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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11161
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D.C. Docket Nos. 1:16-cv-23880-WJZ; 1:06-cr-20592-WJZ-4
MARIO BACHILLER,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 20, 2021)
Before JILL PRYOR, NEWSOM and MARCUS, Circuit Judges.
PER CURIAM:
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Mario Bachiller was ensnared in a reverse sting operation during which he
and several codefendants attempted to rob a tractor-trailer truck purportedly
carrying 80 kilograms of cocaine. A jury convicted him of, among other offenses,
carrying a firearm during and in relation to a crime of violence and a drug
trafficking crime, in violation of
18 U.S.C. § 924(c). We affirmed his convictions
and sentence on direct appeal, see United States v. Gomez, 302 F. App’x 868 (11th
Cir. 2008) (unpublished), but after a series of relevant decisions from the Supreme
Court of the United States, his case has returned to us, this time in the form of an
appeal from the denial of his
28 U.S.C. § 2255 motion to vacate his § 924(c)
sentence. After careful review, and with the benefit of oral argument, we affirm.
I.
These are the essential facts of Bachiller’s conviction. Federal law
enforcement agents received information from a confidential informant that a man
named Nelson Peña was interested in robbing a drug stash house. Under the
supervision of federal agents, the CI arranged a meeting with Peña. At that
meeting, a second confidential informant (the “CI”) told Peña that he was looking
for people to steal cocaine stashed in a tractor-trailer, Peña said he was willing to
commit the robbery, and the two discussed some details, including that Peña would
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“get some guys” to commit the robbery with him. Crim. Doc. 272-1 at 177. 1 Peña
then called Reynaldo Aviles, Aviles called Emilio Gomez, and Gomez called
Bachiller.
A few days later, the CI and Peña met to discuss more concrete plans for the
robbery: the CI told Peña he expected the tractor-trailer to contain 80 kilograms of
cocaine, and Peña assured the CI that his crew was trustworthy. Immediately
before and after that meeting, Peña called Gomez, and later that day Bachiller
called Gomez.
The CI eventually met with Aviles and Gomez but not Bachiller. During the
meeting, the CI gave Peña, Aviles, and Gomez details about the tractor-trailer
truck, its drivers, the location of the drugs, how the robbery would take place, and
how the men would divide the drugs afterwards. When Gomez asked whether the
drivers of the truck would be armed, the CI told the men that they “have to take
[their] equipment”—meaning firearms—because he couldn’t “guarantee how those
people are going to react.” Crim. Doc. 273-1 at 48. Gomez also suggested that the
men commit the robbery dressed as police. Within an hour after the meeting
concluded, Aviles called Bachiller twice, Gomez called Bachiller twice, and
Bachiller called Gomez.
1
“Crim. Doc.” numbers refer to the district court’s docket entries in Bachiller’s
underlying criminal case, S.D. Fla. No. 1:06-cr-20592.
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The next day, the day of the robbery, the CI, Peña, and Aviles met to discuss
final details of the robbery plan. Immediately before the meeting, Peña, Gomez,
and Bachiller made a flurry of phone calls: Peña called Gomez twice, then Gomez
immediately called Bachiller, then Peña called Gomez again, then Bachiller called
Gomez. Over the course of the hour after the meeting, numerous phone calls were
made among Peña, Guevara, Aviles, Gomez, and Bachiller. Guevara’s friend
Jorge Torres also joined the crew.
That evening, Peña and his crew gathered three or four times at Torres’s
house to “g[e]t everything ready, the guns and stuff.” Crim. Doc. 274-1 at 169.
They discussed their plan to wear police shirts and to shout “Police!” as they
approached the tractor-trailer. Aviles and Peña provided crew members with
police shirts, walkie-talkies, and flashlights. Bachiller arrived at the last of these
meetings and parked his car outside Torres’s house. At the meeting, according to
Guevara, Bachiller “started asking how the stuff was going to happen.” Crim.
Doc. 274-1 at 171. Peña and Aviles explained to Bachiller that they were going to
“ripoff the truck and get the cocaine. Everybody’s going to get their cut. We’re
gonna scream out ‘police’ and everybody go their way.” Id. at 173. Bachiller also
was told the crew planned to use firearms to commit the robbery, and Torres put a
loaded 12-gauge shotgun in the backseat of the Cadillac he, Bachiller, and Guevara
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would drive to the robbery. A few minutes after 10:00 p.m., Peña called the CI to
tell him that the crew was assembled, ready, and waiting.
Approximately 50 minutes later, Peña, Gomez, and Aviles drove to meet the
CI one final time for a drive-by of the parked tractor-trailer. While en route,
Aviles called Bachiller three times. Peña, Gomez, and Aviles met up with the CI
and drove by the tractor-trailer in the CI’s car. Peña told the CI that they planned
to bring firearms and use two or three cars to carry out the robbery. At the
conclusion of the meeting, Peña, Gomez, and Aviles drove away in Gomez’s car.
The three men drove back to Torres’s house, and on the way Aviles called
Bachiller, who was at Torres’s house or nearby.
Torres and Guevara left Torres’s house in the Cadillac, and at some point
Bachiller joined them, sitting in the back seat. Torres and Guevara told Bachiller
he was “sitting on top of the gun and it was loaded.” Crim. Doc. 274-1 at 196. A
little after midnight, the occupants of the Cadillac and their other crew members,
split between two cars, convened at the tractor-trailer’s location, all the while
talking on the phone with one another. When they arrived at the entrance of the
parking lot, Torres, Guevara, and Bachiller donned the police shirts. Several of the
crew members exited their cars; Guevara and Torres, armed with a firearm,
approached the tractor-trailer, and Torres opened the tractor-trailer’s door as Aviles
yelled “police, police” from behind the trunk of his car. Agents immediately
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seized the men, shooting Guevara and Torres in the process. Torres died as a result
of his wounds. When agents arrested Bachiller they found him in possession of a
notebook with Gomez’s cell phone number written in it and keys to the car parked
outside Torres’s house. Bachiller’s cell phone was recovered underneath the gun
in the backseat of the Cadillac.
A grand jury returned an indictment charging Bachiller and his codefendants
with conspiracy to possess with intent to distribute five kilograms or more of
cocaine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846 (Count 1);
attempted possession with intent to distribute five kilograms or more of cocaine, in
violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846, and
18 U.S.C. § 2 (Count
2); conspiracy to commit Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a)
(Count 3); attempted Hobbs Act robbery, in violation of
18 U.S.C. §§ 1951(a), 2
(Count 4); knowingly carrying a firearm during and in relation to a crime of
violence and drug trafficking crime, and possessing a firearm in furtherance
thereof, as set forth in Counts 1, 2, 3, and 4, in violation of
18 U.S.C.
§§ 924(c)(1)(A), 2 (Count 5); and possessing a firearm and ammunition as a person
previously convicted of a felony, in violation of
18 U.S.C. § 922(g)(1) (Count 6).
At trial, the government presented the evidence described above. Bachiller
testified in his defense that he hitched a ride with Guevara and Torres not knowing
that they had planned to commit a robbery, that he was forced at gunpoint to don
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the police shirt, and that he tried to escape when he arrived at the scene. He
acknowledged having previously been convicted of several felony offenses.
Before the case went to the jury, the district court instructed that Bachiller
could be guilty of Count 5 if he (1) “committed a drug trafficking offense or crime
of violence charged in Count 1, 2, 3, or 4” and (2) “during the commission of that
offense” he either “knowingly carried a firearm in relation to that drug trafficking
crime or crime of violence” or “knowingly possessed the firearm in furtherance of
that drug trafficking crime or crime of violence.” Crim. Doc. 204 at 19 (emphasis
added). 2 The court further instructed that although it was “sufficient if the
[g]overnment prove[d], beyond a reasonable doubt, that [Bachiller] knowingly
violated the law in either way,” the jury “must unanimously agree upon the way in
which [Bachiller] committed the violation.”
Id. at 20. The jury returned a general
verdict finding Bachiller guilty on all counts. The district court sentenced him to a
2
Section 924(c) provides, “any person who, during and in relation to any crime of
violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm,” shall receive an additional term of imprisonment.
18 U.S.C.
§ 924(c)(1)(A). A “crime of violence” means any offense that is a felony and that:
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
Id. § 924(c)(3). Generally we refer to subsection (A) as the “elements clause” and subsection (B)
as the “residual clause.” A “drug trafficking crime” is, as relevant here, “any felony punishable
under the Controlled Substances Act,” id. § 924(c)(2), which includes the drug offenses in
Counts 1 and 2 of Bachiller’s indictment.
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term of life imprisonment, which included a consecutive 84-month sentence for
Count 5.
Bachiller appealed, and we affirmed his convictions and sentence. Gomez,
302 F. App’x at 869–70. He did not argue that his § 924(c) conviction was based
on an invalid predicate offense. Bachiller filed an initial § 2255 motion raising
issues not relevant here; again, he did not challenge his § 924(c) conviction based
on the predicate on which it was based. His motion was unsuccessful.
Proceeding pro se, Bachiller sought leave to file the instant § 2255 motion,
and we granted him leave to do so. In this § 2255 motion, Bachiller claimed that
his Count 5 § 924(c) conviction must be vacated because it may have been
predicated on conspiracy to commit Hobbs Act robbery, an offense that qualified
as a crime of violence only under § 924(c)’s residual clause. 3 And, he argued, the
residual clause of § 924(c) was invalid under Johnson v. United States,
576 U.S.
591, 597 (2015), which invalidated a similar residual clause in the Armed Career
Criminal Act (ACCA),
18 U.S.C. § 924(e)(2)(B)(ii). The government opposed
Bachiller’s motion, arguing that Johnson did not invalidate § 924(c)’s residual
clause and that, even if Johnson applied, Bachiller procedurally defaulted his claim
3
At the time he received authorization to file a new § 2255 motion, we had not yet
decided whether conspiracy to commit Hobbs Act robbery qualified as a crime of violence only
under § 924(c)’s residual clause. Since then, we have held that conspiracy to commit Hobbs Act
robbery can qualify as a crime of violence only under that definition. See Brown v. United
States,
942 F.3d 1069, 1075 (11th Cir. 2019).
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by failing to raise it during his trial proceedings or on direct appeal. The district
court denied Bachiller relief. With respect to the government’s assertion of
procedural default, the court explained that Bachiller had demonstrated cause to
excuse the default but could not show prejudice because Johnson did not invalidate
§ 924(c)’s residual clause.
This Court denied Bachiller a certificate of appealability because, at the
time, the district court’s decision was in accord with circuit precedent. See Ovalles
v. United States,
905 F.3d 1231, 1252 (11th Cir. 2018) (en banc), abrogated by
Davis v. United States,
139 S. Ct. 2319 (2019). Bachiller sought review in the
Supreme Court. While his petition for a writ of certiorari was pending, the
Supreme Court held that § 924(c)’s residual clause was void for vagueness for the
same reasons that ACCA’s residual clause was void. See Davis,
139 S. Ct. at
2336. The Supreme Court granted Bachiller’s petition for review, vacated this
Court’s judgment, and remanded for further consideration in light of Davis. See
Bachiller v. United States,
140 S. Ct. 101 (2019). On remand, this Court granted
Bachiller a certificate of appealability on his claim that his § 924(c) conviction is
now invalid after Davis.4
4
We have jurisdiction to entertain Bachiller’s Davis claim even though we originally
granted him authorization to file a claim based on Johnson. See Granda v. United States,
990 F.3d 1272, 1283–84 (11th Cir. 2021).
On remand from the Supreme Court, this Court granted Bachiller a certificate of
appealability on “[w]hether, considering . . . Davis . . . , the district court erred in dismissing
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II.
Bachiller challenges his Count 5 conviction on the ground that it may have
rested on an invalid predicate, conspiracy to commit Hobbs Act robbery. See
Brown v. United States,
942 F.3d 1069, 1075 (11th Cir. 2019). He acknowledges
that the jury may instead have based it on a valid predicate—the Count 1 and 2
drug trafficking offenses or the Count 4 attempted Hobbs Act robbery—but argues
that the indictment, general verdict, and jury instructions do not demonstrate as
much, so we must vacate his conviction. The government in turn argues that
Bachiller’s claim is subject to a procedural default and he cannot establish cause
and prejudice or actual innocence such that we can excuse that default. In
response, Bachiller asserts that his claim is jurisdictional in nature and therefore
not subject to a procedural default. He further argues that even if his claim would
have been subject to a procedural default, the government waived the defense by
failing to challenge the district court’s finding of cause.
We need not resolve the parties’ dispute over whether Bachiller’s claim is
procedurally defaulted because his claim fails on the merits. See Dallas v.
Warden,
964 F.3d 1285, 1307 (11th Cir. 2020) (“As we have said many times and
as the Supreme Court has held, a federal court may skip over the procedural default
Bachiller’s
28 U.S.C. § 2255 motion.” The question of whether Bachiller’s Davis claim is
procedurally defaulted is a “threshold ruling” that his certificate of appealability necessarily
encompasses. Wright v. Sec’y, Dep’t of Corr.,
278 F.3d 1245, 1258 (11th Cir. 2002).
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analysis if a claim would fail on the merits in any event.”). The Hobbs Act
conspiracy for which Bachiller was convicted was “inextricably intertwined” with
the drug trafficking convictions that remain valid § 924(c) predicate offenses after
Davis. Granda v. United States,
990 F.3d 1272, 1293 (11th Cir. 2021). Thus, “the
inclusion of an invalid predicate offense—the Hobbs Act conspiracy—in his
indictment and jury instructions was harmless.” Foster v. United States, No. 19-
14771, __ F.3d __,
2021 WL 1742267, at *5 (11th Cir. May 4, 2021).
“On collateral review, the harmless error standard mandates that ‘relief is
proper only if the court has grave doubt about whether a trial error of federal law
had substantial and injurious effect or influence in determining the jury’s verdict.’”
Granda, 990 F.3d at 1292 (alteration adopted) (quoting Davis v. Ayala,
576 U.S.
257, 267–68 (2015)). “There must be more than a ‘reasonable possibility’ that the
error was harmful.’” Davis, 576 U.S. at 268 (quoting Brecht v. Abrahamson,
507
U.S. 619, 637 (1993)). “Put another way, the court may order relief only if the
error ‘resulted in actual prejudice.’” Granda, 990 F.3d at 1292 (quoting Brecht,
507 U.S. at 637). We must “ask directly whether the error substantially influenced
the jury’s decision,” and if we “cannot say, with fair assurance, after pondering all
that happened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error,” then we must conclude that
the error was not harmless. Foster,
2021 WL 1742267, at *5 (internal quotation
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marks omitted). We review de novo the question of harmlessness. Granda,
990 F.3d at 1293.
On this record, we have no grave doubt about whether Bachiller’s § 924(c)
conviction rested on an invalid ground. Bachiller’s conspiracy to commit Hobbs
Act robbery “was inextricably intertwined with the other predicate offenses” that
Bachiller concedes are still valid. Id at 1293. Based on his role in the conspiracy
and attempt to rob the tractor-trailer of a stash of cocaine, the jury unanimously
found him guilty of conspiracy and attempt to possess cocaine with intent to
distribute, conspiracy to commit Hobbs Act robbery, and attempted Hobbs Act
robbery. As in Granda, which is factually very similar to this case, “[t]he trial
record makes it abundantly clear that all of these findings rested on the same
operative facts and the same set of events—the jury found beyond a reasonable
doubt that [Bachiller] had conspired and attempted to rob the truck in order to
possess and distribute the cocaine it held.” Id. at 1289. Bachiller was a part of
preliminary discussions between Peña and his crew about the plan to rob the
tractor-trailer, met up with them before the attempted robbery and received a
briefing on the plan—including that the crew was stealing cocaine and would be
armed—and rode with his codefendants to the scene. “The objective of the
robbery and the [cocaine charges] was the same: to obtain and [possess] the multi-
kilogram quantity of cocaine that was to be taken by force from the truck.” Id. So
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the jury could not have concluded that Bachiller possessed a firearm in furtherance
of the robbery conspiracy without also finding at the same time that he possessed
the firearm in furtherance of the conspiracy and attempt to obtain the cocaine and
the attempt at the robbery itself. See id.; see also Foster,
2021 WL 1742267, at
*5–6 (same).
Bachiller offered an alternate theory at trial, but the jury rejected it by
finding him guilty. See Granda, 990 F.3d at 1290–91. “And we know that the
jurors did not split into two camps,” id. at 1291, one of which found that Bachiller
only possessed a firearm in furtherance of the Hobbs Act conspiracy, because no
evidence suggests a split and the district court instructed the jury that it “must
unanimously agree upon the way in which [Bachiller] committed the [§ 924(c)]
violation,” Doc. 204 at 20; see Granda, 990 F.3d at 1291.
Each of the predicate offenses for which Bachiller was convicted “arose
from the same plan and attempt to commit armed robbery of a tractor-trailer full of
cocaine.” Granda, 990 F.3d at 1291. “The tightly bound factual relationship of
the predicate offenses” precludes Bachiller from making the requisite showing for
reversible error under Brecht. Id.; see Foster,
2021 WL 1742267, at *6. We
therefore affirm the district court’s denial of his § 2255 motion.
AFFIRMED.
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