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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12337
Non-Argument Calendar
________________________
D.C. Docket Nos. 0:16-cv-61848-JIC,
0:07-cr-60153-JIC-2
BOBBY MARTIN,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 21, 2021)
Before MARTIN, GRANT, and BRASHER, Circuit Judges.
MARTIN, Circuit Judge:
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Bobby Martin was convicted after a jury trial on seven charges related to a
conspiracy to rob a cocaine stash house. He now appeals the denial of his
28
U.S.C. § 2255 petition, arguing that one of his convictions is invalid in light of
United States v. Davis, 588 U.S. __,
139 S. Ct. 2319 (2019). Davis invalidated
18
U.S.C. § 924(c)’s residual clause on the ground that it is unconstitutionally vague.
139 S. Ct. at 2336.
While this appeal was pending, this Circuit issued a published decision in
Granda v. United States,
990 F.3d 1272 (11th Cir. 2021), which resolved the open
issues in Mr. Martin’s case against him. After careful consideration, and on the
basis of Granda, we therefore affirm the denial of the § 2255 petition.
I
In 2007, a confidential information tipped off the Bureau of Alcohol,
Tobacco, and Firearms (“ATF”) that a particular group of people, which came to
include Mr. Martin, wanted to rob a target of cash or drugs. That informant
worked with an undercover ATF agent to investigate this group. The undercover
ATF agent, posing as a disgruntled drug courier who wanted to steal cocaine from
his employer, met with the group. The undercover agent proposed stealing at least
15 kilograms of cocaine from his employer’s stash house, which was protected by
armed guards. Mr. Martin and others agreed to the plan. Specifically, Mr. Martin
agreed to commit the robbery, proposed a method of dividing the cocaine they
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anticipated recovering, and said the guard protecting the cocaine might be killed if
he offered any resistance during the robbery. When asked if the group had the
tools to commit the robbery, Mr. Martin assured the undercover agent, “everything
is done.”
Mr. Martin repeatedly reaffirmed his willingness to perform the robbery. He
said he and his crew would be ready, and again indicated that anyone guarding the
cocaine might be killed if he resisted during the robbery: “I can eliminate
everything. Sometimes guys like that don’t deserve to breathe.” Mr. Martin
confirmed he had all the materials necessary to commit the robbery, including a
silencer, and said he would bring an extra gun to plant it on the guard and “make it
look like a drug deal gone bad.” Mr. Martin also reassured the undercover agent
that he had experience with these jobs and had been committing robberies for a
long time. Over the next month, Mr. Martin asked about the status of the
impending cocaine robbery. Mr. Martin also discussed with the undercover agent
the plan for the robbery. He explained who would be on lookout while he and
another co-conspirator entered the stash house to steal the cocaine. He assured the
undercover agent that all firearms needed for the robbery had been acquired. He
also discussed plans for the proceeds he would earn from selling the stolen
cocaine.
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On the day of the arranged robbery, Mr. Martin and his co-conspirators met
with the undercover agent. Everyone in the group dressed in black and wore skull
caps and gloves to conceal their appearances. They again discussed the plan for
the robbery.
At that point, law enforcement moved in to arrest the defendants. The
vehicle in which Mr. Martin and his co-conspirators came to the scene contained:
two loaded rifles (including a short-barreled rifle), binoculars, a knife, a canvas bag
to carry cocaine, and other items for use in the robbery. Following his arrest, Mr.
Martin confessed that he was going to conduct a robbery of 15 kilograms of
cocaine and that the firearms brought to commit the robbery had been used before.
Mr. Martin was charged with conspiracy to obstruct, delay, and affect
interstate commerce by means of robbery, in violation of
18 U.S.C. § 1951(a)
(“Hobbs Act robbery”) (Count 1); conspiracy to possess with intent to distribute at
least five kilograms of cocaine, in violation of
21 U.S.C. §§ 841(a) and 846 (Count
2); attempt to possess with intent to distribute at least five kilograms of cocaine, in
violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 3); conspiracy
to carry a firearm during and in relation to a crime of violence and during and in
relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(o) (Count 4);
knowingly carrying a firearm during and in relation to a crime of violence and
during and in relation to a drug trafficking crime, in violation of 18 U.S.C.
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§§ 924(c)(1)(A), 924(c)(1)(B), and 2 (Count 5); possession of an unregistered
firearm, in violation of
26 U.S.C. §§ 5861(d) and 5871 and
18 U.S.C. § 2 (Count
6); and possession of a firearm by a convicted felon, in violation of
18 U.S.C.
§ 922(g)(1) (Count 7).
The jury found Mr. Martin guilty on all counts. The District Court
sentenced him to 240 months’ imprisonment as to Counts 1 and 4; 260 months as
to Counts 2 and 3; and 120 months as to Counts 6 and 7; all to run concurrently
with each other. The court also sentenced him to 120 months’ imprisonment as to
Count 5, to be served consecutively to the terms imposed in the other counts. This
resulted in a total term of 380 months’ imprisonment for Mr. Martin.
In 2016, Mr. Martin filed a motion seeking leave to file a second or
successive § 2255 motion, which this Court granted.1 He argued his § 924(c)
conviction should be invalidated in light of Johnson,
576 U.S. 591,
135 S. Ct.
2551, and Welch,
136 S. Ct. 1257. He contended his § 924(c) conviction was no
1
This Court affirmed Mr. Martin’s convictions. United States v. Chung, 329 F. App’x
862, 865, 869 (11th Cir. 2009) (per curiam) (unpublished). In October 2009, the Supreme Court
denied his petition for writ of certiorari. Mr. Martin then filed his initial § 2255 motion, alleging
a variety of claims, which the District Court denied. He then filed a motion to reduce his
sentence pursuant to
18 U.S.C. § 3582(c) and Amendment 782 to the Sentencing Guidelines,
which the District Court granted, reducing Mr. Martin’s sentence from 380 months’
imprisonment to 328 months’ imprisonment. In 2016, Mr. Martin filed a motion to preserve
claims under Johnson v. United States,
576 U.S. 591,
135 S. Ct. 2551 (2015), and Welch v.
United States, 578 U.S. __,
136 S. Ct. 1257 (2016), in the event those decisions could apply
retroactively to career offender provisions. The District Court dismissed the motion as an
unauthorized second or successive § 2255 motion.
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longer valid because conspiracy to commit Hobbs Act robbery no longer qualified
as a crime of violence. The government argued that Mr. Martin’s claims were
procedurally defaulted; that Johnson did not apply to § 924(c)(3)(B); and that, in
any event, his § 924(c) conviction was based on the alternative drug trafficking
predicates left unaffected by Johnson.
In 2018, the District Court denied the § 2255 petition and denied a certificate
of appealability (“COA”) based on this Court’s then-binding precedent. 2
In 2019, the Supreme Court decided Davis, holding that the § 924(c)(3)(B)
residual clause was unconstitutionally vague.
139 S. Ct. at 2336. In 2020, this
Court granted Mr. Martin a COA on the following issue:
Whether Martin’s conviction for using a firearm in furtherance of a
conspiracy to commit Hobbs Act robbery and drug-trafficking crimes in
violation of
18 U.S.C. § 924(c) remains valid in light of Davis v. United
States,
139 S. Ct. 2319 (2019)?
We now address this issue.
II
In reviewing a district court’s denial of a motion to vacate under
28 U.S.C.
§ 2255, this Court reviews de novo legal conclusions and reviews factual findings
2
Under this Court’s precedent at the time, the District Court was bound to hold that
Johnson did not apply to § 924(c)(3)(B). Ovalles v. United States,
861 F.3d 1257 (11th Cir.
2017), reh’g en banc granted and opinion vacated,
889 F.3d 1259 (11th Cir. 2018), and on reh’g
en banc,
905 F.3d 1231 (11th Cir. 2018), and opinion reinstated in part,
905 F.3d 1300 (11th Cir.
2018) (per curiam), and abrogated by Davis,
139 S. Ct. 2319.
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for clear error. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004) (per
curiam).
III
Because we conclude Mr. Martin’s Davis challenge fails on the merits, we
need not decide whether the argument is procedurally defaulted.
The merits question before us is whether Mr. Martin’s conviction for using a
firearm, in the furtherance of a conspiracy to commit Hobbs Act robbery and drug-
trafficking crimes, in violation of
18 U.S.C. § 924(c) remains valid in light of
Davis,
139 S. Ct. at 2336, which invalidated § 924(c)’s residual clause as
unconstitutionally vague. Relief is only proper if we have “grave doubt” about
whether Mr. Martin’s conviction rested on the invalid predicate. See Granda, 990
F.3d at 1293.
We begin with the counts of his conviction. The indictment alleged that the
predicate offenses for the § 924(c) charge in Count 5 were the Hobbs Act robbery
offense in Count 1 and the two drug trafficking offenses in Counts 2 and 3. Both
sides agree the Hobbs Act robbery offense (Count 1) can no longer serve as a
predicate offense after Davis. As such, the question in Mr. Martin’s case is
whether his § 924(c) conviction (Count 5) nevertheless remains valid because it
rests on an alternative drug trafficking predicate (Count 2 or 3) left unaffected by
Johnson.
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In Granda, our Circuit answered this question yes. 990 F.3d at 1291. Mr.
Granda argued his § 924(o) conviction should be vacated in light of Davis. Id. at
1280. But this Court determined that this argument was procedurally defaulted and
that, regardless, it failed on the merits because any error was harmless. Id. at
1280–81. The panel concluded there was a fundamental shortcoming “that cut[]
across both the procedural and merits inquiries.” Id. at 1280. Namely, the
§ 924(o) predicates were “inextricably intertwined,” because they arose out of the
same cocaine robbery scheme. Id. at 1280, 1290. Granda held that the jury could
not have found that Mr. Granda conspired to possess a firearm in furtherance of a
Hobbs Act conspiracy without also finding he conspired to possess a firearm in
furtherance of the attempted Hobbs Act robbery, as well as in furtherance of
conspiring and attempting to possess cocaine with intent to distribute and in
furtherance of attempting a carjacking. See id. Each of these other offenses
remained a valid predicate for the § 924(o) conviction after Davis. Thus, the panel
concluded the overlapping facts considered by the jury in deciding the alternative
predicate offenses rendered any error in the jury instructions harmless. Id. at
1290–91.
That reasoning applies here. Mr. Martin was convicted of conspiring and
attempting to commit an armed robbery of a cocaine stash house, specifically a
§ 924(c) offense (Count 5) predicated on the now-invalid conspiracy to commit
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Hobbs Act robbery (Count 1) or either one of the still-valid offenses of conspiracy
and attempted cocaine trafficking (Counts 2 and 3). Like Mr. Granda, this record
shows that Mr. Martin’s predicate offenses are also inextricably intertwined
because they all arose out of the same cocaine robbery. A jury, on these facts,
could not have found that Mr. Martin committed Count 5—carrying a firearm
during and in relation to a crime of violence and a drug trafficking crime—in
relation to Count 1—Hobbs Act robbery—without also finding that Martin
committed Count 5 in relation to Count 2—conspiracy to possess with intent to
distribute five kilograms or more of a mixture and substance containing cocaine—
or Count 3—attempt to possess with intent to distribute five kilograms or more of a
mixture and substance containing cocaine. Therefore, Mr. Martin has not shown
that the § 924(c) conviction necessarily rested on Count 1. The acts for which Mr.
Martin was convicted of in Count 1 are inextricably intertwined with two
predicates—Counts 2 and 3—that remain valid after Davis.
IV
Mr. Martin makes several other arguments. None persuade us.
First, he argues Stromberg v. California,
283 U.S. 359,
51 S. Ct. 532 (1931),
and its progeny mean a “general verdict must be set aside if the jury was instructed
that it could rely on any of two or more independent grounds, and one of those
grounds is insufficient, because the verdict may have rested exclusively on the
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insufficient ground.” Zant v. Stephens,
462 U.S. 862, 881,
103 S. Ct. 2733, 2745
(1983).
But in Granda, this Court held that Stromberg error is subject to the harmless
error standard in Brecht v. Abrahamson,
507 U.S. 619,
113 S. Ct. 1710 (1993).
990 F.3d at 1294. And under harmless error review, “reversal is warranted only
when the petitioner suffered ‘actual prejudice’ from the error.” Id.; see also
Hedgpeth v. Pulido,
555 U.S. 57, 61,
129 S. Ct. 530, 532 (2008) (per curiam)
(holding that “[a]n instructional error arising in the context of multiple theories of
guilt” does not “vitiate[] all the jury’s findings”).
Mr. Martin has not shown that he suffered actual prejudice from the general
verdict. As set out above, the predicate offenses for his § 924(c) conviction are
inextricably intertwined. Granda, 990 F.3d at 1293. This record demonstrates that
Mr. Martin was extensively involved in planning the robbery of a drug stash house
containing at least 15 kilograms of cocaine. He repeatedly told co-conspirators he
was willing to bring firearms to the robbery and kill anyone offering resistance
during the robbery. Given this, Mr. Martin’s case is comparable to that in Granda.
His still-valid drug trafficking offenses (Counts 2 and 3) are inextricably
intertwined with the now-invalid Hobbs Act robbery (Count 1). See id. Mr.
Martin carried a firearm during and in relation to the robbery offense that was also
intertwined with the drug trafficking offenses. We also note the strength of the
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evidence against Mr. Martin, including his confession to law enforcement that he
planned to conduct a robbery of 15 kilograms of cocaine and brought firearms to
commit the robbery. Given the facts of this case, Mr. Martin has not shown that he
suffered actual prejudice from the general verdict for the § 924(c) conviction.
Thus, his Stromberg-based argument fails. 3
Next, Mr. Martin urges this panel to apply the “categorical approach” to
presume his § 924(c) conviction rests on the now-invalid Hobbs Act robbery. The
categorical approach is used “to determine whether a particular offense qualifies
under crime-of-violence-type elements clauses such as those found in
§ 924(c)(3)(A) and in the [Armed Career Criminal Act].” Granda, 990 F.3d at
1295. Under the categorical approach, courts “examin[e] only the elements of the
statute of conviction, not the specific conduct of a particular offender.” United
States v. Oliver,
962 F.3d 1311, 1316 (11th Cir. 2020) (quotation marks omitted).
Courts further “assume that the conviction rested on the ‘least of the acts
criminalized’ by the statute, because to determine upon which of the criminalized
acts the conviction rested would violate the categorical approach’s command not to
analyze the facts underlying the conviction.” Granda, 990 F.3d at 1295 (quotation
marks omitted) (quoting Oliver, 962 F.3d at 1316; Moncrieffe v. Holder,
569 U.S.
3
In re Gomez,
830 F.3d 1225 (11th Cir. 2016) (per curiam), does not compel a different
conclusion. In Granda, this Court distinguished Gomez and held that it did not apply to preclude
Brecht harmless error inquiry on the merits of a claim like Mr. Granda’s. 990 F.3d at 1296.
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184, 190–91,
133 S. Ct. 1678, 1684 (2013)). But in Granda this Court also rejected
the argument that the categorical approach prohibits courts from determining that
the jury did not rely solely on a now-invalid Hobbs Act conviction as the predicate.
Id. Therefore, this argument is unavailing.
Mr. Martin’s next argument, invoking judicial factfinding, fares no better.
He argues that concluding the jury relied on still-valid predicates would constitute
impermissible judicial factfinding in violation of Alleyne v. United States,
570
U.S. 99,
133 S. Ct. 2151 (2013). 4 However, “a judge conducting a Brecht
harmless error analysis does not find a fact at all; instead, the judge asks as a
matter of law whether there is grave doubt about whether an instruction on an
invalid predicate substantially influenced what the jury already found beyond a
reasonable doubt.” Granda, 990 F.3d at 1295. Thus, Mr. Martin’s Alleyne
argument also fails.
Mr. Martin’s arguments not otherwise addressed in this opinion are also
unpersuasive. His § 2255 petition fails on the merits.
AFFIRMED.
4
Alleyne applies to findings of fact that increase a mandatory minimum, which must be
proven to a jury beyond a reasonable doubt. 570 U.S. at 114–16, 133 S. Ct. at 2162–63.
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