US v. Okechukwu Dimkpa - Affirmation of Conviction

PUBLISHED UNITED STATES COURT OF AP PEALS FOR THE FOURTH CIRCUIT No. 23 - 6245 UNITED ST ATES OF AMER ICA, Plaintiff – Appellee, v. OKECHUKWU DIM KPA, Defendant – Appellant. Appeal from the United States District Co urt for the Middle District of No rth Carolina, at Greensboro. Catherine C. Eagles, Ch ief District Judge. (1:19 - cr - 004 43 - CCE -1; 1:22 - cv - 00770 - CCE - LPA) Argued: September 9, 2025 D ecided: March 3, 2026 Before DIAZ, Chief Judge, and WYNN and HARRIS, Circuit Judg es. Affirmed by published opinion. Judg e Harris wrote the opinion, in which Chief Judge D iaz and Judge Wynn joine d. ARGUED: Blair T. Westover, THE LAW OFFICES OF BEAU B. BRINDLEY, Ch icago, Illinois, for Appellant. Julie C. Niemeier, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, fo r Appellee. ON BRIEF: Beau B. Brindley, THE LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Randall S. Galyon, Acting United States Atto rney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, fo r Appellee.

2 PAMELA HARRIS, Circuit Judge: Dr. Okech ukwu Di mkpa pled guilty to unlawfully distributing oxycodone in violation of 21 U.S.C. § 841(a)(1). T hree years later, in Ruan v. United States, 597 U.S. 450 (2022), the Supreme Court held th at § 841’s scienter provision require s the g overnment to prove that a physician knew he was acting in an unauthorized manner when prescribing a con trolled substance, such as oxycodone. Dimkpa the n filed a § 2255 motion challenging his convictions under § 841, arguing that his guilty plea was not knowing and voluntary because he was not informed of the m ens rea requirement articulated in Rua n. The district court denied Dimkpa’s motion, finding that Dimkpa had procedurally defaulted his Ruan - based claim by failing to raise it during h is initial criminal proceeding, and that he had not shown cause to overcome this default. Although Ruan had yet to be decided when Dimkpa pled guilty, the district court reasoned, the legal basis for a Ruan - style claim was reasonably availab le to Dimkpa at that time. Accordingly, Dimkpa’s mens rea argument was not sufficiently novel to constitute cause fo r his procedural default. We agree and therefore affirm the judgment of the district co urt. I. A. Defendant Okechukwu Dimkpa, a physician, was charged with six counts of unlawfully distributing oxycodone, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a) (1). That statute makes it a federal crime, “[e]xcept as authorized,” for any person “knowingly or intentionally ” to “manufacture, distribute, or d ispense” a controlled

3 substance. 21 U.S.C. § 841(a) (1). Registered doctors may p rescribe such substances to their patients, but pursuant to federal regu lations, “a prescription is on ly authorized when a doctor issues it ‘for a legitimat e medical purpose. . . acting in the usual course of h is professional practice.’” Ruan, 597 U.S. at 45 4 (alteratio n in original) (quoting 21 C.F. R. § 1306.04(a) (2021)). Dimkpa’s charges corresponded to six instances in which he p rescribed oxycodone to the same patient. Accordin g to the government, those p rescriptions were not “authorized” under § 841 and were instead “outside the course of usual medical practice” and “not medically legitimate.” J.A. 44 – 45. Dim kpa was aware, the government alleged, that his patient was addicted to o pioids – because his patient told him so – and nevertheless continued to prescribe oxycodone. An d each of the six prescription s in question was issued immediately after the patient tested positive for heroin or cocaine. Five days after recei ving the last of his oxycodone prescriptio ns from D im kpa, the patient died of an opioid - involved drug overdose. 1 Dimkpa pled guilty to all six charges in September 2019. At the plea hearing, the district court informed Dimkpa t hat should the case proceed to trial, the government would be required to prove each element o f the charged § 841 offense beyond a reasonable dou bt. And that would include, the district cou rt explained, proof that Dimkpa had acted in an unauthorized manner by prescribing oxycodone “outside the usual course of professional practice.” J.A. 60. But consistent with then - governing Fourth Circu it precedent, the 1 Mo re specifically, a medical examiner determined that the patient d ied of “Acute Combined Drug Toxicity (oxycodone, alprazolam).” J.A. 43.

4 district court did not inform Dimkpa that the government would have to prove that he knew his prescriptions were unauthorized as outside the bounds of professional practice. See United States v. Hurwitz, 459 F.3d 463, 4 7 7– 80 (4th Cir. 2006) (applying an objective rather than subjective standard to a physician’s “good faith” d efense that his prescriptions were authorized). Satisfied that Dimkpa’s guilty plea was knowing and voluntary, the district cou rt accepted it and sentenced D imkpa to 46 mont hs of impri sonment – the lo w end of the applicable Sentencing Guidelines range – followed by three y ears of supervised release. Dimkpa did not pursue a direct appeal. B. In June 2022, nearly three years after Dimkpa’s 2019 guilty plea, the Supreme Court held in Ruan v. United States that a physician can be co nvicted under § 841 only if the government proves that he “ knowingly or intentionally acted in an unauthorized mann er. ” 597 U.S. at 457. Section 841, recall, makes it unlawful, “[e]x cept as authorized[,]. . . for any person knowingly or inten tionally. . . to manufacture, distribute, or disp ense” a controlled substance. 21 U.S.C. § 841(a)(1). In Ruan, the Supreme Court, citing th e “presumption of scienter,” held that § 841’s “ knowingly or inten tionally ” mens rea applies not on ly to the “manufacture, distribute, or dispense” clause, but also to the “ except as authorized ” clause. 597 U.S. at 457 –59. To convict a physician under § 841, in other words, it is not enough that “ a prescription was in fact not authorized”; the government must prove beyond a reasonable doubt that “ the doctor kne w or intended that the prescription was unauthorized.” Id. at 454 – 55 (emphasis in original).

5 Dimkpa, proceeding pro se, moved to vacate his § 841 conv ictions pursuant to 28 U.S.C. § 2255. He argued that his guilty plea was constitutionally invalid because the district court did not inform him of the scienter requ irement newly recogn ized in Ruan. The g overnment did not dispute that Dimkpa’s plea colloquy was inadequ ate under Ruan. 2 Instead, the government invoked the doctrine of procedural default. Dimk pa’s Ruan claim was barred, t he g overnment argued, because it was not raised du ring Dimkpa’s initial criminal proceeding or on direct appeal, and Dimkpa failed to overcome this default by showing either cause and prejudice o r actual innocence. The district court agreed with the g overnment and d enied Dimkpa’s motion. Dimkpa v. United States, 2023 WL 234959 9, at *1 (M.D.N.C. Mar. 3, 2023). As the court recounted, Dimkpa did not challenge the mens rea required to sustain a § 841 conviction at the time he pled guilty, nor did he file a direct appeal from his conviction s. Id. at *2, *4. The claim was therefore pro cedurally defaulted, and could be r aised in pos t - conviction proceedings only if Dimkpa established a basis for excusing the defa ult. Id. at *4. Relevan t here, the district court ruled th at Dimkpa ’s reliance on R uan – new authority that post - dated his guilty plea – was not enough to demonstrate cause und er the cause and p rejudice standard. Id. A claim based on intervening Supreme Court precedent can constitute cause for purposes of procedural default, the court explained, but only if the claim is “so novel that its legal basis [was ] n ot reasonably available to cou nsel” before the Supreme Cou rt’s 2 The government expressly conceded that Ruan applies retroactively on collateral review, and that Dimkpa’s § 2255 motion w as timely filed.

6 decision and at the time the claim should have been raised. Id. (alteratio n in original) (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). And here, the district court concluded, Dimpka’s Ruan - style claim w as “reasonably available” at the time of his guilty plea in 2019, regardless of whether it could have succeeded under then - governing Fourth Circuit precedent. See id. (“ [A]lleged futility cannot serve as ‘cau se’ for a procedural default. . . if it means simply that a claim w as unacceptable to that particular court at that particular time.” (alteration in o riginal) (quoting Whiteside v. United States, 775 F.3d 180, 185 (4th Cir. 2014) (en banc))). In 2019, the district court reaso ned, the Supreme Court had no t foreclosed Dim kpa’s argument regarding the mens rea required to convict a physician under § 841. Id. Moreover, other defendants h ad taken advantage of that opening, raising clai ms just like Dim kp a’s around the time of Dim kpa ’s guilty plea. Id. And fin ally, months before Dim kp a’s plea colloquy, the Supreme Court had adopted a defendant’s very similar mens rea argument under a different statute: In Reh aif v. United States, 588 U.S. 225 (2019), the Supreme Court applied the same presumption of scienter it would rely on in Ruan and held that in a prosecution under 1 8 U.S.C. § 924(a)(2) for a “kn owing” violation of 18 U.S.C. § 922(g), the government must p rove not only that a defendant knew he possessed a firearm but also that he knew he was within a class of persons prohibited from possessing a firearm under § 922(g). 588 U. S. at 227, 229; see Dimkpa, 2023 WL 2349599, at * 4 & n.7 (discus sing Re haif). For these reasons, the d istrict court concluded, the claim pressed by Dimkpa in his § 2255 motion was reasonably available at the time of his plea and on

7 direct review, and the intervention of Ruan did not qualify as cause for his failure to raise the claim then. Dimkpa, 2023 WL 2349599, at *4. 3 Having determined that Dimkpa co uld not overcome his procedural default on the basis of cause and prejudice, the district court turned to Dimkpa’s remaining argument: that his procedural default could be excused by actual innocence. Id. at *5. But Dimkpa could not prevail on that ground, either, the court concluded: “ The inference that Dr. Dimkpa knew prescribing these medicines was not appropriate is stron g,” and Dimkpa could not show that “in light of all the evidence available, ‘it is more likely than not that no reasonable juro r would have convicted him’ o f any charge.” Id. (quoting Bousley v. United States, 523 U.S. 614, 623 (199 8)). Accordingly, the district court ruled that the procedural default do ctrine precluded Dimkpa from asserting his Ruan - based claim on collateral review, and denied Dimkpa ’s motion t o vacate his § 841 convic tions. Id. at *6. The distri ct court then issued Dim kpa a certificate of appealability, and this timely appeal fo llowed. 3 The district court did find that Dimkpa could satisfy th e prejudice prong of the cause and prejudice standard. His arg ument at sentencing focused on a claim that he did not know his prescriptions were unauthorized – specifically, that he did not know prescribing oxycodone to a patien t using heroin and cocaine was medically inappropriate if the patient had other legitimate m edical needs supporting the prescription. Given that argument, the district court explained, “Dimkpa probably would not have pled guilty if he had realized the government would have to prove that he knew the distribution o f oxycodone was inappropriate.” Dimkpa, 2023 WL 2349599, at *4. But as the district court correctly recognized, prejudice alone is insufficient to overcome a procedural default; the cause prong must also be satisfied. Id.

8 II. We rev iew the district court’s denial of a § 2255 motion de nov o. United States v. McKinney, 60 F.4th 1 88, 191 (4t h Cir. 20 23). On appeal, Dimkpa challenges only the district court’s determination that he failed to show cause for h is procedural default, maintaining that his Ruan - based mens rea claim was sufficiently n ovel at the time he pled guilty that his failure to raise it on direct review sho uld be excus ed. 4 We disagree an d therefore affirm the judgment of the district co urt. A. Habeas review should not take th e place of an appeal. Bousley v. United States, 523 U.S. 614, 621 (19 98). Accordingly, “[w] h ere a defendant has procedurally defaulted a claim by failing to raise it on d irect review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’” Id. at 622 (citations omitted). “[A] claim that ‘is so novel that its legal basis is not reasonably available to counsel’ may constitute cause for a procedural d efault.” Id. (quoting Reed, 468 U.S. at 16). That “novelty” standard is a high one. Poyner v. Murra y, 964 F.2d 140 4, 1424 (4t h Cir. 1992). As the district court exp lained – and Dimkpa does not dis pute – it is not enough that at the time Dimkpa pled guilty, Fourth Circuit precedent foreclose d application o f a subjective scienter stand ard to § 841’s “except as authorized” clause. See Hurwitz, 459 F.3d at 47 7– 80 (rejecting subjective “good faith” standard in favor of objective standard); 4 Dimkpa does not challenge the district cou rt’s ruling that he failed to show actual innocence.

9 United States v. Smithers, 92 F.4th 237, 247 (4th Cir. 2024) (explaining, on direct review, that it “would have been futile for [the defendant] to argue fo r a subjective standard” in the Fourth Circuit befo re Ruan was decided). Th at kind of futility, the Supreme Court has held – that a claim cannot prevail in front of a specific court at a particu lar point in time – cannot qualify as cause for a procedural default. Bousley, 523 U.S. at 623. Nor is it enough that this issue was unsettled in 2019, when Dimkpa entered his plea. The law is “often in a state of flux,” and the “mere fact that certain legal principles are unsettled” at the relevan t time “does not deprive a competent attorney of a ‘reasonable basis ’ for asserting a claim.” United States v. Gaylor, 828 F.2d 25 3, 256 – 57 (4th Cir. 19 87). “[T]he question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all.” Smith v. Murray, 477 U.S. 527, 537 (1986). In Reed v. Ross, 468 U.S. 1 (1984), the Supreme Court iden tified three situations in which “the novelty of a claim could con stitute cause, ” McKinney, 60 F.4th at 194: First, a decision of the Supreme Court may explicitly overrule one of its precedents. Second, a decision may overturn a longstanding and widespread practice to which the Supreme Court h as not spoken, but which a near - unanimous body of lower co urt auth ority has express ly appro ved. And, finally, a decision may disappro ve [of] a practice the Supreme Court arguably has sanctioned in p rior cases. I d. (cleaned up) (quoting Reed, 468 U.S. at 17). Dimkpa relies heavily on these Reed categories in making his argument, and we agree that this framework may helpfully info rm the inquiry into whether a claim is so “novel” that it was not “reasonably available” at the

10 time of a default. But as sub sequent Supreme Court precedent makes clear, the R eed categories may not be dispositive, and the analysis does n ot stop there. As our court h as explained, after th e Supreme Court decided R eed, it “elabo rated on just what constitutes a novel claim” in Bousley v. United States. United States v. Sanders, 247 F.3d 139, 1 44 – 45 (4th Cir. 2001). There, the Court held that a claim about the scope of 18 U.S.C. § 924(c)(1)’s prohibition on “use” of a firearm was “reasonably av ailable” for years before it was adop ted by the Supreme Court. Id. (citing Bousley, 523 U.S. at 616, 622 – 23). In reaching that conclusion, the Court did not reference th e Reed categories. Instead, it focused directly on the bottom - line inquiry: Was the “ legal basis” for the defendant’s claim “reasonably available to counsel” at the time of the d efault? Bousley, 523 U.S. a t 622; see Sanders, 247 F.3d a t 144. And while the Court recognized that its decision narrowing the scope of § 924 (c)(1) in Bailey v. United Sta tes, 516 U.S. 137 (1995), had “changed th e relevant legal landscape,” it still concluded that the basis for the petitioner ’s claim was “reasonably available” y ears before Bailey was decided, emphasizing that o ther defendants already were raising Bailey - style claim s. Sanders, 247 F.3d at 145 (citing B ousley, 523 U.S. at 622 – 23). Consistent with that approach, we hav e held that a claim is not sufficiently “nov el” to qualify as cause for a d efault where prior Supreme Court d ecisions provided a defendant with the “essential legal tools” for his claim. Sanders, 247 F.3d at 146. Eve n if it is only later that the Supreme Court actually settles the issue, in other words, a claim is “reasonably available” if prior precedent “laid th e basis for” it. Engle v. Is aac, 456 U.S. 107, 131 – 33 (1982); see, e.g., Turne r v. Jabe, 58 F.3 d 924, 929 (4th Cir. 1995). And the fact that other

11 defendants “perceived and litig ated” similar claims around the same time indicates that a claim is not so “novel” that it can excuse a default. Engle, 4 56 U.S. at 134; see, e.g., Bousley, 523 U.S. at 62 2 – 23, 623 n.2; Sanders, 247 F.3 d at 145; Turner, 58 F.3d at 929. B. Against that background, we turn to Dimkpa’s contention that his claim was sufficiently “novel” to co nstitute cause for his 20 19 default. We appreciate that i t was not until three years later that the Supreme Court embraced Dimkpa’s position in Ruan. And we recognize, as Dimkpa argues, th at Ruan ’s endorsement of a subjective mens rea requirement for § 841’s “except as authorized” clause “changed the law in this circuit” and many others. United States v. Kim, 71 F.4th 155, 1 60 (4th Cir. 2023). But that a lone is not enough to establish cause in this ca se. In our 2006 decision i n Hurwitz, we adop ted what we believed to be the consensus position of the federal courts of appeals, hold ing that § 841 did not require the gove rnment to prove that a doctor kn ew or intended to prescribe in an unautho rized manner, but only that a doctor’s prescriptions were objectively unauthorized. 459 F.3d at 479 (“We believe that the inquiry must be an objective one, a conclusion that has been reached by e very court to specifically consider the question.”). And it appears that this consensus only g rew in the years after Hurwitz was decided. S ee Brief for Defend ant - Appellant at 21 – 22 (collecting cases). 5 So when Ruan held that the governme nt was required in a § 841 5 Still, the consens us was no t unanimous: T he Seventh and the Ninth C ircuits required the government to prove that a doctor intended to act in an unauthorized manner. See United States v. Chube II, 538 F.3d 693, 6 9 8 (7th Cir. 2008); United States v. Feingold, 454 F.3d 1 001, 1008 (9th Cir. 2006).

12 prosecution to prove that a do ctor knowingly or intentionally acted in an unauthorized manner, it abrogat ed the law in multiple circuits, including our own, see Smithers, 92 F.4th at 250, and “chang ed the relevant legal landscape, ” Sanders, 247 F.3d at 145. See Reed, 468 U.S. at 17 (describing category of cases in which a S upreme Court decision “overturn[s] a longstanding and w idespread practice to which [the Sup reme Court] has not spoken, but which a near - un animous bod y of lower court authority has expressly approve d”). But however strong this former circuit - court consensus, it did no t place the “legal basis” for Dimkpa’s Ruan - sty le challenge beyond the realm of “reasonable availa bility” at the time of Dimkpa’s default. That is primarily because of an unusual feature of this case, emphasized by the district court: Three months before Dimkpa pled guilty and six months before he was sentenced, a striking ly similar mens rea claim was embraced by the Sup reme Court in Rehaif v. Un ited States. See Dimkpa, 2023 WL 2349599, at * 4 & n.7. Whatever the state of play before Rehaif, a fter Rehaif, Dimkpa “p lainly had at his disposal the essential legal tools with which to con struct his claim.” Sanders, 247 F.3d at 146. Dimkpa’s claim, again, rests o n the proposition that § 841’s “ knowingl y or intentionally” m ens rea m odifies not only “manufacture, distribute, or d ispense” – th e clause immediately following it – but also the preceding “except as authorized ” clause. In Rehaif, the Court considered an analogous (if slightly more ambitious) claim about the scope of t he word “knowingl y” as used in 1 8 U.S.C. § 924(a)(2), which penalizes anyone who “knowingly” violates a different sta tute, 1 8 U.S.C. § 922(g). 588 U.S. at 22 7. Section 922(g), in turn, prohibits firearm possession by certain individuals, includ ing

13 convicted felons and noncitizens illegally in the United States. Id. The defendant in Rehaif argued that § 924(a)(2)’s mens rea req uirement applied across statutes to mod ify all elements of an antecedent § 922(g) offense. And th e Supreme Court agreed, holding that § 924(a)(2)’s “knowingly” modifier is not limited to the w ords immediately follow ing it, see Ruan, 597 U.S. at 461 (di scussi ng Rehaif), a nd instead requires that “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the [g] overnment must prove both that t he defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm, ” Rehaif, 588 U.S. at 237. Despite the se p arallels, Rehaif might be less important here if the Supreme Court had “carefully crafted [that] holding to avoid d eciding whether [its] logic. . . applied outside the context” of the particu lar statutory scheme at issue. U nited States v. Brown, 868 F.3d 2 97, 302 (4t h Cir. 2017). But the Court in Reha if did exactly the o pposite. It framed its holding as an application of broad and basic criminal law principles: the “universal” understanding that “an injury is criminal only if inflicted knowingly,” and the concomitant “longstanding” and “ordinary presumptio n in favor of scienter” when construing criminal statutes. Rehaif, 588 U.S. at 229, 231. It situated its holding within a “legion” of cases “emphasiz[ing ] scienter’s importance in separatin g wrongful from innocent acts.” Id. at 231. And it underscored th at while the presumption of scienter applies even when a statute specif ies no mens rea, th e presumption applies “with equal or greater force” when – as in § 924(a)(2) in Rehaif, and § 841 in this case – C ongress ha s included a general scienter provision in the statutory sch eme. Id. at 229.

14 Those principles apply straightforwardly to Dimkpa’s Ruan - style claim. And w e know this because when the Supreme Court decided Ruan three years later, its reasoning mirrored that of Rehaif, and it relied on Rehaif throughout. I n R uan, as in Rehaif, th e Co urt started from fundamental principles of crimin al law: the maxim that “wrongdoing must be conscious to be criminal” and the p resumption of scienter. Ruan, 597 U.S. at 457 – 58 (citing Rehaif, 588 U.S. at 229). The Court observed, again, that because § 841 contains a general scienter provision, the presumption of scienter “applies with equal or greater force” in construing its scope. Id. at 458 (quoting Rehaif, 588 U.S. at 229). The Court characterized Rehaif, specifically, as “ [a] nalogous preced ent” concern ing “the mental state that applies to a statutory clause” – in Ruan, the “except as authorized ” clause – “that does not immediately follow the scienter pro vision.” Id. at 461. And the Court concluded, as it had before, that application of a scienter requirement would play a “ crucial role” in separating presumptively innocent acts (such as possession o f a licensed firearm or prescription of medication by a physician) from wrongful conduct. Id. at 4 58 – 59, 464 (citing Rehaif, 588 U.S. at 23 1–3 2). Ruan was not, of course, a carb on copy of Rehaif. See id. at 468 – 73 (Alito, J., concurring in the judgment) (argu ing that Rehaif is distinguishable). Bu t “reasonable availability” does not demand an exact match. See Ga ylor, 828 F.2d at 256 – 57 (claim may be “reasonably available” before an issue is settled b y the Supreme Court). For procedural default to apply, it is enough if a defendant and his counsel have av ailable the “tools to construct their [] claim.” Engle, 456 U.S. at 133. And mont hs before D imkpa pled guilty, was sentenced, and forwent an appeal in 2019, Rehaif had given Dimkp a and his lawyer

15 “the legal tools, i.e., case law, necessary to co nceive and argue” a Ruan - style claim. Poyner, 96 4 F.2d at 1424; see Sander s, 247 F.3d at 145 – 46 (applying similar reasoning to find that Apprendi - style claims we re “reasonably available” in years before Sup reme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000)). It is no surprise, then, that o ther defendants were raising Ruan - style claims well before Ruan was decided. As the d istrict court noted, defendants in the F ourth Circuit were bringing such challenges around the time of Dimkpa’s default, Dimkpa, 20 23 WL 234959 9, at *4, as were defendants in other circuits, s ee Response Br ief of the United States at 19 & n.2 (listing cases from th e Fourth Circuit and o ther circuits). That other d efendants already were pursui ng what would become Ruan claims is go od evidence that “the fo undation for [Ruan ] was laid” before Ruan was decided in 2022, Sanders, 247 F.3d at 145, and that Dimkpa’s claim was not so “novel” that it ca n constitute cause for a default. S ee Bousley, 5 23 U.S. at 622 (reasoning that petitioner’s claim did not qualify as “nov el” because “at the time of petitioner’s plea, the Federal Reporters were replete with cases invo lving [similar] challenges”). Finally, we are unpersuaded by D imkpa’s argument that his claim was no t “reasonably available” until Ruan was decided b ecause Ruan overturned the Supreme Court’s prior precedent in United States v. Moore, 423 U.S. 122 (1975), or at least “disapprove[d] [of] a practice [the Supreme Court ] arguably ha[d] sanctioned” in Moore. Reed, 468 U.S. at 17 (iden tifying situations in which claim might not be reasonably available to petitioner). Ruan did not overrul e Moore. Instead, it distinguished it: “[T]he questi on in Moore was whether doctors could ever be held criminally liable under § 841.

16 Moore did not directly address the question before us here regarding the mens rea required to convict under the statute.” Ruan, 597 U.S. at 466 (emphasis in original) (citation omitted). Moreover, the Court expressly rejected the argument Dimkpa now ad vances, pressed in Ruan by the government: that Moore h ad “effectively endorsed” an objective scienter standard. See id. Giv en the Supreme Court’s own analysis of its precedent, we are not at liberty to adopt a contrary view and find that Moore sanctioned the objective standard later disapproved of in Ru an. This case is thus distinguishable from United States v. McKinney, in whic h we foun d cause for a petition er’s default of a vagueness challeng e to the residual clause of 18 U.S.C. § 924(c) in the years before th e Supreme Court invalidated a similar residu al clause in Johnson v. United States, 576 U.S. 591 (2015). See McKinney, 60 F. 4th at 19 1, 193 – 95. Until 2015, we explained, Supreme Court precedent h ad “effectively foreclosed” such a claim, “affirmatively uph[olding] the constitutionality of residual clauses like the one at issue.” Id. at 194. A claim “foreclosed” by binding Sup reme Court precedent may well be “unavailable” in a way that constitutes cause for a d efault. See id.; Reed, 468 U.S. at 17. Here, however, the Supreme Court has ex pressly instructed that its d ecision in Moore did not even address, let alon e foreclose, the mens rea claim Dimkpa defaulted. Ruan, 597 U.S. at 466. Accordingly, w e agree with the district court that the legal basis for Dimkpa’s men s rea claim was “ reasonably available to him ” at the time he pled guilty and then failed to pursue a direct appeal. His failure to assert that claim was therefore a procedural default for which no cause can be shown, and on that groun d, collateral relief is precluded.

17 III. For the for egoing rea sons, we affirm the jud gment of the district court. AFFIRMED