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HARMLESS ERROR MATTERS, NOT CATEGORICAL MISSTEP, 1ST SAYS
Anthony Shea was charged back in the 90s with a series of robberies that featured liberal use of firearms. He was convicted of a Hobbs Act conspiracy, several Hobbs Act robberies and two 18 USC § 924(c) offenses for using and carrying a gun during the crimes.
Tony’s jury was instructed that the predicate crime of violence for the two § 924(c) charges could be either Hobbs Act robbery or conspiracy to commit the same. The jury returned a general verdict of guilty as to all counts, including the two § 924(c) counts and their predicates, meaning that no one could tell on which predicate – the robbery or conspiracy – the § 924(c)s were based.
However, in 2015, years after Tony’s conviction, the Supreme Court decided in Johnson v. United States that the residual clause in the Armed Career Criminal Act (18 USC § 924(e)(2)(B)) definition of “violent felony” was unconstitutionally vague. Later, SCOTUS held in United States v. Davis that the logic of Johnson extended to § 924(c), holding that the residual clause “crime of violence” under § 924(c)(3)(B) was unconstitutionally vague as well.
Tony got permission to file a successive 28 USC § 2255 motion based on Johnson in order to challenge his two § 924(c) convictions and his sentences. He argued that the court has to assume that the jury took the categorical approach, meaning that the facts of his particular robberies didn’t matter, just the elements of the crime. Because the jury could have convicted him of § 924(c) offenses based on a conspiracy – and conspiracies didn’t count as violent after Davis – he argued that the two § 924(c) counts had to be vacated.
The District Court disagreed. It found the error harmless, because Tony was convicted of the two robberies in which the guns were used, and those substantive offenses “did, and still do, qualify as predicate ‘crimes of violence’ under [s]ection 924(c).” The District Court thus held that the jury’s verdicts on the § 924(c) convictions “remain valid.”
Last week, the 1st Circuit agreed. Ordinarily, to determine whether it is harmless error for a district court to instruct a jury on “multiple theories of guilt, one of which is improper,” a court must examine the factual circumstances and the record before it in evaluating the effect of the error on the jury’s verdict. The Circuit rejected Tony’s approach, holding that there is “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,” the Circuit said, “is used to determine whether a court has erred in instructing the 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.’”
Here, the jury found beyond a reasonable doubt that Tony had committed the robberies. Therefore, any error in not instructing the jury that the robberies – not the conspiracy – was the underlying crime of violence supporting the § 924(c) convictions was harmless.
Shea v. United States, Case Nos. 22-1055, 2026 U.S.App. LEXIS 5327 (1st Cir. February 23, 2026)
~ Thomas L. Root