Case: 19-10716 Date Filed: 05/07/2020 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10716
Non-Argument Calendar
________________________
D.C. Docket No. 8:18-cr-00325-MSS-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH DELEON,
a.k.a. Joseph Nieves,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 7, 2020)
Before WILSON, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Case: 19-10716 Date Filed: 05/07/2020 Page: 2 of 10
Joseph Deleon appeals his convictions for one count of Hobbs Act robbery,
in violation of 18 U.S.C.§ 1951(a), (b) (Count 1); and one count of brandishing and
knowingly possessing a firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2). He also appeals his 240-month total
sentence. He asserts four issues on appeal, which we address in turn. After
review, we affirm his convictions, but vacate and remand for resentencing in light
of United States v. Eason,
953 F.3d 1184 (11th Cir. 2020).
I. DISCUSSION
A. 18 U.S.C. § 924(c)
Deleon first asserts his conviction for Hobbs Act robbery should be vacated
because Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c),
and he therefore could not have been carrying a firearm in furtherance of a “crime
of violence.” He acknowledges this Court’s precedent forecloses his argument, but
seeks to preserve the issue for further review. See United States v. St. Hubert (St.
Hubert I),
909 F.3d 335, 345 (11th Cir.), petition for cert. docketed, (U.S. July 23,
2019) (No. 19-5267) (holding Hobbs Act robbery is a “crime of violence” under
§ 924(c)’s elements clause); see also In re Saint Fleur,
824 F.3d 1337, 1340 (11th
Cir. 2016).
2
Case: 19-10716 Date Filed: 05/07/2020 Page: 3 of 10
Deleon’s concession is correct. Our binding precedent forecloses his
argument that Hobbs Act robbery is not a “crime of violence,” and we affirm the
denial of his pretrial motion to dismiss.1 See St. Hubert
I, 909 F.3d at 345.
B. Stipulation
Second, Deleon contends the district court erred by accepting a stipulation to
an essential element of 18 U.S.C. § 924(c)(1)(A), which violated his Fifth and
Sixth Amendment rights. He asserts the district court erred by accepting the
pretrial stipulation the robber “knowingly possessed a firearm in committing that
robbery,” which is one of the elements the Government had to prove to obtain a
conviction under § 924(c).
Once a criminal defendant pleads not guilty, the Fifth Amendment affords
him the right to demand that a jury find him guilty of all elements of the charged
crime, and the Sixth Amendment “puts the prosecution to its proof as to all
elements of the crime charged.” United States v. Hardin,
139 F.3d 813, 815 (11th
Cir. 1998) (quotations omitted). Under § 924(c), the government must establish
the defendant (1) knowingly (2) possessed a firearm (3) in furtherance of any crime
of violence. United States v. Woodard,
531 F.3d 1352, 1362 (11th Cir. 2008).
1
Although a petition for certiorari has been docketed in St. Hubert I, and remains
pending, the case has not been overruled.
3
Case: 19-10716 Date Filed: 05/07/2020 Page: 4 of 10
We allow a defendant or his counsel to make certain factual stipulations that
may “waive[] the government’s burden of proving an element of the offense, and
thus waive[] a defendant’s right to a jury trial on that element of the offense.”
Poole v. United States,
832 F.2d 561, 563 (11th Cir. 1987). A defendant’s
affirmative stipulation to a specific factual element, whether in a written plea
agreement or at sentencing, is the equivalent of a jury finding on that issue,
because the stipulation takes the issue away from the jury. United States v.
Sanchez,
269 F.3d 1250, 1271 n.40 (11th Cir. 2001) (en banc), abrogated in part
on other grounds as recognized by United States v. Duncan,
400 F.3d 1297, 1308
(11th Cir. 2005). Moreover, a stipulation eliminates the government’s burden to
produce evidence of the stipulated facts.
Hardin, 139 F.3d at 816 (holding the
government did not need to present any evidence of the defendant’s felony status
because the defendant himself agreed to the stipulation that he was a felon, which
was an essential element of the crime charged).
We will not review Deleon’s claims under the Fifth and Sixth Amendments
because he invited the error when he expressly agreed to the stipulation that the
“knowingly possessed” element of § 924(c) was met. See United States v. Silvestri,
409 F.3d 1311, 1327-28 (11th Cir. 2005) (stating we cannot reverse when a party
has invited the error and the doctrine of invited error is implicated where the party
affirmatively requested or specifically agreed with the challenged action of the
4
Case: 19-10716 Date Filed: 05/07/2020 Page: 5 of 10
district court); United States v. Jernigan,
341 F.3d 1273, 1289-90 (11th Cir. 2003)
(concluding that a defendant, whose counsel affirmatively stipulated to the playing
of a taped statement, invited any error resulting from the jury hearing the tape). To
clarify, it was the Government, not the court, that first proposed the stipulation.
That the district court may have later suggested the parties enter into the stipulation
does not mean that Deleon did not invite any error. See
Jernigan, 341 F.3d at
1290. Contrary to his arguments, when both Deleon and his counsel signed the
stipulation the robber “knowingly possessed a firearm,” Deleon effectively caused
and invited the error about which he is complaining—that the Government was
impermissibly relieved of proving that he “knowingly possessed” the firearm in
committing the robbery. See
Silvestri, 409 F.3d at 1327;
Jernigan, 341 F.3d at
1290.
C. Motion for Judgment of Acquittal
Third, Deleon argues the district court erred in denying his motion for
judgment of acquittal because the Government failed to prove beyond a reasonable
doubt that he was the individual in the video robbing the store.
“The jury is free to choose between or among the reasonable conclusions to
be drawn from the evidence presented at trial, and the court must accept all
reasonable inferences and credibility determinations by the jury.” United States v.
Garcia,
447 F.3d 1327, 1334 (11th Cir. 2006) (quotations omitted). “It is not
5
Case: 19-10716 Date Filed: 05/07/2020 Page: 6 of 10
necessary that the evidence exclude every reasonable hypothesis of innocence or
be wholly inconsistent with every conclusion except that of guilt, provided that a
reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” United States v. Harris,
20 F.3d 445, 452 (11th Cir. 1994)
(quotations omitted).
When all issues and reasonable inferences are resolved in the Government’s
favor, a rational jury could reasonably conclude that Deleon was, beyond a
reasonable doubt, the robber. See
Garcia, 447 F.3d at 1334;
Harris, 20 F.3d at
452. The Government conceded it had no physical evidence, such as fingerprints
or DNA, connecting Deleon to the scene of the robbery. However, the surveillance
video showed the robber was of similar height and build as Deleon and had similar
tattoos and skin tone. Additionally, the video showed that, like Deleon, the robber
was left-handed. At trial, the store clerk, and only eyewitness, did not mention any
tattoos and testified the robber was taller than Deleon. However, in the video, the
height chart indicated the robber’s height was more akin to Deleon’s actual height.
Although the robber’s hat and manner of wear may not have been uncommon, the
police found an identical hat in Deleon’s hotel room. There was also evidence that
Deleon owned the same shirt worn by the robber and bought the same brand of
cigarettes.
6
Case: 19-10716 Date Filed: 05/07/2020 Page: 7 of 10
Moreover, while there may have been reason to doubt the lay witnesses’ and
law enforcement officers’ credibility, there was also reason to give them credence.
Both Mathis Lee and Ramon Morales were familiar with Deleon, and, in light of
their credibility issues, the court informed the jury their testimony should be more
scrupulously considered.
When those issues and reasonable inferences are resolved in the
Government’s favor, a rational jury could reasonably conclude that Deleon was,
beyond a reasonable doubt, the robber. United States v. Cochran,
683 F.3d 1314,
1321-22 (11th Cir. 2012) (examining the evidence “in the light most favorable to
the government, with all reasonable inferences and credibility choices made in the
government’s favor” and stating the verdict should be affirmed “if a reasonable
trier of fact could conclude that the evidence establishes guilt beyond a reasonable
doubt”);
Garcia, 447 F.3d at 1334;
Harris, 20 F.3d at 452. Accordingly, the
district court did not err in denying Deleon’s motion for judgment of acquittal as to
Counts 1 and 2.
D. Career Offender Enhancement
Finally, Deleon argues he was not a career offender, and the district court
erred in finding that his conviction for Hobbs Act robbery was a “crime of
violence” under the Guidelines. Deleon’s claim is reviewed for plain error because
7
Case: 19-10716 Date Filed: 05/07/2020 Page: 8 of 10
he makes it for the first time on appeal.2 See United States v. Olano,
507 U.S.
725, 732 (1993). To show plain error, Deleon must show (1) an error occurred;
(2) the error was plain; (3) it affected his substantial rights; and (4) it seriously
affected the fairness of the judicial proceedings. See
id.
A defendant is a career offender if: (1) he is at least 18 years of age at the
commission of the offense of conviction; (2) the offense of conviction is a felony
that is a crime of violence or a controlled substance offense; and (3) he has at least
two prior felony convictions for a crime of violence or a controlled substance
offense. U.S.S.G. § 4B1.1(a). Section 4B1.2 defines a “crime of violence,” in
relevant part, as any felony that “has as an element the use, attempted use, or
threatened use of physical force against the person of another . . . .”
Id.
§ 4B1.2(a)(1). We recently held that Hobbs Act robbery is not a “crime of
violence” for purposes of § 4B1.2(a).
Eason, 953 F.3d at 1187.
2
The invited error doctrine does not preclude our review of Deleon’s argument that he
was not a career offender under U.S.S.G. § 4B1.1(a). See
Jernigan, 341 F.3d at 1289-90. At
sentencing, Deleon’s counsel told the court there was no objection that Deleon’s two predicate
offenses qualify under the career offender enhancement, and his counsel did not object when the
Government said that Deleon qualifies as a career offender, which impliedly conceded his Hobbs
Act robbery falls under the career offender Guidelines provisions. Although it may be implied in
Deleon’s counsel’s silence, neither he nor Deleon affirmatively suggested or specifically argued
his Hobbs Act robbery qualifies as a “crime of violence” under the Guidelines. See
Silvestri, 409
F.3d at 1327;
Jernigan, 341 F.3d at 1289-90. Accordingly, Deleon did not invite any error with
respect to this issue. See
id.
8
Case: 19-10716 Date Filed: 05/07/2020 Page: 9 of 10
The district court plainly erred in sentencing Deleon as a career offender
because his conviction for Hobbs Act robbery is not a crime of violence. To be
sentenced as a career offender, Deleon’s current offense of conviction had to be a
crime of violence or controlled substance offense. U.S.S.G. § 4B1.1(a). Because
the Hobbs Act robbery did not qualify, Deleon did not have the three qualifying
convictions necessary to be sentenced as a career offender. 3 As for the plainness of
that error, “an intervening decision by this Court or the Supreme Court squarely on
point may make an error plain.” United States v. Jones,
743 F.3d 826, 829-30
(11th Cir. 2014) (quotations omitted). Eason is an intervening decision squarely
on point.
Deleon has also shown that the error affected his substantial rights because it
rendered him eligible for the career offender enhancement. See Molina-Martinez
v. United States,
136 S. Ct. 1338, 1346-47 (2016) (“In most cases a defendant who
has shown that the district court mistakenly deemed applicable an incorrect, higher
Guidelines range has demonstrated a reasonable probability of a different
outcome.”). Further, such an error seriously affects the fairness, integrity, and
3
We reject the Government’s argument in supplemental briefing that Deleon’s current
§ 924(c) conviction is a qualifying conviction. The commentary to § 4B1.2 provides “[a]
violation of 18 U.S.C. § 924(c) or § 929(a) is a ‘crime of violence’ or a ‘controlled substance
offense’ if the offense of conviction established that the underlying offense was a ‘crime of
violence’ or a ‘controlled substance offense.’” U.S.S.G. § 4B1.2, comment. (n.1). Since
Deleon’s underlying offense was Hobbs Act robbery, his § 924(c) conviction cannot be used as a
crime of violence.
9
Case: 19-10716 Date Filed: 05/07/2020 Page: 10 of 10
public reputation of judicial proceedings. See
Olano, 507 U.S. at 732, Rosales-
Mireles v. United States,
138 S. Ct. 1897, 1911 (2018) (“In the ordinary case, as
here, the failure to correct a plain Guidelines error that affects a defendant’s
substantial rights will seriously affect the fairness, integrity, and public reputation
of judicial proceedings.”). Since he has satisfied the test set forth in Olano, we
vacate Deleon’s career-offender-enhanced sentence and remand for resentencing.
II. CONCLUSION
We affirm Deleon’s convictions on Counts 1 and 2, but vacate his career-
offender-enhanced sentence and remand for resentencing consistent with this
opinion.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
10
