United States v. Said

26 F.4th 653

UNITED STATES of America, Plaintiff - Appellant,

v.Mohamed Ali SAID, a/k/a Maxamad Cali Saciid, Defendant - Appellee.

No. 21-7089

United States Court of Appeals, Fourth Circuit.

Argued: December 9, 2021

Decided: February 23, 2022

ARGUED: Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellant. Marisa Rayna Taney, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellee. ON BRIEF: Mark J. Lesko, Acting Assistant Attorney General, Jeffrey M. Smith, National Security Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellant. John Gleeson, Steven G. Tegrar, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellee.

Before KING and WYNN, Circuit Judges, and KEENAN, Senior Circuit Judge.

Reversed in part and remanded with instructions by published opinion. Judge Wynn wrote the opinion, in which Judge King and Senior Judge Keenan joined.

WYNN, Circuit Judge:

The question on appeal is whether Petitioner Mohamed Ali Said's convictions on two counts of using and carrying a firearm during and in relation to a crime of violence may stand when some of the predicate convictions that the jury might have relied on in convicting him of the firearms charges have been invalidated. The district court answered no and vacated the two firearms convictions.

Under this Circuit's precedent, however, Said did not meet his burden of showing that the error in the jury instructions had a "substantial and injurious effect or influence in determining the jury's verdict." United States v. Smith , 723 F.3d 510, 512 (4th Cir. 2013) (quoting Brecht v. Abrahamson , 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ). Accordingly, we reverse the district court's judgment in relevant part and remand with instructions to enter an order denying Said's § 2255 petition as to the two counts in question.¹

I.

In April 2010, Said and six others—all Somali citizens—attacked the USS Ashland (LSD 48), a commissioned ship in the United States Navy with significant armament and a crew that typically includes a Marine Corps Detachment, in the Gulf of Aden.² For Said and several of his confederates, this was their second attempt on a vessel in as many months. In late February, they had entered the Gulf "searching for a merchant ship to seize," but were intercepted by the HMS Chatham of the British Royal Navy. United States v. Said , 798 F.3d 182, 186 (4th Cir. 2015).

Trying their luck again in April, Said and the others loaded "a small wooden skiff ... with a hooked ladder, three AK–47s, and [a rocket-propelled grenade launcher]." Id. at 186–87. They approached the Ashland , believing it to be a merchant vessel. Said and one of his codefendants "held loaded AK–47s," and the codefendant used his weapon to shoot at the Ashland. Id. at 187. The Ashland returned fire, killing one of the attackers and apprehending the six survivors who were brought to Virginia for prosecution.³ Id. at 188.

The operative indictment charged Said with ten counts:

• Conspiracy to commit hostage taking, 18 U.S.C. § 1203(a) (Count 1);

• Conspiracy to commit kidnapping, id. § 1201(a)(2), (c) (Count 2);

• Conspiracy to perform an act of violence against persons on a vessel, id. § 2291(a)(6), (9) (Count 3);

• Conspiracy to use and carry a firearm and a destructive device during and in relation to, and to possess a firearm and a destructive device in furtherance of, a crime of violence, id. § 924(o) (Count 4);

• Piracy, id. § 1651 (Count 5);

• Attack to plunder a vessel, id. § 1659 (Count 6);

• Assault with a dangerous weapon on a federal officer or employee, id. § 111(a)(1), (b) (Count 7);

• Performing an act of violence against persons on a vessel, id. § 2291(a)(6) (Count 8);

• Using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a crime of violence, id. § 924(c)(1)(A) (Count 9); and

• Using, carrying, and discharging a firearm during and in relation to a crime of violence, id. § 924(c)(1)(A)(iii) (Count 10).

The charges related to the encounter with the HMS Chatham in February 2010 and the attack on the USS Ashland in April 2010. Counts 1 through 4 encompassed the time periods for both; Count 9 related only to the Chatham ; and the remaining charges related only to the Ashland. Further, Counts 5 through 10 included allegations of aiding and abetting. 18 U.S.C. § 2(a).

Counts 4, 9, and 10 relied on other crimes charged in the indictment as predicate "crime[s] of violence." J.A. 48, 53–54.⁴ Specifically, the firearm offenses charged in Counts 4 and 10 of the indictment were predicated on seven alternative crimes of violence: the conspiracy counts charged in Counts 1 through 3, and other crimes charged in Counts 5 through 8. The firearm offense charged in Count 9 was predicated solely on the conspiracy offenses (Counts 1 through 3).

During trial in 2013, the district court provided the jury with a number of instructions that are relevant to this appeal. First, the court instructed the jury that, as to Counts 4 and 10, the Government had to prove beyond a reasonable doubt that Said "committed any one or more of the crimes charged in" Counts 1 through 3 and 5 through 8 of the indictment.⁵ J.A. 198 (emphasis added); see also J.A. 183. The court also gave a "limiting instruction" as to Count 10, instructing that "Count Ten is to be considered only if you have found [Said] guilty of at least one of the crimes of violence charged in Counts One, Two, Three, Five, Six, Seven, or Eight." J.A. 198–99 (emphasis added); see also J.A. 74 (Government counsel making the same point in closing). And the court noted that the Government was "required to prove beyond a reasonable doubt that [Said], or another who was aided and abetted by [him,] actively employed the firearms described in" Count 10. J.A. 201. Finally, the court instructed the jury that its "verdict must be unanimous." J.A. 206.

The jury convicted Said on all ten counts, and further unanimously found that "a firearm was discharged during" the crime charged in Count 10. J.A. 218. The verdict form did not require the jury to identify the predicate offenses upon which the convictions for Counts 4, 9, or 10 were based.

In November 2016, the district court sentenced Said to 396 months' imprisonment:⁶ 120 months on Counts 1 through 8, all to be served concurrently; 96 months on Count 9, to be served consecutively; and 180 months on Count 10, also to be served consecutively. Said additionally received a total effective supervised release term of five years. Neither party appealed the sentence.

In January 2021, Said filed a habeas petition under 28 U.S.C. § 2255 seeking to vacate his convictions on Counts 4, 9, and 10 in light of the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which he argued undermined the predicates necessary to sustain those convictions, and which we have held applies retroactively on collateral review,⁷ see In re Thomas , 988 F.3d 783, 790 (4th Cir. 2021). Specifically, 18 U.S.C. § 924(c) —the relevant statute for Counts 4, 9, and 10—prohibits using or carrying a firearm "during and in relation to any crime of violence or drug trafficking crime" or possessing a firearm "in furtherance of any such crime."⁸ 18 U.S.C. § 924(c)(1)(A). A "crime of violence" is defined by statute as "an offense that is a felony and" either (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). In United States v. Davis , however, the Supreme Court held that the second definitional clause—(B), known as the "residual clause"—is unconstitutionally vague. Davis , 139 S. Ct. at 2336. Thus, predicate crimes of violence must fall under clause (A), the "force clause," to be valid.

Said's § 2255 motion contended that at least three predicates, Counts 1 through 3, were no longer valid after Davis , and that therefore the jury was incorrectly instructed that it could consider those charges as predicates for Counts 4, 9, and 10. He further argued that he was prejudiced by this error because there was a reasonable possibility that the jury relied solely on those invalid predicates in convicting him of Counts 4, 9, and 10. The district court agreed and granted the § 2255 motion; vacated Said's convictions on Counts 4, 9, and 10; and resentenced Said to 120 months' incarceration, a sentence he had already completed. Said v. United States , No. 2:10-CR-57-1, 2021 WL 3037412, at *12 (E.D. Va. July 19, 2021). The Government timely appealed the vacatur of Said's convictions on Counts 4 and 10, while conceding that Count 9 was properly vacated because it was based only on the invalid predicates. We granted the Government's motion to stay the district court's judgment pending appeal.

II.

We begin with a review of the predicate convictions. The Government concedes that, after Davis , Counts 1 through 3—the conspiracy charges—may no longer serve as predicate crimes of violence because they do not categorically require "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 United States v. Simms , 914 F.3d 229, 233–34 (4th Cir. 2019) (holding that conspiracy to commit Hobbs Act robbery "does not categorically qualify as a crime of violence under the elements-based categorical approach ... because to convict a defendant of this offense, the Government must prove only that the defendant agreed with another to commit actions that, if realized , would violate the Hobbs Act" (emphases added)).

Additionally, the...