Bobby Martin v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 21, 2021
• Docket: 18-12337
• Status: Unpublished

Opinion

USCA11 Case: 18-12337 Date Filed: 04/21/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12337 Non-Argument Calendar ________________________

D.C. Docket Nos. 0:16-cv-61848-JIC, 0:07-cr-60153-JIC-2

BOBBY MARTIN,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(April 21, 2021)

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

MARTIN, Circuit Judge: USCA11 Case: 18-12337 Date Filed: 04/21/2021 Page: 2 of 12

Bobby Martin was convicted after a jury trial on seven charges related to a

conspiracy to rob a cocaine stash house. He now appeals the denial of his 28

U.S.C. § 2255 petition, arguing that one of his convictions is invalid in light of

United States v. Davis, 588 U.S. __, 139 S. Ct. 2319 (2019). Davis invalidated 18

U.S.C. § 924(c)’s residual clause on the ground that it is unconstitutionally vague.

139 S. Ct. at 2336.

While this appeal was pending, this Circuit issued a published decision in

Granda v. United States, 990 F.3d 1272 (11th Cir. 2021), which resolved the open

issues in Mr. Martin’s case against him. After careful consideration, and on the

basis of Granda, we therefore affirm the denial of the § 2255 petition.

I

In 2007, a confidential information tipped off the Bureau of Alcohol,

Tobacco, and Firearms (“ATF”) that a particular group of people, which came to

include Mr. Martin, wanted to rob a target of cash or drugs. That informant

worked with an undercover ATF agent to investigate this group. The undercover

ATF agent, posing as a disgruntled drug courier who wanted to steal cocaine from

his employer, met with the group. The undercover agent proposed stealing at least

15 kilograms of cocaine from his employer’s stash house, which was protected by

armed guards. Mr. Martin and others agreed to the plan. Specifically, Mr. Martin

agreed to commit the robbery, proposed a method of dividing the cocaine they

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anticipated recovering, and said the guard protecting the cocaine might be killed if

he offered any resistance during the robbery. When asked if the group had the

tools to commit the robbery, Mr. Martin assured the undercover agent, “everything

is done.”

Mr. Martin repeatedly reaffirmed his willingness to perform the robbery. He

said he and his crew would be ready, and again indicated that anyone guarding the

cocaine might be killed if he resisted during the robbery: “I can eliminate

everything. Sometimes guys like that don’t deserve to breathe.” Mr. Martin

confirmed he had all the materials necessary to commit the robbery, including a

silencer, and said he would bring an extra gun to plant it on the guard and “make it

look like a drug deal gone bad.” Mr. Martin also reassured the undercover agent

that he had experience with these jobs and had been committing robberies for a

long time. Over the next month, Mr. Martin asked about the status of the

impending cocaine robbery. Mr. Martin also discussed with the undercover agent

the plan for the robbery. He explained who would be on lookout while he and

another co-conspirator entered the stash house to steal the cocaine. He assured the

undercover agent that all firearms needed for the robbery had been acquired. He

also discussed plans for the proceeds he would earn from selling the stolen

cocaine.

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On the day of the arranged robbery, Mr. Martin and his co-conspirators met

with the undercover agent. Everyone in the group dressed in black and wore skull

caps and gloves to conceal their appearances. They again discussed the plan for

the robbery.

At that point, law enforcement moved in to arrest the defendants. The

vehicle in which Mr. Martin and his co-conspirators came to the scene contained:

two loaded rifles (including a short-barreled rifle), binoculars, a knife, a canvas bag

to carry cocaine, and other items for use in the robbery. Following his arrest, Mr.

Martin confessed that he was going to conduct a robbery of 15 kilograms of

cocaine and that the firearms brought to commit the robbery had been used before.

Mr. Martin was charged with conspiracy to obstruct, delay, and affect

interstate commerce by means of robbery, in violation of 18 U.S.C. § 1951(a)

(“Hobbs Act robbery”) (Count 1); conspiracy to possess with intent to distribute at

least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a) and 846 (Count

2); attempt to possess with intent to distribute at least five kilograms of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 3); conspiracy

to carry a firearm during and in relation to a crime of violence and during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(o) (Count 4);

knowingly carrying a firearm during and in relation to a crime of violence and

during and in relation to a drug trafficking crime, in violation of 18 U.S.C.

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§§ 924(c)(1)(A), 924(c)(1)(B), and 2 (Count 5); possession of an unregistered

firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871 and 18 U.S.C. § 2 (Count

6); and possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1) (Count 7).

The jury found Mr. Martin guilty on all counts. The District Court

sentenced him to 240 months’ imprisonment as to Counts 1 and 4; 260 months as

to Counts 2 and 3; and 120 months as to Counts 6 and 7; all to run concurrently

with each other. The court also sentenced him to 120 months’ imprisonment as to

Count 5, to be served consecutively to the terms imposed in the other counts. This

resulted in a total term of 380 months’ imprisonment for Mr. Martin.

In 2016, Mr. Martin filed a motion seeking leave to file a second or

successive § 2255 motion, which this Court granted.1 He argued his § 924(c)

conviction should be invalidated in light of Johnson, 576 U.S. 591, 135 S. Ct.

2551, and Welch, 136 S. Ct. 1257. He contended his § 924(c) conviction was no

1 This Court affirmed Mr. Martin’s convictions. United States v. Chung, 329 F. App’x 862, 865, 869 (11th Cir. 2009) (per curiam) (unpublished). In October 2009, the Supreme Court denied his petition for writ of certiorari. Mr. Martin then filed his initial § 2255 motion, alleging a variety of claims, which the District Court denied. He then filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c) and Amendment 782 to the Sentencing Guidelines, which the District Court granted, reducing Mr. Martin’s sentence from 380 months’ imprisonment to 328 months’ imprisonment. In 2016, Mr. Martin filed a motion to preserve claims under Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551 (2015), and Welch v. United States, 578 U.S. __, 136 S. Ct. 1257 (2016), in the event those decisions could apply retroactively to career offender provisions. The District Court dismissed the motion as an unauthorized second or successive § 2255 motion.

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longer valid because conspiracy to commit Hobbs Act robbery no longer qualified

as a crime of violence. The government argued that Mr. Martin’s claims were

procedurally defaulted; that Johnson did not apply to § 924(c)(3)(B); and that, in

any event, his § 924(c) conviction was based on the alternative drug trafficking

predicates left unaffected by Johnson.

In 2018, the District Court denied the § 2255 petition and denied a certificate

of appealability (“COA”) based on this Court’s then-binding precedent. 2

In 2019, the Supreme Court decided Davis, holding that the § 924(c)(3)(B)

residual clause was unconstitutionally vague. 139 S. Ct. at 2336. In 2020, this

Court granted Mr. Martin a COA on the following issue:

Whether Martin’s conviction for using a firearm in furtherance of a conspiracy to commit Hobbs Act robbery and drug-trafficking crimes in violation of 18 U.S.C. § 924(c) remains valid in light of Davis v. United States, 139 S. Ct. 2319 (2019)? We now address this issue. II

In reviewing a district court’s denial of a motion to vacate under 28 U.S.C.

§ 2255, this Court reviews de novo legal conclusions and reviews factual findings

2 Under this Court’s precedent at the time, the District Court was bound to hold that Johnson did not apply to § 924(c)(3)(B). Ovalles v. United States, 861 F.3d 1257 (11th Cir. 2017), reh’g en banc granted and opinion vacated, 889 F.3d 1259 (11th Cir. 2018), and on reh’g en banc, 905 F.3d 1231 (11th Cir. 2018), and opinion reinstated in part, 905 F.3d 1300 (11th Cir. 2018) (per curiam), and abrogated by Davis, 139 S. Ct. 2319. 6 USCA11 Case: 18-12337 Date Filed: 04/21/2021 Page: 7 of 12

for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per

curiam).

III

Because we conclude Mr. Martin’s Davis challenge fails on the merits, we

need not decide whether the argument is procedurally defaulted.

The merits question before us is whether Mr. Martin’s conviction for using a

firearm, in the furtherance of a conspiracy to commit Hobbs Act robbery and drug-

trafficking crimes, in violation of 18 U.S.C. § 924(c) remains valid in light of

Davis, 139 S. Ct. at 2336, which invalidated § 924(c)’s residual clause as

unconstitutionally vague. Relief is only proper if we have “grave doubt” about

whether Mr. Martin’s conviction rested on the invalid predicate. See Granda, 990

F.3d at 1293.

We begin with the counts of his conviction. The indictment alleged that the

predicate offenses for the § 924(c) charge in Count 5 were the Hobbs Act robbery

offense in Count 1 and the two drug trafficking offenses in Counts 2 and 3. Both

sides agree the Hobbs Act robbery offense (Count 1) can no longer serve as a

predicate offense after Davis. As such, the question in Mr. Martin’s case is

whether his § 924(c) conviction (Count 5) nevertheless remains valid because it

rests on an alternative drug trafficking predicate (Count 2 or 3) left unaffected by

Johnson.

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In Granda, our Circuit answered this question yes. 990 F.3d at 1291. Mr.

Granda argued his § 924(o) conviction should be vacated in light of Davis. Id. at

1280. But this Court determined that this argument was procedurally defaulted and

that, regardless, it failed on the merits because any error was harmless. Id. at

1280–81. The panel concluded there was a fundamental shortcoming “that cut[]

across both the procedural and merits inquiries.” Id. at 1280. Namely, the

§ 924(o) predicates were “inextricably intertwined,” because they arose out of the

same cocaine robbery scheme. Id. at 1280, 1290. Granda held that the jury could

not have found that Mr. Granda conspired to possess a firearm in furtherance of a

Hobbs Act conspiracy without also finding he conspired to possess a firearm in

furtherance of the attempted Hobbs Act robbery, as well as in furtherance of

conspiring and attempting to possess cocaine with intent to distribute and in

furtherance of attempting a carjacking. See id. Each of these other offenses

remained a valid predicate for the § 924(o) conviction after Davis. Thus, the panel

concluded the overlapping facts considered by the jury in deciding the alternative

predicate offenses rendered any error in the jury instructions harmless. Id. at

1290–91.

That reasoning applies here. Mr. Martin was convicted of conspiring and

attempting to commit an armed robbery of a cocaine stash house, specifically a

§ 924(c) offense (Count 5) predicated on the now-invalid conspiracy to commit

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Hobbs Act robbery (Count 1) or either one of the still-valid offenses of conspiracy

and attempted cocaine trafficking (Counts 2 and 3). Like Mr. Granda, this record

shows that Mr. Martin’s predicate offenses are also inextricably intertwined

because they all arose out of the same cocaine robbery. A jury, on these facts,

could not have found that Mr. Martin committed Count 5—carrying a firearm

during and in relation to a crime of violence and a drug trafficking crime—in

relation to Count 1—Hobbs Act robbery—without also finding that Martin

committed Count 5 in relation to Count 2—conspiracy to possess with intent to

distribute five kilograms or more of a mixture and substance containing cocaine—

or Count 3—attempt to possess with intent to distribute five kilograms or more of a

mixture and substance containing cocaine. Therefore, Mr. Martin has not shown

that the § 924(c) conviction necessarily rested on Count 1. The acts for which Mr.

Martin was convicted of in Count 1 are inextricably intertwined with two

predicates—Counts 2 and 3—that remain valid after Davis.

IV

Mr. Martin makes several other arguments. None persuade us.

First, he argues Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532 (1931),

and its progeny mean a “general verdict must be set aside if the jury was instructed

that it could rely on any of two or more independent grounds, and one of those

grounds is insufficient, because the verdict may have rested exclusively on the

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insufficient ground.” Zant v. Stephens, 462 U.S. 862, 881, 103 S. Ct. 2733, 2745

(1983).

But in Granda, this Court held that Stromberg error is subject to the harmless

error standard in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993).

990 F.3d at 1294. And under harmless error review, “reversal is warranted only

when the petitioner suffered ‘actual prejudice’ from the error.” Id.; see also

Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S. Ct. 530, 532 (2008) (per curiam)

(holding that “[a]n instructional error arising in the context of multiple theories of

guilt” does not “vitiate[] all the jury’s findings”).

Mr. Martin has not shown that he suffered actual prejudice from the general

verdict. As set out above, the predicate offenses for his § 924(c) conviction are

inextricably intertwined. Granda, 990 F.3d at 1293. This record demonstrates that

Mr. Martin was extensively involved in planning the robbery of a drug stash house

containing at least 15 kilograms of cocaine. He repeatedly told co-conspirators he

was willing to bring firearms to the robbery and kill anyone offering resistance

during the robbery. Given this, Mr. Martin’s case is comparable to that in Granda.

His still-valid drug trafficking offenses (Counts 2 and 3) are inextricably

intertwined with the now-invalid Hobbs Act robbery (Count 1). See id. Mr.

Martin carried a firearm during and in relation to the robbery offense that was also

intertwined with the drug trafficking offenses. We also note the strength of the

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evidence against Mr. Martin, including his confession to law enforcement that he

planned to conduct a robbery of 15 kilograms of cocaine and brought firearms to

commit the robbery. Given the facts of this case, Mr. Martin has not shown that he

suffered actual prejudice from the general verdict for the § 924(c) conviction.

Thus, his Stromberg-based argument fails. 3

Next, Mr. Martin urges this panel to apply the “categorical approach” to

presume his § 924(c) conviction rests on the now-invalid Hobbs Act robbery. The

categorical approach is used “to determine whether a particular offense qualifies

under crime-of-violence-type elements clauses such as those found in

§ 924(c)(3)(A) and in the [Armed Career Criminal Act].” Granda, 990 F.3d at

1295. Under the categorical approach, courts “examin[e] only the elements of the

statute of conviction, not the specific conduct of a particular offender.” United

States v. Oliver, 962 F.3d 1311, 1316 (11th Cir. 2020) (quotation marks omitted).

Courts further “assume that the conviction rested on the ‘least of the acts

criminalized’ by the statute, because to determine upon which of the criminalized

acts the conviction rested would violate the categorical approach’s command not to

analyze the facts underlying the conviction.” Granda, 990 F.3d at 1295 (quotation

marks omitted) (quoting Oliver, 962 F.3d at 1316; Moncrieffe v. Holder, 569 U.S.

3 In re Gomez, 830 F.3d 1225 (11th Cir. 2016) (per curiam), does not compel a different conclusion. In Granda, this Court distinguished Gomez and held that it did not apply to preclude Brecht harmless error inquiry on the merits of a claim like Mr. Granda’s. 990 F.3d at 1296. 11 USCA11 Case: 18-12337 Date Filed: 04/21/2021 Page: 12 of 12

184, 190–91, 133 S. Ct. 1678, 1684 (2013)). But in Granda this Court also rejected

the argument that the categorical approach prohibits courts from determining that

the jury did not rely solely on a now-invalid Hobbs Act conviction as the predicate.

Id. Therefore, this argument is unavailing.

Mr. Martin’s next argument, invoking judicial factfinding, fares no better.

He argues that concluding the jury relied on still-valid predicates would constitute

impermissible judicial factfinding in violation of Alleyne v. United States, 570

U.S. 99, 133 S. Ct. 2151 (2013). 4 However, “a judge conducting a Brecht

harmless error analysis does not find a fact at all; instead, the judge asks as a

matter of law whether there is grave doubt about whether an instruction on an

invalid predicate substantially influenced what the jury already found beyond a

reasonable doubt.” Granda, 990 F.3d at 1295. Thus, Mr. Martin’s Alleyne

argument also fails.

Mr. Martin’s arguments not otherwise addressed in this opinion are also

unpersuasive. His § 2255 petition fails on the merits.

AFFIRMED.

4 Alleyne applies to findings of fact that increase a mandatory minimum, which must be proven to a jury beyond a reasonable doubt. 570 U.S. at 114–16, 133 S. Ct. at 2162–63.