United States v. Eldridge

18-3294-cr (L)
United States v. Eldridge

In the
United States Court of Appeals
For the Second Circuit

August Term, 2019
Nos. 18-3294-cr (L), 19-92-cr (Con)

UNITED STATES OF AMERICA,
Appellee,

v.

THAMUD ELDRIDGE, KEVIN ALLEN,
Defendants-Appellants,

KASHIKA SPEED, GALEN ROSE,
Defendants. 1

Appeal from the United States District Court
for the Western District of New York
No. 1:09-cr-329 — Richard J. Arcara, Judge

ARGUED: MARCH 10, 2020
DECIDED: JUNE 22, 2021

Before: CHIN, SULLIVAN, and NARDINI, Circuit Judges.

1 The Clerk of Court is directed to amend the caption as set forth above.
 Defendants-Appellants Thamud Eldridge and Kevin Allen appeal from
their convictions and sentences in the United States District Court for the Western
District of New York (Richard J. Arcara, J.). In this opinion, we resolve three
questions: (1) whether the district court’s decision to install a waist-high black
curtain around the defense tables before trial violated the defendants’ right to a
fair trial; (2) whether one of Eldridge’s two convictions pursuant to 18 U.S.C.
§ 924(c) was unconstitutional because the jury’s verdict rested on one of three
predicate offenses, at least one of which is not a crime of violence in light of the
Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), and this
Court’s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019); and
(3) whether Eldridge is entitled to the lower penalty provided for multiple § 924(c)
convictions in Section 403(a) of the First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194, 5221–22, which was enacted after the district court imposed Eldridge’s
sentence but while his case was pending on direct appeal. We conclude that the
district court’s decision to hang the curtain did not violate the defendants’ right to
a fair trial. We further hold that, although Davis and Barrett have invalidated at
least one of the three theories upon which Eldridge’s second § 924(c) conviction
might have been premised, Eldridge has failed to show that any error affected his
substantial rights in light of the evidence supporting the third, valid theory—
namely, that Eldridge participated in an attempted Hobbs Act robbery. In
reaching this conclusion, we hold that even in cases where an unpreserved claim
of error is based on a supervening change in case law, the defendant bears the
burden of establishing all four prongs of the plain-error standard. Finally, we hold
that Section 403(a) does not apply to Eldridge because the district court imposed
his sentence before Congress passed the First Step Act, and that the pendency of
his direct appeal does not change that fact. We address the defendants’ remaining
claims in a separate summary order. Accordingly, we AFFIRM Allen’s and
Eldridge’s convictions and sentences.

DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP,
Middlebury, VT, for Defendant-Appellant Thamud Eldridge
 CHERYL M. BUTH, Meyers Buth Law Group, Orchard
Park, NY, for Defendant-Appellant Kevin Allen

KATHERINE A. GREGORY, Assistant United States
Attorney, for James P. Kennedy, Jr., United States
Attorney for the Western District of New York, Buffalo,
NY, for Appellee

WILLIAM J. NARDINI, Circuit Judge:

Defendants-Appellants Thamud Eldridge and Kevin Allen appeal from

their convictions and sentences after a jury trial in the United States District Court

for the Western District of New York (Richard J. Arcara, J.). 2 In this opinion, we

address three of their arguments. First, the defendants challenge the district

court’s decision to hang a waist-high black curtain around the defense tables—

designed to prevent the jury and spectators from seeing whether the defendants

were in leg-irons—arguing that the curtain prejudiced the jury against the

defendants and so rendered their trial unfair. Second, Eldridge argues that his

2 Two additional co-defendants, Galen Rose and Kashika Speed, do not appeal from their
convictions and sentences.

3
conviction on Count Seven for possessing and brandishing a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c), must be

vacated in light of the Supreme Court’s decision in United States v. Davis, 139 S. Ct.

2319 (2019), and this Court’s decision in United States v. Barrett, 937 F.3d 126 (2d

Cir. 2019), since none of the predicate offenses on which his § 924(c) conviction

was based remains a valid crime of violence as defined by the statute. Third,

Eldridge argues that he is entitled to a lower sentence on Count Seven—the second

of his two § 924(c) convictions—because, after the district court pronounced

sentence but while his case was pending on appeal, Congress enacted Section

403(a) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5221–22,

which reduced the mandatory minimum sentence for that count to 7 years rather

than 25 years.

We conclude that the presence of the curtain at trial did not infringe the

defendants’ right to a fair trial and that the district court acted well within its

discretion to safeguard courtroom security while minimizing prejudice to the

defendants. On the second point, we agree with Eldridge that conspiracy to

4
commit Hobbs Act robbery—one of the three possible predicates for his § 924(c)

conviction—is not a crime of violence under Davis and Barrett. It was therefore

error for the court to instruct the jury that all three predicates, including the

conspiracy, were crimes of violence for the purposes of § 924(c). But we find that

Eldridge has not shown that this error affected his substantial rights, in light of the

overwhelming evidence supporting the third, valid theory—namely, that Eldridge

attempted to commit Hobbs Act robbery. In reaching this conclusion, we hold that

the Supreme Court’s recent decision in Greer v. United States, No. 19-8709, 2021 WL

2405146, at *4 (U.S. June 14, 2021), abrogated our Circuit’s earlier precedent in

United States v. Viola, 35 F.3d 37, 42–43 (2d Cir. 1994), and that even where an

unpreserved claim of error is based on supervening precedent, the defendant

bears the burden of establishing all four prongs of the plain-error standard,

including that the error affected his substantial rights. On the third point, we hold

that Section 403(a) of the First Step Act does not apply to Eldridge because that

revised sentence provision applies only “if a sentence for the offense has not been

imposed” as of the date of that law’s enactment. Eldridge’s sentence was imposed

5
when the district court pronounced it, and the pendency of his appeal does not

alter that fact. Finally, in a separate summary order, we find that reversal is not

warranted on any of the defendants’ remaining claims. As a result, we affirm

Eldridge’s and Allen’s convictions and sentences.

I. BACKGROUND

A. The Superseding Indictment

In 2009, a federal grand jury indicted Eldridge and Allen, along with co-

defendants Kashika Speed and Galen Rose, for offenses arising from their

participation in a drug-dealing enterprise that operated in Buffalo, New York,

from 2003 to 2005. After many pre-trial motions, the severing of two counts as to

Eldridge, and Speed’s guilty plea, the defendants went to trial in 2016 on a fifteen-

count superseding indictment. As relevant here, Eldridge and Allen were charged

as follows:

• Count One (Eldridge and Allen): substantive RICO violation;3

3 As part of Count One, the superseding indictment alleged six predicate racketeering acts
against Eldridge and four against Allen.

6
• Count Two (Eldridge and Allen): RICO conspiracy;

• Count Three (Eldridge and Allen): narcotics conspiracy;

• Count Four (Eldridge and Allen): possession of firearms in furtherance
of the drug trafficking crime described in Count Three;

• Count Five (Eldridge and Allen): kidnapping in aid of racketeering;

• Count Six (Eldridge and Allen): conspiracy to commit Hobbs Act robbery
and attempted Hobbs Act robbery;

• Count Seven (Eldridge and Allen): possessing and brandishing a firearm
in furtherance of the crimes of violence charged in Counts Five and Six;

• Count Ten (Eldridge): murder in aid of racketeering;

• Count Eleven (Eldridge and Rose): conspiracy to commit Hobbs Act
robbery and attempted Hobbs Act robbery;

• Count Twelve (Eldridge and Rose): discharge of a firearm causing death
in furtherance of the crimes of violence charged in Counts Ten and
Eleven;

• Count Thirteen (Eldridge and Allen): murder in aid of racketeering;

• Count Fourteen (Eldridge and Allen): conspiracy to commit Hobbs Act
robbery and attempted Hobbs Act robbery; and

7
 • Count Fifteen (Eldridge and Allen): discharge of a firearm causing death
in furtherance of the crimes of violence charged in Counts Thirteen and
Fourteen. 4

B. Installation of the Curtain

During pretrial proceedings, in keeping with the recommendation of the

United States Marshals Service, the defendants appeared in court wearing leg

shackles, fastened at the ankle. The Marshals Service was concerned about the

defendants’ criminal histories, as well as the nature of the charges.

In anticipation of the possibility that the defendants would be shackled

during trial, the district court ordered the placement of a waist-high black curtain

that ran down the center of the courtroom from the Judge’s bench to about three

feet from the spectators’ gallery, then wrapped around the defense tables to the

wall farthest from the jury box. In this way, neither jurors nor spectators would

be able to see the defendants’ shackled legs.

4 Counts Eight and Nine charged Rose alone with two drug offenses.

8
 The defendants moved to be unshackled during trial, arguing that such

restrictions were unnecessary and prejudicial. On the morning of jury selection,

the district court heard argument from the parties as well as the views of the

Marshals Service, which reiterated its security concerns, particularly in light of the

sensitive and potentially provocative nature of the testimony expected at trial.

After considering the matter, the district court granted the defendants’ motion but

also acknowledged the validity of the Marshals’ concerns. The court noted that it

was possible that one or more defendants would need to be shackled at some point

during trial, but in that event the court stated that it would “have it all covered up

here.” D. Ct. Dkt. 837 at 6.

When the members of the venire panel first entered the courtroom for jury

selection, the curtain was in place. At some point during the first day of jury

selection, the defense requested removal of the curtain, and the district court

denied that request. The defendants then moved for a mistrial after opening

statements, based in part on the presence of the curtain. The district court denied

this motion by written order after oral argument.

9
 In its ruling, the district court identified several case-specific security

considerations. The court cited the defendants’ violent criminal histories,

including that Allen was already serving a sentence for murder and that Eldridge

had previous manslaughter and robbery convictions. The court further noted that

the Marshals had identified Rose as a flight risk. Lastly, the court observed that

prosecution witnesses had already been threatened, prompting the court to

impose a protective order over the witness list and other discovery materials. In

light of these circumstances, as well as the nature of the charged offenses, the court

concluded it was “certainly not wholly unforeseeable” that shackles would need

to be imposed at some point during trial. Allen App’x at 146. The court then held

that the continued presence of the curtain in the courtroom was the “least

restrictive means” to accomplish the competing goals of ensuring a secure

courtroom and minimizing the prejudice faced by the defendants in the event that

shackles became necessary later in the trial. Id. at 147.

C. Eldridge’s Conviction on Count Seven

As stated above, Count Seven of the indictment charged Eldridge (and

Allen) with possessing and brandishing a firearm in furtherance of the crimes of
10
violence charged in Counts Five and Six, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii)

and 2. 5 Count Five charged Eldridge and Allen with kidnapping in aid of

racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2, stemming from an

incident in which the defendants forced a victim, Woodie Johnson, into a truck at

gunpoint and held him until he provided the defendants with a substantial

quantity of narcotics. Count Six, which was captioned “Hobbs Act Robbery,”

arose from the same incident and charged as follows:

On or about February 23, 2005, . . . [Eldridge and Allen] did
knowingly, willfully and unlawfully combine, conspire and agree
together and with others, known and unknown, to obstruct, delay
and affect, and to attempt to obstruct, delay and affect, commerce, as
that term is defined in Title 18, United States Code, Section 1951(b)(3),
and the movement of articles and commodities in commerce, in
particular, by the robbery and extortion of assets, including controlled
substances and money, from Victim B, an individual engaged in the

5 The indictment charged as follows: “On or about February 23, 2005, in the Western
District of New York, the defendants, THAMUD ELDRIDGE a/k/a Damu and KEVIN ALLEN,
during and in relation to crimes of violence for which they may be prosecuted in a court of the
United States, that is, violations of Title 18, United States Code, Sections 1959(a)(1) and 1951, as
set forth in Counts 5 and 6 of this Indictment, the allegations of which are incorporated herein by
reference, did knowingly and unlawfully use, carry and brandish, and in furtherance of such
crimes, did knowingly and unlawfully possess and brandish, a firearm. All in violation of Title
18, United States Code, Sections 924(c)(1)(A)(ii) and 2.” Gov’t App’x at 14.

11
 unlawful possession and distribution of controlled substances,
including cocaine.

All in violation of Title 18, United States Code, Sections 1951 and 2.

Gov’t App’x at 13–14. The parties stipulated that both Counts Five and Six

qualified as predicate crimes of violence for purposes of Count Seven, and the

district court instructed the jury to that effect.6

In charging the jury on Count Six, the district court discussed two separate

means by which it could find the defendants guilty, instructing on the elements of

a conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. The

jury form similarly asked whether the defendants were guilty of either

“conspiracy to rob and extort assets, or attempt to rob and extort assets” from the

victim. Allen App’x at 189.

6 Likewise, the jury form stated that “[t]he Seventh Count of the Indictment charges
Defendants Thamud Eldridge and Kevin Allen with us[ing], carry[ing], and brandish[ing] . . . a
firearm in furtherance of the crimes of violence specified in Counts Five and Six of the Indictment,
in violation of Title 18, United States Code, Sections 924(c)(1)(A)(ii) and 2.” Allen App’x at 190.
The form further instructed the jury that “[i]f you found Defendant Thamud Eldridge Guilty of
Count 5 or Count 6, then you must make a unanimous finding as to whether Defendant Eldridge
is Guilty or Not Guilty of Count 7. If you found Defendant Thamud Eldridge Not Guilty of Count
5 and Count 6, you must find Defendant Eldridge Not Guilty of Count 7.” Id.

12
 The jury found Eldridge guilty of both Counts Five and Six, as well as Count

Seven. As to Allen, the jury could not reach a verdict on Count Five, found him

guilty on Count Six, and could not reach a verdict on Count Seven. Eldridge was

eventually sentenced to the then-mandatory minimum of twenty-five years of

imprisonment for his conviction on Count Seven.

Eldridge was also found guilty on Count One (substantive RICO), Count

Two (RICO conspiracy), Count Three (narcotics conspiracy), and Count Four

(possession of a firearm in furtherance of the narcotics conspiracy). Allen was

found guilty on Counts One, Two, Three, and Four, as well.

The jury found Eldridge not guilty on Count Ten (murder in aid of

racketeering). The jury could not reach a verdict as to Eldridge and Rose on Count

Eleven (conspiracy to commit Hobbs Act robbery and attempted Hobbs Act

robbery) or Count Twelve (possession of a firearm in furtherance of the offenses

charged in Counts Ten or Eleven), and as to Eldridge and Allen on Count Thirteen

(murder in aid of racketeering), Count Fourteen (conspiracy to commit Hobbs Act

13
robbery and attempted Hobbs Act robbery), and Count Fifteen (possession of a

firearm in furtherance of the offenses charged in Counts Thirteen and Fourteen).

As a result, Eldridge was sentenced to a total term of 600 months of

imprisonment: 240 months as to each of Counts One, Two, Five, and Six, and 120

months as to Count Three, all to run concurrently with each other; 60 months on

Count Four, to run consecutive to all other counts; and, as noted above, 300 months

on Count Seven, to run consecutive to all other counts. Allen was sentenced to a

total term of 300 months of imprisonment: 240 months as to each of Counts One,

Two, and Six, and 60 months on Count Three, all to run concurrently with each

other; and 60 months on Count Four, to run consecutive to the other counts. 7

7 Rose was found guilty of Count Eight (possession with intent to distribute marijuana)
and Count Nine (conspiracy to possess with intent to distribute marijuana). He agreed to waive
his right to appeal those convictions in exchange for the Government dismissing Counts Eleven
and Twelve against him. He was sentenced to 60 months on each count to run consecutively for
a total of 120 months of imprisonment.

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II. DISCUSSION

A. Fair Trial Claim

The defendants contend that the presence of the curtain beside and behind

the defense tables violated their right to a fair trial, inviting the jury to

impermissibly decide their guilt “on grounds of official suspicion, indictment,

continued custody, or other circumstances not adduced as proof at trial,” Taylor v.

Kentucky, 436 U.S. 478, 485 (1978). Specifically, the defendants argue that the jury

would presume that the curtain was a necessary protective barrier or that it was

hiding some form of physical restraint, such as shackles, predisposing the jury to

conclude that the defendants were dangerous. The defendants further argue that

the curtain, by virtue of its position in the courtroom, had an independent effect

of “subtly encourag[ing] the jury to align themselves with the prosecutors who

are, literally speaking, ‘on the same side.’” Allen Br. at 27–28.

In the context of balancing the use of physical restraints or other types of

courtroom security with defendants’ fair trial rights as enunciated in Taylor, a

district court is required to determine whether the restraints are “necessary to

15
maintain safety or security.” United States v. Haynes, 729 F.3d 178, 189 (2d Cir.

2013) (internal quotation marks omitted). “Any finding of necessity and all

accommodations made to minimize the extent of the defendant’s restraint during

trial or to ensure that the jury does not become aware of any physical restraints on

the defendant must be made on the record . . . .” Id. at 190. If the district court

complies with this rule, we review its decision only for abuse of discretion. See id.

at 189. However, if the district court “delegates a decision, and gives no reason

for the decision, that is not an exercise of discretion but an absence of and abuse of

discretion.” Id. (internal quotation marks omitted).

Here, the district court reasonably determined on the record that it might

need to shackle the defendants during trial and that the curtain would minimize

any prejudice resulting from the subsequent imposition of physical restraints. We

hold that this decision was within the court’s discretion. The district court first

considered whether it needed to shackle the defendants, before ultimately

agreeing with them that such restraints were unnecessary at that time. But the

district court also properly considered the possibility that shackles might become

16
necessary later during trial, taking into consideration the security assessment of

the United States Marshals Service without delegating its decision to the Marshals.

The bases for the Marshals’ concerns—that the defendants had extensive and

violent criminal histories, were charged with a variety of violent crimes, including

murder, and would be hearing sensitive testimony over the course of trial—were

reasonable, informed by their expertise, and grounded in the record. And, as the

district court rightly noted, the prejudice to the defendants would have been far

greater had the need for shackles arisen during trial and the curtain was not yet

hung: the jury either would have seen the shackles or walked into a suddenly

much-altered courtroom, where a newly installed curtain surrounding the

defendants would have invited questions as to the reason for the change. Faced

with such considerations, the district court struck a wholly reasonable balance

between ensuring courtroom security and protecting the defendants’ interests in

a fair trial in the event it later imposed physical restraints.

In arguing that the curtain nonetheless impermissibly infringed on their

right to a fair trial, Eldridge and Allen rely primarily on People v. Cruz, 17 N.Y.3d

17
941, 944 (2011), a decision of the New York Court of Appeals reversing a trial

conviction where the defense table was similarly surrounded by a waist-high black

curtain. But Cruz presented a very different situation. First, the defendant in Cruz

was indeed shackled throughout the trial, and it could not be determined from the

record that the jury did not see the shackles. See id. Second, the trial court in Cruz

made no findings as to the need for shackles or the need for the continued presence

of a curtain in the courtroom. See id. Accordingly, the Court of Appeals held that

“the use of leg irons” violated that defendant’s constitutional rights. Id. at 944–45.

Here, of course, leg irons were not used at all during the trial. And even with

respect to the curtain alone, the district court made explicit and reasonable

findings concerning its necessity as a measure to protect the defendants’ rights if

shackles became necessary.

It is true that in Cruz, the Court of Appeals said that, “[o]n the record before”

it, the court could not conclude “that the jury, seeing the bunting around the

defense table and not the prosecutor’s, would not have inferred that it was there

to hide shackles on Cruz’s legs.” Id. at 944. Whatever the record might have

18
contained in Cruz, our record does not indicate that the presence of the curtain

shielding the defense tables suggested to jurors that the defendants were perhaps

shackled (which they were not). 8 Speculation about speculation provides no basis

for reversing these convictions.

B. Constitutionality of Eldridge’s Conviction on Count Seven

We now turn to Eldridge’s claim that his conviction on Count Seven for

violating 18 U.S.C. § 924(c)(1)(A)(ii) is unconstitutional because it rested on

predicate offenses that are no longer encompassed by § 924(c)’s definition of a

crime of violence. Eldridge argues that all three possible predicate offenses—

kidnapping in aid of racketeering (Count Five) and either conspiracy to commit or

attempt to commit Hobbs Act robbery (Count Six)—are not crimes of violence. We

agree that conspiracy to commit Hobbs Act robbery is not a crime of violence

following United States v. Davis, 139 S. Ct. 2319 (2019), and this Court’s subsequent

8 That said, in those infrequent cases where a district court makes suitable findings
justifying the use of a curtain to mask the actual or potential use of leg shackles, to avoid any
arguable prejudice, it might be well advised to place curtains symmetrically—whether directly
down the middle of the courtroom, or around both the defense and prosecution tables.

19
decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019). The parties also now

take the position that kidnapping in aid of racketeering is no longer a crime of

violence under those precedents. However, we need not decide that question

because we have recently held (after this appeal was briefed and argued) that

attempted Hobbs Act robbery remains a crime of violence after Davis. See United

States v. McCoy, 995 F.3d 32, 55 (2d Cir. 2021) (holding that “an attempt to commit

Hobbs Act robbery . . . categorically qualifies as a crime of violence” (internal

quotation marks, alteration, and citation omitted)). And, as we explain below, we

conclude that any Davis/Barrett error relating to the Hobbs Act conspiracy and

kidnapping predicates did not affect Eldridge’s substantial rights under plain-

error review, given the strength of the evidence supporting the attempted Hobbs

Act robbery predicate and the link between Eldridge’s brandishing of the gun and

that crime.

In Davis, the Supreme Court held that the second prong of § 924(c)’s

definition of a crime of violence, the so-called “residual clause,” 18 U.S.C.

§ 924(c)(3)(B), was unconstitutionally vague. See 139 S. Ct. at 2323–24, 2336. As a

20
result, offenses that qualified as crimes of violence only via the residual clause—

as opposed to the still-valid elements clause of § 924(c)(3)(A)—could no longer

serve as predicates for firearms convictions under § 924(c)(1)(A). See, e.g., Barrett,

937 F.3d at 128.9 In light of Davis and this Court’s subsequent precedent, we are

left with the following status of each potential basis for Eldridge’s § 924(c)

conviction: conspiracy to commit Hobbs Act robbery is not a qualifying predicate;

kidnapping might or might not be a qualifying predicate; and attempted Hobbs

Act robbery is a qualifying predicate.10

Given this mixed bag, we must consider whether Eldridge’s Count Seven

conviction should be invalidated under the rule of Yates v. United States, 354 U.S.

298 (1957), which held that there is constitutional error when “disjunctive theories

9 Davis interpreted only the definition of a crime of violence, and thus had no effect on the
scope of drug offenses that may also serve as predicates for § 924(c) convictions, see 18 U.S.C.
§ 924(c)(2). As a result, Eldridge’s conviction pursuant to Count Four for violating § 924(c), the
predicate for which was his conviction on Count Three for narcotics conspiracy, is unaffected.
10As both parties rightly note, because Eldridge’s case was pending on direct review when
Davis was decided, the rule of Davis applies. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987);
United States v. Gutierrez Rodriguez, 288 F.3d 472, 476 n.2 (2d Cir. 2002).

21
of culpability are submitted to a jury that returns a general verdict of guilty, and

[one (or more)] of the theories was legally insufficient.” United States v. Agrawal,

726 F.3d 235, 250 (2d Cir. 2013) (internal quotation marks and citation omitted).

Eldridge did not raise a Yates concern regarding Count Seven below.11 We

review such unpreserved challenges only for plain error. See id. (reviewing

unpreserved Yates challenge for plain error); see also Fed. R. Crim. P. 52(b).

“[B]efore an appellate court can correct an error not raised at trial, there must be

(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affects substantial rights.’ If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error ‘seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’” Johnson v. United States, 520 U.S. 461,

11 Indeed, the parties stipulated to the fact that each charged predicate offense came within
§ 924(c)’s definition of a crime of violence. Such an affirmative stipulation normally might give
rise to a finding of actual waiver (as opposed to mere forfeiture) of the issue, barring all review
on appeal. See United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Yu-Leung, 51 F.3d
1116, 1121–22 (2d Cir. 1995). On appeal, the Government does not assert that there was a waiver,
and so we need not consider that question. See United States v. Brown, 352 F.3d 654, 663 (2d Cir.
2003) (recognizing that the Government can “waive the waiver point” (internal quotation marks
and alteration omitted)).

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466–67 (1997) (alterations omitted) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)).

Moreover, it is the defendant’s burden to “establish[] each of the four

requirements for plain-error relief,” including that his substantial rights were

affected. Greer, 2021 WL 2405146, at *4. Where, as here, the defendant’s

unpreserved challenge is based on a supervening change in precedent, our Court

has previously (though not uniformly) applied a form of “modified” plain-error

review, where the Government bears the burden to show that the error did not

affect the defendant’s substantial rights. See Viola, 35 F.3d at 42–43. In Viola, we

reasoned that it was improper to hold a defendant “accountable” for his failure to

preserve a claim of error where he “clearly ha[d] no duty to object to a [point of

law] that [was] based on firmly established circuit authority.” Id. at 42. However,

we have subsequently (and repeatedly) “express[ed] doubt that the Viola gloss on

the plain-error standard . . . survived the Supreme Court’s decision in Johnson v.

United States, 520 U.S. 461 (1997),” because Johnson applied the usual plain-error

rule—without modification—when considering an error resulting from a

23
supervening change in case law governing whether the judge or jury must decide

the issue of materiality in a perjury prosecution. 12 United States v. Moore, 975 F.3d

84, 93 n.37 (2d Cir. 2020) (internal quotation marks omitted). See Johnson, 520 U.S.

at 463, 468–69. The Supreme Court has now clearly abrogated the rule we adopted

in Viola. Greer involved a supervening change in case law governing the mens rea

requirement in felon-in-possession prosecutions, and the Court there held that the

defendant must satisfy the usual plain-error standard even though a

contemporary objection would have run up against a “uniform wall of precedent.”

Greer, 2021 WL 2405146, at *5; see id. at *6. Accordingly, regardless of whether an

unpreserved error becomes apparent only on appeal in light of new case law, it is

the defendant who retains “the burden of establishing entitlement to relief for

plain error. That means that the defendant has the burden of establishing each of

12 It is worth noting that in nearly all of those cases, we pointed out that our holding would
have been the same regardless of whether the burden of persuasion on prejudice (or lack thereof)
had shifted from the defendant to the prosecution. See, e.g., United States v. Thomas, 274 F.3d 655,
668 n.15 (2d Cir. 2001) (en banc); see also United States v. Vilar, 729 F.3d 62, 71 n.5 (2d Cir. 2013)
(“Indeed, we cannot help but be skeptical that the allocation of the burden of demonstrating harm
will ever be dispositive in this context.”).

24
the four requirements for plain-error relief.” Id. at *4 (internal quotation marks

and citation omitted).

Turning to Eldridge’s conviction on Count Seven, it clearly satisfies the first

two prongs of plain-error review, presenting an “error” under Yates that is now

unquestionably “plain” in light of Davis.13 The violation of § 924(c) charged in

Count Seven was predicated on two alternative theories of liability, that Eldridge

brandished a firearm while committing either or both of two underlying crimes of

violence: the kidnapping charged in Count Five and/or the Hobbs Act robbery

violation charged in Count Six. The jury convicted Eldridge of both predicate

counts, and the verdict form did not ask the jury to identify on which predicate, or

predicates, it was basing its guilty verdict for Count Seven. This problem was

complicated by the alternate theories of liability charged within Count Six itself.

Count Six charged Eldridge with both conspiracy to commit Hobbs Act robbery

13 To constitute plain error, the error need not be clear in light of the law applicable at the
time of trial; “it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson,
520 U.S. at 468; see also United States v. Dussard, 967 F.3d 149, 156 (2d Cir. 2020).

25
and attempted Hobbs Act robbery. 14 Of these two, only attempted Hobbs Act

robbery may serve as a predicate crime of violence for a § 924(c) conviction. And

the verdict form again did not specify on which theory of liability the jury

convicted Eldridge: conspiracy or attempt.

We find, however, that Eldridge has not shown that this error affected his

substantial rights within the meaning of the third prong of our plain-error

analysis. See Johnson, 520 U.S. at 467. The Supreme Court has “noted the

possibility that certain errors, termed structural errors, might affect substantial

rights regardless of their actual impact on an appellant’s trial.” United States v.

Marcus, 560 U.S. 258, 263 (2010) (internal quotation marks and alteration omitted).

14 Eldridge rightly notes that the wording of the indictment for Count Six was ambiguous:
it appears to charge, under one reading, that the defendants conspired to attempt Hobbs Act
robbery. See Gov’t App’x at 13–14 (charging that the defendants “did knowingly, willfully and
unlawfully combine, conspire and agree together and with others, known and unknown, to obstruct,
delay and affect, and to attempt to obstruct, delay and affect, commerce” (emphasis added)).
Putting aside that conspiracy to attempt a substantive crime is not a recognized form of liability—
and thus such a reading of the ambiguous indictment language would be inappropriate—the jury
instructions and the verdict form were quite clear that Count Six encompassed separate theories
of conspiracy to commit and attempt to commit Hobbs Act robbery. In any event, Eldridge does
not argue that this discrepancy rendered his Count Six conviction erroneous, and it also does not
materially affect the Yates analysis concerning Count Seven.

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But “[a]n instructional error arising in the context of multiple theories of guilt”—

i.e., a Yates error—is not such a structural error because it “no more vitiates all the

jury’s findings than does omission or misstatement of an element of the offense

when only one theory is submitted.” Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008); see

also Skilling v. United States, 561 U.S. 358, 414 n.46 (2010) (holding that Hedgpeth’s

harmless-error approach applies on direct appeal). We have applied harmless-

error analysis when the instructional error undermined the validity of one object

of a multiple-object conspiracy. See United States v. Coppola, 671 F.3d 220, 237 (2d

Cir. 2012). And, where a defendant did not preserve his Yates challenge by raising

it before the district court, we have also held that an instructional error on one of

two theories of guilt did not affect the defendant’s substantial rights under a plain-

error analysis where it was “overwhelmingly likely that any reasonable juror

would have convicted on the basis of the Government’s primary theory.” United

States v. Skelly, 442 F.3d 94, 99 (2d Cir. 2006). We now hold that this approach to

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Yates errors applies with equal force when there has been instructional error on

one or more predicate offenses for a § 924(c) firearms charge. 15

Accordingly, we evaluate the district court’s instructional error as we would

any other erroneous jury instruction under plain-error review, focusing on

whether Eldridge has shown that he was prejudiced by the error.16 We conclude

15We join our sister circuits in reaching this conclusion. See, e.g., United States v. Ali, 991
F.3d 561, 572, 575 (4th Cir. 2021) (applying plain-error review where the defendant had not
objected to the § 924(c) instructions at trial); United States v. Jones, 935 F.3d 266, 270 (5th Cir. 2019)
(same); United States v. Cannon, 987 F.3d 924, 934, 947 (11th Cir. 2021) (applying harmless-error
review where the defendants had objected to the § 924(c) instructions in light of Johnson v. United
States, 576 U.S. 591 (2015)).
16Our Circuit has used different verbal formulations to describe the standard for
evaluating whether a defendant’s substantial rights have been affected by an erroneous jury
instruction under plain-error review. In United States v. Marcus, the Supreme Court evaluated an
instructional error under plain-error review and held that that, “[i]n the ordinary case,” the
question is whether a defendant has been “prejudic[ed]” by the error—i.e., whether there is “a
reasonable probability that the error affected the outcome of the trial.” 560 U.S. at 262. In light
of Marcus, we have applied this “reasonable probability” phrasing on several occasions when
evaluating instructional errors, including Yates errors like the one here. See, e.g., Agrawal, 726 F.3d
at 250. But we have also evaluated such Yates errors under the third prong of plain-error review
by asking whether “the jury would have returned the same verdict beyond a reasonable doubt.”
United States v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017) (quoting United States v. Nouri, 711 F.3d
129, 140 (2d Cir. 2013)). We do not think that there is an appreciable difference between these
standards, in practice, as “a reasonable probability” that the error affected the outcome of the trial
would seem to encompass whether a jury could have formed “reasonable doubts” absent the
error. Thus, to the extent there might be any doubt as to what the “reasonable probability” test
means in the context before us, it is resolved by acknowledging that it means the erroneous jury
instruction was “harmless beyond a reasonable doubt.”

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that Eldridge was not prejudiced by the district court’s erroneous instruction with

respect to the valid predicate crimes of violence, because the jury would have

returned a guilty verdict on Count Seven even if it had been instructed that only

attempted Hobbs Act robbery was a valid predicate under § 924(c).

Here, there was strong evidence that Eldridge did, in fact, attempt to commit

the Hobbs Act robbery of Woodie Johnson that was charged in Count Six. The

testimony regarding Eldridge’s participation in the robbery showed that: he had a

gun with him when planning the robbery in the basement on Newburgh Street; he

pointed a gun at Johnson to force him onto the ground before abducting him into

the truck; he drove the truck with Johnson in the back, flanked by Allen and Speed,

to an abandoned house where Johnson called his drug contact to leave two kilos

of cocaine on a porch; he drove the truck to the location of the drugs; he got out of

the truck and retrieved the drugs from the porch; he proceeded to tell Johnson that

he had done the right thing; the next day, Allen told a friend that he, Eldridge, and

Speed had committed the robbery; and subsequently, during an encounter in a jail

visiting room, Eldridge bragged to Johnson that he was the one who “did that to

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you on Kensington.” Tr. at 1311. All of this testimony was entwined—with the

agreement to commit the robbery, the attempt to commit the robbery, the

kidnapping, and Eldridge’s brandishing of the gun forming part of a single

narrative. On this evidence, it is inconceivable that the jury could have returned a

guilty verdict on any of these counts (as it did on all of them) without concluding

that, at a minimum, Eldridge attempted to rob Johnson of his drugs, and that he

did so using a gun.

Indeed, the guilty verdicts on Counts Five, Six, and Seven, viewed together,

reinforce the conclusion that the jury would have convicted Eldridge on Count

Seven even if the only theory had been attempted robbery. The only meaningful

difference between the conspiracy and attempt charges in Count Six is that for the

former, Eldridge had to have reached an agreement with another person to

commit the robbery; while for the latter, he had to have taken a substantial step to

actually commit the robbery. By returning a guilty verdict on the kidnapping

count (Count Five), the jury necessarily concluded that Eldridge had gone far

beyond the planning stages and actually engaged in the abduction that formed the

30
basis for the robbery charge. That is far more than the substantial step needed to

prove an attempt. And the evidence presented at trial amply revealed that the

purpose of the kidnapping was to rob Johnson of his drugs. Thus, there can be no

doubt that the jury—which clearly found Eldridge guilty of brandishing a firearm

by returning its guilty verdict on Count Seven—would have concluded that he did

so during and in relation to an attempted Hobbs Act robbery. Accordingly, we

find no basis for vacating Eldridge’s conviction on Count Seven.

C. Application of the First Step Act to Count Seven

On the day Eldridge was sentenced—September 10, 2018—18 U.S.C.

§ 924(c)(1)(C) provided that a “person shall [] be sentenced to a term of

imprisonment of not less than 25 years” in cases of “a second or subsequent

conviction under” § 924(c). At that time, the law in this Circuit was clear: “a

second or subsequent conviction under” § 924(c) included “multiple § 924(c)

convictions in the same proceeding.” United States v. Robles, 709 F.3d 98, 101 (2d

Cir. 2013). Accordingly, under Robles, a finding of guilt on multiple § 924(c) counts

31
charged in the same indictment could give rise to so-called “stacked” mandatory

minimum sentences of 25 years for the second and each subsequent conviction.

Shortly after Eldridge was sentenced, however, in December 2018, Congress

enacted the First Step Act. Section 403(a) of the First Step Act amended

§ 924(c)(1)(C) to provide that the 25-year mandatory minimum consecutive

sentence would apply not to a “second or subsequent conviction” but instead to a

“violation of this subsection that occurs after a prior conviction under this

subsection has become final.” Pub. L. No. 115-391, 132 Stat. at 5221–22. The effect

of the amendment was this: After the Act, defendants whose § 924(c) convictions

resulted from a single prosecution—like Eldridge—would no longer be subject to

the enhanced statutory minimum at sentencing.

Section 403(b) specifies that the amendment applies to “any offense that was

committed before the date of enactment of this Act, if a sentence for the offense

has not been imposed as of such date of enactment.” Pub. L. No. 115-391, 132 Stat.

at 5222. Eldridge contends that he is entitled to receive the benefit of the lower

penalty established under the First Step Act for his second § 924(c) conviction—

32
that is, Count Seven—because his “sentence is pending on direct review.”

Eldridge Br. at 72. We disagree.

We have long held that “[i]t is the oral sentence which constitutes the

judgment of the court.” United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995)

(alteration in original) (quoting United States v. Marquez, 506 F.2d 620, 622 (2d Cir.

1974)). Accordingly, for the purposes of Section 403(b), a sentence is “imposed”

when the district court orally pronounces it. In reaching this conclusion, we join

the unanimous views of those other circuits that have considered the issue. See,

e.g., United States v. Smith, 967 F.3d 1196, 1213 (11th Cir. 2020) (holding same and

collecting cases), cert. denied, No. 20-7404, 2021 WL 1520926 (U.S. Apr. 19, 2021).

Our holding also accords with our recent decision in United States v. Bryant, 991

F.3d 452, 454 (2d Cir. 2021), where we held that a defendant was not eligible for

the lower penalties for certain drug offenses provided under Sections 401(a) and

401(c) of the First Step Act—the latter being identically worded to Section 403(c)—

because the defendant had been sentenced in 2007. In Bryant, we explained that

the defendant’s sentence was “imposed” when originally pronounced, not when

33
it was later reduced pursuant to Section 404(b) of the First Step Act. 991 F.3d at

456. Eldridge does not challenge this proposition or the fact that his sentence was

imposed before the First Step Act was passed. That, then, would appear to be the

end of the matter.

However, Eldridge argues that under Griffith v. Kentucky, 479 U.S. 314, 316

(1987), the “new rule” of amended § 924(c)(1)(C) applies to his case since his

sentence is “pending on direct review or not yet final.” But Griffith spoke to

whether judicial pronouncements of new constitutional rules of criminal

procedure are to be applied in cases on direct appeal or otherwise not final; it “did

not purport to apply to congressional statutes to which the general saving statute

applies.” United States v. Richardson, 948 F.3d 733, 751 (6th Cir.) (internal quotation

marks and alteration omitted), cert. denied, 141 S. Ct. 344 (2020). Had Congress

wanted, it could have applied the revised penalty structure of Section 403(a) of the

First Step Act to sentences that were not yet final (including cases like Eldridge’s,

which is still pending on direct appeal). But it did not do so. Instead, it keyed the

new law to whether the sentence had “not been imposed” as of the date of the

34
enactment. Thus, Eldridge, whose sentence was imposed before the passage of

the First Step Act, is not entitled to the lower sentence provided in the amended

version of § 924(c)(1)(C). 17

III. CONCLUSION

In sum, we hold as follows:

(1) Where the district court has made on the record an independent decision

to install a waist-high curtain around defense tables prior to the

17 We express no opinion, however, on whether Section 403(a) of the First Step Act applies
at a defendant’s resentencing following vacatur of a defendant’s original erroneous sentence,
where the First Step Act was enacted after the original sentencing but before resentencing. Our
sister Circuits are divided on this question, and on the question of whether it matters if a
defendant’s original sentence was vacated before or after the First Step Act was enacted. Compare
United States v. Uriarte, 975 F.3d 596, 602 & n.3 (7th Cir. 2020) (en banc) (holding that Section 403(a)
applied at a resentencing, where a defendant’s original sentence had already been vacated when
the First Step Act was enacted, but leaving open whether it would apply if the sentence had been
vacated after enactment of the Act); United States v. Henry, 983 F.3d 214, 227–28 (6th Cir. 2020)
(same); United States v. Bethea, 841 F. App’x 544, 551 (4th Cir. 2021) (holding that Section 401
applied at a resentencing regardless of whether the original sentence was vacated before or after
enactment of the First Step Act because the original sentence was a “legal nullity”), with United
States v. Hodge, 948 F.3d 160, 164 (3d Cir. 2020) (holding that Section 403(a) did not apply at a
resentencing, where a defendant’s original sentence had already been vacated when the First Step
Act was enacted); United States v. Jackson, 995 F.3d 522, 525–26 (6th Cir. 2021) (distinguishing
Henry and holding that Section 403(a) did not apply at a resentencing where the original sentence
was vacated after enactment of the First Step Act). We have thus far declined to resolve either of
these issues for ourselves, see McCoy, 995 F.3d at 64–65, and we have no occasion to do so here,
since we affirm Eldridge’s sentence in its entirety.

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 commencement of trial, and where the decision reflects a reasonable

balance of the defendants’ rights to a fair trial with considerations of

courtroom safety and security, that decision is within the trial court’s

discretion and does not provide a ground for a new trial.

(2) It is the defendant’s burden to satisfy each of the four requirements for

relief under the plain-error standard, including showing that his

substantial rights were affected, even when the unpreserved claim of

error is based on a supervening change in case law.

(3) Although at least one of the three predicate theories supporting

Eldridge’s § 924(c) conviction for Count Seven is invalid in light of Davis

and Barrett, we conclude that the instructional error did not affect

Eldridge’s substantial rights under plain-error review because another of

the predicate theories—attempted Hobbs Act robbery—remains a valid

basis for a § 924(c) conviction. In light of the overwhelming evidence of

Eldridge’s guilt and the jury’s verdicts on other counts, there can be no

doubt that the jury still would have returned a guilty verdict on Count

36
 Seven even if the only theory presented had been attempted Hobbs Act

robbery.

(4) Eldridge does not benefit from Section 403(a) of the First Step Act

because his sentence was imposed when it was orally pronounced by the

district court, before Congress enacted the Act; thus, the 25-year

minimum sentence for his second § 924(c) conviction was proper, even

though his case is still on direct appeal.

For the foregoing reasons, as well as those given in our accompanying

summary order, we AFFIRM Eldridge’s and Allen’s convictions and sentences in

all respects.

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