United States v. Shea: Record-Based Harmless-Error Review (Not the Categorical Approach) for Davis Alternative-Predicate § 924(c) Instructional Error on § 2255

I. Introduction

In United States v. Shea (1st Cir. Feb. 23, 2026), Anthony M. Shea pursued consolidated appeals arising from (1) the partial denial of his motion to vacate under 28 U.S.C. § 2255 and (2) an amended judgment entered after the district court resentenced him. The underlying convictions stemmed from a 1997 federal trial in the District of New Hampshire involving multiple robberies in the 1990s, producing fourteen convictions and, ultimately, a life sentence.

The key collateral issue concerned two convictions under 18 U.S.C. § 924(c) (using or carrying a firearm “during and in relation to” a “crime of violence”). At trial, the jury received alternative-theory instructions identifying multiple possible predicate “crimes of violence,” including conspiracy predicates later rendered invalid by United States v. Davis. Because the jury returned general verdicts, Shea argued his § 924(c) convictions might rest on an invalid predicate and therefore had to be vacated.

Separately, Shea sought resentencing on the ground that his designation as a “career offender” under U.S.S.G. § 4B1.1 had become retroactively erroneous; the government conceded the career-offender error, and the district court granted plenary resentencing. After resentencing, Shea challenged the amended judgment only insofar as it imposed sentences on the § 924(c) counts—an argument that depended on invalidating those § 924(c) convictions.

Parties

  • Petitioner/Defendant-Appellant: Anthony M. Shea
  • Respondent/Appellee: United States

Core legal questions

  • After United States v. Davis invalidated § 924(c)(3)(B)’s residual clause, what is the proper harmless-error framework on § 2255 when a jury was instructed on both valid and invalid alternative predicates and returned a general verdict?
  • Specifically, must a reviewing court “import” the categorical approach into the harmless-error inquiry, thereby ignoring the trial record’s factual circumstances?

II. Summary of the Opinion

The First Circuit (Barron, C.J.) affirmed both district-court rulings. The court accepted that, post-Davis, conspiracy-to-rob is no longer a valid § 924(c) predicate and that the jury instructions therefore became retroactively erroneous. But it held Shea was not entitled to relief because, on collateral review, the relevant standard is Brecht v. Abrahamson’s “substantial and injurious effect” test, and harmless-error review may consider the factual record to determine whether the verdict would have been the same.

Critically, the court rejected Shea’s argument that harmless-error analysis must be conducted through the “categorical approach” lens (i.e., ignoring case-specific facts). Instead, the First Circuit held that harmless-error review properly examines the record and the relationship between valid and invalid predicates—consistent with its own prior decisions and with persuasive authority from other circuits.

Because Shea’s resentencing appeal challenged the amended judgment only on the premise that the § 924(c) convictions were invalid, the First Circuit also affirmed the amended judgment once it upheld the § 924(c) convictions.

III. Analysis

A. Precedents Cited

1. Defining “crime of violence” and the post-Johnson/Davis landscape

  • Johnson v. United States, 576 U.S. 591 (2015): Held ACCA’s residual clause unconstitutionally vague. The opinion situates Johnson as the doctrinal starting point for modern void-for-vagueness attacks on “residual clause” definitions.
  • Welch v. United States, 578 U.S. 120 (2016): Made Johnson retroactive on collateral review, enabling § 2255 challenges based on residual-clause invalidation.
  • United States v. Davis, 588 U.S. 445 (2019): Extended Johnson’s logic to § 924(c), invalidating § 924(c)(3)(B)’s residual clause. In Shea, this is the event that retroactively renders parts of the original jury instructions legally erroneous.
  • Delligatti v. United States, 604 U.S. 423 (2025) and United States v. Cruz-Rivera, 904 F.3d 63 (1st Cir. 2018): Used for the terminology and methodology: the “force clause”/“elements clause” and the “categorical approach” for deciding whether an offense qualifies under § 924(c)(3)(A).
  • Mathis v. United States, 579 U.S. 500 (2016): Cited by Shea to emphasize that the categorical approach ignores case-specific facts when classifying an offense as a qualifying predicate. The First Circuit accepts that proposition for predicate-classification, but rejects extending it to harmless error.

2. Alternative-theory jury error and the harmless-error framework

  • Hedgpeth v. Pulido, 555 U.S. 57 (2008) (per curiam) and Skilling v. United States, 561 U.S. 358 (2010): Establish that constitutional error can occur when a jury is instructed on alternative theories and returns a general verdict that may rest on a legally invalid theory.
  • United States v. Latorre-Cacho, 874 F.3d 299 (1st Cir. 2017): Quoted for the formulation that such alternative-theory instructions can create constitutional error when the verdict may rest on an invalid theory.
  • Brecht v. Abrahamson, 507 U.S. 619 (1993): Supplies the governing prejudice standard on collateral review: the petitioner must show the error had a “substantial and injurious effect or influence” on the verdict.
  • O'Neal v. McAninch, 513 U.S. 432 (1995): Explains the “grave doubt” formulation for harmlessness and underscores that harmless-error analysis is a legal judgment applied to the trial record.
  • Chapman v. California, 386 U.S. 18 (1967) and Neder v. United States, 527 U.S. 1 (1999): Used to frame the general purpose of harmless error (asking whether the verdict would have been the same absent the error) and to emphasize context-specific evaluation (“in the setting of a particular case”).

3. First Circuit applications that look to the record

  • United States v. Serrano-Delgado, 29 F.4th 16 (1st Cir. 2022): Cited to show the First Circuit has already examined the record in assessing whether a jury relied on a valid predicate.
  • United States v. Rodríguez-Santos, 56 F.4th 206 (1st Cir. 2022): Used to illustrate the “inextricably intertwined” concept: if valid and invalid predicates are tightly connected in the trial record, the defendant may fail to show the error affected substantial rights.

4. Persuasive sister-circuit authority rejecting “categorical harmlessness”

  • Granda v. United States, 990 F.3d 1272 (11th Cir. 2021); United States v. Reed, 48 F.4th 1082 (9th Cir. 2022); Nicholson v. United States, 78 F.4th 870 (6th Cir. 2023); Stone v. United States, 37 F.4th 825 (2d Cir. 2022): Each is cited for the same bottom line: the categorical approach governs predicate classification, not harmless-error review of an alternative-theory instructional error on § 2255.
  • Pulido v. Chrones, 629 F.3d 1007 (9th Cir. 2010), abrogated on other grounds by Sansing v. Ryan, 41 F.4th 1039 (9th Cir. 2022): Supports the general proposition that alternative-theory harmlessness is assessed by examining the record’s factual circumstances.

5. District-court cases Shea invoked (distinguished)

  • United States v. Berry, No. 09-cv-00019, 2020 WL 591569 (W.D. Va. Feb. 6, 2020) and United States v. White, 510 F. Supp. 3d 443 (W.D. Tex. 2020): The First Circuit found them inapposite because they involved a single potentially invalid predicate rather than multiple alternative predicates with a general verdict.

B. Legal Reasoning

1. The court’s key doctrinal move: separating “predicate classification” from “harmless error”

The opinion draws a firm line between two different legal tasks:

  • Task 1: Predicate classification under § 924(c)(3)(A) (force clause) uses the categorical approach to decide whether an offense “always” involves the requisite force.
  • Task 2: Harmless-error analysis asks whether the proven instructional mistake likely mattered to the verdict in this case, applying the collateral-review standard from Brecht v. Abrahamson (as elaborated by O'Neal v. McAninch).

Because these tasks serve different functions, the First Circuit refused to “import” the categorical approach into harmlessness. In the court’s view, doing so would distort harmless error by forbidding what harmless-error doctrine typically demands: attention to the trial record and to whether the jury necessarily (or near-necessarily) relied on valid grounds.

2. Why the “record-based” method fits alternative-theory instruction errors

The court relied on the Supreme Court’s harmless-error framing—especially that harmlessness asks whether the verdict would have been the same “in the setting of a particular case” (Chapman v. California) and whether a judge has “grave doubt” that the error substantially influenced the verdict (O'Neal v. McAninch). That inquiry inherently requires looking at the record, not abstracting away from it.

3. The role of “interrelated,” “coextensive,” and “inextricably intertwined” predicates

Although the First Circuit did not re-litigate the district court’s factual characterization in detail (and noted Shea did not challenge harmlessness “in any other respect”), it endorsed the legal permissibility of that approach: when valid substantive robbery predicates and invalid conspiracy predicates are closely linked, the court may conclude the petitioner has not shown the instructional defect had a substantial and injurious effect on the general verdict. This matches the First Circuit’s prior record-sensitive reasoning in United States v. Serrano-Delgado and United States v. Rodríguez-Santos.

4. Rejection of lenity

The court rejected Shea’s rule-of-lenity argument as off-target: lenity addresses ambiguity in the scope of a criminal statute. Here, the issue was not statutory ambiguity about § 924(c)’s breadth after Davis, but rather the harmlessness of an instructional error given the full trial record.

5. Consequence for the resentencing appeal

Shea’s resentencing challenge was expressly contingent: he attacked the amended judgment only “insofar as it imposed sentences for the § 924(c) convictions.” Once the court affirmed the continued validity of those convictions, the amended judgment necessarily stood.

C. Impact

1. A clarified First Circuit rule for Davis-based § 2255 alternative-predicate claims

Shea crystallizes a practical, government-favorable, but doctrinally mainstream rule: even when Davis makes one of several instructed predicates invalid, a § 2255 petitioner must still satisfy Brecht prejudice, and courts may decide prejudice by examining the record—including how tightly the valid and invalid predicates were connected at trial.

2. Reduced likelihood of automatic vacatur from general verdicts with mixed predicates

The decision signals that general verdicts do not compel vacatur merely because an invalid predicate was presented. Instead, petitioners must show actual prejudicial impact under collateral standards—often difficult where the trial record strongly supports a valid predicate and the theories overlap.

3. Doctrinal alignment with other circuits

By relying on Granda v. United States, United States v. Reed, Nicholson v. United States, and Stone v. United States, the First Circuit positions itself within an emerging consensus: the categorical approach is not a “universal solvent” to be applied to every downstream question in § 924(c) litigation.

4. Practical guidance for litigants

  • Petitioners must build a record-based argument for prejudice—e.g., pointing to indictment structure, prosecutor argument, evidence presentation, and verdict form dynamics suggesting the jury could have relied on the invalid predicate.
  • The government will focus on overlap/inseparability of the predicate theories and on whether the jury’s other findings make reliance on a valid predicate effectively unavoidable.

IV. Complex Concepts Simplified

1. § 924(c) “force clause” vs. “residual clause”

  • Force/elements clause (§ 924(c)(3)(A)): the predicate offense qualifies if its legal elements require the use/attempted use/threatened use of physical force.
  • Residual clause (§ 924(c)(3)(B)): the predicate qualified if it “by its nature” involved a substantial risk of force; Davis held this clause unconstitutionally vague.

2. The “categorical approach” (what it is—and what it is not)

The categorical approach asks whether an offense qualifies as a predicate by looking to the offense’s legal elements, not to what the defendant actually did. In Shea, the First Circuit emphasized that this methodology answers the predicate-classification question—but does not control whether an instructional error was harmless.

3. Alternative-theory general verdict error

If a jury is told it can convict based on Theory A or Theory B, and Theory B is legally invalid, a general verdict creates uncertainty about which theory the jury used. That uncertainty is constitutional “error,” but on collateral review the petitioner must still show prejudice under Brecht v. Abrahamson.

4. “Harmless error” on § 2255: the Brecht/O’Neal standard

On collateral review, the question is not whether the error occurred, but whether it had a “substantial and injurious effect or influence” on the verdict (Brecht v. Abrahamson). If the judge has “grave doubt” whether the error mattered, the petitioner wins; if not, the conviction stands (O'Neal v. McAninch).

V. Conclusion

United States v. Shea reinforces a central post-Davis principle for § 924(c) collateral litigation in the First Circuit: when a jury received alternative-predicate instructions and returned a general verdict, the presence of an invalid predicate does not by itself require vacatur. Instead, under Brecht v. Abrahamson, courts may—and should—evaluate prejudice by examining the trial record, including whether valid and invalid predicates were interrelated, coextensive, or inextricably intertwined. Because Shea’s challenge to the amended judgment depended entirely on invalidating the § 924(c) convictions, affirmance of those convictions foreclosed his sentencing appeal as well.