Davis § 924(c) General Verdicts Are Reviewed for Brecht Harmless Error (Not the Categorical Approach) and COAs Do Not Lie for Remedy-Choice Complaints Without a Constitutional Hook

1. Introduction

Matthew McDonald v. United States of America is a collateral-review decision arising from McDonald’s motion under 28 U.S.C. § 2255. McDonald sought to vacate his conviction for using a firearm during a crime of violence under 18 U.S.C. § 924(c) and to obtain a full resentencing after partial § 2255 relief from an ACCA-enhanced sentence.

The case sits at the intersection of two post-Supreme Court developments: (1) United States v. Davis, 588 U.S. 445 (2019), which invalidated § 924(c)’s residual clause and thus destabilized convictions potentially predicated on offenses like Hobbs Act robbery conspiracy; and (2) post-Johnson v. United States, 576 U.S. 591 (2015) ACCA litigation, which has required courts to revisit whether prior convictions still qualify as ACCA predicates.

The key issues were: (a) whether the inclusion of an invalid predicate (Hobbs Act robbery conspiracy) in the jury instructions for McDonald’s § 924(c) count required vacatur on collateral review; and (b) whether McDonald could obtain (and appeal for) a full resentencing rather than a “sentence correction,” including whether a certificate of appealability (COA) could issue for that remedy-choice dispute.

2. Summary of the Opinion

The First Circuit affirmed the denial of § 2255 relief on the § 924(c) conviction and denied a COA on McDonald’s attempt to challenge the district court’s remedy choice (sentence correction rather than plenary resentencing).

  • § 924(c) / Davis claim: Although the jury was instructed that Hobbs Act robbery conspiracy could serve as a § 924(c) crime-of-violence predicate (now incorrect after Davis), the error was harmless because the valid predicate (Hobbs Act robbery) and the invalid predicate were “interrelated and coextensive” on this record.
  • Resentencing remedy claim: Even assuming a COA was required to contest the district court’s § 2255 remedy choice, McDonald failed to show a substantial and reasonably debatable constitutional claim arising from the court’s discretionary selection of a sentence correction. Concepcion v. United States, 597 U.S. 481 (2022) did not establish that the district court misunderstood its discretion under § 2255(b), and the court found no constitutional entitlement to the same remedy afforded to co-defendant Shea.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Outcome)

A. The Davis/Johnson line and the collapse of residual clauses

  • Johnson v. United States, 576 U.S. 591 (2015) and Welch v. United States, 578 U.S. 120 (2016): These decisions supplied the retroactive constitutional foundation for McDonald’s successful challenge to his ACCA enhancement below. Their relevance in the First Circuit’s opinion is largely procedural and remedial: Johnson opened the door to partial relief; the dispute became what relief follows.
  • United States v. Davis, 588 U.S. 445 (2019): The court treated Davis as the controlling authority that invalidated § 924(c)’s residual clause, which in turn rendered Hobbs Act robbery conspiracy an invalid predicate. The remaining question was not Davis’s scope, but the effect of the erroneous instruction on collateral review.

B. Harmless error on collateral review: the governing standard

  • Brecht v. Abrahamson, 507 U.S. 619 (1993): The opinion applied Brecht’s “substantial and injurious effect or influence” test for collateral review, framing harmlessness as the central inquiry.
  • O'Neal v. McAninch, 513 U.S. 432 (1995), Davis v. Ayala, 576 U.S. 257 (2015), and Munyenyezi v. United States, 989 F.3d 161 (1st Cir. 2021): These cases supplied the “grave doubt” gloss—if the record is evenly balanced such that a judge is in grave doubt, the petitioner prevails. The court invoked this framework to emphasize that McDonald’s record did not approach equipoise.
  • Hedgpeth v. Pulido, 555 U.S. 57 (2008): Used to support the proposition that when a jury is instructed on alternative theories—one invalid, one valid—harmless error analysis can resolve the problem. The First Circuit treated erroneous “predicate” instructions as analogous to alternative-theory instructional errors.
  • Kotteakos v. United States, 328 U.S. 750 (1946): Referenced as the origin of the harmless-error formulation incorporated into Brecht.

C. The categorical approach rejected as the lens for this collateral inquiry

  • Shea v. United States, 168 F.4th 60 (1st Cir. 2026): This was the controlling in-circuit precedent that foreclosed McDonald’s categorical-approach argument. Shea held that a Davis-based claim about an invalid § 924(c) predicate embedded in jury instructions is assessed under harmless error on collateral review; the categorical approach does not govern identifying what predicate the jury likely relied upon.
  • Nicholson v. United States, 78 F.4th 870 (6th Cir. 2023) and United States v. Ali, 991 F.3d 561 (4th Cir. 2021): These cases were cited (through Shea) as consistent out-of-circuit support for the same methodology: the categorical approach answers the legal question whether an offense qualifies as a crime of violence, not the factual question what the jury relied on.
  • Mathis v. United States, 579 U.S. 500 (2016): Mentioned to describe the categorical approach generally (elements-focused), but the court found it inapposite to the harmless-error inquiry presented.

D. Valid predicates and coextensiveness on this record

  • United States v. Frates, 896 F.3d 93 (1st Cir. 2018) and United States v. Torres-Correa, 23 F.4th 129 (1st Cir. 2022): These cases were used to confirm that armed bank robbery and Hobbs Act robbery remain valid crime-of-violence predicates under § 924(c)’s force clause.
  • United States v. Serrano-Delgado, 29 F.4th 16 (1st Cir. 2022): Functioned as a near-direct analog: rejecting the notion that the firearm use could be attributed to “the conspiracy” but not “the robbery,” where the events were functionally inseparable. Serrano-Delgado reinforced the “absurdity” analysis used to find harmlessness.
  • United States v. Shea, 211 F.3d 658 (1st Cir. 2000): The prior direct-appeal decision provided key factual findings the court treated as settled: an overarching conspiracy with continuity in personnel, regular arming, and McDonald’s involvement from the start—including evidence tying him to the Hudson robbery. This factual backdrop supported the conclusion that the predicates were “interrelated and coextensive.”

E. Remedy choice, COAs, and the constitutional gatekeeping function

  • Slack v. McDaniel, 529 U.S. 473 (2000) and Barefoot v. Estelle, 463 U.S. 880 (1983): Provided the COA standards; critically, Slack (as applied here) required a “substantial showing of the denial of a constitutional right.”
  • Gonzalez v. Thaler, 565 U.S. 134 (2012): Emphasized the COA’s screening role; the court used Gonzalez to justify insisting on a constitutional hook for remedy-choice challenges.
  • United States v. Hadden, 475 F.3d 652 (4th Cir. 2007) and Ajan v. United States, 731 F.3d 629 (6th Cir. 2013), contrasted with Clark v. United States, 76 F.4th 206 (3d Cir. 2023) and United States v. Cody, 998 F.3d 912 (11th Cir. 2021): These cases framed a circuit split on whether remedy-choice appeals proceed via notice of appeal from an amended criminal judgment or via COA. The First Circuit expressly avoided resolving the split because McDonald failed the COA standard even under his preferred approach.
  • Concepcion v. United States, 597 U.S. 481 (2022): The court treated Concepcion as addressing what courts may consider once a resentencing is triggered under the First Step Act, not as altering § 2255(b)’s remedial discretion or creating a constitutional entitlement to plenary resentencing.
  • Jones v. United States, 526 U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466 (2000): These cases were central to why co-defendant Shea received a dramatically reduced carjacking sentence at his later resentencing. McDonald sought to leverage them indirectly, but the First Circuit found no constitutional route (on this appeal posture and COA standard) to compel a similar resentencing opportunity.

3.2. Legal Reasoning

A. The Davis instructional error did not warrant § 2255 relief because it was harmless under Brecht

The court’s reasoning proceeded in three moves:

  1. Identify the error: Post-Davis, Hobbs Act robbery conspiracy cannot be a § 924(c) crime-of-violence predicate, so the instruction was erroneous.
  2. Select the review framework: Under Shea v. United States, 168 F.4th 60 (1st Cir. 2026), the court rejects the categorical approach as the tool for determining whether the jury relied on a valid or invalid predicate in a general verdict. Instead, the question is harmlessness on collateral review under Brecht.
  3. Apply harmless error to the record: The valid predicates (Hobbs Act robbery; armed bank robbery) remained available. Most importantly, the court found the conspiracy and robbery predicates “interrelated and coextensive” on the Hudson armored car event, making it implausible that a jury found firearm use in the conspiracy but not in the robbery. The court also pointed to aiding-and-abetting instructions and constructive possession evidence to defeat McDonald’s factual separation theory.

The practical import is that the First Circuit treated “general verdict + mixed predicate instructions” as an evidentiary harmless-error inquiry on collateral review, not an elements-only categorical inquiry.

B. The resentencing remedy challenge failed because it did not present a debatable constitutional claim warranting a COA

McDonald tried to transform the district court’s selection of a § 2255(b) remedy (“correct” rather than “resentence”) into a COA-worthy appellate issue. The court’s response was structural: even assuming (without deciding) that a COA is the right vehicle, § 2253(c)(2) demands a substantial constitutional claim.

The court found McDonald’s theories insufficient:

  • No constitutional entitlement to plenary resentencing: McDonald cited no authority establishing that a discretionary remedy choice under § 2255(b) itself implicates a constitutional right. The court noted that the cases he cited did not help and that some out-of-circuit authority (including Clark v. United States and United States v. Cody) cut against him.
  • Concepcion did not show the district court misunderstood § 2255(b): The court read the district judge’s Shea-related remarks as addressing what can be considered once resentencing is triggered (especially where the parties agreed to resentencing), not as a belated discovery that § 2255(b) permits resentencing at all.
  • Insufficient-explanation claim did not clear the COA bar: The court held that reasoning can be inferred from what the district court did, and McDonald did not persuasively show that the court ignored his requests rather than rejected them.
  • Equity/comparator argument (Shea): The court acknowledged the perceived unfairness but treated it as non-constitutional absent supporting authority. It also distinguished Shea’s posture because the government agreed to resentencing in Shea for unexplained reasons.

3.3. Impact

A. Davis-based § 924(c) collateral attacks in the First Circuit

The decision strengthens a post-Shea First Circuit template: where a general verdict follows instructions listing both valid and invalid § 924(c) predicates, the petitioner’s path to relief runs through Brecht harmless error, and the government can defeat relief by showing the predicates were factually “interrelated and coextensive.”

This approach narrows Davis relief in cases where the trial evidence makes it difficult to conceptually separate the conspiracy predicate from the substantive robbery predicate, especially when aiding-and-abetting instructions were given and the factual record reflects coordinated armed activity.

B. Remedy-choice litigation and COA gatekeeping

The court avoided taking sides in the circuit split over COA vs. notice-of-appeal procedure, but it sent a clear signal: even if a COA is available, remedy-choice objections that lack an identifiable constitutional dimension will not pass § 2253(c)(2).

Practically, petitioners seeking plenary resentencing after partial § 2255 success must be prepared to articulate a concrete constitutional theory tied to the remedy selection, not merely invoke discretion, parity with co-defendants, or generalized references to intervening law.

4. Complex Concepts Simplified

  • 28 U.S.C. § 2255 (“federal habeas” for federal prisoners): A mechanism to collaterally attack a federal conviction or sentence after direct appeal, usually for constitutional or jurisdictional errors.
  • 18 U.S.C. § 924(c): Adds criminal liability for using/carrying a firearm during (or possessing one in furtherance of) a “crime of violence” or drug trafficking offense. After Davis, only the “force clause” definition remains; the “residual clause” is void.
  • ACCA (Armed Career Criminal Act): A sentencing enhancement for certain firearm offenders with three qualifying “violent felony” priors. Johnson invalidated ACCA’s residual clause.
  • Categorical approach: A method that looks to the legal elements of an offense—not the defendant’s actual conduct—to decide whether a conviction qualifies as a “crime of violence” (or similar). Here, the First Circuit held this is not the tool to determine what predicate the jury relied upon in a general verdict on collateral review.
  • Harmless error on collateral review (Brecht): Even if there was a constitutional error, relief is denied unless the error had a “substantial and injurious effect or influence” on the verdict. If the judge has “grave doubt” about harmlessness, the prisoner wins.
  • COA (Certificate of Appealability): A required “permission slip” to appeal the denial of § 2255 relief; it issues only upon a substantial showing of the denial of a constitutional right.
  • § 2255(b) remedies: If relief is warranted, the court may discharge the prisoner, grant a new trial, resentence, or correct the sentence—whichever “may appear appropriate.” This opinion emphasizes that disputing the choice among these remedies does not automatically raise a constitutional issue.

5. Conclusion

McDonald v. United States reinforces two practical rules in First Circuit post-conviction litigation. First, Davis-based challenges to § 924(c) convictions stemming from mixed-predicate jury instructions are decided under Brecht harmless error on collateral review, and relief will be denied where the valid and invalid predicates are factually “interrelated and coextensive.” Second, attempts to obtain (or appeal for) plenary resentencing after partial § 2255 success face a stringent COA gate: absent a substantial, reasonably debatable constitutional claim tied to the remedy choice, the appeal cannot proceed—even where a co-defendant obtained a fuller resentencing.