United States v. Ismael Camacho

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10943
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL CAMACHO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:96-cr-00443-JEM-6
____________________
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2 Opinion of the Court 21-10943
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No. 21-11753
Non-Argument Calendar
____________________
ISMAEL CAMACHO,
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 No. 1:19-cv-24658-JEM
____________________
Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
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21-10943 Opinion of the Court 3
We vacate and withdraw our previous opinion dated April
10, 2023, see 2023 WL 2857233 (11th Cir. Apr. 10, 2023), and sub-
stitute the following in its place.
* * *
Ismael Camacho, a federal prisoner, appeals the district
court’s partial denial of his authorized successive 28 U.S.C. § 2255motion to vacate. The district court granted a certificate of appeal-
ability (COA) on the following issue:
Whether a § 2255 movant raising a Davis 1 claim bears
the burden to show that it is more likely than not that
his [18 U.S.C.] § 924(c) conviction resulted solely from
the application of § 924(c)’s unconstitutional residual
clause and, if not, whether movant is entitled to relief
on his Davis challenge to his § 924(c) conviction in
Count XI.
Camacho argues that his § 924(c) conviction in Count 11 is uncon-
stitutional because it is predicated on attempted Hobbs Act extor-
tion, which is not a crime of violence post-Davis. Despite that con-
viction also being predicated on carjacking, he contends that the
invalid predicate is operative because the jury returned a general
verdict and attempted Hobbs Act extortion is the least culpable of-
fense.
Camacho also appeals his 535-month total imprisonment
sentence imposed following the partial grant of his § 2255 motion
1 United States v. Davis, 139 S. Ct. 2319 (2019).
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4 Opinion of the Court 21-10943
and vacatur of two other § 924(c) convictions. He asserts that the
district court erred in refusing to apply the First Step Act of 2018 at
resentencing. 2 Because his previous sentence was vacated, he ar-
gues that the district court should have applied the Act at the time
of his resentencing, which was after the Act’s enactment. 3
We subsequently granted Camacho’s motion to permit sup-
plemental briefing as to the impact of the Supreme Court’s decision
in United States v. Taylor, 142 S. Ct. 2015 (2022), on his remaining
§ 924(c) counts after he was resentenced. Camacho argues that his
§ 924(c) conviction in Count 8 that was predicated on attempted
Hobbs Act robbery is invalid after Taylor and that his conviction
on Count 8 thus should be vacated and his sentence on his remain-
ing § 924(c) count in Count 8 should be reduced from 240 months
imprisonment to 60 months.
I
When reviewing a district court’s denial of a 28 U.S.C.
§ 2255 motion, we review questions of law de novo and factual
findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004). Similarly, we review de novo whether procedural
default precludes a § 2255 movant’s claim, which is a mixed
2 Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22 (“First Step Act”).
3 Camacho moves to stay appellate briefings until we render our decision in
United States v. Beneby, No. 19-13387, because it contemplates this same is-
sue. Because we needn’t resolve this issue regarding the Act to decide
Camacho’s appeal, his motion is DENIED.
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21-10943 Opinion of the Court 5
question of law and fact. Granda v. United States, 990 F.3d 1272,
1286 (11th Cir. 2021), cert. denied 142 S. Ct. 1233 (2022).
While the scope of review in a § 2255 appeal is limited to
issues specified in the COA, we will read the COA to encompass
procedural issues that must be resolved before we can reach the
merits of the underlying claim. McCoy v. United States, 266 F.3d
1245, 1248 n.2 (11th Cir. 2001) (determining that we could consider
the government’s procedural arguments regarding McCoy’s § 2255
motion even though they were not included in the COA). How-
ever, we have also held that we may skip procedural default issues
if the claim would fail on the merits. See Dallas v. Warden, 964
F.3d 1285, 1307 (11th Cir. 2020), cert. denied, 142 S. Ct. 124 (2021).
We may affirm for any reason supported by the record. Castillo v.
United States, 816 F.3d 1300, 1303 (11th Cir. 2016).
Section 2255 allows federal prisoners to obtain post-convic-
tion relief and set aside convictions when a sentence “was imposed
in violation of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a).
In relevant part, 18 U.S.C. § 924(c) provides:
[A]ny person who, during and in relation to any crime
of violence . . . for which the person may be prose-
cuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punish-
ment provided for such crime of violence . . . be
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6 Opinion of the Court 21-10943
sentenced to a term of imprisonment of not less than
5 years . . . .
18 U.S.C. § 924(c)(1)(A)(i). The statute defines “crime of violence”
as 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)(A)–(B). The first clause is referred to as the “ele-
ments clause” and the latter, the “residual clause.” Davis, 139 S.
Ct. at 2324. In Davis, the Supreme Court held that § 924(c)(3)(B)’s
residual clause is unconstitutionally vague. Id. at 2324, 2336. Davis
announced a new rule of constitutional law that was previously un-
available and made retroactive to cases on collateral review by the
Supreme Court. In re Hammoud, 931 F.3d 1032, 1037–39 (11th
Cir. 2019); see 28 U.S.C. § 2255(h)(2). The Supreme Court recently
held that attempted Hobbs Act robbery is not a crime of violence
under the elements clause. Taylor, 142 S. Ct. at 2020–21. But car-
jacking is a crime of violence under the elements clause. In re
Smith, 829 F.3d 1276, 1280–81 (11th Cir. 2016).
On collateral review, the harmless-error standard mandates
that collateral relief on a Davis claim is proper only if we have
“grave doubt” about whether an error had a “substantial and
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21-10943 Opinion of the Court 7
injurious 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 harmful
and that we would grant relief “only if the error ‘resulted in actual
prejudice’” to the movant. Id. There, we reasoned that the record
did not provoke a grave doubt about whether Granda’s § 924(o)
conviction rested solely on the invalid predicate because it was in-
extricably intertwined with other valid predicate offenses. Id. at
1293. We explained that it was proper to look at the record to de-
termine whether the defendant was actually prejudiced by the in-
valid 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 com-
pels the conclusion that” instructing the jury on a constitutionally
invalid predicate as one of several potential alternative predicates
was harmless. Id. at 1292.
A § 2255 claim may also, however, be procedurally defaulted
if the movant failed to raise the claim on direct appeal. Jones v.
United States, 153 F.3d 1305, 1307 (11th Cir. 1998). A movant can
overcome this procedural bar by establishing either (1) cause for
the default and actual prejudice from the alleged error or (2) actual
innocence of the crimes for which he was convicted. Howard v.
United States, 374 F.3d 1068, 1072 (11th Cir. 2004).
A movant may show cause for failing to raise a claim when,
at the time of the default, the claim was “so novel” that the legal
basis of the claim was not reasonably available to counsel—but not
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8 Opinion of the Court 21-10943
simply when “subsequent legal developments” made the claim eas-
ier to pursue. McCoy, 266 F.3d at 1258 (quotation marks omitted).
In Granda, we reasoned that Granda did not lack the building
blocks of a due process vagueness challenge to § 924(c)(3)(B)’s re-
sidual clause at the time of his appeal in 2009, thus the challenge
was not novel. Granda, 990 F.3d at 1287. To show actual inno-
cence, the movant must demonstrate that it is more likely than not
a reasonable juror would not have convicted him. Bousley v.
United States, 523 U.S. 614, 623 (1998). In Granda, we reasoned
that Granda could not make that showing because his Hobbs Act
conspiracy charge was inextricably intertwined with valid predi-
cate offenses. Granda, 990 F.3d at 1292.
Here, Camacho cannot show any error resulted in actual
prejudice because attempted Hobbs Act extortion was inextricably
intertwined with carjacking, which remained a valid predicate for
Camacho’s § 924(c) conviction in Count 11. The record shows that
Camacho’s carjacking charge arose out of the same conduct as his
attempted Hobbs Act extortion charge, so no reasonable jury could
have concluded that Camacho used a firearm in relation to the at-
tempted extortion without also concluding that he used a firearm
in relation to the carjacking. Accordingly, we affirm as to this issue.
II
We review de novo a district court’s interpretation of a stat-
ute. United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009).
When interpreting a statute, we give effect to its plain terms and,
if the statute’s language is clear, there is no need to go beyond it
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21-10943 Opinion of the Court 9
into legislative history. United States v. Noel, 893 F.3d 1294, 1297
(11th Cir. 2018). The district court is to apply the law in effect at
the time it renders its decision unless there is statutory direction to
the contrary. Bradley v. School Bd. of City of Richmond, 416 U.S.
696, 711 (1974).
Section 924(c) imposes a 5-year mandatory minimum sen-
tence for the first time someone uses or carries a firearm during
and in relation to a crime of violence. 18 U.S.C. § 924(c)(1)(A)(i).
Prior to December 21, 2018, if a defendant was convicted of multi-
ple violations of § 924(c) for the first time in a single prosecution,
each § 924(c) conviction after the first carried a mandatory mini-
mum consecutive 25-year sentence.4 Davis, 139 S. Ct. at 2324 n.1.
The First Step Act amended § 924(c) on December 21, 2018, to re-
quire a 25-year mandatory minimum sentence be imposed only for
a violation of § 924(c) “that occurs after a prior conviction under
[§ 924(c)] has become final,” thus preventing a defendant from re-
ceiving 25-year minimum sentences for multiple violations of
§ 924(c) for the first time in a single prosecution. See First Step Act
§ 403(a).
Regarding its application to pending cases, § 403 states,
“[t]his section, and the amendments made by this section, shall ap-
ply to any offense that was committed before the date of enactment
of this Act, if a sentence for the offense has not been imposed as of
4 At the time of Camacho’s convictions, the statute imposed 20-year consecu-
tive sentences for multiple violations of § 924(c). 18 U.S.C. § 924(c)(1) (1996).
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10 Opinion of the Court 21-10943
such date of enactment.” Id. § 403(b). About the section, the Su-
preme Court has stated, “Congress changed the law so that, going
forward, only a second § 924(c) violation committed ‘after a prior
§ 924(c) conviction has become final’ will trigger the 25-year mini-
mum.” Davis, 139 S. Ct. at 2324 n.1.
Under Federal Rule Criminal Procedure 52(a), any error that
does not affect substantial rights is harmless and must be disre-
garded. Non-constitutional errors are harmless if, viewing the pro-
ceedings in their entirety, a court determines that the error did not
affect the sentence or had but very slight effect. United States v.
Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005). Accordingly, even
if the district court committed an error at sentencing, remand is
unnecessary where that error did not affect the sentence imposed.
Williams v. United States, 503 U.S. 193, 203 (1992). An error does
not affect the sentence imposed when the district court expressly
states that it would have imposed the same sentence regardless of
that error. See United States v. Keene, 470 F.3d 1347, 1348–49 (11th
Cir. 2006).
Here, any error by the district court in concluding that
§ 403(a) did not apply at Camacho’s resentencing was harmless. It
is clear from the record, particularly the court’s statements at re-
sentencing that are amply supported by the record, that the court’s
ruling as to the applicability of § 403(a) did not affect the sentence.
Accordingly, we affirm as to this issue.
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21-10943 Opinion of the Court 11
III
We review our appellate jurisdiction de novo. United States
v. Cody, 998 F.3d 912, 914 (11th Cir. 2021), cert. denied, 142 S. Ct.
1419 (2022).
A federal prisoner who wishes to file a second or successive
motion to vacate, set aside, or correct sentence is required to move
the court of appeals for an order authorizing the district court to
consider such a motion. See 28 U.S.C. § 2255(h), cross-referencing
28 U.S.C. § 2244. A three-judge panel of the court of appeals may
grant such authorization only if the proposed motion contains
claims premised on either (1) “newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that no rea-
sonable factfinder would have found the movant guilty of the of-
fense,” or (2) “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previ-
ously unavailable.” 28 U.S.C. § 2255(h)(1), (2). “The court of ap-
peals may authorize the filing of a second or successive application
only if it determines that the application makes a prima facie show-
ing that the application satisfies the requirements of this subsec-
tion.” Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs.,
485 F.3d 1351, 1357–58 (11th Cir. 2007) (explaining that our deter-
mination that an applicant has made a prima facie showing that the
statutory criteria have been met is simply a threshold determina-
tion). The district court lacks jurisdiction to hear a claim in a sec-
ond or successive § 2255 motion unless we have authorized it.
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Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). “[S]ub-
ject matter jurisdiction cannot be waived or conferred on a court
by consent of the parties.” Eagerton v. Valuations, Inc., 698 F.2d
1115, 1118 (11th Cir. 1983).
“Unless a circuit justice or judge issues a certificate of appeal-
ability, an appeal may not be taken to the court of appeals from . . .
the final order in a proceeding under section 2255.” 28 U.S.C.
§ 2253(c)(1)(B). A COA may issue “only if the applicant has made
a substantial showing of the denial of a constitutional right.” Id.§ 2253(c)(2). “[I]n an appeal brought by an unsuccessful habeas pe-
titioner, appellate review is limited to the issues specified in the
COA.” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.
1998). We may construe an appellant’s notice of appeal as a request
for a COA. See Dean-Mitchell v. Reese, 837 F.3d 1107, 1112 (11th
Cir. 2016) (citing Fed. R. App. P. 22(b)(2) and 11th Cir. R. 22-1(b)).
We also may expand a COA sua sponte for exceptional circum-
stances. Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013)
(collecting cases).
“The certificate-of-appealability requirement applies not
only to an appeal from the final order in a proceeding under section
2255 but also to an appeal from an amended criminal judgment, to
the extent it raises section 2255 issues.” Cody, 998 F.3d at 915. “For
example, even in an appeal from a new sentence, to the extent a
prisoner appeals the denial of his section 2255 motion as to his con-
viction, those claims are part of his section 2255 proceedings and
we may not consider them without a certificate of appealability.”
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Id. (alterations adopted). “By contrast, direct appeal matters that
arise after the proceeding under section 2255—for example, an ar-
gument that the district court misapplied the sentencing guidelines
at a prisoner’s resentencing—do not require a certificate of appeal-
ability.” Id. (alterations adopted).
In St. Hubert, we held that attempted Hobbs Act robbery
qualified as a crime of violence under § 924(c)(3)(A)’s elements
clause. United States v. St. Hubert, 909 F.3d 335, 347 (11th Cir.
2018), overruled in part by Davis, 132 S. Ct. at 2336, and Taylor,
142 S. Ct. at 2019–21. But, in Taylor, the Supreme Court held that
attempted Hobbs Act robbery does not qualify as a crime of vio-
lence under § 924(c)(3)(A)’s elements clause. Taylor, 142 S. Ct. at
2019–21 (quotation marks and brackets omitted).
Here, we sua sponte expand the COA to include Camacho’s
challenge that Count 8 is invalid in light of Taylor. However, we
do not have jurisdiction to hear Camacho’s challenge to Count 8
because we explicitly considered and denied Camacho’s request for
leave to bring a Davis claim challenging Count 8 in our order grant-
ing in part his application to file a second or successive § 2255 mo-
tion. Accordingly, we dismiss the claim he raised in his supple-
mental brief for lack of jurisdiction.
AFFIRMED IN PART AND DISMISSED IN PART.