### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-3340

Z ENON G RZEGORCZYK, Petitioner-Appellant,

v.

U NITED S TATES OF A MERICA, Respondent-Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:16-cv-08146 — Elaine E. Bucklo , Judge

.

____________________
A RGUED N OVEMBER 3, 2020

— D ECIDED M AY 13, 2021

____________________

Before K ANNE , S CUDDER , and S T

. E VE , Circuit Judges

. S T

. E VE , Circuit Judge . In the spring of 2012, Zenon Grzegorczyk hired two men to kill his ex-wife and fi ve of her friends in exchange for $48,000. Fo rtunately, his plan was destined to fail—the two men he so ught out for the task were undercover law enforcement o ffi cers. A grand jury returned a four-count indictment charging him with three counts of using a facility of interstate commerce with intent that murder be commi tt ed (“murder-for-hire”) in violation of 18 U.S.C.2 No. 18-3340

§ 1958(a), and one count of possession of a fi rearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). In July 2014, pursuant to a wri tt en plea agreement with the government, Grzegorczyk pled guilty to one count of murder-for-hire and the fi rearm charge. The districtcourt sentenced him to 151 months in prison for the murderfor-hire count and a consecutive 60 months for the fi rearm count. Grzegorczyk now seeks relief from his § 924(c) conviction pursuant to 28 U.S.C. § 2255. But because he signed an unconditional plea agreement, the di strict court found his challenge waived and denied relief. We a ffi rm. I. Background A. Factual BackgroundIn April 2012, Grzegorczyk hired two men to kill his exwife and several other individu als whom he deemed responsible for his divorce and the loss of custody of his son. Grzegorczyk was unaware at the time that the two men he hired were undercover law enforcement o ffi cers.Grzegorczyk met the men at a fast-food restaurant in Chicago two weeks later to put his plan in motion. After meetingthem in the parking lot of the restaurant, he got into their vehicle and directed them to the residences of his intended victims. Grzegorczyk produced phot ographs of some of his intended victims and described them in more detail. He alsoprovided license plate numbers for two of the intended victims’ vehicles. Grzegorczyk told the men that he wanted the murders completed before June 2012 because he would havean alibi during that time. He agreed to a $3,000 down payment for the murders.No. 18-3340 3

The following week, Grzegorczyk met the men for a fi nal time. He entered their vehicle again, this time carrying a small du ffl e bag. Grzegorczyk showed the men photos of additional individuals he wanted murdered, bringing the total to six. Grzegorczyk then opened the du ffl e bag and gave the undercover o ffi cers $3,000 in cash as the down payment he had promised. He also showed them the remaining contents of the bag: $45,000 in cash that he inte nded to pay upon completion of the murders, a 9mm semi-automatic handgun, and two magazines loaded with 40 live rounds of ammunition. Grzegorczyk left the o ffi cers’ vehicle and returned to his car. He was then arrested. B. Procedural Background On July 17, 2014, Grzegorczyk pled guilty to one count of murder-for-hire in violation of 18 U.S.C. § 1958(a) and one count of possession of a fi rearm in furtherance of a crime of violence in violation of 18 U.S. C. § 924(c)(1)(A). Pursuant to the wri tt en plea agreement, Grzegorczyk waived, among other rights, the right to “all appellate issues that might have been available if he had exercised his right to trial.” Under the agreement, he could only appeal the validity of his guilty plea and the sentence imposed. On October 24, 2014, the district court imposed a within-Guidelines sentence of 151 months for the murder-for-hire o ff ense, and a consecutive 60 months for the fi rearm o ff ense. We a ffi rmed that sentence on appeal. United States v. Grzegorczyk , 800 F.3d 402 (7th Cir. 2015). That same year, the Supreme Court decided Johnson v. United States , invalidating as unconstitutionally vague the de fi nition of a “violent felony” under the residual clause of the Armed Career Criminal Act. 576 U.S. 591, 606 (2015); see 18 U.S.C. § 924(e)(2)(B)(ii). The Co urt later extended the logic4 No. 18-3340

of Johnson to the residual clause of § 924(c), invalidating the de fi nition of “crime of violence ” in that statute’s residual clause as unconstitutionally vague. United States v. Davis , 139 S. Ct. 2319 (2019); see§ 924(c)(3)(B). Following Davis , a § 924(c) conviction based on a crime of violence may rely only on the statute’s “elements clause.” See§ 924(c)(3)(A). Grzegorczyk petitioned the district court pursuant to 28 U.S.C. § 2255 for relief from his § 924(c) conviction in light of Johnson and Davis .* The district court denied relief, fi nding that Grzegorczyk waived his Johnson challenge when he pled guilty to a crime of violence. United States v. Grzegorczyk , No. 1-16-cv-08146, 2018 WL 10126077, at *1 (N.D. Ill. Oct. 17, 2018). The court did not address the merits of his claim. Grzegorczyk timely appealed.

II. DiscussionOn appeal, Grzegorczyk asks us to vacate his § 924(c) conviction and remand for resentencing because, after Johnson and Davis , a predicate crime of violence must be a felony that satis fi es § 924(c)’s elements clause and, he asserts, murder-forhire is not such a felony. We agree with the district court that Grzegorczyk waived this challenge to the legal su ffi ciency ofthe § 924(c) charge by pleading guilty. Thus, we need not decide whether murder-for-hire is a crime of violence under § 924(c)(3)(A).

* Davis had not yet been decided when Grzegorczyk fi led his § 2255 petition, but he argued—and we had already held—that Johnson ’s reasoning extended to the de fi nition of “crime of viol ence” in § 924(c)(1)(B). United States v. Cardena , 842 F.3d 959, 996 (7th Cir. 2016).No. 18-3340 5

We denied similar challenges in Davila v. United States , 843 F.3d 729 (7th Cir. 2016), and United States v. Wheeler, 857 F.3d 742 (7th Cir. 2017). In Davila , the petitioner pled guilty to conspiring to commit robbery in vi olation of the Hobbs Act, 18 U.S.C. § 1951, and to violating § 924(c)’s residual clause by possessing a fi rearm in connection with the planned robbery and in connection with a separate drug tra ffi cking crime. Following Johnson , he fi led a § 2255 petition seeking relief fromhis § 924(c) conviction on the theory that conspiracy to commit robbery could only be considered a crime of violence under § 924(c)’s residual clause. We rejected Davila’s arguments and held that Davila had relin quished his right to challenge his § 924(c) conviction as a condition of his plea agreement. Davila , 843 F.3d at 732. Absent a lack of subject-ma tt er jurisdiction or a constitutional problem with “the very institutionof the criminal charge,” Davila’s guilty plea foreclosed his collateral a tt ack. Id. at 733 (citing United States v. Broce, 488 U.S. 563, 569 (1989)). We addressed an almost-identical challenge in Wheeler, where we reiterated that a cr iminal defendant who pleads guilty to a § 924(c) charge cannot automatically “reopen the subject and ask a court of appeals to upset the conviction” based on Johnson . 857 F.3d at 744. To the contrary, “an unconditional guilty plea waives any contention that an indictment fails to state an o ff ense.” Id. at 745. Grzegorczyk pled guilty. In doing so, he admi tt ed to knowingly using a facility of inte rstate commerce with intent that a murder be commi tt ed in violation of 18 U.S.C. § 1958(a), as well as to “possession of a fi rearm, in furtherance of a crime of violence,”—murder-for-hire—i n violation of § 924(c)(1)(A). Grzegorczyk’s challenge to his § 924(c) conviction is the exact6 No. 18-3340

type of claim we deemed waived by an unconditional guilty plea in Davila and Wheeler . Indeed, his argument that murderfor-hire cannot be deemed a crime of violence “not only could have been presented by pretrial motion but also hadto be sopresented under Fed. R. Crim. P. 12(b)(3)(B)(v), which provides that  failure to state an o ff ense’ is the sort of contention that  must’ be raised before trial.” Id. at 744. Grzegorczyk acknowledges as much. Undeterred, he asks that we overrulethose cases in light of the Supreme Court’s more recent decision in Class v. United States , 138 S. Ct. 798 (2018).
In Class , the defendant pled guilty to possession of a fi rearm on U.S. Capitol grounds in violation of 40 U.S.C. § 5104(e) after he left a fi rearm locked in his car parked in a lot on the grounds of the Capitol. He expr essly waived several rights by the terms of the plea agreement, but nonetheless appealed his conviction on the grounds that the statute violated the Second Amendment and the Due Proces s Clause. The Supreme Court reversed the D.C. Circuit’s deci sion to dismiss Class’s claimsas waived, stressing that his claims “challenge[d] the Government’s power to criminalize Class’ (admi tt ed) conduct.” Class , 138 S. Ct. at 805. The Court explained that while, in general,“a valid guilty plea relinquishes any claim that would contradict the admissions necessarily made upon entry of a voluntary plea of guilty,’” id. (quoting Broce, 488 U.S. at 573–74), Class’s claims were di ff erent. In challenging the constitutional validity of his conviction, he did “not in any way deny that he engaged in the conduct to which he admi tt ed.” Id. Here, unlike in Class , Grzegorczyk’s claim does contradict the terms of his plea agreement. See id. at 804. In Grzegorczyk’s wri tt en plea agreement, he speci fi cally admi tt ed that he “knowingly possessed a fi rearm, namely, a Taurus PT99No. 18-3340 7

9mm semi-automatic pistol, in furtherance of a crime of violence”—murder-for-hire—in viol ation of § 924(c)(1)(A). Although Davis invalidated the residual clause’s de fi nition of a crime of violence, it left the elements clause intact. Grzegorczyk’s conviction thus remains co nstitutionally permissible as long as murder-for-hire falls within the de fi nition of a crime of violence under the elements clause. Grzegorczyk does not disagree, but nonetheless asserts that his challenge is constitutional in nature because, he argues, murder-for-hire is not a crime of violence under the elements clause. Grzegorczyk misunderstands Class to mean that eventhough he pled guilty, he may nonetheless raise a constitutional challenge to his conviction , as long as his claim does not contradict the terms of the plea agreement (which, as we haveexplained, it does) and can be resolved by the facts in the record. We do not fi nd Class so broad. Indeed, we recently rejected this argument in Oliver v. United States , 951 F.3d 841 (7th Cir. 2020). There, petitioners pl ed guilty to charges under § 924(c) for brandishing a fi rearm during a crime of violence—theft from a federally licensed fi rearm dealer in violation of 18 U.S.C. § 922(u). Oliver, 951 F.3d at 843. The petitioners sought relief pursuant to § 2255, arguing that, after Davis , theft from a federally licensed fi rearm dealer no longer counted as a crime of violence su ffi cient to sustain a conviction under § 924(c). Relying on Class , the petitioners asserted that their claims were nonwai vable because they challenged the constitutionality of the statut e of their convictions. We determined, however, that “ Class is not as sweeping as [petitioners] contend,” and dismissed their petitions as waived. Id. at 846.8 No. 18-3340

Class , we explained, held only that “a guilty plea, by itself , does not implicitly waive a defendant’s right to challenge the constitutionality of his statute of conviction.” Id. But as we have also explained, an unconditional plea of guilty is su ffi

cient to waive a defendant’s right to contest the proper interpretation of the statute of conviction. See Wheeler, 857 F.3d at 744–45. Here, as in Wheeler, Grzegorczyk does not maintain that § 924(c) is invalid. See id . at 745. He has not challenged the government’s power to criminalize his admi tt ed conduct. See Class , 138 S. Ct. at 805. Instead, Grzegorczyk merely assertsthat murder-for-hire is not a “crime of violence” under the elements clause. This is an issue of statutory construction, not a claim of constitutional immunity from prosecution. See Wheeler, 857 F.3d at 745. As we have explained before, an unconditional guilty plea implicitly waives such challenges. See id. (“[A]n unconditional guilty plea waives any contention that an indictment fails to state an o ff ense.”); see also United States v. Grayson Enterprises, Inc. , 950 F.3d 386, 402 (7th Cir. 2020). Grzegorczyk’s claim is waived.
In a fi nal a tt empt to avoid waiver, Grzegorczyk challenges the validity of his plea altogether. A valid guilty plea is onethat a criminal defendant has made voluntarily and intelligently. See Bousley v. United States , 523 U.S. 614, 618 (1998). An“intelligent” plea requires that the defendant have “real notice of the true nature of the charge against him.” Id. Grzegorczyk argues that because Johnson and Davis changed the scope of conduct supporting a convicti on under § 924(c), he lacked “real notice” of the charges against him when he entered his plea agreement in 2014.Grzegorczyk faces two procedural obstacles in challenging the validity of his plea. First, he did not a tt ack the validityNo. 18-3340 9

of his plea on direct appeal. Thus, he may only raise the issue in a § 2255 petition if he “can fi rst demonstrate either  cause’ and actual  prejudice,’ or that he is  actually innocent.’” Bousley, 523 U.S. at 622 (citations omi tt ed). He has failed to do so.Second, Grzegorczyk did not raise this issue in his § 2255 petition before the district court. He asserts this argument for the fi rst time on appeal. Construi ng Grzegorczyk’s pro se petition liberally, as we must, see McNeil v. United States , 508 U.S.106, 113 (1993), Grzegorczyk did not raise any arguments suggesting he was contesting the va lidity of his plea in his § 2255 petition. This second default is decisive—the issue is waived. That is because Grzegorczyk “has made no a tt empt to demonstrate why his case quali fi es as one of these  rare civil case[s] where exceptional circumstances exist’” warranting plain-error review. S.E.C. v. Yang, 795 F.3d 674, 679 (7th Cir. 2015) (quoting Jackson v. Parker, 627 F.3d 634, 640 (7th Cir. 2010)); see also Bourgeois v. Watson , 977 F.3d 620, 629–30 (7th Cir. 2020). Even if we were to consider Grzegorczyk’s claim forfeitedrather than waived and review for plain error, his plea-withdrawal argument still fails. G rzegorczyk cannot prove that there was any error, let alone one that was “clear and obvious,” a ffected his substantial rights, and that “seriously affects the fairness, integrity, or public reputation of judicial proceedings,” as is required to satisfy plain error review. See United States v. Williams , 946 F.3d 968, 971 (7th Cir. 2020). A change in the law after a defendant pleads guilty does not change the voluntariness of the pl ea at the time it was entered and does not justify a defendant withdrawing his plea. See United States v. Mays , 593 F.3d 603, 607 (7th Cir. 2010) (highlighting defendant’s inability to “point to any authority that holds that the mere possibility of a change in Supreme Court precedent is a fair and just reason for withdrawal of a guilty10 No. 18-3340

plea”). Grzegorczyk has long waived his right to contest the validity of his plea agreement, and in any event, cannotdemonstrate any error justifying withdrawal of the agreement.
III. Conclusion Grzegorczyk pled guilty to possession of a fi rearm in furtherance of a crime of violence , murder-for-hire, in violation of § 924(c). By unconditionally pl eading guilty, he waived his right to challenge the legal su ffi ciency of the § 924(c) charge.
A FFIRMED