United States v. Shea

• Court: Court of Appeals for the First Circuit
• Decided: February 23, 2026
• Docket: 23-1544
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1055

ANTHONY M. SHEA,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

No. 23-1544

Appellee,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Kayatta, Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, for appellant. Alexander S. Chen, Assistant United States Attorney, with whom John J. McCormack, Acting United States Attorney, was on brief, for appellee.

February 23, 2026 BARRON, Chief Judge. In these consolidated appeals,

Anthony M. Shea ("Shea") challenges two rulings by the United

States District Court for the District of New Hampshire: an order

partially denying Shea's request for relief under 28 U.S.C. § 2255

and an entry of amended judgment resentencing Shea for his prior

criminal convictions. In his § 2255 motion, Shea sought in part

to vacate his two convictions for violating 18 U.S.C. § 924(c).

They were among the fourteen convictions that he received following

a federal criminal trial in the District of New Hampshire in 1997

and for which he was ultimately sentenced to a term of life

imprisonment. He further sought in that motion to be resentenced

based on his contention that his designation as a "career offender"

under § 4B1.1 of the United States Sentencing Guidelines

("U.S.S.G.") had been rendered retroactively erroneous. See Shea

v. United States, 976 F.3d 63, 81-82 (1st Cir. 2020).

The District Court denied Shea's § 2255 motion insofar

as it challenged his § 924(c) convictions, but it granted the

motion insofar as it requested resentencing because of the

concededly erroneous application of the career offender guideline

to him. In the first of these consolidated appeals, Shea

challenges the District Court's partial denial of his § 2255

motion. In the second, he challenges the District Court's

post-resentencing entry of amended judgment "insofar as it imposed

- 3 - sentences for the § 924(c) convictions." We affirm the judgments

at issue in each of these appeals.

I.

Following his federal criminal trial in the District of

New Hampshire in 1997, Shea was convicted on fourteen counts for

his role in bank and armored-car robberies in the 1990s. Counts

one through three, which pertained to an overarching conspiracy

related to the robberies, charged Shea with racketeering,

conspiracy to commit racketeering, and conspiracy to commit armed

robbery, in violation of 18 U.S.C. §§ 1962(c)-(d) and 371. Counts

four through seven, which pertained to a robbery in Seabrook, New

Hampshire, charged Shea with substantive Hobbs Act robbery,

conspiracy to commit Hobbs Act robbery, using or carrying a firearm

in relation to a crime of violence, and being a felon in possession

of a firearm, in violation of 18 U.S.C. §§ 1951, 924(c), and

922(g)(1). Counts eight through fourteen, which pertained to a

robbery in Hudson, New Hampshire, charged Shea with the same four

crimes just listed, as well as carjacking, bank robbery with a

dangerous weapon, and possession of a firearm as an unlawful drug

user, in violation of §§ 2119, 2113(d), and 922(g)(3). We provided

greater detail about these convictions in our decision rejecting

Shea's direct appeal. See United States v. Shea, 211 F.3d 658,

663-64, 676 (1st Cir. 2000). For present purposes, it suffices to

- 4 - recount the following facts and procedural history to set the stage

for our analysis with respect to the appeals at issue here.

Section 924(c), in relevant part, makes it a crime to

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

violence." 18 U.S.C. § 924(c)(1)(A). Section 924(c) defines

"crime of violence" under that provision as "an offense that is a

felony and":

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) 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.

Id. § 924(c)(3).

Subsection (A) is referred to as the "force clause" or

"elements clause." See United States v. Cruz-Rivera, 904 F.3d 63,

65 (1st Cir. 2018); Delligatti v. United States, 604 U.S. 423, 426

(2025). Under that clause, courts apply the "categorical approach"

to determine whether an offense qualifies as a predicate "crime of

violence" under § 924(c), asking "whether the offense in question

always involves the use, attempted use, or threatened use of

force." Delligatti, 604 U.S. at 426 (emphasis added) (citation

modified). Subsection (B) is known as the "residual clause," id.,

and is addressed further below.

- 5 - The first of Shea's two § 924(c) convictions pertained

to the robbery in Seabrook, New Hampshire. The second pertained

to the robbery in Hudson, New Hampshire.1 The jury at Shea's

criminal trial in the District of New Hampshire was instructed

that, for the Seabrook-robbery-related § 924(c) charge, the

predicate "crime of violence" could be either: (1) substantive

Hobbs Act robbery or (2) conspiracy to commit the same. It was

also instructed that, for the Hudson-robbery-related § 924(c)

charge, the predicate "crime of violence" could

be: (1) substantive Hobbs Act robbery, (2) conspiracy to commit

the same, or (3) bank robbery with a dangerous weapon.

The jury returned a general verdict of guilty as to all

counts, including the two § 924(c) counts and their predicates.

In the presentence report ("PSR") prepared by the government in

advance of Shea's sentencing, Shea was designated a "career

offender" under U.S.S.G. § 4B1.1. As relevant here, that guideline

deems an individual a "career offender" for sentencing purposes if

the offense of conviction is a felony "crime of violence" and the

individual "has at least two prior felony convictions" for offenses

that constitute a "crime of violence." Id. § 4B1.1(a)(2)-(3).

1 As to both counts, Shea was alternately charged with violating, or with aiding and abetting violations of, § 924(c). That distinction has no bearing on this appeal.

- 6 - At the time of Shea's conviction, that guideline defined

"crime of violence" as any felony offense that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a) (1997). Shea's "career offender" designation was

based on two prior convictions -- one for armed bank robbery and

another for assault and battery -- unrelated to the proceedings

outlined here. The application of that guideline, however, did

not ultimately factor into the calculation of Shea's offense level,

as other factors -- which superseded the offense level of the

"career offender" designation -- resulted in a higher offense level

for the calculation of his sentence.

The District Court sentenced Shea to 240-month terms of

imprisonment for each of his § 924(c) convictions, to be served

consecutively to each other and to all other sentences. The court

also sentenced him to life imprisonment for his conviction for

carjacking under 18 U.S.C. § 2119 and to 60-, 120-, 240-, and

300-month terms of imprisonment on the remaining counts, with those

terms and his life sentence to be served concurrently.

- 7 - Shea appealed the convictions and sentences to our

Court, and we affirmed. See Shea, 211 F.3d at 676. Shea thereafter

filed a pro se § 2255 motion, which was denied.

In 2015, the Supreme Court decided Johnson v. United

States, which addressed the definition of "violent felony" under

the Armed Career Criminal Act ("ACCA"). See 576 U.S. 591, 593

(2015); 18 U.S.C. § 924(e)(2)(B). That definition, like the

definitions of "crime of violence" under § 924(c) and U.S.S.G.

§ 4B1.2(a) (1997), contains a force clause and a residual clause.2

See Johnson, 576 U.S. at 593-94 (quoting 18 U.S.C. § 924(e)). The

Court in Johnson held that the residual clause in ACCA's definition

of "violent felony" was unconstitutionally vague. Id. at 597.

The next year, the Supreme Court decided Welch v. United

States, 578 U.S. 120 (2016). It held there that Johnson announced

a new substantive rule that applied retroactively on collateral

review. Id. at 135.

Based on Johnson and Welch, Shea sought authorization

from our Court under 28 U.S.C. § 2255(h) to file a second or

successive § 2255 motion to challenge his two § 924(c) convictions

and his sentences. He argued as to the latter that he no longer

qualified as a "career offender" under the sentencing guidelines.

2 ACCA's residual clause definition of "violent felony" includes an offense that is a felony and "involves conduct that presents a serious potential risk of physical injury to another." Johnson, 576 U.S. at 593 (quoting 18 U.S.C. § 924(e)(2)(B)).

- 8 - While that motion was pending, the Supreme Court decided United

States v. Davis, which extended the logic of Johnson to § 924(c)

by holding that the residual clause definition of "crime of

violence" under § 924(c)(3)(B) was unconstitutionally vague. See

588 U.S. 445, 448, 451-52, 470 (2019).

Following the Court's decision in Davis, we granted

Shea's request for authorization to file a second or successive

§ 2255 motion in the District of New Hampshire. In that § 2255

motion, Shea argued in part that his § 924(c) convictions should

be vacated in light of Davis.

The District Court disagreed. Although it agreed that

the jury instructions that were given at Shea's trial had been

"rendered retroactively erroneous by the decision in Davis," it

found that error "harmless beyond any doubt." That was so, the

District Court reasoned, because "Shea was also convicted of two

substantive robbery offenses" that were "interrelated and

coextensive [with the conspiracy offenses] in every material

respect" -- and those substantive offenses "did, and still do,

qualify as predicate 'crimes of violence' under [s]ection 924(c)."

Accordingly, the District Court held that the jury's verdict on

Shea's § 924(c) convictions "remain[s] valid."

Shea also contended in his § 2255 motion that he no

longer qualified as a "career offender" under the sentencing

guidelines. In support, he argued that his predicate convictions

- 9 - no longer met the definition of "crime of violence" for the career

offender guidelines, which, he contended, was a requirement for

the enhancement to apply under Johnson. Accordingly, he requested

that the court "vacate his sentence and resentence him."

In response to this portion of Shea's § 2255 motion, the

government conceded that Shea was no longer a "career offender,"

and it therefore did not object to the District Court resentencing

him. It contended, however, that Shea's life sentence on the

carjacking count, which was imposed pursuant to a separate

guideline, should still stand.

As to this portion of the § 2255 motion, the District

Court agreed that Shea was no longer a "career offender" under

Johnson. It initially declined to decide, however, whether it

should grant Shea's request for plenary resentencing, noting that

Shea's "'career offender' designation at the time of his sentencing

played no role in enhancing" his guidelines sentencing range

because other guidelines had a greater effect and thus "superseded"

that designation. Following a hearing, however, it granted Shea's

request for plenary resentencing.

Proceedings related to Shea's resentencing then took

place in the trial court. The same judge who had considered Shea's

§ 2255 motion presided over these resentencing proceedings. After

hearing from the parties, the District Court resentenced Shea to

consecutive 60-month terms of imprisonment on each of his § 924(c)

- 10 - convictions and a 180-month term of imprisonment on his carjacking

conviction. The court entered amended judgment accordingly.

Following the District Court's rulings on Shea's § 2255

motion, Shea sought a certificate of appealability from our Court

to challenge the partial denial of that motion, as he contended

that the District Court erred in failing to vacate his § 924(c)

convictions pursuant to Davis. He also filed a direct appeal of

the District Court's judgment resentencing him, challenging that

judgment "insofar as it imposed sentences for the § 924(c)

convictions." We granted the certificate of appealability and

consolidated the two appeals. Shea filed a single brief in support

of them.

II.

We start with Shea's challenge to the District Court's

denial of his § 2255 motion to vacate his § 924(c) convictions

based on the jury having been instructed on both valid and invalid

alternative predicate offenses. Shea rests this challenge on

Davis, as he contends based on that decision that the offense of

conspiracy to commit robbery is no longer a valid § 924(c)

predicate.

The government does not dispute that conspiracy to

commit robbery no longer constitutes a "crime of violence" for

purposes of § 924(c) and thus that the jury instructions in Shea's

trial were rendered erroneous by the later-decided Davis case. It

- 11 - also does not contest Shea's assertion that, under Hedgpeth v.

Pulido, 555 U.S. 57, 60-61 (2008) (per curiam), and Skilling v.

United States, 561 U.S. 358, 414 (2010), "constitutional error

occurs when a jury is instructed on alternative theories of guilt

and returns a general verdict that may rest on a legally invalid

theory." (Quoting United States v. Latorre-Cacho, 874 F.3d 299,

303 (1st Cir. 2017).) But, as Shea acknowledges, an erroneous

jury instruction warrants granting a § 2255 motion only if the

petitioner can show that the instructional error had a "substantial

and injurious effect or influence in determining the jury's

verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Shea

contends, however, that the District Court erred in ruling that he

failed to meet that standard.

To make that argument, Shea first points out that a court

must apply the categorical approach to determine what constitutes

a "crime of violence" under § 924(c). As a result, he explains,

a court must "ignor[e] the particular facts of [a] case" in making

that determination. Mathis v. United States, 579 U.S. 500, 504

(2016). In his view, it follows that, in determining whether an

instructional error about what constitutes a "crime of violence"

under § 924(c) was harmless, a court must similarly apply the

categorical approach and so must similarly "ignore[e] the

particular facts of the case." Id. For that reason, Shea argues,

the District Court erred in denying his § 2255 motion to vacate

- 12 - his two § 924(c) convictions because it did so on the ground that

the instructional error in his case was harmless "beyond any doubt"

based on its determination that the facts in the record showed

that the valid and invalid predicate crimes were "interrelated and

coextensive." We disagree.

Shea cites no controlling authority that supports his

view that, if an instructional error relates to a crime-of-violence

predicate under § 924(c), then a court must incorporate the

categorical approach into the harmless error inquiry. In fact, he

acknowledges that, in similar cases, we have considered the factual

circumstances of the case at hand in rejecting challenges to

instructional errors involving crime-of-violence predicates. See

United States v. Serrano-Delgado, 29 F.4th 16, 21, 28 (1st Cir.

2022) (finding it "not possible" "on this record" to conclude that

the jury did not rely on a valid predicate for the defendant's

§ 924(c) and (j) convictions); United States v. Rodríguez-Santos,

56 F.4th 206, 219-20 (1st Cir. 2022) (on plain error review,

concluding that the defendant could not show that a § 924(c)

instructional error "affected his substantial rights" in part

because the valid and invalid predicates were "inextricably

intertwined" (citation modified)).

Moreover, Shea does not dispute that, ordinarily, to

determine whether it was harmless error for a district court to

instruct a jury on "multiple theories of guilt, one of which is

- 13 - improper," Hedgpeth, 555 U.S. at 61, a court should examine the

factual circumstances and the record before it in evaluating the

effect of the error on the jury's verdict.3 See Pulido v. Chrones,

629 F.3d 1007, 1019-20 (9th Cir. 2010), cert. denied, 565 U.S. 918

(2011), abrogated on other grounds by Sansing v. Ryan, 41 F.4th

1039 (9th Cir. 2022). And we see no reason why a different approach

to harmless error review would be required or appropriate when the

instructional error results from a district court's erroneous

instruction as to whether an offense qualifies as a "crime of

violence" under the categorical approach.

The categorical approach is used to "assess whether a

predicate crime qualifies as a 'crime of violence' under the force

clause of § 924(c)." Cruz-Rivera, 904 F.3d at 66. By contrast,

harmless error analysis is used to assess whether "the jury verdict

would have been the same absent [an] error." Neder v. United

States, 527 U.S. 1, 17 (1999). Thus, the categorical approach is

used to determine whether a court has erred in instructing the

3 As the Supreme Court explained in O'Neal v. McAninch, harmless error analysis is a legal inquiry rather than a factual one. See 513 U.S. 432, 436 (1995) (describing the inquiry as "involv[ing] a judge who applies a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect," asking whether the judge "think[s] that the error substantially influenced the jury's decision"); see also Granda v. United States, 990 F.3d 1272, 1295 (11th Cir. 2021) ("[A] judge conducting a Brecht harmless error analysis . . . asks as a matter of law whether there is grave doubt about whether an instruction on an invalid predicate substantially influenced what the jury already found beyond a reasonable doubt.").

- 14 - jury about whether a predicate offense constitutes a "crime of

violence." But the determination on direct appeal of whether that

error was harmless turns on whether, "in the setting of a

particular case," that error may be "so unimportant and

insignificant that [it] may . . . be deemed harmless." Chapman v.

California, 386 U.S. 18, 22 (1967) (emphasis added). And that

determination in a collateral review proceeding, like the one at

hand, turns on whether, after reviewing the record, a judge "is in

grave doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining the

jury's verdict." O'Neal v. McAninch, 513 U.S. 432, 436 (1995)

(citation modified). Accordingly, there is no reason for the

harmless error analysis to bar consideration of whether the invalid

theory was intertwined with the valid one.

Our conclusion is bolstered by the opinions of our sister

circuits, which -- when confronted with an argument like the one

Shea advances here -- have rejected it. See Granda v. United

States, 990 F.3d 1272, 1295 (11th Cir. 2021) (rejecting request to

"extend[] the categorical approach . . . to the context of

determining on which of several alternative predicates a jury's

general verdict relied"); United States v. Reed, 48 F.4th 1082,

1089 (9th Cir. 2022) (reasoning that "there is no need to employ

the categorical approach because each offense has already been

categorized appropriately" and that a reviewing court's "task is

- 15 - instead to determine whether the error of instructing the jury on

one valid and one invalid theory is grave enough to warrant

reversal"); Nicholson v. United States, 78 F.4th 870, 886 (6th

Cir. 2023) (stating that the categorical approach "does not govern

how [the court] deal[s] with a jury-instruction error on collateral

review under § 2255," which is "review[ed] for harmless error");

Stone v. United States, 37 F.4th 825, 831 (2d Cir. 2022) (declining

"to import the categorical method to a determination of prejudice

upon a § 924(c) conviction predicated in part on an invalid crime

of violence").

Shea also invokes the rule of lenity to support his

position. But that rule has no application here because the

present case does not involve "ambiguities about the breadth of a

criminal statute" that we could "resolve[] in [his] favor." Davis,

588 U.S. at 464. Nor are we persuaded by Shea's reliance on United

States v. Berry, No. 09-cv-00019, 2020 WL 591569 (W.D. Va.

Feb. 6, 2020) (unpublished), or United States v. White, 510

F. Supp. 3d 443 (W.D. Tex. 2020). Neither of those out-of-circuit

district court cases have any bearing on the issue at hand, as

both involved jury instructions with a single predicate offense

that may have been invalid, rather than several predicates, as

here. See Berry, 2020 WL 591569, at *1; White, 510 F. Supp. 3d

- 16 - at 444. Thus, we must reject Shea's challenge to the District

Court's denial of his § 2255 motion.4

III.

There remains to resolve Shea's appeal of the District

Court's entry of amended judgment regarding his sentences. We

observe, however, that Shea challenges that judgment only on the

ground that his § 924(c) convictions are themselves invalid.

Because we affirm the District Court's order rejecting Shea's

§ 2255 motion to vacate those convictions, we must reject this

challenge as well.

IV.

For the foregoing reasons, we affirm.

4 Shea does not argue that the District Court erred in conducting its harmless error analysis in any other respect, such as by arguing that the predicate offenses here were not "interrelated and coextensive."

- 17 -