  Case: 11-40507    Document: 00511951386    Page: 1   Date Filed: 08/09/2012




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                               August 9, 2012
                                No. 11-40507
                                                               Lyle W. Cayce
                                                                    Clerk




LAWRENCE D. KENEMORE, JR.

                                          Petitioner-Appellant,

versus

WARDEN KEITH ROY,

                                          Respondent-Appellee.




                Appeal from the United States District Court
                     for the Eastern District of Texas




Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Lawrence Kenemore moves this court to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2241 after he lost at trial and on a previous habeas
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corpus petition. His new petition argues that the Supreme Court’s GVR1 in
Jackson v. United States, 555 U.S. 1163 (2009) (mem.), constitutes a retroac-
tively applicable decision demonstrating he was convicted of a non-offense.
Because the GVR does not qualify as a retroactively applicable Supreme Court
decision, we affirm.


                                               I.
       Kenemore was convicted of conspiracy to commit mail fraud, conspiracy
to embezzle funds from employee benefit plans, conspiracy to launder money,
mail fraud, embezzlement from employee benefit plans, money laundering, and
making a false statement to the Department of Labor. After losing on appeal,
he petitioned for habeas relief and was denied. He now files a new motion to
vacate, set aside, or correct the sentence under § 2241.
       In Jackson, the GVR included a remand for reconsideration without
addressing the merits. The GVR was issued after the Solicitor General had filed
a brief claiming that Jackson’s conviction was in error, because the statutory
interpretation of the term “assets” advocated by the government in the Fourth
Circuit was incorrect. Kenemore argues that he was convicted using a similar
definition of “assets” and that that definition is invalid after Jackson.


                                               II.
       Kenemore claims that the savings clause of 28 U.S.C. § 22552 authorizes

       1
         A “GVR” (“grant, vacate, remand”) occurs when the Supreme Court summarily grants
a petition for writ of certiorari and simultaneously vacates the judgment of the lower court and
remands for further proceedings for some specified reason. See generally EUGENE GRESSMAN
ET AL., SUPREME COURT PRACTICE 345-49 (BNA 9th ed. 2007).

       2
           Section 2255 ends with the so-called “savings clause”:
                                                                                  (continued...)

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relief in his case through a petition filed under § 2241. Normally, a motion
under § 2255 would be the proper vehicle for Kenemore to use when challenging
his conviction. Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990).3 A prisoner
may use § 2241 when § 2255 is inadequate or ineffective for testing his deten-
tion’s legality.4 Section 2255 is inadequate for a claim “(i) that is based on a
retroactively applicable Supreme Court decision which establishes that the peti-
tioner may have been convicted of a nonexistent offense and (ii) that was fore-
closed by circuit law at the time when the claim should have been raised in the
petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena, 243 F.3d
at 904.
       Kenemore contends that the GVR in Jackson qualifies as a retroactively
applicable Supreme Court decision.              A GVR is a Supreme Court practice
whereby the Court allows a circuit court to reconsider its opinion, often after a
change in the law or factual circumstances occurs that might lead to a different


       2
        (...continued)
       An application for a writ of habeas corpus in behalf of a prisoner who is author-
       ized to apply for relief by motion pursuant to this section, shall not be enter-
       tained if it appears that the applicant has failed to apply for relief, by motion,
       to the court which sentenced him, or that such court has denied him relief,
       unless it also appears that the remedy by motion is inadequate or ineffective to
       test the legality of his detention.

§ 2255 (emphasis added).
       3
        To utilize § 2255, Kenemore would have to show either newly discovered evidence that
established by clear and convincing evidence that no reasonable factfinder could have found
him guilty of the offense for which he was convicted or a new, previously unavailable rule of
constitutional law made retroactive to cases on collateral review by the Supreme Court.
§ 2255. Kenemore acknowledges he cannot meet those requirements.
       4
          See § 2255(e). See also Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.
2001) (“[Section] 2441 may be utilized by a federal prisoner to challenge the legality of his or
her conviction or sentence if he or she can satisfy the mandates of the so-called § 2255 ‘savings
clause’ . . . .”).

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result:
      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 prem-
      ise that the lower court would reject if given the opportunity for fur-
      ther consideration, and where it appears that such a redetermin-
      ation may determine the ultimate outcome of the litigation, a GVR
      order is . . . potentially appropriate.

Lawrence ex rel. Lawrence v. Charter, 516 U.S. 163, 167 (1996).
      In Jackson, the defendant was convicted of theft from an employee-benefit
plan. Affirming on appeal, the Fourth Circuit held that “assets” of the plan
included amounts due and owing to the plan even if they were not yet paid. The
Court granted certiorari on the question whether an unpaid employer contribu-
tion to a company’s employee benefit plan is an asset before it is paid into that
plan, such that a company officer can be guilty of embezzling from the plan when
he does not fund it in a timely manner. The government agreed with Jackson,
filing a brief arguing that the conviction should be overturned, because unpaid
employer contributions are not assets of the plan.          The Supreme Court
responded with a GVR for reconsideration in light of the Solicitor General’s argu-
ment. Kenemore claims that his conviction is based on a similarly improper defi-
nition of “assets”: that he was diverting assets of employer contributions before
they reached the plan.
      Regardless of whether Kenemore is correct that his case was tried with a
definition of assets similar to that in Jackson, the GVR does not meet the
requirements of the savings clause under Reyes-Requena. In Reyes-Requena, 243
F.3d at 903-04, we discussed a Supreme Court holding that a substantive federal
criminal statute that does not reach certain conduct necessarily carries a signifi-
cant risk that a defendant was convicted of a nonexistent offense, because such


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holdings declare what the statute has meant since its enactment. Such an inter-
pretation by the Court decides for the entire country how courts should have
read the statute since it was enacted, meaning that if a conviction is not possible
under the newly given interpretation, it should never have happened.
      When the Supreme Court utilizes its GVR power, however, it is not mak-
ing a decision that has any determinative impact on future lower-court proceed-
ings. A GVR “does ‘not amount to a final determination on the merits.’”5 The
Third Circuit has explained the effect of a GVR:
         West claims that the Supreme Court’s granting of [a GVR] effec-
      tively made Cage retroactive on collateral review, a decision but-
      tressed by the Court of Appeal’s changed decision after the GVR
      order. We need not tarry long over this argument. The Supreme
      Court has made clear that, though remand may indicate that inter-
      vening precedent is sufficiently analogous or decisive to compel re-
      examination, it is not a final determination on the merits. More
      recently, the Court has stated that, although GVR orders may be
      issued in situations where redetermination in light of intervening
      developments may decide the merits of a case, they require only
      consideration by the lower court and are not summary reversals.

        In his reply brief, West concedes that in form, a GVR order may
      never be a final decision on the merits, but contends that in sub-
      stance, it sometimes is. We decline to engage in the parsing of
      Supreme Court intent necessary to breathe life into so abstract a
      contention. Whatever a GVR’s order value as a predictor of the
      Court’s position on a particular matter, we do not treat such an
      order as a dispositive ruling.

West v. Vaughn, 204 F.3d 53, 58 (3d Cir. 2000), abrogated by Tyler v. Cain, 533
U.S. 656 (2001) (internal citations omitted).
      A GVR does not bind the lower court to which the case is remanded; that
court is free to determine whether its original decision is still correct in light of

      5
          GRESSMAN, supra, at 348 (citing Henry v. City of Rock Hill, 376 U.S. 776, 777 (1964)).

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the changed circumstances or whether a different result is more appropriate.
Because the lower court can decide either waySSthe Supreme Court not having
specified or even suggested which merits outcome is correctSSthe Court cannot
be said to have issued a decision regarding the validity of any convictions.6
Instead, the GVR merely allows a lower court to reconsider its judgment in light
of new circumstances, permitting the Supreme Court to get more information
before making a decision. If, after the lower court’s reexamination, the Court
wishes to issue a decision on the matter, it can grant certiorari again, but if not,
it can wait until more circuits weigh in before addressing the issue.
       Because the GVR makes no decision as to the merits, it does not “neces-
sarily carry a significant risk that a defendant was convicted of [a nonexistent
offense],” Reyes-Requena, 243 F.3d at 904, given that there is no holding declar-
ing invalid any offense arguably found in the text. Kenemore argues that the
GVR in Jackson, issued when the government said it agreed that corporate con-
tributions that never made it to the ERISA plan are not plan assets that can be
embezzled, constitutes a decision of the Supreme Court regarding the statutory
definition of “assets.” The problem is that the Court never decided such a thing.
       The Fourth Circuit initially decided that Jackson was guilty of embezzle-
ment, the Solicitor General told the Supreme Court that his office felt the convic-
tion was wrong because the word “assets” should be interpreted differently, and

       6
         In Van Curen v. Jago, 454 U.S. 14, 16 (1981), the Sixth Circuit initially had denied
a habeas petition, but after the Supreme Court issued a GVR, the Sixth Circuit changed its
reasoning and granted the petition. The Supreme Court then reversed the Sixth Circuit’s new
decision, thereby denying habeas relief. In Henry v. City of Rock Hill, 375 U.S. 6 (1963)
(mem.), protestors were arrested for breaching the peace, but after the state supreme court
had upheld the convictions, the Supreme Court issued a GVR. The state supreme court stayed
with its original decision, determining that the intervening Supreme Court decision did not
change the result. The Court reversed, overturning the convictions. Henry v. City of Rock
Hill, 376 U.S. 776, 777-78 (1964). As this set of cases demonstrates, the fact that the Supreme
Court exercised its GVR power does not mean it has spoken on the merits.

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so the Supreme Court issued a GVR to allow the Fourth Circuit to decide
whether that new information affected the judgment. The Fourth Circuit was
not bound to agree with the Solicitor General, and the Supreme Court never
indicated one way or another on the merits of that issue. All we have is an inter-
vening decision by the Fourth Circuit that it thought such funds were not assets
of the plan. Whether issued on remand from the Supreme Court or in the first
instance from a district court on direct appeal, a statutory interpretation by one
of our sister circuits does not meet the requirements of Reyes-Requena.
       The fact that the GVR in Jackson came after the Solicitor General had
argued that the conviction was in error does not transform the GVR into a sub-
stantive Supreme Court decision. The Court has expressly held that the Solici-
tor General’s opinion that a judgment in favor of the government was in error
is not dispositive. “All Members of the Court are agreed that we ‘should [not]
mechanically accept any suggestion from the Solicitor General that a decision
rendered in favor of the Government by a United States Court of Appeals was
in error.’” Lawrence, 516 U.S. at 170-71 (quoting Mariscal v. United States, 449
U.S. 405, 406 (1981)). Thus, the Court was not required to hold that the term
“assets” meant what the Solicitor General claimed it meant, and so issuing a
GVR still expresses no position on the merits.7
       The judgment is AFFIRMED.




       7
        Because Kenemore failed to establish the first requirement of Reyes-Requena, we need
not address the district court’s finding that Kenemore also failed to show that Fifth Circuit
precedent prohibited him from arguing that the definition of “assets” does not include corpor-
ate funds that have not yet reached an ERISA plan. We therefore do not decide whether Lan-
dry v. Airline Pilots Association, 901 F.2d 404 (5th Cir. 1990), forecloses the argument that
funds not yet paid to an employee benefit plan do not constitute “assets” of that plan that can
be embezzled under 18 U.S.C. § 664.

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