and in its

preface to the instructions on the substantive counts.”

Id. “Even read as a whole, the instructions d[id] not

inform the jury of the elements of conspiracy to violate

the laundering statutes in sufficient detail for the jury

to understand the requirement for convictions.” Id.

Because the “theor[y] [was] not submitted to the jury,”

it could “[]not stand.” Id.

Here, too, the Tenth Circuit’s theory was “not submitted to the jury.” Id. Indeed, any discussion of that

specific § 924(c) theory was “[a]bsent [from the] jury

instructions.” Id. Thus, the jury here was “not inform[ed]” of “the elements” of the theory “in sufficient

detail for the jury to understand the requirements for

conviction[].” Id. Had the Tenth Circuit followed the

Fourth Circuit’s approach, this failure to instruct

would have been “the end of the case.” Ciminelli, 598

U.S. at 316. In short, the Third and Fourth Circuits

do not accept the “puzzle pieces” approach that the

Tenth Circuit has repeatedly endorsed.

3. Trial waiver is no mere formality. Again, “a defendant’s right to be heard on the specific charges of

which he is accused” is a bedrock constitutional protection. Dunn, 442 U.S. at 106. “To uphold a conviction

on a charge that was neither alleged in an indictment

nor presented to a jury at trial offends the most basic

notions of due process.” Id. “These principles represent not procedural formalities but fundamental reservations of power to the American people.” Erlinger

17

v. United States, 602 U.S. 821, 832 (2024) (quotation

marks and brackets omitted).

The Tenth Circuit has not heeded that instruction.

This petition, in turn, presents an ideal vehicle to correct that increasingly wayward approach to trial

waiver. The fundamental question here is a legal one:

whether the Tenth Circuit’s trial waiver rule is proper.

The facts are straightforward and undisputed, the issue was pressed and passed upon below, and the Tenth

Circuit denied Mr. McHenry’s rehearing petition,

making clear its outlier waiver position is here to stay.

This issue is also (unfortunately) recurring. Just recently, this Court reminded the government that it

cannot advance new criminal theories on appeal. See

Ciminelli, 598 U.S. at 316–17. But, at least in the

Tenth Circuit, the government has not always obeyed

that rule. And regrettably, the Tenth Circuit has enabled that defiance. This case presents an ideal opportunity to remind the government and the courts of appeals that the Sixth Amendment’s jury-trial commands must be followed.

The Court should summarily reverse on this ground,

or alternatively grant plenary review to decide

whether an appellate court can affirm a conviction on

any factual basis that is not outright foreclosed by the

jury instructions.

II. The Court should alternatively grant certiorari on the § 924(c) issue.

Barring summary reversal, the Court should grant

plenary review to address the substantive question:

Whether a defendant violates § 924(c) by carrying a

firearm “during” a crime of violence if he does not carry

the firearm while committing the offense’s conduct elements—only after the elements are complete.

18

A. The circuits are split.

The circuits are divided over how to define the duration of a § 924(c) predicate offense in determining

whether a person used a firearm “during” that offense.

The Eighth Circuit considers the predicate offense to

last only as long as the conduct comprising its elements. The Third, Sixth, Seventh, and Tenth Circuits

count post-element conduct—including flight—as occurring “during” the offense for § 924(c) purposes.

That disagreement is dispositive here.

1. The Eighth Circuit refuses to consider post-element conduct as occurring “during” a § 924(c) predicate offense. In United States v. Long Pumpkin, the

court vacated the defendants’ § 924(c) convictions for

discharging firearms “during” a carjacking because it

found that “the carjacking offense necessarily ended

before firearms were discharged.” 56 F.4th 604, 614

(8th Cir. 2022). The court concluded that “a carjacking

occurs at the precise moment when a vehicle is seized

and is complete once the defendant has secured initial

control over the property in question.” Id. (cleaned

up). That being so, firearm use after control was secured did not happen “during” the offense.

In so holding, the Eighth Circuit rejected the government’s claim that the carjacking continued so long as

the carjacker maintained control over the victim’s car,

or until the victim and his car were permanently separated. Id. Instead, the court emphasized that the offense was complete once the conduct element comprising the offense—the “taking”—was complete. Id.; see

id. at 610 (listing elements).

Following that same rule in another case, the Eighth

Circuit upheld a § 924(c) conviction only because it

found that a reasonable jury could have concluded that

the taking element of the predicate carjacking offense

19

was still in progress when the defendant used the firearm. United States v. Clark, 115 F.4th 895, 900 (8th

Cir. 2024); see id. at 898 (listing the elements of the

offense).

2. The Third, Sixth, and Seventh Circuits, now

joined by the court below, have expanded the duration

of a § 924(c) predicate offense by applying a loose “common sense” standard in place of an elements-based

rule—though not without some misgivings.

The Third Circuit held in United States v. Williams that Williams carried a firearm “during” a bank

robbery even though he did not have the gun with him

in the bank; it was merely sitting in the getaway car.

344 F.3d 365, 370–76 (3d Cir. 2003). The court explicitly rejected what it referred to as the “categorical approach”—the idea that the duration of a crime is established by its “statutory definition.” Id. at 373–374.

The court admitted that, “because the elements of” the

bank robbery statute “do not include the ‘taking away,’

it could be argued that the categorical approach would

require us to conclude that the carrying of the gun did

not occur ‘during’ the bank robbery.” Id. However, for

§ 924(c) purposes, the court preferred a “common

sense, temporal approach to the specific facts.” Id at

374.

Then, using legislative history, treatises, and case

law, the court sought to identify an “ordinary meaning” for both the language of § 924(c) and the generic

crime of robbery. Id. at 374–75. Concluding that

§ 924(c) was meant to be broad and that “‘carrying

away’ is normally considered to be part of robbery,” the

court held that “[e]ven though Williams had committed all elements necessary to constitute an indictable

offense” before stepping into the getaway car, a reasonable jury could have found that his flight “was suffi-

20

ciently related to the robbery so that Williams was carrying the gun ‘during’ the robbery.” Id. at 375–76 (citation omitted).

The Sixth Circuit came to a similar conclusion in

United States v. Cecil, 615 F.3d 678, 693–94 (6th Cir.

2010). Cecil and his nephew set up a fake drug bust to

steal cocaine. Id. at 684. After the nephew received

the cocaine from his supplier, but before he paid for it,

Cecil (a police officer) turned on his sirens, capturing

the supplier but allowing his nephew to escape with

the cocaine. Id. at 685. In conducting his subsequent

“search” of the supplier’s car, Cecil drew his service

weapon. Id. On that basis, Cecil was convicted under

§ 924(c).

Even though Cecil’s nephew had already driven

away with the cocaine when Cecil used his firearm,

meaning the taking was complete, the Sixth Circuit

upheld the § 924(c) conviction. It reasoned that a “robbery does not necessarily end at the point along the

time line at which all of the elements of the offense

have been established.” Id. at 693. Robbery, the court

said, is “more naturally understood to include the act

of fleeing and the immediate consequences of such

flight.” Id. at 693 (cleaned up).

More recently, however, Judge Readler has questioned the Sixth Circuit’s approach to § 924(c)’s “during and in relation to” requirements. United States v.

Edwards, No. 23-5007, 2025 WL 789558, at *5 (6th

Cir. Mar. 12, 2025) (Readler, J., concurring). He explained that, while the phrase “in relation to” asks if

the firearm “furthered the purpose or effect of the

crime,” id. at *9 (cleaned up), the word “during” separately asks whether the firearm was used “throughout

the duration of or at a point in the course of” the crime,

id. at *7 (cleaned up). And to determine the crime’s

duration, Judge Readler consulted “the elements.” Id.

21

He then observed that acts may be done in relation to

a crime, but nevertheless after the offense conduct has

ended—as when Edwards, whose predicate offense

was drug possession, “no longer possessed heroin when

he used his firearm.” Id. at *5, *7–9. Judge Readler

ultimately voted to affirm because Edwards did not

challenge the jury instruction on this point—but he

was “doubtful” that “the instruction properly described

the elements of” the § 924(c) charge. Id. at *10.

The Seventh Circuit held the defendant in United

States v. Andrews liable under § 924(c) using a postelement aiding-and-abetting theory. 442 F.3d 996,

1002–03 (7th Cir. 2006). Andrews loaned his car to

two armed men who robbed a credit union. Id. at 999–

1000. The court held that, whether or not Andrews

knew the robbers planned to use their weapons inside

of the credit union, he was at least “aware [the] firearms would be present in the car during the getaway.”

Id. at 1002. To satisfy § 924(c)’s “during” requirement,

the court concluded that “[e]scape is considered part of

a robbery and the use of a firearm during an escape is

a violation of 924(c).” Id. For that proposition, the

court merely cited another Seventh Circuit case approving a jury instruction to the same effect. See

United States v. Smith, 415 F.3d 682, 689 (7th Cir.

2005), vacated on other grounds, 547 U.S. 1190 (2006).

The Tenth Circuit took the post-element-conduct

side of the split below. Though neither of Mr.

McHenry’s predicate offenses included an element of

flight or “asportation” (carrying away stolen property),

App. 11a, the court decided that it could “look[] beyond

[a] predicate crime’s statutory text and elements” and

“treat[] the defendant’s underlying statutory crime as

a ‘continuing offense,’ even though the underlying

statute itself [does] not indicate as much,” id. at 13a.

22

What mattered to the court was not the predicate offense’s text, but how robbery was “generally viewed.”

Id. at 16a. Based on that “common sense” understanding, the court held that “a rational jury could conclude

that McHenry’s ‘flight’ from the scene was ‘during’ his

underlying robberies,” even though it occurred after

the takings were complete. Id. at 15a, 19a (citation

omitted).

The Tenth Circuit then denied Mr. McHenry’s petition for rehearing en banc identifying the conflict with

the Eighth Circuit.

3. This case would turn out differently in the Eighth

Circuit. No one disputes that the elements of Mr.

McHenry’s predicate robberies were completed before

the codefendants drove away from the motel, and thus

before the period of “flight” that the Tenth Circuit

treated as “during” those offenses. App. 15a. And the

Tenth Circuit acknowledged that Mr. McHenry did not

carry a firearm during conduct that comprised any of

the robberies’ elements. Id. at 3a. To nevertheless affirm the conviction, the Tenth Circuit necessarily and

explicitly relied on post-element conduct as part of the

robbery for § 924(c) purposes. Id. at 2a.

By contrast, because the Eighth Circuit cabins the

duration of a crime to its definitional elements, it

would have considered the duration of each robbery to

be complete as soon as each taking was complete—

which was before the codefendants fled from the scene

with a firearm. So, under the Eighth Circuit’s approach, the firearm was not carried “during” the robberies.

B. The decision below is wrong.

The Tenth Circuit held that, “when we assess

whether the carriage of a firearm occurs ‘during’ an

underlying crime within the meaning of § 924(c)(1),

23

the underlying crime does not necessarily end” as soon

as the conduct comprising its offense elements is over.

App. 14a. In so doing, the court ignored this Court’s

precedent and clear statutory language in favor of an

undertheorized, atextual approach.

1. The ordinary meaning of “during” is “at a point in

the course of.” During, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/during

(last visited July 29, 2026). Thus, a person “violates

§ 924(c)(1)(A) where he uses a firearm at some point in

the course of, and with respect to,” a predicate offense.

Edwards, 2025 WL 789558, at *6 (Readler, J., concurring). In turn, the key question is when the predicate

offense begins and ends.

The answer is found in the predicate’s elements—

precisely where the Tenth Circuit refused to look.

App. 14a. Just last month, this Court emphasized that

a “crime’s conduct elements” define the “conduct constituting the offense.” Abouammo, 146 S. Ct. at 1576–

77 (cleaned up). Once a person has committed the

“prohibited act in th[e] statute,” “the crime is complete.” Id. at 1577. Acts or events that are “not elements of [the] crime” “cannot figure in determining

where [that] crime was committed.” Id. at 1578

(cleaned up).

Though Abouammo dealt specifically with venue, its

analysis of what conduct comprises a crime applies

equally here. Just as Mr. Abouammo’s post-element

conduct did not cause his offense to continue into another jurisdiction, see id., Mr. McHenry’s post-element

flight did not prolong his predicate robbery offenses for

§ 924(c) purposes. The duration of a § 924(c) predicate

crime “must be based on the conduct that” the predicate offense “itself proscribes.” Id at 1579. Indeed,

this Court has made clear that courts may not read an

24

asportation element into a robbery statute that Congress chose not to include. See Carter, 530 U.S. at 272.

Carter clarified that determining the contours of a

crime is an “inquiry focuse[d] on an analysis of the textual product of Congress’[s] efforts.” Id.

Congress chose not to include a “carrying away” element in either of the predicate crimes here. See App.

11a, 21a. To nevertheless construe those robberies as

extending through any post-taking conduct—let alone

post-element flight—is atextual and improper. As this

Court has cautioned with respect to § 924(c), “expand[ing] a criminal statute’s scope would risk offending . . . due process and separation-of-powers principles.” United States v. Davis, 588 U.S. 445, 464 (2019).

The Tenth Circuit’s treatment of § 924(c) has the same

problems.

2. The Tenth Circuit’s holding rests on the premise

that the predicate robberies are “continuing offenses.”

See App. 10a–16a. But this Court generally treats an

offense as continuing only while the conduct comprising its elements is ongoing. See Abouammo, 146 S. Ct.

at 1576; Toussie v. United States, 397 U.S. 112, 120

(1970) (offense continues for limitations purposes only

if the statute “clearly contemplates a prolonged course

of conduct”). Indeed, larceny is an “easy example” of a

crime that is not continuing because it “is committed

and complete once the last of [its] elements has occurred.” United States v. Askia, 893 F.3d 1110, 1116

(8th Cir. 2018); cf. United States v. Irving, 437 F.2d

649, 650 (D.C. Cir. 1970) (aiding a robber in immediate

flight from a bank robbery would be providing “after

the fact” aid, not abetting an ongoing offense).

Instead of grappling with these points, the Tenth

Circuit emphasized a circuit precedent treating an “ongoing” drug-manufacturing operation as “continuing”

under § 924(c) “even though the . . . statute itself did

25

not indicate as much.” App. 11a–15a (discussing

United States v. Brown, 400 F.3d 1242 (10th Cir.

2005)). But even if Brown’s approach is otherwise

sound, the Tenth Circuit never explained why Mr.

McHenry’s predicate robberies should be treated the

same way. The offense conduct in Brown—the conduct

that actually satisfied the offense elements—appeared

to continue “for over two weeks,” during which the defendant carried a gun. App. 13a. Not so here.

The truth is that the Tenth Circuit below merely

joined a chorus of cases—arising in various contexts,

including § 924, aiding-and-abetting, and felony murder—that reflexively cite each other for the largely unexamined assertion that “robbery” continues through

flight. See, e.g., United States v. McCaskill, 676 F.2d

995, 1000 (4th Cir. 1982) (stating as much in the aiding-and-abetting context); United States v. Ashburn,

20 F.3d 1336, 1341 (5th Cir. 1994) (sentencing enhancement); Chambers v. McCaughtry, 264 F.3d 732,

743 n.6 (7th Cir. 2001) (felony murder); United States

v. Dinkane, 17 F.3d 1192, 1200 (9th Cir. 1994) (aiding

and abetting). Like the court below, most of these

cases content themselves with generic descriptions of

“robbery” as a concept, unmoored from specific doctrinal context or statutory text. None of them meaningfully illuminates what “during” means in § 924(c), or

how to identify the duration of a specific robbery predicate with clear statutory text.

C. This case is an ideal vehicle to resolve an

important and recurring issue.

Section 924(c) is serious. It “threatens long prison

sentences,” Davis, 588 U.S. at 448, and can even lead

to “two consecutive mandatory minimum sentences for

the single use of a single firearm,” Barrett v. United

States, 607 U.S. 128, 136 (2026). Section 924(c) is also

charged thousands of times a year, and the average

26

sentence for people convicted under § 924(c) is 149

months. See U.S. Sent’g Comm’n, Section 924(c) Firearms, https://www.ussc.gov/research/quick-facts/section-924c-firearms (last visited July 29, 2026).

The expansion of liability here is significant. While

the Tenth Circuit held that the duration of the predicate robberies extended “[a]t least for the first few moments” after Mr. McHenry drove away from the motel,

App. 17a–18a, it offered no limiting principle—beyond

“common sense”—to determine when a robbery ends.

Id. at 15a.

And the atextual nature of the § 924(c) expansion

upsets the balance of power within the criminal justice

system. When prosecutors charge crimes defined by

limited elements—for example, robberies that do not

require asportation—they receive the benefit of having

to prove only those limited elements to secure a conviction. But under the majority approach, those same

crimes are then expanded for § 924(c) purposes to include features the government never had to prove.

The government should not be permitted to have it

both ways. See, e.g., Abouammo, 146 S. Ct. at 1579

(acknowledging that the relative ease of proving an offense with limited conduct elements “comes [at a]

cost”).

For similar reasons, the Court has granted certiorari

almost annually to clarify § 924(c)’s meaning. See,

e.g., Rutherford v. United States, 608 U.S. ___ (2026);

Barrett, 607 U.S. 128; Hewitt v. United States, 606 U.S.

419 (2025); Delligatti v. United States, 604 U.S. 423

(2025); Lora v. United States, 599 U.S. 453 (2023);

United States v. Taylor, 596 U.S. 845 (2022); Davis,

588 U.S. 445. It should do the same here.

This case is the perfect vehicle to resolve the split.

There are no jurisdictional problems, and this issue

27

was vigorously pressed and passed upon below. See

App. 1a–19a. Additionally, a favorable ruling for Mr.

McHenry would be dispositive. Even if the Tenth Circuit’s trial-waiver ruling were correct, Mr. McHenry

did not violate § 924(c) if he did not constructively

carry a firearm “during” the predicate robberies.

And—as the panel acknowledged—he can only be

deemed to have carried a firearm “during” the predicate robberies if the Tenth Circuit is right that postelement flight is included within the duration of those

statutory offenses.

28

CONCLUSION

For these reasons, the petition should be granted

and the decision below should be summarily reversed.

Alternatively, the Court should grant plenary review

of both questions presented.

Respectfully submitted,

SHIRA KIEVAL

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

633 17th Street, Ste. 1000

Denver, CO 80202

shira.kieval@fd.org

JEFFREY T. GREEN

DANIELLE HAMILTON

THE CARTER G. PHILLIPS/

SIDLEY AUSTIN LLP

SUPREME COURT CLINIC

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

TOBIAS S. LOSS-EATON

Counsel of Record

BROOKE E. BOYD

MICHAEL LOEDEL

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8427

tlosseaton@sidley.com

Counsel for Petitioner

July 31, 2026