Vilar v. United States

Background

Raheem Vilar moved under 28 U.S.C. § 2255, a federal procedure for challenging a conviction or sentence after direct review. He challenged his conviction under 18 U.S.C. § 924(c) for using or carrying a firearm during and in relation to a crime of violence.

The jury had been instructed that it could find the § 924(c) charge based on either a conspiracy to commit carjacking under 18 U.S.C. § 371 or an attempted carjacking under 18 U.S.C. § 2119. After the Supreme Court’s decision in United States v. Davis, the residual clause of § 924(c)’s definition of “crime of violence” was invalidated, leaving the elements clause as the relevant basis for qualifying offenses.

The government conceded that the carjacking conspiracy did not qualify as a crime of violence under Davis. Vilar did not dispute that the attempted carjacking did qualify. He argued that because the jury returned a general verdict based on two possible predicates, the court had to assume that the jury relied on the invalid conspiracy predicate.

Procedural Default

The government argued that Vilar’s claim was procedurally defaulted because he had not raised it on direct appeal. The court stated that a defendant generally cannot use § 2255 to raise a ground omitted from direct appeal unless he shows cause and resulting prejudice or proves actual innocence.

The court assumed that the legal basis for Vilar’s challenge was sufficiently novel in 1997 and 1998 that it was not reasonably available to his counsel. It nevertheless found that Vilar could show neither prejudice nor actual innocence. Applying the applicable standard, the court concluded that the instructional error did not have a substantial and harmful effect on the verdict because the jury necessarily would have convicted Vilar under the valid attempted-carjacking predicate.

Merits

The court separately addressed the merits of the § 924(c) challenge. Relying on the Supreme Court’s decision in Hedgpeth v. Pulido, the court held that when a jury is instructed on multiple theories and one is invalid, the conviction may stand if the jury necessarily would have found guilt under a valid theory.

The court found that the evidence showed the attempted carjacking was committed at gunpoint. It cited the testimony of Vilar’s accomplice, the two carjacking victims, one of whom was shot, and witnesses to whom Vilar later said he had shot a police officer. The court found no reasonable interpretation of the record under which the jury could have found that Vilar used the firearm for the conspiracy but not for the attempted carjacking.

The court rejected Vilar’s arguments that the categorical approach required assuming the jury relied on the conspiracy predicate. It explained that the categorical approach determines whether an offense qualifies as a crime of violence; it does not determine which factual basis a jury used when an instruction permits multiple theories.

Disposition

The court denied Vilar’s motion under § 2255 and dismissed the petition. It directed the clerk to terminate the motion in the criminal case and close the related civil case. The court also stated that Vilar had not made the required substantial showing of a denial of a constitutional right and therefore would not receive a certificate of appealability.