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Statement of KAVANAUGH, J. 

SUPREME COURT OF THE UNITED STATES 

ZENON GRZEGORCZYK v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 

No. 21–5967. Decided June 30, 2022 

The petition for a writ of certiorari is denied. 

Statement of JUSTICE KAVANAUGH, with whom THE 

CHIEF JUSTICE, JUSTICE THOMAS, JUSTICE ALITO, and 

JUSTICE BARRETT join, respecting the denial of certiorari. 

The defendant in this case wanted to murder six people

whom he blamed for his divorce and for the loss of custody

of his child. He hired and paid hitmen. And he told the 

hitmen to burn the six intended victims alive. So that he 

would have a good alibi, the defendant planned to be in Poland when the murders occurred. It turned out, however, 

that the would-be hitmen were undercover law enforcement 

officers. So the defendant was arrested and federally

charged with murder for hire and a firearms violation.

The United States then negotiated a plea deal with the

defendant. The plea agreement was unconditional. Among

other things, the defendant waived any right to challenge 

his murder-for-hire and firearms convictions. Consistent 

with that plea agreement, the defendant was sentenced to 

almost 18 years of imprisonment.

A couple of years later, the defendant filed a motion under 28 U. S. C. §2255 collaterally challenging his firearms 

conviction. Because of the defendant’s unconditional guilty 

plea, the District Court denied the motion, and the Seventh 

Circuit affirmed. Based on the Government’s current view 

of certain cases decided after the defendant’s guilty plea,

the Government now asks this Court to vacate the Seventh 

Circuit’s judgment and to order the Seventh Circuit to re-
2 GRZEGORCZYK v. UNITED STATES 

Statement of KAVANAUGH, J. 

consider the defendant’s §2255 motion. Because the Seventh Circuit correctly concluded that the defendant’s unconditional guilty plea precluded any argument based on 

the new caselaw, this Court has no appropriate legal basis

to vacate the Seventh Circuit’s judgment. 

That said, the Constitution affords the Executive Branch 

authority to unilaterally provide relief to the defendant, if

the Executive wishes to do so. The Framers of the Constitution contemplated that a federal criminal conviction or 

sentence might later be questioned by the Executive. And 

Article II of the Constitution grants the President broad 

unilateral authority to pardon federal defendants and to

commute federal sentences. Art. II, §2, cl. 1. Presidents 

regularly exercise that power. 

In order to provide relief to the defendant in this case, the

Executive Branch therefore has no need to enlist the Judiciary, or to ask the Judiciary to depart from standard practices and procedures. To the extent that the Department of 

Justice has concluded that this defendant’s conviction 

should be vacated or that his sentence should be reduced, 

the Attorney General may recommend a pardon or commutation to the President, and the President may pardon the 

defendant or commute the sentence. 
 

 

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SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

ZENON GRZEGORCZYK v. UNITED STATES 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 

No. 21–5967. Decided June 30, 2022

 JUSTICE SOTOMAYOR, with whom JUSTICE BREYER, 

JUSTICE KAGAN, and JUSTICE GORSUCH join, dissenting

from the denial of a grant, vacate, and remand order. 

Neither the Federal Government nor federal courts are 

immune from making mistakes. Accordingly, on rare occasions, after the Government prevails in a case in a court of

appeals, the Solicitor General asks this Court to grant a petition for certiorari, vacate the judgment below, and remand

(GVR) in light of an error or an intervening development.

Such requests occur in only a handful of the several thousand cases this Court considers every Term on its certiorari

docket. When they are made, however, they are often of 

enormous consequence to the nongovernmental party.

They may affect a petitioner’s deportation, the length of a 

petitioner’s prison sentence, or even a petitioner’s eligibility 

for the death penalty.

Today marks the second instance this Term in which this

Court has refused to issue a GVR order, notwithstanding 

the Solicitor General’s confession of error, in a criminal case 

with great stakes for the individual petitioner. See Coonce 

v. United States, 595 U. S. ___ (2021) (SOTOMAYOR, J., dissenting). Through these cases, the Court appears to be quietly constricting its GVR practice. Here, it deprives petitioner Zenon Grzegorczyk of an opportunity to remedy an 

unlawful 71⁄2-year component of his prison sentence, despite

the Government’s support. Nothing in precedent or history 

supports such a cramped conception of the Court’s GVR 

practice, which forces individuals like Grzegorczyk to bear 

the brutal cost of others’ errors and denies them the benefit 
2 GRZEGORCZYK v. UNITED STATES 

SOTOMAYOR, J., dissenting 

of a readily available, and potentially life-altering, procedural mechanism to correct those errors. 

I 

In 2014, Grzegorczyk pleaded guilty in federal court to 

one count of knowingly using a facility of interstate commerce with intent that a murder be committed, in violation 

of 18 U. S. C. §1958(a), and one count of possessing a firearm in furtherance of a “crime of violence,” in violation of 

§924(c)(1)(a). Grzegorczyk’s §924(c) conviction was expressly premised on his §1958(a) conviction as the predicate 

“crime of violence.” Brief for United States 4. The District 

Court sentenced Grzegorczyk to a total of 17 years and 7 

months’ incarceration, 5 years of which were for the §924(c) 

charge. In his plea agreement, Grzegorczyk waived his 

right to appeal except as to the validity of his plea and the

sentence imposed. 

This Court subsequently held the residual clause of 

§924(e), defining “violent felony” for purposes of the Armed 

Career Criminal Act, unconstitutionally vague. See Johnson v. United States, 576 U. S. 591, 597 (2015). Grzegorczyk

filed a motion under 28 U. S. C. §2255, arguing that the

similarly worded residual clause defining “crime of violence” in 18 U. S. C. §924(c)(3)(B) was unconstitutionally 

vague, that his §1958(a) conviction did not independently 

qualify as a “crime of violence” under the elements clause 

of §924(c)(3)(A), and that his §924(c) conviction was therefore invalid. While the motion was pending, this Court

struck down §924(c)(3)(B) as unconstitutionally vague. See 

United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 

24).

The District Court denied Grzegorczyk’s motion based on 

his waiver of appellate rights. Grzegorczyk appealed, arguing that his claim was cognizable. The Government responded that although §924(c)(3)(B) was indeed unconstitutional, Grzegorczyk’s §1958(a) conviction nevertheless 
 

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SOTOMAYOR, J., dissenting 

constituted a “crime of violence” under the elements clause 

of §924(c)(3)(A), so his §924(c) conviction remained valid.

The Government also chose to invoke Grzegorczyk’s appeal

waiver as a procedural bar to his claims. The Seventh Circuit sided with the Government solely as to Grzegorczyk’s

waiver of rights.

Grzegorczyk petitioned for certiorari. The Government 

responded by asking this Court to issue a GVR order. See 

Brief for United States 7–8. The Government explains that

“its usual practice is to waive any applicable procedural defenses on collateral review” where it “determines that a defendant’s conviction under Section 924(c) is invalid and no 

other grounds support the defendant’s overall sentence.” 

Id., at 10–11. Below, the Government did not follow this 

practice, and instead invoked Grzegorczyk’s waiver, because it mistakenly believed §1958(a) to be a “crime of violence” under the elements clause of §924(c)(3)(A). Now, 

however, the Government has determined, in view of 

§1958(a)’s elements, that the offense does not satisfy the requirements of §924(c)(3)(A) and therefore does not constitute a “crime of violence.” As a result, the Government 

“agrees . . . that [Grzegorczyk’s] Section 924(c) conviction is 

. . . invalid,” and it asks this Court to issue a GVR order to 

“allow the district court to reevaluate [Grzegorczyk’s] sentence.” Id., at 10, 11. 

The Government adds that GVR would permit correction

of an additional error in Grzegorczyk’s sentence: The parties had erroneously agreed that his §1958(a) conviction (for 

which the District Court imposed a sentence of 12 years and 

7 months’ incarceration) had a statutory maximum punishment of 20 years, when in fact the relevant statutory maximum was 10 years. Between the 2 years and 7 months of 

extrastatutory punishment imposed on the §1958(a) conviction and the 5 years imposed on the concededly invalid 

§924(c) conviction, then, over 71⁄2 years of unlawful incarceration hang in the balance. 
4 GRZEGORCZYK v. UNITED STATES 

SOTOMAYOR, J., dissenting 

Nonetheless, this Court denies certiorari. 

II 

Grzegorczyk’s case falls comfortably within this Court’s

longstanding GVR practice, as codified in statute and applied in precedent. The authority for this practice stems 

from 28 U. S. C. §2106, which provides that “[t]he Supreme 

Court . . . may . . . vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it

for review, and may remand the cause and . . . require such 

further proceedings to be had as may be just under the circumstances.” 

This Court has historically exercised this broad grant of 

authority to issue GVR orders in many circumstances, including, as relevant here, “in light of the position asserted

by the Solicitor General” (e.g., where the Solicitor General 

confesses error). The Court has entered GVR orders on the 

Government’s motion, without undertaking any express

analysis of the merits, for well over a century. See, e.g., De 

Baca v. United States, 189 U. S. 505 (1903) (per curiam)

(“Error being confessed by the appellees, judgment reversed, and cause remanded with directions to proceed

therein according to law”); Ballin v. Magone, 140 U. S. 670 

(1891) (per curiam) (“Judgment reversed, with costs, by

consent of [the Attorney General], who confessed error, and

cause remanded to be proceeded in according to law and 

justice, on motion of Mr Assistant Attorney General Maury

for defendant in error”).1 

In the modern era, the Court has explained that a GVR 

order may be appropriate even where the Solicitor General 

may not concede, or the Court may not perceive, an absolute

certainty that the judgment would be different on remand: 

—————— 1Although these orders refer to reversal rather than vacatur, the difference in terminology appears to be an artifact of the era. See A. Bruhl, 

The Remand Power and the Supreme Court’s Role, 96 Notre Dame 

L. Rev. 171, 195, n. 111, 231, n. 319 (2020) (Bruhl). 
Cite as: 597 U. S. ____ (2022) 5 

SOTOMAYOR, J., dissenting 

“Where intervening developments, or recent developments that we have reason to believe the court below 

did not fully consider, reveal a reasonable probability 

that the decision below rests upon a premise that the

lower court would reject if given the opportunity for

further consideration, and where it appears that such 

a redetermination may determine the ultimate outcome of the litigation, a GVR order is, we believe, potentially appropriate. Whether a GVR order is ultimately appropriate depends further on the equities of 

the case . . . .” Lawrence v. Chater, 516 U. S. 163, 167– 

168 (1996) (per curiam). 

The justifications for this “reasonable probability” standard are many. The Court has explained that a GVR order

can, depending on the circumstances, “conserv[e] the scarce

resources of this Court that might otherwise be expended 

on plenary consideration, assis[t] the court below by flagging a particular issue that it does not appear to have fully 

considered, assis[t] this Court by procuring the benefit of 

the lower court’s insight before we rule on the merits, and 

alleviat[e] the ‘[p]otential for unequal treatment’ that is inherent in our inability to grant plenary review of all pending cases raising similar issues.” Id., at 167. In the criminal context in particular, the Court has emphasized that 

“[w]hen a litigant is subject to the continuing coercive

power of the Government in the form of imprisonment, our 

legal traditions reflect a certain solicitude for his rights, to 

which the important public interests in judicial efficiency

and finality must occasionally be accommodated.” Stutson 

v. United States, 516 U. S. 193, 196 (1996) (per curiam).

 Applying this standard here, a GVR order is entirely appropriate. The Solicitor General’s considered concession 

that 18 U. S. C. §1958(a) is not a “crime of violence” under 

the elements clause of §924(c)(3)(A) is an intervening development that has triggered the Government’s agreement to 
6 GRZEGORCZYK v. UNITED STATES 

SOTOMAYOR, J., dissenting 

forgo assertion of the procedural bar that proved decisive

below. Consequently, there is surely a reasonable probability of a different result on remand: With the Government

waiving the procedural bar, Grzegorczyk’s §924(c) conviction and 5-year sentence should be vacated, and his 

§1958(a) sentence reduced by at least 2 years and 7 

months.2 Moreover, given the stakes for Grzegorczyk, as 

well as the Government’s express consent, this is a case

where the marginal cost to judicial efficiency and finality

from a remand should yield to solicitude for Grzegorczyk’s 

rights. “[F]urther proceedings” are therefore “just under

the circumstances,” 28 U. S. C. §2106, and the Court should 

issue a GVR order. 

III 

Notwithstanding the foregoing analysis, and contrary to 

Lawrence and Stutson, the Court denies certiorari. It 

thereby deprives Grzegorczyk of an opportunity to correct

two patent errors in his convictions and sentences, despite 

the Government’s urging. Current and former Members of 

this Court have raised arguments for constricting this 

Court’s longstanding GVR practice, but none justify this 

harsh result. 

Some Justices have opined, contrary to the aforementioned precedents, that GVR orders are inappropriate unless the Solicitor General confesses error in the outcome below, not just the reasoning, or the Court itself determines

that the outcome was erroneous.3 To begin with, however, 

—————— 2The courts below and the parties could also consider on remand 

whether any of the charges dismissed pursuant to Grzegorczyk’s plea

agreement should be revived, see Brief for United States 11, but any such

consideration would not bear on the undisputed invalidity of Grzegorczyk’s §924(c) conviction. The dismissed counts of Grzegorczyk’s indictment also charged violations of §1958(a), which the Government now 

concedes are not “crime[s] of violence” for purposes of §924(c). 3See, e.g., Myers v. United States, 587 U. S. ___, ___ (2019) (ROBERTS, 

C. J., dissenting) (slip op., at 1) (GVR order in a criminal case where the 
 

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SOTOMAYOR, J., dissenting 

this alternative view does not support the instant disposition. As the Solicitor General explains, the procedural bar 

on which the Court of Appeals premised its denial of relief

to Grzegorczyk is waivable, and the Government would 

waive it on remand. See Brief for United States 11 (citing 

Wood v. Milyard, 566 U. S. 463, 472–473 (2012)). The Government’s concession that Grzegorczyk’s 18 U. S. C. §924(c) 

conviction is invalid, coupled with the Government’s commitment to forgo reliance on the procedural bar, thus leaves

little room for any result other than vacatur of (at least) 

that conviction and sentence. 

Even setting aside the circumstances of this case, the alternative view fails on its own merits. It cannot be squared

with the only textual limitation on the Court’s statutory authority in such cases, which requires that a GVR order “be 

just under the circumstances.” 28 U. S. C. §2106.4 This 

Court’s prior GVR practice recognizes that deprivations of 

process, particularly where the stakes for individual liti-

—————— 

Solicitor General “believe[d] the Eighth Circuit made some mistakes in

its legal analysis, even if it ultimately reached the right result”); Machado v. Holder, 559 U. S. 966 (2010) (same) (GVR order in an immigration case where the Solicitor General “suggest[ed] that the Court of Appeals ignored petitioners’ nonconstitutional claim of ineffective 

assistance of counsel” but “d[id] not . . . take the position that the judgment reached [below] was incorrect,” and “this Court ha[d] not independently examined the merits of that judgment”); Nunez v. United 

States, 554 U. S. 911, 912 (2008) (Scalia, J., dissenting) (“In my view we 

have no power to set aside (vacate) another court’s judgment unless we 

find it to be in error,” or at least “when the Government, without conceding that a judgment is in error, merely suggests that the lower court’s 

basis for the judgment is wrong”). 4 Justice Scalia suggested that “implicit [constitutional] limitations imposed . . . by the nature of the appellate system” may deprive this Court

of the power to vacate judgments not determined to be in error. Lawrence 

v. Chater, 516 U. S. 163, 178 (1996) (dissenting opinion); see also id., at 

189–190. The Court correctly rejected this view as lacking any textual 

basis and as inconsistent with historical practice. Id., at 166–167 (per curiam). 
 

8 GRZEGORCZYK v. UNITED STATES 

SOTOMAYOR, J., dissenting 

gants are high, are unjust in and of themselves. Such deprivations harm not only litigants but also the legal system

itself, confidence in which is eroded when known, consequential, and remediable errors are needlessly left uncorrected. Cf. Rosales-Mireles v. United States, 585 U. S. ___, 

___ (2018) (slip op., at 10) (“In broad strokes, the public 

legitimacy of our justice system relies on procedures that 

are ‘neutral, accurate, consistent, trustworthy, and fair,’ 

and that ‘provide opportunities for error correction’”). Respect for these concerns can justify the marginal cost to efficiency and finality occasioned by a GVR order, as this

Court has recognized. See, e.g., Stutson, 516 U. S., at 197 

(“‘[D]ry formalism should not sterilize procedural resources 

which Congress has made available to the federal courts,’” 

at least where “a GVR order guarantees to the petitioner 

full and fair consideration of his rights . . . and is also satisfactory to the Government”).5 

The alternative view does a grave disservice to these

principles. By dismissing GVR orders as mere “tutelary remand[s], as to a schoolboy made to do his homework again,” 

Lawrence, 516 U. S., at 185–186 (Scalia, J., dissenting), it 

gives little or no weight to concerns about injustice to litigants and damage to public confidence. No doubt, this 

Court must guard zealously against unwarranted impositions upon “the hard-working judges of the [Courts of Appeals].” Myers v. United States, 587 U. S. ___, ___ (2019) 

(ROBERTS, C. J., dissenting) (slip op., at 1). Clearly, however, no judges would privilege their workloads above all 

—————— 5The Court once valued these concerns so deeply that in unusual cases,

it issued GVR orders even where purportedly independent grounds, decided by the court below, supported the judgment. See Wellons v. Hall, 

558 U. S. 220, 222, 224 (2010) (per curiam) (issuing a GVR order where 

a Court of Appeals erroneously applied a procedural bar and also stated

it would independently deny relief on the merits, because the Court of 

Appeals gave, “at most, perfunctory consideration” to the merits without

the benefit of an evidentiary hearing, leaving this Court unsure whether 

the merits determination “really was independent” of the error). 
 

 

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SOTOMAYOR, J., dissenting 

other considerations, particularly courts’ interest in the fair

administration of justice.

The suggestion that this Court should independently

evaluate a confession of error on the merits before issuing a 

GVR order also falters. This Court has often remarked that 

it is “a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). The Court’s 

longstanding GVR practice is consistent with that conception: It does not engage this Court in routine error correction, but leaves it to the lower courts to revisit their judgments, including possible alternative grounds for those

judgments, in the first instance. See Lawrence, 516 U. S., 

at 167; Stutson, 516 U. S., at 197.6 In this way, GVR orders

enable the Government and the lower courts to share in the 

work of ensuring that our legal system does not erroneously 

“deny someone his liberty longer than the law permits.” See 

Hicks v. United States, 582 U. S. ___, ___ (2017) (GORSUCH, 

J., concurring) (slip op., at 3). 

Because none of the aforementioned objections apply to

Grzegorczyk’s petition, see supra, at 6–7, the Court’s denial 

of certiorari must be premised on a different justification,

one still more novel. That rationale seems to be this: The 

Government’s shift in position, though an intervening development, is not the kind of development that warrants a 

GVR order. The Court’s apparent concern is that although

the Government concedes that the premise of the decision 

—————— 6This Court’s issuance of GVR orders without forecasting definite outcomes on remand also accords with other established appellate practices.

For example, an appellate court may vacate and remand for consideration of mootness without determining that a case is moot. Similarly, this 

Court frequently reverses or vacates a lower court’s judgment on one 

ground, but remands for consideration of alternative grounds, such as 

harmlessness, that may ultimately support the lower court’s original 

judgment. See Bruhl 232–233. Moreover, my colleagues do not appear 

to question this Court’s authority to issue a GVR order where an intervening decision of this Court bears on the reasoning below, again without

determining whether the judgment itself is invalid. 
 

10 GRZEGORCZYK v. UNITED STATES 

SOTOMAYOR, J., dissenting 

below (the Government’s assertion of a procedural bar) has 

changed, the Government does not object to the legal analysis that flowed from that premise (that the procedural bar, 

if asserted, foreclosed Grzegorczyk’s claim). See ante, at 1– 

2 (statement of KAVANAUGH, J., respecting denial of certiorari).

This Court’s GVR practice, however, has never been so

inflexibly focused on correcting legal errors. Rather, as explained, this Court has long issued GVR orders to facilitate 

the fair and just resolution of individual cases in the lower 

courts. See, e.g., Lawrence, 516 U. S., at 174–175 (issuing 

a GVR order to allow a lower court to “consider [a new] administrative interpretation that appears contrary to the 

Government’s narrow self-interest” and “furthe[r] fairness 

by treating Lawrence like other future benefits applicants”). It is therefore no answer to observe that the Government “should have no difficulty presenting [a] matter to 

subsequent panels of the [Court of Appeals]” in other cases. 

Myers, 587 U. S., at ___ (ROBERTS, C. J., dissenting) (slip 

op., at 2). The Government’s future litigation positions offer

cold comfort to a petitioner who must face additional years

in prison, if not deportation or execution, based solely on

happenstance, and despite the ready availability of a remedy that the Government affirmatively advocates.7 

Ultimately, underpinning many criticisms of the Court’s 

—————— 7 Nor can the Court’s denial of a GVR order be justified by the remote 

possibility of a Presidential pardon or commutation. See ante, at 2 (statement of KAVANAUGH, J.). Plainly, the Article II pardon power, which applies in all federal criminal cases, does not obviate or impliedly displace

available judicial processes and remedies. To the contrary, while Presidential pardons and commutations may be granted as acts of mercy, to 

address changes in society or personal circumstances, or for other reasons, they have never been understood as mechanisms for correcting errors, whether by courts or by the Government. Moreover, relying on the 

theoretical availability of a pardon overlooks the fact that the courts, not 

just the Government, initially erred by approving Grzegorczyk’s unlawful sentence in excess of the statutory maximum. 
 

 

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SOTOMAYOR, J., dissenting 

GVR practice seems to be a desire to teach the Government

that it must live with its own litigation choices. That logic 

persuades where, for example, the Government appears to

seek a GVR order as “part of an unfair or manipulative litigation strategy,” such as an effort to avoid this Court’s review of an issue. Lawrence, 516 U. S., at 168; see also 

Hicks, 582 U. S., at ___ (GORSUCH, J., concurring) (slip op., 

at 3) (cautioning against issuing a GVR order “when the 

confession bears the marks of gamesmanship”). It is inapt

here. I agree that it would have been preferable for the 

Government to correct its mistake during the proceedings

below. But the Government will learn no lesson, because it 

will pay no price. By denying certiorari rather than issuing 

a GVR order, the Court allocates the full cost of the Government’s error to Grzegorczyk, who faces over 71⁄2 extra years 

of incarceration as a result. 

* * * 

All agree that a GVR order is inappropriate when the outcome plainly would not change on remand. Here, however, 

significant portions of Grzegorczyk’s convictions and sentences are unfair and illegal, as Grzegorczyk’s prosecuting 

and jailing authority concedes. In view of Grzegorczyk’s liberty interests, and consistent with the Government’s responsibility to ensure that the laws are applied fairly and

accurately, the Solicitor General asks this Court to afford 

the Government and the courts below a chance to address 

this concern, as the Court has done for decades. Yet the 

Court declines to do so. The rules of law under which people 

are deprived of their liberty or their lives should be made of 

sturdier stuff. I respectfully dissent.