Appeals from the United States District Court for the Eastern
District of Louisiana
SMITH, WIENER, and ELROD, Circuit Judges.
were convicted of a series of racketeering, drug, and firearm
offenses-including several offenses under 18 U.S.C. §
924-in connection with their activities as members of a New
Orleans gang. While this appeal was pending, the Supreme
Court decided United States v. Davis, 139 S.Ct. 2319
(2019), which held that the residual clause of § 924(c)
is unconstitutionally vague. Appellants now seek vacatur of
their § 924 convictions. We VACATE the challenged
convictions and REMAND.
Deloyd Jones, Byron Jones, and Sidney Patterson were
convicted of racketeering, drug, and firearm offenses arising
out of their membership in the New Orleans gang "Ride or
Die." Among these were several convictions under 18
U.S.C. § 924. For each § 924 offense, the
indictment charged a Racketeer Influenced and Corrupt
Organizations Act (RICO) conspiracy-Count 1 in the
indictment-as a predicate crime of violence, and a
controlled-substance conspiracy-Count 2 in the indictment-as
a predicate drug trafficking crime. The verdict form did not
require the jury to specify which predicate offense or
offenses it relied upon in convicting Appellants of the
§ 924 offenses.
appeal, we reversed four of the convictions for insufficient
evidence, affirmed the remaining convictions, and remanded
for resentencing. United States v. Jones,
873 F.3d 482, 500 (5th Cir. 2017). Appellants appeal a second
time. In their briefs, they argue that their § 924
convictions are unconstitutional under Sessions v.
Dimaya, 138 S.Ct. 1204 (2018), and our decision in
United States v. Davis, 903 F.3d 483 (5th Cir.
2018). When Appellants filed their briefs, Davis was
still pending before the Supreme Court. After the oral
argument in this case, the Supreme Court issued its opinion
in Davis, which affirmed our decision on the
relevant issue. 139 S.Ct. at 2336. Because both
Davis decisions were issued after Appellants'
resentencings, they did not raise this issue in their
previous appeal or in the district court.
Sessions v. Dimaya, the Supreme Court invalidated
the residual clause of 18 U.S.C. § 16(b) as
unconstitutionally vague. 138 S.Ct. at 1223. Months later, in
United States v. Davis, we relied on Dimaya
to hold that the identically-phrased residual clause of 18
U.S.C. § 924(c) is unconstitutionally vague as well. 903
F.3d at 486. The Supreme Court agreed and affirmed our
holding in that regard. Davis, 139 S.Ct. at 2336.
parties agreed in their briefs that under Dimaya and
our decision in Davis, RICO conspiracy is not a
§ 924(c) crime of violence. In a Federal Rule of
Appellate Procedure 28(j) letter, the government acknowledged
that the same is true under the Supreme Court's
Davis decision. See Gov't's Fed. R.
App. P. 28(j) Letter (June 26, 2019). Because the jury in
Appellants' case may have based Appellants' §
924 convictions on the now-invalid RICO conspiracy predicate,
Appellants contend that each of those convictions is
unconstitutional. Appellants advance two alternative
arguments in support of their position: (1) permitting §
924 convictions predicated on RICO conspiracy is structural
error requiring automatic reversal; and (2) the § 924
convictions should be reversed under plain error review.
error is constitutional error that "'affect[s] the
framework within which the trial proceeds,' rather than
being 'simply an error in the trial process
itself.'" Weaver v. Massachusetts, 137
S.Ct. 1899, 1907 (2017) (alteration in original) (quoting
Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). If
an error is structural, it is not harmless beyond a
reasonable doubt, and it warrants automatic reversal. See
error does not occur when a jury rendering a general verdict
"was instructed on alternative theories of guilt and may
have relied on an invalid one." Hedgpeth v.
Pulido, 555 U.S. 57, 58 (2008); accord United States
v. Skilling, 638 F.3d 480, 481 (5th Cir. 2011). That is
precisely what occurred here: the jury was given two theories
of guilt for the § 924 offenses-a crime of violence
predicate and a drug trafficking predicate-and it may have
relied on the invalid crime of violence predicate to the
exclusion of or in addition to the valid drug trafficking
predicate. Thus, under Hedgpeth, plain error review
applies. See United States v. Flores, 2018 WL
2709855, at *6-7 (D. Nev. June 5, 2018) (holding that
inclusion of invalid § 924(c) crime of violence
predicate in jury instructions was not structural error where
jury was also given valid drug trafficking predicate);
see also United States v. Percel, 553 F.3d 903, 908-
09 (5th Cir. 2008) ("Generally, incorrect jury
instructions are not considered structural errors.");
Jimenez v. Wood Cty., 660 F.3d 841, 845 (5th Cir.
2011) (en banc) ("Where a proper objection is not made,
. . . our review of a jury instruction challenge is limited
to review for plain error.").
we recently applied plain error review under circumstances
similar to Appellants': the appellant was convicted of a
firearm offense under § 924(c) based on a predicate
crime of violence that the parties agreed was invalid in
light of our decision in Davis. United States v.
Lewis, 907 F.3d 891, 893-94 (5th Cir. 2018), cert.
denied, No. 18-989, 2019 WL 358452 (June 28, 2019). We
have also applied plain error review in the analogous context
of Johnson and Dimaya errors. E.g.,
United States v. Fuentes, 906 F.3d 322, 324-25 (5th
Cir. 2018) (Johnson error); United States v.
Rubio-Sorto, 760 Fed.Appx. 258, 259-60 (5th Cir. 2019)
(Dimaya error); see also Shabazz v. United
States, 923 F.3d 82, 84 (2d Cir. 2019) (concluding that
Johnson error in sentencing was not structural). We
likewise hold that the Davis error in this case is
next argue that even if the error here is not structural, we
must reverse their convictions under plain error
review. Plain error review consists of four
prongs: (1) there must be an error; (2) the error must be
"clear or obvious, rather than subject to reasonable
dispute"; (3) "the error must have affected the
appellant's substantial rights, which in the ordinary
case means he must demonstrate that it 'affected the
outcome of the district court proceedings'"; and (4)
the court must decide in its discretion to correct the error
because it "seriously affect[s] the fairness, integrity
or public reputation of judicial ...