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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14943
________________________
D.C. Docket Nos. 0:19-cv-62070-WPD; 0:07-cr-60238-WPD-3
WADE PARKER,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(April 6, 2021)
Before LAGOA, HULL, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
An ATF reverse sting operation caught Wade Parker in the midst of an effort
to commit armed robbery of a house he believed held the cocaine stash of a
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Colombian cartel. A jury convicted Parker, among other things, of both conspiring
to use and using a firearm during a crime of violence or drug trafficking offense in
violation of
18 U.S.C. § 924(o) and § 924(c). In Parker’s first visit to our Court,
we affirmed his convictions and the ensuing sentence. United States v. Parker, 376
F. App’x 1, 3 (11th Cir. 2010). Now, Parker appeals the district court’s rejection
of his § 2255 collateral attack on these convictions.
Parker claims that under United States v. Davis,
139 S. Ct. 2319 (2019), the
only crime-of-violence offense that the jury could have relied on to predicate the
challenged convictions -- conspiracy to commit Hobbs Act robbery -- is not
actually a crime of violence. He’s right about that, but his § 2255 motion still fails.
In addition to the Hobbs Act conspiracy, the district court instructed the jury that it
could predicate the challenged § 924(c) and (o) convictions on two drug trafficking
offenses, attempt and conspiracy to possess cocaine with intent to distribute.
Given the facts and circumstances presented at trial, the jury could not have relied
on the invalid Hobbs Act conspiracy predicate without also relying on the drug
trafficking offenses, each of which remain valid predicates. Under Granda v.
United States, --- F.3d ----, No. 17-15194,
2021 WL 923282, at *9 (11th Cir. Mar.
11, 2021), this defeats Parker’s claims. We affirm.
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I.
A.
These are the essential facts surrounding this case. In the summer of 2007,
an ATF confidential informant (“CI”) told Ishwade Subran that he knew someone
who was looking for help robbing some 15 kilograms of cocaine from a local stash
house. Subran and his associate Patrick Aiken met with the CI and an undercover
ATF agent (“UC”) at a Sunrise, Florida restaurant to discuss the robbery. The UC
introduced himself as a disgruntled employee of a Colombian drug cartel and
asked if Subran and Aiken would rob his bosses’ stash house, which would be
protected by one or two armed guards. The undercover agent explained that he
was a courier who transported kilogram quantities of cocaine for the cartel, and
that he had seen at least 15 kilograms of cocaine in its stash houses. Subran and
Aiken agreed, and indicated they would have no problem dealing with the armed
guards. Parker, 376 F. App’x at 6.
A few days later, the crew met again for further planning. This time, Subran
and Aiken brought along appellant Wade Parker, who, they said, had traveled from
New York to Miami for this meeting. Aiken explained that he and Parker had
conducted robberies in New York and Miami. The UC went over the plan
(including the likely need to account for an armed guard) with Subran, Aiken, and
Parker, who indicated they were ready to proceed with the robbery. Subran
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suggested entering the stash house as the UC visited it to retrieve cocaine he was
supposed to deliver to cartel customers. At a third meeting, the UC told the same
group that the robbery would not be easy, but Subran and Aiken insisted that it
would.
Id.
On September 18, the UC called Subran to tell him that the cocaine
shipment would arrive the next day. The UC told the crew to meet the CI, who
would then lead them to meet with him in order to learn the location of the stash
house. The UC had explained that the cartel used different stash houses for each
delivery, so he would not learn the location in advance. The CI led the crew to a
gas station, where they met the UC. Aiken drove a silver Infiniti, with Parker
riding shotgun and Subran in the backseat. A new member of the crew, Anthony
Foster, joined them in a black Honda. The UC then led the group to his
“undercover business,” where he reviewed the plan to rob 15 kilograms of cocaine.
Id. at 7. Parker assured the UC that the newcomer Foster knew “everything,” and
that Foster would execute the robbery with Parker and Aiken (Subran would serve
as the getaway driver). Parker further detailed the plan, pointing at Foster “and
stat[ing] that both he and Foster would enter the house.”
Id. at 8. As the crew
waited for the cartel to phone in the stash house location, police moved in and
arrested Subran, Aiken, Parker, and Foster.
Id. at 7.
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After being given Miranda warnings, Parker admitted to a federal agent that
he had met with the UC in order to rob 15 kilograms of cocaine.
Id. at 8. Another
agent found a loaded Walther PPK/S .380 caliber pistol between the driver’s seat
and the center console in the Infiniti Parker had arrived in. The car also contained
a rope, duct tape, black gloves, and Foster’s Jamaican passport. Foster carried a
loaded Smith & Wesson 9mm model 915 pistol in his waistband. Parker, 376 F.
App’x at 9.
B.
A grand jury sitting in the Southern District of Florida returned a
superseding indictment charging Parker with:
• Count 1: Conspiracy to commit Hobbs Act robbery, in violation of
18
U.S.C. § 1951(a);
• Count 2: Conspiracy to possess with intent to distribute at least five
kilograms of cocaine, in violation of
21 U.S.C. § 846;
• Count 3: Attempt to possess with intent to distribute at least five kilograms
or more of cocaine, in violation of
21 U.S.C. § 841(b)(1)(A);
• Count 4: conspiracy to use and carry a firearm during and in relation to a
crime of violence as set forth in Count 1 and a drug trafficking offense as set
forth in Counts 2 and 3, in violation of
18 U.S.C. § 924(o);
• Count 5: Using and carrying a firearm during and in relation to a crime of
violence as set forth in Count 1 and a drug trafficking offense as set forth in
Counts 2 and 3, in violation of
18 U.S.C. § 924(c)(1) and
18 U.S.C. § 2;
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• Count 6: Possessing a firearm as a convicted felon, in violation of
18 U.S.C.
§§ 922(g) and 924(e)1;
• Count 7: Possessing a firearm as an alien unlawfully inside the United
States, in violation of
18 U.S.C. § 922(g)(5) 2; and
• Count 8: Unlawfully entering the United States after having previously been
removed from the United States, in violation of
8 U.S.C. § 1326(a).
Parker, 376 F. App’x at 3. The indictment also charged Aiken, Subran, and Foster
in Counts 1–6 (but not in Counts 7 and 8). Aiken pleaded guilty, but the rest of the
defendants proceeded to trial. Parker, 376 F. App’x at 5. The jury heard testimony
from the UC and other agents recounting the facts as we have described them.
Id.
at 6–8.
Regarding Count 4 -- the § 924(o) count -- the district court instructed the
jury that it had to find beyond a reasonable doubt that the defendants conspired “to
commit the crime of violence charged in Count 1” or “to commit the drug
trafficking offense charged in either Counts 2 or 3,” and that they knowingly
carried or possessed a firearm while doing so.3 As for Count 5 -- the § 924(c)
1
Parker had previously been convicted of attempted second degree assault, criminal possession
of a weapon, and attempted criminal possession of a weapon in New York.
2
Parker, a Jamaican immigrant to the United States, was deported in 2000 after serving his
sentence in New York for criminal possession of a weapon. At some point he returned.
3
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). In turn, § 924(c) provides:
Except to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime . . . for which the person may be
prosecuted in a court of the United States, uses or carries a firearm, or who, in
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count -- the judge instructed the jury that it had to find beyond a reasonable doubt
that the defendants “committed the crime of violence charged in Count 1 of the
Indictment or that the [defendants] committed the drug trafficking offense charged
in either Counts 2 or 3 of the indictment” and possessed or carried a firearm during
the crime. The court further instructed:
The indictment charges that each Defendant knowingly carried a
firearm during and in relation to a crime of violence and a drug
trafficking offense and possessed a firearm in furtherance of a crime
of violence and a drug trafficking offense. It is charged, in other
words, that the defendant violated the law as charged in Count 5 in
different ways. It is not necessary, however, for the Government to
prove that the defendant violated the law in all of those ways. It is
sufficient if the Government proves, beyond a reasonable doubt, that
the Defendants knowingly violated the law in some way; but, in that
event, you must unanimously agree upon the way in which the
Defendants committed the violation.
The district court did not include this unanimity instruction with its Count 4
instructions.
furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime--
(i) be sentenced to a term of imprisonment of not less than 5 years . . . .
Id. § 924(c)(1)(A). The statute defines “drug trafficking crime” (in relevant part) as “any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).” Id. § 924(c)(2).
“‘[C]rime of violence’ means an offense that is a felony and:
(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). We often refer to subsection (A) as the “elements clause” and to subsection (B)
as the “residual clause.”
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The jury returned a general verdict finding Parker guilty on all counts. The
district court sentenced Parker to a total prison term of 264 months: 204-month
terms served concurrently for each of Counts 1–4 and 8; 120-month terms served
concurrently for each of Counts 6 and 7; and a 60-month term for Count 5 served
consecutively. The court also imposed a $100 special assessment for each count.
Parker appealed, but this Court affirmed his convictions and sentence.
Parker, 376 F. App’x at 3. Notably, Parker did not argue that his Count 4 or Count
5 convictions were based on invalid predicates. Later, based on intervening
amendments to the Sentencing Guidelines, the district court granted Parker’s
motion to reduce his sentence to a 164-month term and a consecutive 60-month
term for a total of 224 months of imprisonment.
Parker filed an initial § 2255 motion raising issues not relevant here, which
the district court denied. He unsuccessfully sought leave to file successive
petitions four times. In re: Wade Parker, No. 16-13548 (11th Cir. June 30, 2016);
In re: Wade Parker, No.16-15600 (11th Cir. Sept. 21, 2016); In re: Wade Parker,
No. 17-13566 (11th Cir. Sept. 12, 2017); In re: Wade Parker, No. 19-11094 (11th
Cir. Apr. 12, 2019). Then, in United States v. Davis,
139 S. Ct. 2319, 2336 (2019),
the Supreme Court invalidated the § 924(c) residual clause as unconstitutionally
vague. Parker petitioned this Court for leave to file a second or successive § 2255
motion, arguing that his Count 4 and Count 5 convictions should be vacated
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because the supporting predicate may have qualified only under § 924(c)’s invalid
residual clause -- in particular, the jury may have used Count 1, conspiracy to
commit Hobbs Act robbery, as its supporting predicate. Hobbs Act conspiracy
does not qualify as a crime of violence predicate under the § 924(c)(3) elements
clause. See Brown v. United States,
942 F.3d 1069, 1075 (11th Cir. 2019). Since
the indictment, general verdict, and jury instructions left open the possibility that
the jury had relied on an invalid predicate offense to convict him of the § 924(o)
and (c) offenses, Parker argued that these convictions must be set aside. We
granted Parker’s application to file a successive § 2255 motion. The government
opposed Parker’s motion on both procedural default and merits grounds.
The district court denied Parker’s petition. It held that since “the Hobbs Act
Conspiracy was inextricably intertwined with the drug trafficking charges in
Counts Two and Three,” “there is no reasonable likelihood that the jury based its
verdicts solely on the predicate Hobbs Act Conspiracy and not the two drug
trafficking predicates.” The district court explained that “it is clear that absen[t] a
strained interpretation of the jury’s verdict, the jury had to have found the drug
trafficking predicate acts.” The court nevertheless granted a certificate of
appealability because Parker had “made an appropriate showing on the issue of
whether the jury verdict indicates that his convictions on Counts Four and Five
were predicated on a drug trafficking crime.” Parker timely appealed.
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II.
We affirm the district court because Parker cannot overcome the procedural
default of his claim and because even if he could, he suffered no harm from the
inclusion of an invalid predicate offense, Hobbs Act conspiracy, in his indictment
and jury instructions. Both conclusions follow from the same feature of Parker’s
case: the Hobbs Act conspiracy was inextricably intertwined with Parker’s
conspiracy and attempt to possess with intent to distribute cocaine (Counts 2 and
3), convictions Parker does not dispute are valid drug trafficking predicates for his
Count 4 and Count 5 convictions.
A.
The doctrine of procedural default bars Parker’s claim. Parker did not argue
during his original proceedings that his § 924(c) and (o) convictions must be
vacated because the § 924(c)(3)(B) residual clause was unconstitutionally vague.
He therefore procedurally defaulted this claim and may not obtain collateral review
unless he can either (1) show cause to excuse the default and actual prejudice from
the claimed error, or (2) show that he is actually innocent of the § 924(o)
conviction. Fordham v. United States,
706 F.3d 1345, 1349 (11th Cir. 2013).
Parker advances (only) an actual innocence argument, but it fails to
persuade. Like the petitioner in Granda,
2021 WL 923282 at *10, Parker admits
that this argument, and his ability to overcome procedural default, rises and falls
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with the merits of his claim that his Count 4 and 5 convictions are predicated on
the invalid predicate conviction for conspiracy to commit Hobbs Act robbery.
We recently rejected a materially indistinguishable claim in Granda, and the
similarity between that case and Parker’s compels the same result here. It is
undeniable on this record that Parker’s valid drug trafficking predicates are
inextricably intertwined with the invalid Hobbs Act conspiracy predicate. The
evidence adduced at trial showed that Parker was a lead participant in a plan to rob
at gunpoint a stash house that held at least 15 kilograms of cocaine. See, e.g.,
Parker, 376 F. App’x at 8 (describing the UC’s testimony that Parker demonstrated
the method by which he and Foster would enter the house, which they knew at
least one armed man would be guarding). Agents found a firearm on the person of
a co-conspirator and another in a car in which Parker had ridden.
Id. at 7. Based
on this robbery scheme, the jury found Parker guilty of each of three potential
predicate offenses -- conspiracy to rob the stash house and conspiracy and an
attempt to possess with intent to distribute the cocaine in the house. It is
inconceivable that the jury could have found that Parker conspired to, and did, use
and carry a firearm in furtherance of his conspiracy to rob the house (the invalid
predicate) without also finding at the same time that he did so in furtherance of his
conspiracy and attempt to obtain the cocaine in the same house (both valid
predicates). Cf. United States v. Cannon,
987 F.3d 924, 948 (11th Cir. 2021)
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(“The cocaine the defendants were planning to rob from the narcotics traffickers
was the same cocaine they were planning to possess with the intent to distribute.
Undisputedly, the goal of the robbery scheme was to steal cocaine from a stash
house so they could then distribute it themselves. . . . No reasonable juror could
have found that [the defendants] carried their firearms in relation to the Hobbs Act
robbery conspiracy but not the cocaine conspiracy.”).
Similarly, in Granda, we held that the jury could not have found that an
invalid Hobbs Act conspiracy predicate supported a § 924(o) conviction without
also finding that valid attempted robbery, attempted carjacking, attempted
possession of cocaine with intent to distribute, and conspiracy to possess cocaine
with intent to distribute predicates did so: each of the predicate offenses arose out
of the same plan to rob a cocaine stash truck. Granda,
2021 WL 923282 at *8,
*10. We observed that “[t]he objective of the robbery and the carjacking was the
same: to obtain and sell the multi-kilogram quantity of cocaine that was to be taken
by force from the truck. So the jury could not have concluded that Granda
conspired to possess a firearm in furtherance of his robbery conspiracy without
also finding at the same time that he conspired to possess the firearm in furtherance
of his conspiracy and attempt to obtain and distribute the cocaine, his attempt at
carjacking, and the attempt at the robbery itself.”
Id. at *8.
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Parker does not point to anything in the trial record that would suggest the
jurors somehow distinguished between the alternative predicate crimes. Notably,
Parker’s position on this point is even weaker than Granda’s, who claimed that his
acquittal on a § 924(c) charge somehow indicated that the jury predicated his
§ 924(o) conviction on a Hobbs Act conspiracy predicate instead of on
“substantive” alternative predicates. Id. at *9. Unlike Granda, Parker was
convicted of both § 924(o) and (c) charges; he therefore cannot similarly argue it is
more likely that the jury predicated these convictions on a robbery conspiracy
offense than on the “substantive” drug trafficking offenses.
To be sure, Parker’s jury instructions suffered from a defect not present in
Granda. On Count 4, the district court failed to instruct the jury that it had to
unanimously decide which predicate or predicates supported the conviction. Id. at
*9 (relying in part on a unanimity instruction to conclude “that the jurors did not
split into two camps, one of which found that Granda conspired to possess a
firearm in furtherance of one or more valid predicates while the other found
Granda conspired to possess a firearm only in furtherance of the Hobbs Act
conspiracy”). Thus, Parker argues that “less than twelve jurors could have
convicted based on use of the firearm during and in relation to the Hobbs Act
conspiracy, the Hobbs Act robbery or the drug trafficking crime.” But the record
makes clear that this did not happen. The predicate offenses were inextricably
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intertwined so that if the jurors found one applicable -- which, given their guilty
verdicts on Counts 4 and 5, we know they did -- they had to reach the same
conclusion with respect to the others. See id. (even apart from the unanimity
instruction present in that case, the inextricability of Granda’s predicate offenses
suggested that the jurors did not split among predicates).
Parker objects to reliance on the factual overlap among his predicate
offenses, but in support offers only a theory we rejected in Granda: that the
“categorical approach” applies and requires us to presume that his Count 4 and 5
convictions were predicated on the least serious of the potential predicates, which
he assumes is the Hobbs Act conspiracy charged in Count 1. The categorical
approach is “a method for determining whether a conviction under a particular
statute qualifies as a predicate offense under a particular definitional clause.”
Granda,
2021 WL 923282 at *13. Thus, in Granda, we declined to extend the
categorical approach to the distinct context of determining on which of several
alternative predicates a jury’s general verdict relied.
Id. Granda also makes clear
that looking at the record to ascertain whether Parker has met his burden to show
that the jury relied solely on an invalid predicate is not judicial factfinding of the
sort held to violate the Sixth Amendment in Alleyne v. United States,
570 U.S. 99,
114–16 (2013). See Granda,
2021 WL 923282 at *13. Of course, Granda reached
this conclusion in the context of a harmless error determination, which represented
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a conclusion of law rather than fact.
Id. But the Alleyne question here is not
meaningfully different. To evaluate Parker’s actual innocence claim, we must
examine the record to discern what facts the jury already found. We need not, and
do not, find any new facts that aggravate Parker’s punishment in violation of
Alleyne.
Nor, contrary to Parker’s argument, does In re Gomez,
830 F.3d 1225, 1228
(11th Cir. 2016) -- which held that a petitioner in a similar case had made the
prima facie showing necessary for permission to file a second or successive § 2255
motion -- “stand for the proposition that a court may not inquire as to which of
several alternative predicates actually supplied the basis for a § 924(c) (or (o))
conviction or that a court is constrained to assume the verdict rested on the least
culpable predicate offense.” Granda,
2021 WL 923282 at *13. Parker’s appeal to
the categorical approach thus misses the mark, and he cannot show actual
innocence.
Parker does not argue that he can excuse his procedural default under the
cause and prejudice standard, nor could he. Granda held that a vagueness-based
challenge to the § 924(c)(3)(B) residual clause was not sufficiently novel to
establish cause, and the inextricability of Parker’s valid and invalid predicate
offenses would prevent him from showing prejudice.
2021 WL 923282 at *7–10.
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B.
Even if Parker could overcome procedural default, he could not prevail on
the merits of his claim. For the same reason Parker cannot show actual innocence -
- the jury could not have found that Parker’s gun use or gun conspiracy was
connected to his conspiracy to rob the stash house without also finding that they
were connected to his conspiracy and attempt to possess with intent to distribute
the cocaine he planned to rob from the same stash house -- the inclusion of an
invalid predicate offense in the indictment and jury instructions was harmless.
There is no real possibility that Parker’s Count 4 and Count 5 convictions rested
solely on the invalid Hobbs Act conspiracy predicate. See Davis v. Ayala,
576
U.S. 257, 267–68 (2015) (internal quotation marks and citations omitted) (“[R]elief
is proper [on collateral review] 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. There must be more than a reasonable possibility
that the error was harmful.”); Granda,
2021 WL 923282 at *10–11.
We held as much on materially similar facts in Granda.
Id. at *11. Rather
than attempting to distinguish Granda on its facts with respect to harmless error,
Parker argues that we should not follow Granda because it conflicts with our
earlier decision in Parker v. Sec’y for Dep’t of Corr.,
331 F.3d 764, 778–79 (11th
Cir. 2003) (holding that, in the context of a general verdict, “error with respect to
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one independent basis [for the verdict] is not rendered harmless solely because of
the availability of another independent basis where it is impossible to say on which
basis the jury’s verdict rests”). But Granda directly addressed Parker and held that
under the Supreme Court’s intervening decision in Hedgpeth v. Pulido,
555 U.S.
57, 58, 62 (2008) (per curiam), the harmless error inquiry must involve a “look at
the record to determine whether the invalid predicate actually prejudiced the
petitioner -- that is, actually led to his conviction -- or whether the jury instead (or
also) found the defendant guilty under a valid theory.”
2021 WL 923282 at *12.
As we have explained, the record in this case makes clear that if the jury relied on
the invalid Hobbs Act conspiracy predicate, it also relied on the valid drug
trafficking predicates. The inclusion of Hobbs Act conspiracy as a potential
predicate was therefore harmless.
Thus, even if Parker could overcome his procedural default -- and as we see
it, he cannot -- he could not prevail on the merits because he did not suffer harm.
We AFFIRM.
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