PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-7089

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

MOHAMED ALI SAID, a/k/a Maxamad Cali Saciid,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Norfolk. Raymond A. Jackson, District Judge. (2:10-cr-00057-RAJ-DEM-1; 2:21-cv00040-RAJ-DEM)

Argued: December 9, 2021 Decided: February 23, 2022

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.

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. 

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John Gleeson, Steven G. Tegrar, DEBEVOISE & PLIMPTON LLP, New York, New 

York, for Appellee.

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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 (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 

1 The district court also granted relief as to a third count. Both parties agree that was 

proper. Our opinion does not disturb that relief.

2 The facts stated herein are taken from our previous decision affirming Said’s 

convictions on direct appeal and are recited in the light most favorable to the Government, 

as the prevailing party at trial. See United States v. Said, 798 F.3d 182, 186 n.2 (4th Cir. 

2015) (citing United States v. Singh, 518 F.3d 236, 241 n.2 (4th Cir. 2008)).

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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).

3 Said was tried alongside four of his codefendants. The fifth pleaded guilty shortly 

after their arrest. Said, 798 F.3d at 188–89.

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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 

4 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

5 In its instructions on Count 10, the district court erroneously listed Count 4 as a 

possible predicate. However, the court properly omitted Count 4 when listing the possible 

predicates in several other places in the instructions. Said has not argued that this error 

prejudiced him.

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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, 139 S. Ct. 2319 (2019), which he argued undermined the predicates 

6 This followed an original sentencing to an aggregate of 500 months in 2014. Said, 

798 F.3d at 192. We vacated that sentence in 2015 upon the Government’s appeal, in which 

the Government successfully argued that the statutorily required sentence of life in prison

for the piracy count, Count 5, did not violate the Eighth Amendment. Id. at 200. On remand, 

however, the Government moved for a downward departure for reasons unrelated to this 

appeal.

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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.

7 Said originally filed his petition in June 2020, within one year of the Supreme 

Court’s decision in Davis. In November 2020, the district court dismissed that petition 

without prejudice to refiling it within sixty days. Said refiled the petition within that time 

frame. Said’s petition is not a second or successive petition under 28 U.S.C. § 2255(h) 

because the initial petition was dismissed without prejudice to cure technical deficiencies. 

See, e.g., Slack v. McDaniel, 529 U.S. 473, 485–86 (2000); Stewart v. Martinez-Villareal, 

523 U.S. 637, 643–45 (1998); In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999). Nor did 

the Government appeal the sixty-day extension or otherwise argue that Said’s petition was 

untimely. See Miller v. United States, 735 F.3d 141, 143 (4th Cir. 2013) (Government may 

waive statute-of-limitations defense under § 2255); Brian R. Means, Federal Habeas 

Manual § 9A:159 (2021) (“The statute of limitations is an affirmative defense that must be 

asserted by the government.”). 8 While Count 4 charged a violation of 18 U.S.C. § 924(o), that statute is simply the 

conspiracy form of § 924(c). See 18 U.S.C. § 924(o) (providing penalties for “[a] person 

who conspires to commit an offense under [§ 924(c)]”).

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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 

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with another to commit actions that, if realized, would violate the Hobbs Act” (emphases 

added)).

Additionally, the parties and the district court agreed that, at minimum, Counts 7 

and 8 remained valid predicate crimes of violence after Davis.

9 Said, 2021 WL 3037412, 

at *9. Because it is Said’s burden to show error, and because the parties have not briefed 

the crime-of-violence question as to Counts 5 through 8, we assume for purposes of this 

analysis that they are all valid predicates.10

Thus, Said was charged with, and the jury found him guilty of, both valid and invalid 

predicates. Both parties agree with the district court that instructing the jury that any of 

these crimes could serve as predicates for the § 924(c) charges was error. See id. at *10. 

Nevertheless, a § 924(c) conviction may stand even if the jury based its verdict on an 

9 Although Counts 5 through 8 included allegations of aiding and abetting under 18 

U.S.C. § 2(a), we have held that “aiding and abetting a crime of violence is also 

categorically a crime of violence.” United States v. Ali, 991 F.3d 561, 574 (4th Cir.), cert. 

denied, 142 S. Ct. 486 (2021). To the extent those counts charged crimes of violence, 

therefore, it is of no moment whether the jury believed Said to have committed them as a 

principal or as an aider and abettor.

10 We note that we have suggested, in an unpublished opinion, that the crime charged 

in Count 7, § 111(b), may be a proper predicate offense for a § 924(c) conviction. See 

United States v. Lewis, 724 F. App’x 269, 270 n.* (4th Cir. 2018) (per curiam) (finding no 

plain error where § 111(b) was used as a predicate offense for a § 924(c) conviction). Our 

sister circuits agree that it is. See United States v. Bryant, 949 F.3d 168, 181 n.12 (4th Cir. 

2020) (noting this agreement); see also United States v. Taylor, 848 F.3d 476, 492–93 (1st 

Cir. 2017); Gray v. United States, 980 F.3d 264, 268 (2d Cir. 2020) (per curiam); United 

States v. Bullock, 970 F.3d 210, 213 (3d Cir. 2020) (evaluating Sentencing Guidelines 

§ 4B1.1); United States v. Hernandez-Hernandez, 817 F.3d 207, 217 (5th Cir. 2016) 

(evaluating Sentencing Guidelines § 2L1.2); United States v. Rafidi, 829 F.3d 437, 446

(6th Cir. 2016); United States v. Juvenile Female, 566 F.3d 943, 947 (9th Cir. 2009) 

(evaluating 18 U.S.C. § 16); United States v. Kendall, 876 F.3d 1264, 1269–70 (10th Cir. 

2017); United States v. Bates, 960 F.3d 1278, 1285 (11th Cir. 2020); United States v. 

Quaglin, 851 F. App’x 218, 218–19 (D.C. Cir. 2021) (per curiam).

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invalid predicate, so long as the jury also relied on a valid predicate. United States v. Hare, 

820 F.3d 93, 106 (4th Cir. 2016); see United States v. Crawley, 2 F.4th 257, 263 (4th Cir. 

2021) (reaffirming Hare after Davis), cert. denied, 142 S. Ct. 819 (2022). But here, the 

verdict form did not specify which predicate or predicates the jury relied upon in finding 

Said guilty of Counts 4 and 10. 

So, we are left with the question of whether Said is entitled to habeas relief because 

the jury may have relied solely on one or more of the invalid predicates in rendering guilty 

verdicts on Counts 4 and 10. We conclude that the answer is no.

III.

In evaluating this issue, we must first determine our standard of review. “In our 

consideration of the district court’s rulings [on a § 2255 petition], we review its legal 

conclusions de novo and its findings of fact for clear error.” United States v. Roane, 378 

F.3d 382, 395 (4th Cir. 2004). But how do we evaluate the impact of an instructional error 

on a conviction? The answer depends on whether a defendant preserved the objection (by 

raising it before the district court) as well as what stage the case is in (direct appeal or 

collateral attack).

On direct appeal regarding a preserved, meritorious objection to jury instructions, 

the defendant is entitled to relief unless the error is harmless beyond a reasonable doubt. 

Smith, 723 F.3d at 512 (citing Chapman v. California, 386 U.S. 18, 24 (1967)); see id. at 

515 (“Under Chapman, an error is harmless if it is ‘clear beyond a reasonable doubt that a 

rational jury would have found the defendant guilty absent the error.’” (quoting Neder v. 

United States, 527 U.S. 1, 18 (1999))). 

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Where a defendant, like Said, fails to preserve his objection, our review on direct 

appeal is for plain error.

11 On plain-error review, “the defendant rather than the 

Government bears the burden of proof.” United States v. Hastings, 134 F.3d 235, 243 (4th 

Cir. 1998). The defendant must show that the court’s jury instructions included an error 

that was “clear and obvious,” and “that the error affected his substantial rights, meaning 

that it ‘affected the outcome of the district court proceedings.’”12 United States v. Ali, 991 

F.3d 561, 572 (4th Cir.) (emphasis added) (quoting United States v. Catone, 769 F.3d 866, 

871 (4th Cir. 2014)), cert. denied, 142 S. Ct. 486 (2021).

An even more stringent standard applies in a § 2255 case like the one at bar. On 

federal habeas review of an instructional error, we apply the “harmless-error 

standard . . . articulated in Brecht v. Abrahamson,” in which the Supreme Court held that 

an “error is harmless if it did not have a ‘substantial and injurious effect or influence in 

determining the jury’s verdict.’” Smith, 723 F.3d at 512 (quoting Brecht, 507 U.S. at 623);

see id. at 516 (applying Brecht to a § 2255 case); see also Hedgpeth v. Pulido, 555 U.S. 

11 The Government argued below that Said procedurally defaulted his Davis

challenge by not raising it before his convictions became final, and that he could not 

establish either cause or prejudice for the default. But the Government has not pursued that 

argument on appeal, except insofar as it argues Said was not prejudiced because the errors 

as to Counts 4 and 10 were harmless. We therefore do not address the question of 

procedural default. See United States v. Harris, 991 F.3d 552, 558 (4th Cir.) (procedural 

default is an affirmative defense), cert. denied, 142 S. Ct. 379 (2021); Grayson O Co. v. 

Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (party waives argument by failing to 

raise it in its opening brief).

12 Further, even if these elements are established, “we do not correct the error unless 

it ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’”

Ali, 991 F.3d at 572 (quoting United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 

2009)).

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57, 58 (2008) (per curiam) (applying Brecht in a case where, like this one, “the jury was 

instructed on alternative theories of guilt and may have relied on an invalid one”). This 

standard requires the habeas petitioner to show that “[t]here [is] more than a ‘reasonable

possibility’ that the error was harmful.” Davis v. Ayala, 576 U.S. 257, 268 (2015) (quoting 

Brecht, 507 U.S. at 637). Thus, “mere speculation that the defendant was prejudiced by 

trial error” is not enough; “the court must find that the defendant was actually prejudiced 

by the error.” Id. (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per curiam)).

Applying this standard, we first evaluate the district court’s conclusion that Said has 

shown prejudicial error because it is impossible to know from the record which predicate 

or predicates the jury had in mind when it convicted him of Counts 4 and 10. We then turn 

to Said’s assertion that he can show prejudicial error because we do not know whether the 

jury was unanimous in its decision as to which predicate or predicates applied. We reject 

both contentions.13

A.

The district court concluded that Said could show “substantial and injurious effect”

from the instructional error “because there is more than a ‘reasonable probability that the 

13 We also note that the district court purported to apply the modified categorical 

approach to determine which of the “seven alternative potential predicates for Counts Four 

and Ten . . . were vital for [Said]’s convictions.” Said, 2021 WL 3037412, at *6. As we 

explained in Ali, “[t]his [analysis] fundamentally misunderstands what the categorical 

approach accomplishes and the nature of our inquiry” in this case. Ali, 991 F.3d at 574. 

“The purpose of the categorical (and modified categorical) approach is not to determine 

what the predicate was—a factual question—but rather whether a particular predicate 

meets the requirements of a ‘crime of violence’—a purely legal question” not presently 

before us. Id.

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jury would not have convicted [Said] of the § 924 offenses if the invalid [crime-ofviolence] predicate [was] not included on the verdict form.’” Said, 2021 WL 3037412, at

*11 (quoting United States v. Jones, 935 F.3d 266, 274 (5th Cir. 2019) (per curiam)). The 

court indicated that it held “grave doubt” that Said would have been convicted on Counts 

4 and 10 “but for the improper jury instructions” because “there is no evidence in the record 

showing that the jury relied on either an invalid or valid predicate offense to convict” him 

of those counts. Id. at *11 & n.5; see id. at *12 (noting that this “grave doubt” arose because 

the record was “unclear” regarding which predicate or predicates the jury relied upon).

That is not enough. As we have repeatedly held, even under the plain-error standard, 

“the defendant bears the burden of showing ‘that the erroneous instruction given resulted 

in his conviction, not merely that it was impossible to tell under which prong the jury 

convicted.’” Ali, 991 F.3d at 575 (emphasis added) (internal quotation marks omitted) 

(quoting United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010)); see also Hastings, 

134 F.3d at 243–44 (same). That is, “ambiguity is insufficient” to “establish[] actual 

prejudice” even under plain-error review. Ali, 991 F.3d at 575. Instead, the defendant “must 

show not only that he could have been convicted under the erroneous . . . instruction, but 

also that he was not convicted under the” proper instruction. Robinson, 627 F.3d at 955.

Accordingly, mere “uncertainty as to which . . . [predicate or predicates] the jury 

[relied on] when it found [the defendant] guilty of the § 924(c) counts” does not suffice to 

demonstrate plain error, let alone the sort of substantial and injurious error required for 

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habeas relief.

14 Ali, 991 F.3d at 575; see Davis, 576 U.S. at 268 (under Brecht, “mere 

speculation” is insufficient). Rather, to meet his burden, Said must show “more than a

reasonable possibility” that the jury only found him guilty on Counts 4 and 10 because it

improperly considered Counts 1 through 3 to be crimes of violence. Davis, 576 U.S. at 268 

(internal quotation marks omitted).

This he cannot do. Certainly, the record does not indicate which predicates the jury 

relied on. But, at the risk of repetition, that sort of ambiguity is not enough. Further, 

common sense supports that a jury that found Said guilty of several substantive crimes of 

violence, the evidence for all of which showed to involve the use of firearms in an attack 

against the Ashland, had at least one of those crimes in mind when they convicted him of 

using, carrying, and discharging a weapon (or aiding and abetting the same) during and in 

relation to a crime of violence that occurred during the time period covering the attack on 

the Ashland.

15

14 Said directs our attention to cases from other circuits that have found plain error 

in similar circumstances. See, e.g., United States v. Capers, 20 F.4th 105, 123 (2d Cir. 

2021); Jones, 935 F.3d at 274 (5th Cir.). But, of course, we are bound by our own 

precedent. And, in any event, this is not a plain-error case; the standard we must apply here 

is even more difficult for Said to satisfy.

15 Thus, though the fact that Said can point to nothing more than ambiguity is enough 

to resolve this case, we note that the facts here strengthen this conclusion even more. The 

jury found Said guilty of, among other things, assault with a dangerous weapon on a federal 

officer or employee (Count 7). They convicted him of conspiring 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 (Count 4). And they found him guilty of 

discharging a firearm (or aiding and abetting a codefendant who discharged a firearm) 

during and in relation to a crime of violence (Count 10). All of those charges covered the 

time period that included the attack on the Ashland, and the evidence in the case established 

that the only weapon discharged in either the encounter with the Chatham or the attack on 

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Said argues that the Government pointed to the conspiracy predicates in its closing 

argument, which arguably increases the likelihood that the jury relied on those invalid 

predicates. But that does nothing to show that the jury reached the commonsense-defying 

conclusion of relying only on those predicates, especially given that the Government also 

reinforced to the jury that it could rely on the valid predicates. So we do not think Said can 

show that there is more than a reasonable possibility that the jury convicted him of Counts 

4 and 10 based solely on Counts 1, 2, and/or 3. Put another way, neither Said nor the district 

court has pointed to any reason why the jury would not have convicted him on Counts 4 

and 10 based on at least one of the valid predicates—let alone any evidence that they did 

not do so. See Robinson, 627 F.3d at 955.

In analyzing these issues, our decision in Ali is instructive. In that case, the 

defendant was convicted, in relevant part, of four counts of Hobbs Act robbery and four 

counts of carrying a firearm in connection with a crime of violence. Ali, 991 F.3d at 564. 

the Ashland was the AK–47 that Said’s codefendant fired at the Ashland. We struggle to 

see how the jury could have convicted Said both of (1) assaulting individuals on the 

Ashland with a dangerous weapon and (2) discharging a firearm toward the Ashland during 

and in relation to a crime of violence, without finding that the firearm was discharged 

during and in relation to said assault. Cf. Reyes v. United States, 998 F.3d 753, 759 (7th 

Cir. 2021) (“[The defendant] was convicted of conspiracy, robbery, and brandishing. The 

trial evidence showed that he provided the gun and that it was in fact brandished during the 

robbery. No rational juror could have concluded that the gun was brandished in furtherance 

of only the conspirators’ agreement to commit a robbery, but not in furtherance of the 

robbery itself, during which the gun was actually brandished.”). And while Count 4 is more 

complicated because it charged conspiracy to use and carry a firearm during a crime of 

violence and covered the encounters with both the Chatham and the Ashland, we do not 

think it plausible that the jury could have convicted Said of conspiracy to use and carry a 

firearm only during and in relation to other conspiracy charges, and not during and in 

relation to the actual substantive crimes of violence for which the jury also convicted Said.

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Each robbery charge and corresponding firearms charge pertained to one of four separate 

robberies that took place over the course of roughly three weeks. Id. at 564–65; see Joint 

Appendix at 40–47, Ali, 991 F.3d 561 (No. 15-4433) [hereinafter Ali Joint Appendix]. As 

to the robberies, the court instructed the jury that they could find the defendant guilty by 

way of either aiding and abetting liability or conspiracy liability (or both). Ali, 991 F.3d at 

572. And the court instructed that a conviction under either theory would suffice for 

§ 924(c) liability. Id. The jury found the defendant guilty on all charges. The verdict form 

did not require the jury to specify the theory of guilt for either the robbery charges or the 

§ 924(c) charges. Ali Joint Appendix at 796–98.

On appeal, we found that these instructions were in error and that the error was 

plain, because while a conviction for aiding and abetting Hobbs Act robbery was a proper 

§ 924(c) predicate, a conviction for conspiracy to commit Hobbs Act robbery was not. Ali, 

991 F.3d at 572–73. But we rejected the defendant’s contention that this error “affected 

[the defendant’s] substantial rights, meaning that it ‘affected the outcome of the district 

court proceedings.’” Id. at 572 (quoting Catone, 769 F.3d at 871). We concluded (1) that 

“a showing of uncertainty as to ‘whether the verdict returned by the jury rested solely on 

the mis-instruction’ does not meet the defendant’s burden of establishing actual prejudice” 

and (2) that the Government presented evidence of “overwhelming weight” that the 

defendant actually aided and abetted the robberies, rather than merely conspiring to commit 

them. Id. at 575 (quoting Hastings, 134 F.3d at 243); see id. at 576. Here, too, Said pointed 

only to “uncertainty” regarding which predicate or predicates the jury relied on.

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Moreover, in this case, we have no occasion to reach the weight of the evidence 

because the jury actually convicted Said of all the possible predicate theories. Put 

differently, Ali involved two levels of ambiguity, but this case involves only one. In Ali, it 

was unclear from the verdict form (1) whether the jury found the defendant guilty of Hobbs 

Act robbery on the basis of conspiracy, aiding-and-abetting liability, or both, and

(2) whether the jury found the defendant guilty of the § 924(c) charges on the basis of a 

predicate robbery conspiracy, robbery by aiding or abetting, or both. We determined that 

the overwhelming weight of the evidence showed that the defendant “did more than simply 

conspire to commit robberies but that he assisted their commission.” Id. at 576. And we 

rejected the defendant’s instructional-error argument on that basis. We did not then 

question whether the jury’s § 924(c) conviction could have nevertheless been based on 

mere conspiracy, on the supposition that the jury could have found the defendant guilty of 

robbery on both conspiracy and aiding-and-abetting grounds, and then based the § 924(c) 

conviction solely on conspiracy.

But that is what Said asks of us here. In this case, we have no ambiguity about the 

substantive crimes the jury convicted Said of (the first form of ambiguity in Ali): the jury 

found Said guilty of every charge, and he has not pointed to ways in which those individual 

charges could be split into valid and invalid predicates. Rather, he asks us to hold that the 

instructional error had a “substantial and injurious effect” on his conviction because the 

jury did not specify on which predicate or predicates its § 924(c) conclusions were based 

(the second form of ambiguity in Ali). For the reasons discussed above, we reject that 

argument.

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To be clear, we do not hold that a challenge such as Said’s will never succeed when 

the defendant has been convicted of both a § 924(c) charge and a valid crime-of-violence 

predicate. Such a broad question is not before us, and another case with a different set of 

facts may well come out differently, as the Government agreed at oral argument. See Oral 

Arg. at 40:10–43:15, https://www.ca4.uscourts.gov/OAarchive/mp3/21-7089-

20211209.mp3; see also Ali, 991 F.3d at 575 (noting that the analysis required in this type 

of case is a “‘case-specific and fact-intensive’ determination” (quoting Robinson, 627 F.3d 

at 956)). But here, Said has pointed to nothing to eliminate the commonsense prospect that 

the jury relied on one or more of the valid predicates when it convicted him of the § 924 

charges in Counts 4 and 10.

B.

Said further contends that this case involves a second, separate error that was not 

present in Ali: the issue of juror unanimity.16 The district court agreed. Said, 2021 WL 

3037412, at *10 (“[T]he Court recognizes that the lack of special instructions also runs 

afoul of the long-established right of jury unanimity enshrined in the Sixth 

Amendment . . . because it is unclear which predicate offenses the jurors relied on to 

convict [Said] on Counts Four and Ten.”). We conclude that, even assuming legal error 

exists, Said’s argument still rests on ambiguity, which is not sufficient for the reasons 

described above.

16 The Government has not argued that Said procedurally defaulted this claim by 

failing to raise it before his convictions became final or on direct appeal, or that it is 

untimely.

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Said argues that he is entitled to relief because, while the jurors were told their 

“verdict must be unanimous,” they were not instructed that they must unanimously agree 

on the specific predicate or predicates upon which they based their guilty verdicts for

Counts 4 and 10.J.A. 206. He contends that such an instruction was required by Richardson 

v. United States, a continuing-criminal-enterprise case in which the Supreme Court held 

that the jury must reach unanimous agreement not only as to the fact “that the defendant 

committed some ‘continuing series of violations’ but also . . . in respect to each individual 

violation.” Richardson v. United States, 526 U.S. 813, 815–16 (1999). For that reason, Said

claims, the question before us is whether even a single juror based their verdicts for Counts 

4 and 10 solely on one or more of the three improper predicates. And, in his view, that

issue distinguishes this case from Ali, because he says the Ali court appropriately required

unanimity. He also points out that Ali involved only one valid and one invalid predicate, 

whereas this case involves a total of seven predicates. Thus, he argues, this case presents 

“exponentially more combinations of how the jury could have properly or improperly 

convicted Said” than Ali did. Response Br. at 13.

Even assuming, arguendo, that (1) the district court’s instructions constituted a 

Richardson error and (2) Ali did not involve such an error, Said’s argument is meritless. 

We rejected a similar argument in United States v. Myers, in which the defendant argued 

“that the district court committed reversible error by failing to specifically instruct the jury 

that it must unanimously agree upon which of four drug transactions in evidence satisfied 

the distribution element necessary for a conviction on the . . . charge of drug trafficking 

and on the . . . charge of possession and use of a firearm in furtherance of drug trafficking.”

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United States v. Myers, 280 F.3d 407, 414 (4th Cir. 2002). Reviewing for plain error, we 

assumed without deciding that Richardson could extend to § 924(c) but concluded that the 

defendant could not show “that the failure to give the instruction resulted in his 

conviction.” Id. (emphasis added). We held that, “[g]iven the overwhelming evidence of 

drug distribution . . . , especially with respect to the transaction between [the defendant]

and [a specific individual], the likelihood that the jury was confused or less than unanimous 

on all of the four transactions in evidence is exceedingly remote. Indeed, it strains credulity 

to conclude that, in finding [the defendant] guilty, the jury may not have been unanimous 

in concluding that he had distributed crack to [the specified individual].” Id. at 415.

So too here. The idea that even a single juror relied solely on the conspiracy charges, 

rather than the other violent crimes of which the jury unanimously found Said guilty, in 

convicting him of the § 924(c) charges in Counts 4 and 10, simply strains credulity for the 

reasons given above.

17 See supra at 14–15 & n.15. Said’s assertion that such a

counterintuitive vote was possible cannot satisfy his steep burden on habeas review.18

17 We do not understand Said to be pressing a claim that there is a Richardson error 

even if all of the jurors did rely on at least one valid predicate (i.e., because we cannot 

know whether they all relied on the same valid predicate or predicates). To the extent he 

makes such an argument, we decline to address it as beyond the scope of his Davis-based 

§ 2255 petition.

18 We are not persuaded by Said’s contention that rejecting his habeas claim would 

“create a deeply problematic loophole in the constitutional guarantee of unanimity in jury 

verdicts.” Response Br. at 17. Any such “loophole” can be closed by a defendant objecting 

to the instructions and requesting unanimity instructions pursuant to Richardson, as Said 

could have done but failed to do here. Should the court reject the proposed instructions, 

such a defendant could then raise that preserved issue on direct appeal, subject to a much 

less stringent standard than the one we must apply in this case.

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Fowler v. Joyner, 753 F.3d 446, 459 (4th Cir. 2014) (noting that on federal habeas review 

of constitutional errors, “we apply the more onerous[] harmless error analysis set forth in 

Brecht”).

IV.

For the foregoing reasons, Said is not entitled to habeas relief on Counts 4 and 10. 

Accordingly, we reverse the district court’s judgment ordering such relief and remand with 

instructions to deny Said’s habeas petition as to Counts 4 and 10. Because we leave 

undisturbed the court’s grant of habeas relief as to Count 9, however, we leave it to the 

district court to consider in the first instance whether to resentence Said on any other count 

under the sentencing-package doctrine, now that we have reinstated Counts 4 and 10.

19

19 See United States v. Chaney, 911 F.3d 222, 226 (4th Cir. 2018) (“[T]he ‘sentencepackage theory,’ . . . we have recognized, provides that in appropriate circumstances 

resentencing on all counts is a proper remedy under § 2255 for a single unlawful 

conviction.”); United States v. Hillary, 106 F.3d 1170, 1171 (4th Cir. 1997) (holding that 

§ 2255(b) “confers a ‘broad and flexible’ power to the district courts ‘to fashion an 

appropriate remedy’” (quoting United States v. Garcia, 956 F.2d 41, 45 (4th Cir. 1992))); 

United States v. Smith, 115 F.3d 241, 245 (4th Cir. 1997) (holding that since the term 

“sentence” in § 2255 “must be viewed in the aggregate,” a district court has jurisdiction to 

conduct a resentencing on all surviving counts in a multi-count indictment when only one 

of the counts has been successfully challenged in a collateral proceeding); United States v. 

Ventura, 864 F.3d 301, 309 (4th Cir. 2017) (noting, in a direct appeal, that “[w]e agree 

with our sister circuits that ‘when a defendant is found guilty on a multicount indictment, 

there is a strong likelihood that the district court will craft a disposition in which the 

sentences on the various counts form part of an overall plan,’ and that if some counts are 

vacated, ‘the judge should be free to review the efficacy of what remains in light of the 

original plan’” (quoting United States v. Townsend, 178 F.3d 558, 567 (D.C. Cir. 1999))); 

cf. United States v. Hadden, 475 F.3d 652, 669 (4th Cir. 2007) (affirming the district court’s 

decision, in a § 2255 case, not to conduct a full resentencing where the district court struck 

a sentence on one count and “reenter[ed] the remaining sentence,” thus “indicat[ing] that 

it was satisfied with the resulting sentence” (emphasis omitted)).

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REVERSED IN PART AND REMANDED WITH INSTRUCTIONS

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