USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10586
Non-Argument Calendar
____________________
UNISES CHAPOTIN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:16-cv-21965-JEM,
1:04-cr-20305-JEM-3
____________________
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2 Opinion of the Court 21-10586
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Unises Chapotin, a federal prisoner, appeals the district
court’s denial of his
28 U.S.C. § 2255 motion to vacate his sentence.
The district court granted him a certificate of appealability on the
following three issues: (1) whether sentences under the former
mandatory pre-Booker 1 sentencing guidelines are subject to a
void-for-vagueness challenge; (2) whether published orders issued
in the context of applications for leave to file second or successive
motions to vacate are binding upon district courts in determining
an initial motion to vacate; and (3) whether the district court erred
in applying the reasonable probability harmless error review
standard to the Stromberg 2 error in his trial, and whether the court
erred in determining that the Stromberg error was harmless. After
review, we affirm.
I. Background
We described the facts of this case in Chapotin’s direct
appeal as follows:
1
United States v. Booker,
543 U.S. 220 (2005).
2
In Stromberg v. California, the Supreme Court held that where a jury returns
a general verdict which may have been based on any of several grounds, one
of which is constitutionally invalid, and it is “impossible to say” on which
ground the jury rested its verdict, “the conviction cannot be upheld.”
283 U.S.
359, 368 (1931).
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Unises Chapotin was among a group of men who
agreed to rob a drug courier of a large quantity of
cocaine. The operation was planned so it would
appear to the supplier of cocaine that an actual
robbery, known in the illegal drug business as a “rip-
off,” had occurred, when in fact the drug courier was
in on the robbery. Unbeknownst to Chapotin and his
confederates, one of the participants was a
confidential informant, the disgruntled drug courier
was actually a government agent, and the drugs and
the supplier were fictitious.
Chapotin became involved in the operation at the last
minute because another intended participant was a
no-show. On the day the robbery was to occur,
Chapotin was picked up in a car driven by an
uninvolved party and occupied by co-conspirators
Oscar Torres and Jorge Moreno. The group then
drove to a restaurant parking lot, where Torres,
Moreno and Chapotin were picked up in a vehicle
driven by the confidential informant, known by the
first name “Ulises” (not to be confused with
Chapotin’s first name, “Unises”). Torres was seated
in the front passenger seat, Moreno was sitting in the
back seat behind the driver, and Chapotin was sitting
in the back seat behind Torres. The parties drove to
a warehouse area to pick up a van which was to be
used to transport the drugs following the robbery.
Upon arriving there, they were arrested.
United States v. Chapotin, 173 F. App’x 751, 752 (11th Cir. 2006)
(unpublished). Chapotin was charged with conspiracy to possess
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4 Opinion of the Court 21-10586
with intent to distribute cocaine in violation of
21 U.S.C. §§ 846,
841(b)(1)(A) (Count 1); conspiracy to commit Hobbs Act robbery
in violation of
18 U.S.C. § 1951(a) (Count 2); conspiracy to carry a
firearm during and in relation to, or to possess a firearm in
furtherance of, a crime of violence and/or a drug trafficking crime
in violation of
18 U.S.C. § 924(o) (Count 3); attempted possession
of cocaine with intent to distribute it in violation of
21 U.S.C.
§§ 846, 841(b)(1)(A) (Count 4); carrying a firearm during and in
relation to, or possessing a firearm in furtherance of, a crime of
violence and/or a drug trafficking crime in violation of
18 U.S.C.
§ 924(c) (Count 5); and possession of a firearm and ammunition by
a convicted felon in violation of
18 U.S.C. § 922(g)(1) (Count 8).
Importantly, Counts 3 and 5 specified that the predicates for those
counts were the offenses “set forth in Counts 1, 2, and 4.”
The jury instructions for Chapotin’s § 924(c) charge in
Count 5 provided that it was a crime to “carry a firearm during and
in relation to or possess a firearm in furtherance of a federal drug
trafficking crime, crime of violence, or both.” (emphasis added).
The instructions explained that, to find Chapotin guilty, the jury
had to find beyond a reasonable doubt that he “committed a drug
trafficking offense or crime of violence charged in Counts 1, 2, or 4
of the indictment.” The instructions also provided that it was not
necessary for the government to prove that Chapotin violated the
law in both of those ways. Rather, it was sufficient if the
government proved either one of those ways beyond a reasonable
doubt, and the jury had to unanimously agree upon the way in
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21-10586 Opinion of the Court 5
which Chapotin committed the violation. The jury instructions for
Count 3—the § 924(o) count—were materially identical. The jury
found Chapotin guilty on all counts, but did not specify whether
the predicate for Counts 3 and 5 was Count 1, 2, or 4 alone or a
combination of those Counts.
Applying the then mandatory 2004 Sentencing Guidelines,3
the district court determined that Chapotin was a career offender
under U.S.S.G. § 4B1.1 based on two prior qualifying crime of
violence convictions—(1) Florida battery on a law enforcement
officer, and (2) Florida aggravated assault with a deadly weapon.4
Chapotin argued that his criminal history score of VI, which was
based on his career-offender status, overrepresented his criminal
history, and so he requested a downward departure. The district
court agreed to depart downward to a category V, which resulted
in a guidelines range of 324 to 405 months’ imprisonment, plus a
consecutive term of 60 months’ imprisonment. 5 The district court
3
In 2005, the Supreme Court held that the Sixth Amendment right to a trial
by jury was violated where, under a mandatory guidelines scheme, a
defendant’s sentence was increased because of an enhancement based on facts
found by the judge that were neither admitted by the defendant nor found by
the jury. Booker, 543 U.S. at 233–37. Following Booker, the guidelines
scheme is now advisory. Id. at 245.
4
Chapotin unsuccessfully objected to the career-offender enhancement,
arguing, in relevant part, that his conviction for battery on a law enforcement
officer was not a crime of violence.
5
Chapotin faced a statutory maximum of life imprisonment.
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imposed a total sentence of 384 months’ imprisonment followed
by five years of supervised release. 6
On direct appeal, we reversed Chapotin’s conviction for
possession of a firearm by a convicted felon because there was
insufficient evidence to support it, but affirmed his other
convictions and sentences. Chapotin, 173 F. App’x at 752–53. The
district court entered an amended judgment in 2006.
Nine years later, the Supreme Court struck down the
residual clause in the Armed Career Criminal Act’s (“ACCA”)
definition of a violent felony as unconstitutionally vague. See
Johnson v. United States,
576 U.S. 591, 597–602 (2015). Thereafter,
the Supreme Court held that Johnson announced a new
substantive rule that applied retroactively to cases on collateral
review. Welch v. United States,
578 U.S. 120, 127–30, 134–35
(2016).
Chapotin in turn filed his first pro se
28 U.S.C. § 2255 motion
to vacate sentence in 2016. He argued that the residual clause in
the mandatory guidelines’ crime of violence definition—which was
virtually identical to the ACCA’s residual clause—was
unconstitutionally vague, and that he no longer qualified as a
6
Specifically, the district court imposed concurrent terms of 324 months’
imprisonment for Counts 1 and 4, 240 months’ imprisonment as to Counts 2
and 3, and 120 months as to Count 8, plus a consecutive term of 60 months’
imprisonment as to Count 5. Notably, the district court explained that it
would have imposed the same sentence even without the mandatory
guidelines framework.
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career offender because his conviction for battery of a law
enforcement officer no longer qualified as a crime of violence post-
Johnson. He also argued that his § 924(c) conviction (Count 5) for
possession of a firearm in relation to a crime of violence and/or a
drug trafficking crime was unconstitutional, because conspiracy to
commit Hobbs Act Robbery—the purported crime of violence—
was no longer a crime of violence post-Johnson. The district court
appointed counsel to represent Chapotin, and counsel filed
supplemental briefing.
The government opposed the § 2255 motion, arguing that
Johnson had no effect on the guidelines, and, therefore, Chapotin’s
career-offender challenge was not cognizable, was untimely and
procedurally barred, and was foreclosed by our decision in In re
Griffin,
823 F.3d 1350, 1354 (11th Cir. 2016), in which we held that
“[t]he Guidelines—whether mandatory or advisory—cannot be
unconstitutionally vague because they do not establish the
illegality of any conduct and are designed to assist and limit the
discretion of the sentencing judge.” It also argued that Chapotin
procedurally defaulted his § 924(c) challenge because he failed to
raise it at trial or on direct appeal. Finally, it argued that his claims
failed on the merits.
Chapotin filed a motion to hold the district court
proceedings in abeyance pending the Supreme Court’s decision in
Beckles v. United States, No. 15-8544, which involved a Johnson-
based challenge to the career-offender provision of the advisory
sentencing guidelines. The district court granted the motion.
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8 Opinion of the Court 21-10586
Subsequently, in Beckles, the Supreme Court held that the advisory
guidelines are not subject to a vagueness challenge under the Due
Process Clause, and, therefore, the residual clause of the career-
offender guideline’s definition of “crime of violence” was not void
for vagueness. Beckles v. United States,
137 S. Ct. 886, 892 (2017).
Beckles did not address vagueness challenges in the context of the
mandatory guidelines scheme.
Additionally, while Chapotin’s § 2255 motion was pending
in the district court, the Supreme Court extended its holding in
Johnson to
18 U.S.C. § 16(b)’s residual clause, and
18 U.S.C.
§ 924(c)’s residual clause, holding that those clauses were also
unconstitutionally vague. Sessions v. Dimaya,
138 S. Ct. 1204, 1216
(2018) (addressing § 16(b)’s residual clause); United States v. Davis,
139 S. Ct. 2319, 2336 (2019) (addressing § 924(c)).
Following supplemental briefing by the parties on the effect
of Beckles and Davis, 7 a magistrate judge issued a report and
recommendation (“R&R”), recommending that Chapotin’s § 2255
motion be denied.
First, the magistrate judge concluded that Chapotin’s career-
offender challenge was not cognizable because his sentence was
7
In his supplemental briefing, Chapotin also argued that both his § 924(o)
conviction (Count 3) and § 924(c) conviction (Count 5) must be vacated in
light of Davis and because there was a Stromberg error in that the general
verdict did not specify whether the jury convicted him of possessing a firearm
during and in relation to the crime of violence of the drug trafficking crimes.
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less than the statutory-maximum. The magistrate judge also
concluded that the career-offender claim was foreclosed by Griffin,
and rejected Chapotin’s argument that Beckles had abrogated
Griffin.
Second, the magistrate judge concluded that Chapotin’s
§ 924(c) challenge failed because he did not prove by a
preponderance of the evidence that his § 924(c) and § 924(o)
convictions were based on the now invalid crime of violence
predicate—conspiracy to commit Hobbs Act robbery (Count 2)—
and not on the still-valid predicate drug-trafficking crimes in
Counts 1 or 4. The magistrate judge found that, even though there
was a Stromberg error in Chapotin’s case, the error was harmless.
Nevertheless, the magistrate judge recommended that a
certificate of appealability (COA) issue on the following:
(1) whether sentences under the former mandatory pre-Booker
sentencing guidelines are subject to a void-for-vagueness
challenge; (2) whether published orders issued in the context of
applications for leave to file second or successive motions to vacate
are binding upon district courts in determining an initial motion to
vacate; and (3) whether the district court erred in applying the
reasonable probability harmless error review standard to the
Stromberg error, and whether the court erred in determining that
the Stromberg error in this case was harmless.
Chapotin objected to the R&R, arguing that his career-
offender claim was cognizable and was not foreclosed by Griffin,
which he maintained was wrongly decided and abrogated by
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10 Opinion of the Court 21-10586
Beckles. He further argued that applying Griffin to all movants,
even though Griffin arose in the context of an application for leave
to file a second or successive § 2255 motion, violated the Due
Process Clause. He also maintained that his career-offender
challenge was timely. With regard to his Davis-based challenge,
Chapotin asserted that the district court applied the wrong
standard, that the Stromberg error was not harmless, that his
§§ 924(c) and (o) convictions were unconstitutional, and that he
established cause and prejudice and actual innocence to overcome
any procedural default. 8
The district court adopted the R&R.9 Nevertheless, the
district court agreed with the magistrate judge’s recommendation
to issue a COA on the three issues specified “[g]iven the
complexities and legal controversy concerning the issues in this
case.”
II. Standard of Review
“When we review the denial of a motion to vacate a
sentence . . . we review legal conclusions de novo and findings of
8
The government also filed objections to the R&R because the R&R failed to
discuss the procedural arguments that it had raised related to timeliness and
procedural default.
9 Thedistrict court also concluded that Chapotin’s career-offender challenge
was untimely and that both Chapotin’s career-offender and § 924 challenges
were procedurally defaulted.
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fact for clear error.” Spencer v. United States,
773 F.3d 1132, 1137
(11th Cir. 2014) (en banc) (quotation omitted).
III. Discussion
A. Issues 1 and 2
The first two issues are related: (1) whether sentences under
the former mandatory sentencing guidelines are subject to a void-
for-vagueness challenge, and (2) whether published orders issued
in the context of applications for leave to file second or successive
motions to vacate are binding upon district courts in determining
an initial motion to vacate. Therefore, we address them together.
Chapotin argues that the district court erred in denying his
career-offender challenge based on Griffin. He maintains that
Griffin was wrongly decided and regardless has been undermined
to the point of abrogation by Beckles and Dimaya. Relatedly, he
argues that Griffin should not be binding outside of the second or
successive application context, and that our decision to the
contrary in United States v. St. Hubert 10 was wrongly decided.
Chapotin’s argument is unpersuasive.
Following the Supreme Court’s decision in Johnson, we held
in United States v. Matchett that Johnson did not render the
residual clause of the career-offender guideline unconstitutional
because the vagueness doctrine does not apply to advisory
10
909 F.3d 335 (11th Cir. 2018), overruled in part on other grounds by Davis,
139 S. Ct. 2319, and United States v. Taylor,
142 S. Ct. 2015 (2022).
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guidelines.
802 F.3d 1185, 1193–96 (11th Cir. 2015). Thereafter, in
Griffin, in denying an application for leave to file a second or
successive motion under § 2255, we extended Matchett’s holding
to the mandatory guidelines. 823 F.3d at 1354 (“[T]he logic and
principles established in Matchett also govern our panel as to
Griffin’s guidelines sentence when the Guidelines were
mandatory.”). We held that “[t]he Guidelines—whether
mandatory or advisory—cannot be unconstitutionally vague
because they do not establish the illegality of any conduct and are
designed to assist and limit the discretion of the sentencing judge.”
Id.
The Supreme Court in Beckles subsequently adopted the
same view of vagueness challenges to the advisory guidelines,
holding that “the advisory Sentencing Guidelines are not subject to
a vagueness challenge under the Due Process Clause and that
§ 4B1.2(a)’s residual clause is not void for vagueness.”
137 S. Ct. at
895. Beckles did not address whether the vagueness doctrine
applies to the mandatory guidelines.
Under the prior-panel-precedent rule, “a prior panel’s
holding is binding on all subsequent panels unless and until it is
overruled or undermined to the point of abrogation by the
Supreme Court or by this court sitting en banc.” United States v.
Archer,
531 F.3d 1347, 1352 (11th Cir. 2008). The holding of the
first panel to address an issue is binding, even if a later panel
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concludes that the prior case was wrongly decided. 11 United States
v. Steele,
147 F.3d 1316, 1318 (11th Cir. 1998).
Chapotin argues that we are not bound by Griffin because it
has been abrogated by the Supreme Court’s decision in Beckles
and Dimaya. “To conclude that we are not bound by a prior
holding in light of a Supreme Court case, we must find that the case
is ‘clearly on point’ and that it ‘actually abrogate[s] or directly
conflict[s] with, as opposed to merely weaken[s], the holding of the
prior panel.’” United States v. Dudley,
5 F.4th 1249, 1265 (11th Cir.
2021), cert. denied,
142 S. Ct. 1376 (2022) (quoting United States v.
Kaley,
579 F.3d 1246, 1255 (11th Cir. 2009)).
Although Beckles touched on the distinction between the
mandatory and advisory guidelines when it held that the advisory
guidelines were not subject to a vagueness challenge, see Beckles,
137 S. Ct. at 894, it did not abrogate Griffin because it did not decide
or squarely address whether the vagueness doctrine applies to the
mandatory guidelines. Instead, Beckles left “open the question” of
whether the pre-Booker mandatory guidelines could be subject to
a vagueness challenge.
Id. at 903 n.4 (Sotomayor, J., concurring in
the judgment).
Similarly, the Supreme Court’s decision in Dimaya did not
abrogate Griffin. Like Beckles, Dimaya did not decide or squarely
address whether the vagueness doctrine applies to the mandatory
11
Thus, Chapotin’s argument that Griffin was wrongly decided is unavailing.
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14 Opinion of the Court 21-10586
guidelines scheme. See generally
138 S. Ct. 1204. Indeed, Dimaya
did not involve the guidelines at all, but rather a challenge to
18
U.S.C. § 16(b)’s residual clause. See
id.
Accordingly, because Beckles and Dimaya are not “clearly
on point” and do not directly conflict with Griffin, we remain
bound by Griffin.
Now we turn to Chapotin’s second issue. In an attempt to
overcome Griffin, he argues that published decisions, like Griffin,
that are issued in the context of an application for leave to file a
second or successive § 2255 motion should not be binding in other
types of proceedings such as an initial § 2255 proceeding.
However, we have repeatedly rejected this argument, and have
held that published three-judge orders issued in the successive
application context are binding precedent in our circuit. See, e.g.,
Steiner v. United States,
940 F.3d 1282, 1293 n.4 (11th Cir. 2019)
(rejecting argument that decisions issued in the successive
application context are not binding in an initial § 2255 proceeding
based on prior-panel-precedent rule); St. Hubert, 909 F.3d at 345
(holding that decisions published in the successive application
context were binding in a direct appeal); In re Lambrix,
776 F.3d
789, 794 (11th Cir. 2015) (holding that “our prior-panel-precedent
rule applies with equal force as to prior panel decisions published
in the context of applications to file second or successive petitions.
In other words, published three-judge orders issued under [28
U.S.C.] § 2244(b) are binding precedent in our circuit.”).
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Accordingly, Griffin squarely forecloses Chapotin’s career-
offender claim, and we are bound to apply Griffin. Thus, the
district court did not err in denying this claim. 12
B. Issue 3
Chapotin argues that his §§ 924(c) and (o) convictions are
invalid post-Davis because conspiracy to commit Hobbs Act
robbery (Count 2) is no longer a qualifying crime of violence and it
is possible the jury relied on the invalid predicate for the §§ 924(c)
and (o) convictions, and the district court applied the wrong
standard in assessing whether the Stromberg error in his case was
harmless. Chapotin concedes that his argument essentially fails
under our decision in Granda v. United States 13 which issued after
the district court denied Chapotin’s § 2255 motion, but he
maintains that Granda was wrongly decided. For the reasons that
follow, we conclude that Chapotin cannot prevail on this claim.
Section 924(c) criminalizes the use or carrying of a firearm
in furtherance of a crime of violence or drug trafficking crime, and
provides for a separate, mandatory consecutive sentence. 18
12
Because we conclude that Griffin forecloses Chapotin’s career-offender
claim, we do not address the parties’ arguments related to the issues of
timeliness and procedural default. See Dallas v. Warden,
964 F.3d 1285,
1307 (11th Cir. 2020), cert. denied,
142 S. Ct. 124 (2021) (explaining that “a
federal court may skip over the procedural default analysis if a claim would
fail on the merits in any event”).
13
990 F.3d 1272 (11th Cir. 2021), cert. denied
142 S. Ct. 12333 (2022).
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10586
U.S.C. § 924(c)(1). For purposes of § 924(c), “crime of violence” is
defined as a felony offense that either:
(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)(A)–(B). In relevant part, § 924(o) provides that “[a]
person who conspires to commit an offense under subsection (c)
shall be imprisoned for not more than 20 years, fined under this
title, or both.”
18 U.S.C. § 924(o).
Section 924(c)(3)(A) is known as the elements clause, and
subsection (B) is known as the residual clause. Davis,
139 S. Ct. at
2323–24. In Davis, the Supreme Court extended its holdings in
Johnson and Dimaya to § 924(c) and held that § 924(c)’s residual
clause is unconstitutionally vague.
139 S. Ct. at 2336. We then
held that Davis announced a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable. In re Hammoud,
931 F.3d 1032,
1038–39 (11th Cir. 2019). We also held post-Davis that conspiracy
to commit Hobbs Act robbery does not qualify as a crime of
violence under the elements clause of § 924(c) and, thus, is not a
valid predicate for a § 924(c) charge. Brown v. United States,
942
F.3d 1069, 1075–76 (11th Cir. 2019).
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In Granda, the defendant was convicted of conspiracy to use
or carry a firearm during and in relation to a crime of violence or a
drug-trafficking crime, in violation of § 924(o). 990 F.3d at 1284.
The indictment listed five possible predicates for the § 924(o)
offense—three crimes of violence and two drug-trafficking crimes.
Id. at 1284–85. One of the listed crimes of violence, conspiracy to
commit Hobbs Act robbery, was not a valid predicate post-Davis.
Id. at 1285. The jury instructions provided that the jury could find
Granda guilty if they found “beyond a reasonable doubt that ‘the
object of the unlawful plan was to use or carry a firearm during and
in relation to, or to possess a firearm in furtherance of, one of the
federal drug trafficking crimes, or one of the federal crimes of
violence, or both, as charged in counts 1, 2, 3, 4, or 5 of the
Superseding Indictment.’” Id. The jury returned a general verdict.
Id. It was thus impossible to tell from the indictment, jury
instructions, or the general verdict which count or combination of
counts the jury relied on for the § 924(o) offense. Id. Following
Davis, Granda filed a § 2255 motion, arguing, in relevant part, that
because the court could not definitely rule out the possibility that
the jury relied on an invalid predicate, his § 924(o) conviction had
to be vacated. Id. We disagreed.
We explained that collateral relief for a Davis-based claim is
proper only if the court has “grave doubt” about whether a trial
error had a “substantial and injurious effect or influence” in
determining the verdict. Id. at 1292 (quotation omitted); see also
Foster v. United States,
996 F.3d 1100, 1107 (11th Cir.), cert. denied,
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18 Opinion of the Court 21-10586
142 S. Ct. 500 (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.” (quotation omitted)). A petitioner must show more
than a reasonable possibility that the error was harmful, and we
will grant relief “only if the error ‘resulted in actual prejudice’” to
the petitioner. Granda, 990 F.3d at 1292 (quoting Brecht v.
Abrahamson,
507 U.S. 619, 637 (1993)). Under this standard, the
reviewing court must ask directly whether the error substantially
influenced the jury’s verdict. Id. at 1293. Thus, it is not enough for
a movant to show that the jury may have relied on the now-invalid
residual clause; he must show a “substantial likelihood” that the
jury did rely on that subsection. Id. at 1288. We concluded that
“[t]he inextricability of the alternative predicate crimes compel[led]
the conclusion that the error Granda complain[ed] about . . . was
harmless.” Id. at 1292–96. Additionally, we rejected the argument
that a Stromberg error is not subject to the harmless error standard
and that Stromberg precludes relying on an alternative valid
predicate when conducting a harmless error analysis. Id. at 1293–
94.
Like Granda, Chapotin’s § 924(c) and § 924(o) convictions
had multiple possible predicate offenses—conspiracy to commit
Hobbs Act robbery and two drug-trafficking offenses—and these
predicate offenses were “inextricably intertwined” as they arose
from the same planned robbery. The jury returned a general
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verdict, and neither the indictment nor the jury instructions
indicate which count or combination of counts the jury relied on
for the § 924(c) and § 924(o) offenses. Although conspiracy to
commit Hobbs Act robbery is no longer a valid predicate post-
Davis, on this record, there can be no grave doubt about whether
the inclusion of the invalid predicate had a substantial influence in
determining the jury’s verdict. The objective of the robbery
conspiracy was to obtain cocaine from the drug courier. Chapotin,
173 F. App’x at 751. Thus, the jury could not have found that
Chapotin’s gun use or possession (or his conspiracy to do those
things) was connected to his conspiracy to commit Hobbs Act
robbery without also finding at that same time that the gun
offenses were connected to his conspiracy and attempted
possession with intent to distribute cocaine that he planned to
procure from the robbery. In other words, “[t]he inextricability of
the alternative predicate crimes compel the conclusion that the
error [Chapotin] complains about . . . was harmless.” 14 Granda, 990
F.3d at 1292; see also Foster, 996 F.3d at 1107–08 (applying Granda
to a § 2255 movant’s § 924(o) and § 924(c) convictions and holding
that any error from the inclusion of an invalid predicate was
harmless because the alternative predicate offenses were
inextricably intertwined).
14
Because we conclude that Chapotin’s Davis challenge fails on the merits, we
do not reach the parties’ arguments concerning procedural default. Dallas,
964 F.3d at 1307.
USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 20 of 20
20 Opinion of the Court 21-10586
Although Chapotin argues that Granda was wrongly
decided, as explained previously there is no wrongly decided
exception to our prior-panel-precedent rule. Steele,
147 F.3d at
1318. Accordingly, we affirm the district court’s denial of
Chapotin’s § 2255 motion.
AFFIRMED.
