USCA11 Case: 22-11986 Document: 22-1 Date Filed: 06/28/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11986
Non-Argument Calendar
____________________
ARTHUR PICKLO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00666-HLA-PDB
____________________
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2 Opinion of the Court 22-11986
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Arthur Picklo, a federal prisoner proceeding pro se, appeals
the district court’s denial of his
28 U.S.C. § 2255 motion to vacate
on his claim that his conviction for depriving another of the rights
protected by the Constitution and laws of the United States under
color of state law by attempting to kill another by the use of a fire-
arm that resulted in bodily injury, under
18 U.S.C. § 242, could not
serve as a valid predicate offense for his conviction under
18 U.S.C.
§ 924(c). He argues that § 242 can be violated without the use, at-
tempted use, or threatened use of force, so his § 924(c) sentence
should have run consecutively only to his other valid predicate of-
fenses.
The government responds by moving for summary affir-
mance of the district court’s order and argues that any error that
the district court made was harmless because Picklo’s sentence for
his § 924(c) conviction had to run consecutively to all other sen-
tences, so it is irrelevant whether his § 924(c) sentence was imposed
consecutively to his § 242 conviction or his other two valid predi-
cates.
Summary disposition is appropriate either where time is of
the essence, such as where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case, or where, as is more
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22-11986 Opinion of the Court 3
frequently the case, the appeal is frivolous.” Groendyke Transp., Inc.
v. Davis,
406 F.2d 1158, 1161–62 (5th Cir. 1969). 1
When reviewing the district court’s denial of a motion to
vacate, we review questions of law de novo and findings of fact for
clear error. Thomas v. United States,
572 F.3d 1300, 1303 (11th Cir.
2009). “[T]he scope of our review of an unsuccessful § 2255 motion
is limited to the issues enumerated in the [certificate of appealabil-
ity].” McKay v. United States,
657 F.3d 1190, 1195 (11th Cir. 2011).
We review cases on collateral review for harmless error. Granda v.
United States,
990 F.3d 1272, 1292 (11th Cir. 2021). Under harmless
error, “[t]here must be more than a reasonable possibility that the
error was harmful.” Davis v. Ayala,
576 U.S. 257, 268 (2015) (inter-
nal quotation marks omitted).
A prisoner in federal custody may file a motion to vacate, set
aside, or correct sentence pursuant to
28 U.S.C. § 2255, asserting
the right to be released because his “sentence was imposed in vio-
lation of the Constitution or laws of the United States, . . . the court
was without jurisdiction to impose such sentence, . . . the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.”
28 U.S.C. § 2255(a). Unless the
claimed error involves a lack of jurisdiction or a constitutional
1 We are bound by decisions of the United States Court of Appeals for the Fifth
Circuit issued before October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206
(11th Cir. 1981) (en banc).
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4 Opinion of the Court 22-11986
violation, however, § 2255 relief is limited. United States v. Addoni-
zio,
442 U.S. 178, 185 (1979).
Section 924(c) provides a mandatory consecutive sentence
for anyone that uses or carries a firearm in furtherance of a crime
of violence.
18 U.S.C. § 924(c). A “crime of violence,” in turn, is a
felony offense 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) “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). The first prong of that definition is referred to
as the “elements clause,” while the second prong contains the “re-
sidual clause.” In re Hammoud,
931 F.3d 1032, 1040 (11th Cir. 2019).
In Davis, the Supreme Court held that § 924(c)(3)(B)’s resid-
ual clause is unconstitutionally vague. United States v. Davis,
139 S.
Ct. 2319, 2336 (2019). We have held that the movant “‘bear[s] the
burden of showing that he is actually entitled to relief on his Davis
claim, meaning he will have to show that his § 924(c) convic-
tion[s] resulted from application of solely the [now-unconstitu-
tional] residual clause.’” Alvarado-Linares v. United States,
44 F.4th
1334, 1341 (11th Cir. 2022) (quoting In re Hammoud,
931 F.3d at
1041) (second and third alterations in original). We have held that
Hobbs Act robbery is a crime of violence under § 924(c)’s elements
clause. In re Fleur,
824 F.3d 1337, 1340 (11th Cir. 2016).
On collateral review, the harmless-error standard mandates
that collateral relief for a Davis claim is proper only if the court has
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22-11986 Opinion of the Court 5
“grave doubt” about whether an error had a “substantial and inju-
rious effect or influence” in determining the verdict. Granda,
990 F.3d at 1292. In Granda, we explained that a petitioner must
show more than a reasonable possibility that the error was harm-
ful, and we would grant relief “only if the error ‘resulted in actual
prejudice’” to the movant. Id. (quoting Brecht v. Abrahamson,
507
U.S. 619, 637 (1993)). There, we reasoned that the record did not
provoke a grave doubt about whether Granda’s § 924(o) convic-
tion rested solely on the invalid predicate because it was inextrica-
bly intertwined with other valid predicate offenses. Id. at 1293. We
explained that the alternative predicates were inextricably inter-
twined and that the offenses encompassed a “tightly bound factual
relationship” that precluded Granda from establishing actual prej-
udice. Id. at 1291. We noted that it was proper to look at the record
to determine whether the defendant was actually prejudiced by the
invalid predicate, in that it led to his conviction as opposed to the
jury finding him guilty under a valid predicate. Id. at 1294. We
held that “[t]he inextricability of the alternative predicate crimes
compels the conclusion that” instructing the jury on a constitution-
ally invalid predicate as one of several potential alternative predi-
cates was harmless. Id. at 1292.
Section 924(c) states that “no term of imprisonment im-
posed on a person under this subsection shall run concurrently
with any other term of imprisonment imposed on the person, in-
cluding any term of imprisonment imposed for the crime of vio-
lence or drug trafficking crime during which the firearm was used,
carried, or possessed.”
18 U.S.C. § 924(c)(1)(D)(ii). We have held
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6 Opinion of the Court 22-11986
that “[t]he plain language of the statute expressly states that a term
of imprisonment imposed under section 924(c) cannot run concur-
rently with any other term of imprisonment, period.” United States
v. Wright,
33 F.3d 1349, 1350 (11th Cir. 1994) (per curiam).
Finally, under the prior panel precedent rule, we are bound
by prior published decisions that have not been overruled by the
Supreme Court or this Court en banc. United States v. Romo-Villa-
lobos,
674 F.3d 1246, 1251 (11th Cir. 2012) (per curiam).
Here, the government is entitled to summary affirmance be-
cause its position is clearly correct as a matter of law. Groendyke
Transp., Inc.,
406 F.2d at 1161–62. Even assuming that
18 U.S.C.
§ 242 is not a crime of violence, Picklo failed to demonstrate that
he was entitled to relief on his § 2255 motion because he remains
convicted of Hobbs Act robbery, which we have held is a valid
predicate crime of violence under § 924(c)’s elements clause. Al-
varado-Linares, 44 F.4th at 1341; In re Fleur,
824 F.3d at 1340. Under
Granda, Picklo’s convictions for deprivation of civil rights under
color of law, Hobbs Act robbery, and attempted murder were in-
extricably intertwined because all three charges arose from a single,
“tightly bound factual relationship.” Granda, 990 F.3d at 1291. As
such, Picklo cannot demonstrate that his § 924(c) conviction rested
solely on his § 242 conviction in Count 1, and because his convic-
tions were inextricably intertwined, any error that the district court
made in “instructing the jury on a constitutionally invalid predicate
as one of several potential alternative predicates was harmless.” Id.
at 1292.
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22-11986 Opinion of the Court 7
As to the district court’s imposition of a consecutive sen-
tence under § 924(c), both the § 924(c) statute and our binding prec-
edent require that a term of imprisonment for a § 924(c) conviction
must run consecutively to all other terms of imprisonment. See
18 U.S.C. § 924(c)(1)(D)(ii); Wright,
33 F.3d at 1350. Because the
district court sentenced Picklo to 360 months’ imprisonment on
Count 1, and 240 months’ imprisonment on each Count 2 and 3 to
run concurrently to Count 1, Count 4 had to run consecutively to
all other sentences, so it is irrelevant whether Count 4 was predi-
cated on Count 1, 2, or 3, as Picklo’s total sentence remains
480 months’ imprisonment. Therefore, even if the district court
erred when it found that Picklo’s § 242 conviction was a valid pred-
icate crime of violence within § 924(c)’s element’s clause, any error
was harmless because Picklo remains convicted of at least one valid
predicate crime of violence, so his consecutive § 924(c) sentence
was proper.
18 U.S.C. § 924(c)(1)(D)(ii); Granda, 990 F.3d at 1292;
Wright,
33 F.3d at 1350.
Therefore, we GRANT the government’s motion for sum-
mary affirmance.
AFFIRMED.
