Carlos Granda v. United States

990 F.3d 1272

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 11, 2021
• Docket: 17-15194
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15194 ________________________

D.C. Docket Nos. 1:16-cv-23426-DMM; 1:07-cr-20155-DMM-3

CARLOS GRANDA,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee.

________________________

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

(March 11, 2021)

Before WILLIAM PRYOR, Chief Judge, JORDAN and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

This is Carlos Granda’s second trip to our Court. In this reverse sting case,

Granda served as the lookout for a criminal crew that attempted to rob a tractor

trailer purportedly filled with sixty to eighty kilograms of cocaine. The scheme USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 2 of 38

netted him several serious criminal convictions. On direct appeal, we affirmed his

convictions and sentence. Now, Granda appeals the denial of his § 2255 petition.

He collaterally attacks his conviction for conspiracy to possess a firearm in

furtherance of a crime of violence or drug-trafficking crime in violation of 18

U.S.C. § 924(o). The trial court instructed the jury that to convict on this charge, it

could rely on any of several predicate crimes: conspiracy to possess cocaine with

intent to distribute; attempt to possess cocaine with intent to distribute; attempted

Hobbs Act robbery; conspiracy to commit Hobbs Act robbery; and attempted

carjacking. The jury found Granda guilty of each of these crimes, which were

independently charged in Granda’s indictment.

Granda’s claim turns entirely on the observation that one of these offenses --

conspiracy to commit Hobbs Act robbery -- no longer qualifies as a valid crime-of-

violence predicate after United States v. Davis, 139 S. Ct. 2319, 2336 (2019) and

Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019). Granda reasons

that the indictment, jury instructions, and general verdict make it impossible to tell

for sure whether the jury relied on this invalid predicate or on one or more of the

undeniably valid predicates to convict him of violating § 924(o). Granda says we

must vacate his conviction because of the possibility that the jury relied on an

invalid predicate and, therefore, convicted him of a non-existent crime.

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Granda faces two insuperable problems: he cannot overcome the procedural

default of his claim (which he raises for the first time on collateral attack), nor

could he otherwise prevail on the merits. Among the shortcomings that defeat his

claim is a fundamental one that cuts across both the procedural and merits

inquiries: all of the § 924(o) predicates are inextricably intertwined, arising out of

the same cocaine robbery scheme. On this record, the jury could not have found

that Granda conspired to possess a firearm in furtherance of a Hobbs Act

conspiracy without also finding that he conspired to possess a firearm in

furtherance of his 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. Each of these crimes remains a lawful

predicate for the § 924(o) conviction. Thus, Granda cannot show actual prejudice

or actual innocence to excuse his procedural default. Moreover, the overlapping

factual relationship between the alternative predicate offenses renders any error in

the jury instructions harmless.

Accordingly, we affirm.

I.

A. In 2007, Carlos Granda’s (“Granda”) brother Paulino told a confidential

informant (“CI”) that he was putting together a criminal crew and looking for

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work. On January 26, 2007, the CI introduced Paulino to a detective who was

working in an undercover capacity. The undercover agent claimed to be a

disgruntled drug trafficker who wanted to rob his boss; and he knew where in

Miami his boss kept a tractor-trailer full of some sixty to eighty kilograms of

cocaine. Paulino orchestrated a plan to rob the tractor-trailer at gunpoint. He and

his crew planned to approach the truck while armed and dressed as a police

S.W.A.T. team, remove and detain the drivers, and steal the truck and the drugs.

Paulino explained that he would secure the perimeter by having his associates do

surveillance. He added that, if it became necessary, he and his crew were willing

to shoot the driver and anyone else who resisted. Appellant Granda’s role was to

serve as a lookout. Paulino also asked him to bring a gun to the robbery.

Granda and the crew met up at his parents’ apartment, where members of the

crew packed up guns, as well as construction ties to use as handcuffs. The crew

then drove to a warehouse where they expected to find the stash truck. Granda

stationed himself in his car near the entrance to the warehouse. Just as a member

of the crew approached the truck, police officers revealed themselves and initiated

a takedown. One of the would-be robbers raised his revolver, triggering a

shootout. In the ensuing minutes, the police killed two members of the crew and

wounded two others. Granda attempted to flee in his car but encountered a police

blockade. He tried to evade the blockade by turning in front of a police car,

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striking it. The police arrested Granda, and found handcuffs, but not a firearm, in

his car. They did find a loaded Hi-Point 9mm semi-automatic pistol in Paulino’s

car.

B.

A grand jury sitting in the Southern District of Florida returned a

superseding indictment against Carlos Granda and his co-defendants. Granda was

charged with conspiracy to possess with intent to distribute cocaine in violation of

21 U.S.C. § 846 (Count 1); attempting to possess with intent to distribute cocaine

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 2); conspiracy to

commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 3);

attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 4);

attempted carjacking, in violation of 18 U.S.C. § 2119 (Count 5); conspiracy to use

and carry a firearm during and in relation to, and to possess a firearm in

furtherance of, a crime of violence and drug-trafficking crime, in violation of 18

U.S.C. § 924(o) (Count 6); and possession of a firearm in furtherance of a crime of

violence or drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count

7). The indictment listed each of the offenses charged in Counts 1, 2, 3, 4, and 5 as

predicate crime-of-violence or drug-trafficking offenses for the § 924(o) offense

charged in Count 6.

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At trial, Granda’s counsel insisted that Granda lacked the requisite criminal

intent because he thought Paulino was working as a government informant the

whole time. Granda also offered the theory that the government failed to establish

that he knew the object of the robbery was to obtain cocaine. Plainly unconvinced,

the jury returned a general verdict convicting Granda of Counts 1–6 (but acquitting

him of Count 7). The district court then sentenced Granda to concurrent prison

terms of 360 months as to Counts 1 and 2, 180 months as to Count 5, and 240

months as to Counts 3, 4, and 6. The sentence also included a five-year term of

supervised release and a $100 special assessment on each count. We upheld

Granda’s convictions and sentence on direct appeal. United States v. Granda, 346

F. App’x 524, 529 (11th Cir. 2009).

Granda filed several unsuccessful collateral attacks, including an earlier

§ 2255 petition and a petition for a writ of audita querela. He did, however,

successfully move the district court for a sentence reduction pursuant to section

3582 of Title 18. The trial court reduced his sentence to 324 months in prison,

consisting of concurrent terms of 324 months on counts 1 and 2 to run concurrently

with the terms for the other counts.

Proceeding pro se, Granda then sought leave to file the instant § 2255

petition; we granted leave to file this second or successive petition in August 2016.

He claimed that his § 924(o) conviction had to be vacated because the supporting

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predicate may have been a crime that qualified as a crime-of-violence predicate

only under § 924(c)’s residual clause. In other words, the jury may have used

Count 3 -- the conspiracy to commit Hobbs Act robbery -- as the supporting

predicate. See 18 U.S.C. § 924(c)(3)(B) (defining “crime of violence” in part as a

felony “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”). Granda argued that § 924(c)’s residual clause was unconstitutionally

vague under the reasoning of Johnson v. United States, 576 U.S. 591, 597 (2015),

which had invalidated a similar residual clause found in the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Since the general verdict

left open the possibility that the jury had relied on an invalid predicate to convict

him of the § 924(o) offense, this conviction must be set aside. The government

responded that Granda had procedurally defaulted his claim because he did not

raise it on direct appeal, and that, in any event, Johnson did not invalidate the §

924(c) residual clause.

A magistrate judge issued a Report and Recommendation concluding that

Granda could not establish actual prejudice to overcome procedural default, and

that, while the conspiracy to commit Hobbs Act robbery (Count 3) did not

independently support Granda’s § 924(o) conviction, his drug-trafficking,

attempted Hobbs Act robbery, and attempted carjacking crimes were valid

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predicates that did so. The district court partially adopted the Report and

Recommendation, holding based on then-applicable Eleventh Circuit case law that

Johnson did not extend to the § 924(c) residual clause. Moreover, even if Johnson

did apply, the district court reasoned that Granda “failed to meet his burden of

proving entitlement to relief under” Johnson pursuant to this Court’s holding in

Beeman v. United States, 871 F.3d 1215, 1221–22 (11th Cir. 2017). He could not

“show that it was more likely than not that at least one juror relied on conspiracy to

commit Hobbs Act robbery (Count 3) in voting to convict [him] on Count 6 [the §

924(o) conviction].” Still, the district court granted a certificate of appealability on

two issues: “whether [Johnson] applies to § 924(o) and if so, whether [Granda] met

his burden of showing entitlement to relief under” Johnson.

Proceeding pro se, Granda filed this appeal, and a full round of briefing

ensued. Then the Supreme Court decided Davis, 139 S. Ct. at 2336, concluding

that the § 924(c) residual clause was in fact unconstitutionally vague. We

appointed counsel to represent Granda and ordered a new round of briefing.

II.

To begin, we have (and the district court had) jurisdiction over Granda’s

§ 2255 petition. “While neither party has raised the issue of whether we have

subject matter jurisdiction over this case, we are obliged to address the issue”

sua sponte. Arthur v. Haley, 248 F.3d 1302, 1303 n.1 (11th Cir. 2001). Because

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this is Granda’s second § 2255 petition, he properly asked this Court for

certification to file it. We authorized Granda’s second petition because he relied

on Johnson, which had established a new, retroactive rule of constitutional law.

See 28 U.S.C. § 2255(h) (“A second or successive motion must be certified as

provided in section 2244 . . . to contain . . . a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.”). We have jurisdiction over this appeal from the denial of an

authorized second § 2255 petition. See 28 U.S.C. § 2253(a), (c)(1).

To be sure, we gave Granda leave to file a Johnson challenge -- the Supreme

Court had not yet decided Davis, so we did not (nor could we then) certify that

Granda’s second petition “contain[ed]” the new rule of constitutional law Davis

announced. See 28 U.S.C. § 2255(h). Section 2255(h) instructs us to certify “as

provided in section 2244” that a second or successive motion contains a new rule

of constitutional law; in turn, § 2244 focuses on whether a “claim” contains a new

constitutional rule, not on whether the motion as a whole does. 28 U.S.C. §

2244(b)(2). And in In re Hammoud, a panel of this Court held that a Johnson

claim is distinct from a Davis claim for purposes of the rule against filing repeat

petitions raising claims that had been previously rejected. See 931 F.3d 1032,

1039–40 (11th Cir. 2019). One might argue, then, that while we have authorized

Granda to bring a Johnson claim, we did not authorize the filing of a Davis claim.

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See Morton v. United States, 776 F. App’x 651, 652–53 (11th Cir. 2019)

(unpublished per curiam opinion). Of course, a district court is without jurisdiction

to consider an unauthorized second or successive petition. Farris v. United States,

333 F.3d 1211, 1216 (11th Cir. 2003).

But to resolve the Johnson claim we did authorize, we can, indeed we must,

apply the controlling Supreme Court law of Davis. As this Court held en banc in

United States v. Johnson, “when ‘a precedent of the Supreme Court has direct

application,’ we must follow it.” 921 F.3d 991, 1001 (11th Cir.) (en banc)

(alteration accepted) (citation omitted), cert. denied, 140 S. Ct. 376 (2019); see also

Brown, 942 F.3d at 1072 (applying Davis to resolve a pre-Davis petition that raised

a Johnson claim). Davis extended the reasoning of Johnson, providing us with the

answer to a question central to Granda’s petition: whether the § 924(c)(3)(B)

residual clause is unconstitutionally vague. Applying Davis to resolve Granda’s

vagueness claim does not transform the authorized claim -- which originally relied

on Johnson -- into a distinct, unauthorized Davis claim. Indeed, a contrary holding

would yield the odd result that the Supreme Court’s eventual endorsement of the

constitutional right argued for in Granda’s petition now precludes him from

seeking to vindicate that very right, even though he complied with all procedural

requirements. Granda could not now file a new petition based on Davis, because

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the one-year statute of limitations on such claims has run. 28 U.S.C. § 2255(f)(3).

We are obliged to follow Davis, and we have jurisdiction.

III.

A. Granda challenges his conviction on Count 6, conspiracy to use or carry a

firearm during and in relation to, and to possess a firearm in furtherance of, a drug-

trafficking crime or a crime of violence in violation of 18 U.S.C. § 924(o). 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 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 straightforwardly defines a “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). The definition of “crime of violence” is

a bit more complex:

For purposes of this subsection the term “crime of violence” means an offense that is a felony and--

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(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). Subsection (A) is known as the “elements clause” and subsection

(B) as the “residual clause.”

Since Granda filed the instant § 2255 petition, there has been a deluge of

legal developments related to § 924(c)(3). The following state of affairs now

greets Granda’s appeal:

• Count 1, conspiracy to possess with intent to distribute cocaine, is a “drug trafficking crime” and is, therefore, a valid predicate for Granda’s Count 6 conviction. (Granda does not dispute that Counts 1 and 2 are “drug trafficking crimes,” nor could he.) • Count 2, attempt to possess with intent to distribute cocaine, is a “drug trafficking crime” and is, therefore, a valid predicate for Granda’s Count 6 conviction. • Count 3, conspiracy to commit Hobbs Act robbery, is not a valid potential predicate for Granda’s Count 6 conviction. It is not a drug-trafficking offense, so it must qualify, if at all, as a crime of violence. But the § 924(c)(3) residual clause is unconstitutionally vague under Davis, 139 S. Ct. at 2336, and conspiracy to commit Hobbs Act robbery categorically is not a crime of violence under the § 924(c)(3) elements clause. Brown, 942 F.3d at 1075. • Count 4, attempted Hobbs Act robbery, categorically qualifies as a crime of violence under the § 924(c)(3) elements clause and is, therefore, a valid predicate for Granda’s Count 6 conviction. United States v. St. Hubert, 909 F.3d 335, 351–53 (11th Cir. 2018), abrogated on other grounds by Davis, 139 S. Ct. at 2336. • Count 5, attempted carjacking, categorically qualifies as a crime of violence under the § 924(c)(3) elements clause and is, therefore, a valid predicate for

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Granda’s Count 6 conviction. Ovalles v. United States, 905 F.3d 1300, 1305–07 (11th Cir. 2018). • Davis applies retroactively to Granda’s case. Hammoud, 931 F.3d at 1037– 39.

Thus, any one of Counts 1, 2, 4, or 5 could have validly predicated Granda’s

Count 6 conviction. Count 3 could not have. But we cannot tell from the general

verdict whether the jury relied on Counts 1, 2, 4, or 5 (alone or in combination with

one another), or on any of them in addition to Count 3, or on Count 3 alone. Nor

can we tell from the superseding indictment, which simply alleged in Count 6:

[Granda and his co-defendants] did knowingly and intentionally combine, conspire, confederate, and agree with each other to use and carry a firearm during and in relation to a crime of violence and a drug trafficking crime, and to possess a firearm in furtherance of a crime of violence and a drug trafficking crime, which are felonies prosecutable in a court of the United States, specifically . . . Counts 1, 2, 3, 4, and 5 of this Indictment . . . .

The jury instructions likewise did not shed any light on the problem. The district

court told the jury that in order to sustain a conviction on Count 6, they had to find

beyond a reasonable doubt that “the object of the unlawful plan was to use or carry

a firearm during and in relation to, or to possess a firearm in furtherance of, one of

the federal drug trafficking crimes, or one of the federal crimes of violence, or

both, as charged in counts 1, 2, 3, 4, or 5 of the Superseding Indictment.”

If the jury relied on Count 3 alone, Granda would have been convicted of

violating an unconstitutionally vague law, which “[i]n our constitutional order . . .

is no law at all.” Davis, 139 S. Ct. at 2323. Granda claims that we cannot 13 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 14 of 38

definitively rule out this possibility and, therefore, must vacate his conviction on

Count 6. We remain unpersuaded.

B. First, procedural default. This problem arises because Granda did not argue

in the trial court, or on direct appeal, that his § 924(o) conviction was invalid since

the § 924(c)(3)(B) residual clause was unconstitutionally vague. “[A] defendant

generally must advance an available challenge to a criminal conviction on direct

appeal or else the defendant is barred from raising that claim in a habeas

proceeding.” See Fordham v. United States, 706 F.3d 1345, 1349 (11th Cir. 2013).

He, therefore, procedurally defaulted this claim and cannot succeed on 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. Id. Granda cannot establish cause, actual prejudice, or actual

innocence. Thus, he cannot collaterally attack his conviction on a vagueness

theory.

We review de novo whether procedural default precludes a § 2255

petitioner’s claim, which is a mixed question of law and fact. Id. at 1347.

1. Granda’s claim is not sufficiently novel to establish cause.

“[W]here a constitutional claim is so novel that its legal basis is not

reasonably available to counsel, a defendant has cause for his failure to raise the

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claim.” Howard v. United States, 374 F.3d 1068, 1072 (11th Cir. 2004) (quoting

Reed v. Ross, 468 U.S. 1, 16 (1984)) (internal quotation marks omitted). “That an

argument might have less than a high likelihood of success has little to do with

whether the argument is available or not. An argument is available if there is a

reasonable basis in law and fact for it.” Pitts v. Cook, 923 F.2d 1568, 1572 n.6

(11th Cir. 1991). “[T]he question is not whether subsequent legal developments

have made counsel’s task easier, but whether at the time of the default the claim

was available at all.” McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.

2001) (internal quotation marks and citation omitted).

Granda brought his claim under Johnson (arguing that Johnson’s reasoning

should be extended to § 924(c)(3)(B)); Davis then reinforced the basis for his

claim. Both Johnson and Davis announced new constitutional rules, and each has

been held to have retroactive application. Welch v. United States, 136 S. Ct. 1257,

1268 (2016); Hammoud, 931 F.3d at 1037–39. To establish novelty “sufficient to

provide cause” based on a new constitutional principle, Granda must show that the

new rule was “a sufficiently clear break with the past, so that an attorney

representing [him] would not reasonably have had the tools for presenting the

claim.” Howard, 374 F.3d at 1072 (internal quotation marks and citations

omitted). In Reed v. Ross, the Supreme Court identified three circumstances in

which novelty might constitute cause for defaulting a claim. First, when a decision

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of the Supreme Court explicitly overrules one of its precedents, cause exists to

excuse default of a claim based on the new decision. 468 U.S. at 17. Second,

when a Supreme Court decision overturns a “longstanding and widespread practice

to which [the Supreme] Court has not spoken, but which a near-unanimous body of

lower court authority has expressly approved,” cause exists. Id. (internal quotation

marks and citation omitted).

The third category -- when a Supreme Court decision disapproves of “a

practice [the Supreme Court] arguably has sanctioned in prior cases” -- is more

complicated. Id. (internal quotation marks and citation omitted). For this

category, we analyze “whether others were recognizing and raising the same or

similar claims in the period preceding or concurrent with the petitioner’s failure to

raise his claim.” Pitts, 923 F.2d at 1572. Importantly, however, “[e]ven if others

have not been raising a claim, the claim may still be unnovel if a review of the

historical roots and development of the general issue involved indicate that

petitioners did not ‘lack the tools to construct their constitutional claim.’” Id. at

1572 n.6 (alteration accepted) (quoting Engle v. Isaac, 456 U.S. 107, 133 (1982)).

Granda’s Davis claim fits most neatly into this third category. (Unlike the Johnson

ACCA decision, Davis did not overrule any prior Supreme Court precedents

holding that the § 924(c) residual clause was not unconstitutionally vague.)

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Granda’s best argument that his defaulted vagueness claim was not available

on direct appeal is that at the time of that appeal,1 James v. United States, 550 U.S.

192, 210 n.6 (2007) had directly rejected the argument that the ACCA’s residual

clause was unconstitutionally vague. See Johnson, 576 U.S. at 594 (In James, “the

Court rejected suggestions . . . that the [ACCA’s] residual clause violates the

Constitution’s prohibition of vague criminal laws.”).

However, James did not consider the § 924(c) residual clause at all. In fact,

James indicated that at least three Justices were interested in entertaining

vagueness challenges to the ACCA’s residual clause, and perhaps to similar

statutes. See James, 550 U.S. at 229–31 (Scalia, J., dissenting, joined by Justices

Stevens and Ginsburg) (noting that the “shoddy draftsmanship” of the ACCA’s

residual clause left courts to choose between narrowing its scope and

“recogniz[ing] the statute for the drafting failure it is and hold[ing] it void for

vagueness”). Even more revealing, other defendants did challenge the ACCA’s

residual clause on vagueness grounds after James (but before Johnson). See, e.g.,

United States v. Devo, 457 F. App’x 908, 910 (11th Cir. 2012); United States v.

LaCasse, 567 F.3d 763, 765 (6th Cir. 2009); United States v. Spells, 537 F.3d 743,

753 n.4 (7th Cir. 2008); United States v. Verner, 300 F. App’x 435, 435 (8th Cir.

2008); United States v. Brown, No. 2:11-cr-30-FtM-29DNF, 2012 WL 39383, at

1 We issued our decision in Granda’s direct appeal on September 29, 2009. 17 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 18 of 38

*5 (M.D. Fla. Jan. 9, 2012). These claims did not succeed. But if James did not

deprive litigants of the tools to challenge even the ACCA’s residual clause on

vagueness grounds, it surely did not deprive them of the tools to challenge the

§ 924(c) residual clause, a clause to which James did not even apply.

Moreover, the case law extant at the time of Granda’s appeal confirms that

he did not then lack the “building blocks of” a due process vagueness challenge to

the § 924(c) residual clause. United States v. Bane, 948 F.3d 1290, 1297 (11th Cir.

2020). To be sure, few courts, if any, had addressed a vagueness challenge to the

§ 924(c) residual clause before the conclusion of Granda’s direct appeal. Still, as a

general matter, due process vagueness challenges to criminal statutes were

commonplace. Thus, for example, litigants had for years before Granda’s appeal

argued (without success) that various other provisions of § 924(c) were

unconstitutionally vague. See United States v. Whitehead, 257 F. App’x 777, 784

(5th Cir. 2007) (vagueness challenge to the term “not less than 7 years” in

§ 924(c)(1)(A)(ii)); United States v. Hungerford, 465 F.3d 1113, 1117 (9th Cir.

2006) (vagueness challenge to the term “second or subsequent conviction” in §

924(c)(1)(C)(i)); United States v. Helton, 86 F. App’x 889, 891 (6th Cir. 2004)

(vagueness challenge to the term “in furtherance of” in § 924(c)(1)(A)); United

States v. Bennett, 165 F.3d 36 (Table), at *1 (9th Cir. 1998) (vagueness challenge

to the term “firearm” as applied to a silencer); United States v. Pettit, 933 F.2d

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1017 (Table), at *1 n.1 (9th Cir. 1991) (vagueness challenges to the terms “during

and in relation to” and “uses or carries a firearm” in § 924(c)(1)(A)); United States

v. Meyer, 803 F.2d 246, 248 (6th Cir. 1986) (vagueness challenge to § 924(c);

unclear which clause).

That few, if any, litigants had contended that the § 924(c) residual clause

was unconstitutionally vague before the conclusion of Granda’s appeal arguably

cuts in favor of finding novelty. But as Pitts makes clear, the behavior of other

litigants is not the whole of the inquiry. The tools existed to challenge myriad

other portions of § 924(c) as vague; they existed to support a similar challenge to

its residual clause. Granda cannot show cause to excuse his procedural default.

2. Granda cannot show actual prejudice.

Even if Granda could show cause, however, he still could not overcome the

procedural default of his vagueness claim because he cannot show actual prejudice.

“To prevail on a cause and prejudice theory, a petitioner must show actual

prejudice. Actual prejudice means more than just the possibility of prejudice; it

requires that the error worked to the petitioner’s actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.”

Fordham, 706 F.3d at 1350 (alteration accepted) (internal quotation marks and

citation omitted). The actual prejudice standard is “more stringent than the plain

error standard.” Parks v. United States, 832 F.2d 1244, 1245 (11th Cir. 1987)

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(internal quotation marks omitted). The “ultimate inquiry” is: “Did the intrusion

affect the jury’s deliberations and thereby its verdict?” Ward v. Hall, 592 F.3d

1144, 1178–79 (11th Cir. 2010) (internal quotation marks and citation omitted).

So it is not enough for Granda to show that the jury may have relied on the

Count 3 Hobbs Act conspiracy conviction as the predicate for his Count 6 § 924(o)

conviction; Granda must show at least a “substantial likelihood,” see Ward, 592

F.3d at 1180, that the jury actually relied on the Count 3 conviction to provide the

predicate offense. More specifically, he must establish a substantial likelihood that

the jury relied only on the Count 3 conviction, because reliance on any of Counts

1, 2, 4, or 5 would have provided a wholly independent, sufficient, and legally

valid basis to convict on Count 6. If the absence of the invalid Count 3 predicate

would not likely have changed the jury’s decision to convict, Granda has not

suffered actual prejudice.2 Cf. United States v. Frady, 456 U.S. 152, 172 (1982)

(no actual prejudice from erroneous jury instructions existed where, on the facts of

2 Granda disputes this burden, arguing that the prejudice from having possibly been convicted of a non-existent crime is self-evident. He relies on Davis v. United States, 417 U.S. 333, 346–47 (1974) (“If this contention is well taken, then Davis’ conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice and present(s) exceptional circumstances that justify collateral relief under § 2255.”) (international quotation marks omitted). But in Davis, the provision the petitioner claimed was invalid and so could not criminalize his conduct was the sole basis for his charge and conviction. His conviction under that provision therefore necessarily established prejudice. In sharp contrast, Granda could have been convicted under one or more of several valid predicates, so in order to establish prejudice he must show that the invalid predicate was actually the basis for his conviction.

20 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 21 of 38

the case, there was “no substantial likelihood” that the jury would have mitigated a

first-degree murder conviction to manslaughter if “only the malice instructions had

been better framed”).

Granda cannot make this showing. Based on his role as a lookout in a

conspiracy and an attempt to rob at gunpoint a truck carrying some sixty to eighty

kilograms of cocaine, the jury unanimously found Granda guilty of conspiracy and

attempt to possess cocaine with intent to distribute, attempted carjacking,

conspiracy to commit Hobbs Act robbery, and attempt to commit Hobbs Act

robbery. Granda, 346 F. App’x at 525. The trial record makes it abundantly clear

that all of these findings rested on the same operative facts and the same set of

events -- the jury found beyond a reasonable doubt that Granda had conspired and

attempted to rob the truck in order to possess and distribute the cocaine it held.

The evidence supporting Granda’s alleged conspiracy to possess a firearm in

furtherance of these crimes included Paulino’s instruction to Granda, who was to

act as a lookout during the robbery, to bring a pistol. Notably, Granda also

attended a meeting at which the co-conspirators packed guns and makeshift

handcuffs for the robbery and discussed the execution of the crime.

As for Granda’s knowledge of the drug-trafficking objective of the robbery,

this Court explained in affirming his convictions on direct appeal:

[T]he jury was presented with evidence that (1) Paulino . . . specifically identified Granda in discussing the drug theft . . . ; (2) Granda was 21 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 22 of 38

present during two-drug related meetings, one of which involved explicit discussion of marijuana; (3) Granda had telephone contact with various members of the conspiracy during critical times in planning and executing the drug theft; (4) vague references to the cocaine robbery were made to Granda or in his presence; (5) and Granda was apprehended within close proximity to the scene of the robbery.

Id. at 527. The 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.

United States v. Cannon, No. 16-16194, manuscript op. at 40–47 (11th Cir.

Feb. 3, 2021) (“Lance Cannon”), which presents very similar facts, underscores

and compels this conclusion. There, the defendants were convicted of several

crimes -- including using and carrying a firearm during and in relation to a drug

trafficking crime in violation of § 924(c) -- for participating in a scheme to rob a

cocaine stash house. The indictment listed both an invalid predicate (Hobbs Act

conspiracy) and a valid predicate (conspiracy to possess cocaine with intent to

distribute) for this charge. Id. at 1–2, 37–39. Like Granda, the defendants argued

that “because the jury entered a general verdict, [the court could not] know if the

jury unanimously found their guns connected to the now-invalid Hobbs Act

22 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 23 of 38

robbery conspiracy predicate or the still-valid cocaine conspiracy predicate.” Id. at

39. We rejected the argument and held that the government had sustained its

burden of proving that the error of submitting the invalid predicate to the jury was

harmless. We reasoned:

[T]he trial evidence established the same facts and time period underlying each [predicate offense]. 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 Cannon and Holton carried their firearms in relation to the Hobbs Act robbery conspiracy but not the cocaine conspiracy.

Id. at 42–43. And the jury had convicted the defendants of both the underlying

Hobbs Act conspiracy and the conspiracy to possess cocaine with intent to

distribute, which “conclusively establish[ed] that the jury unanimously found

beyond a reasonable doubt that the defendants were conspiring to rob the stash

house of cocaine so they could then possess and distribute the cocaine themselves.”

Id. at 42.

The “trial record ma[de] clear that the two predicate . . . crimes were so

inextricably intertwined that no rational juror could have found that [the

defendants] carried a firearm in relation to one predicate but not the other.” Id. at

41. So, too, with Granda’s predicates. See also In re Cannon, 931 F.3d 1236,

1243–44 (11th Cir. 2019) (observing in dicta that, even on the limited record

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available at the second or successive § 2255 petition authorization stage, there was

“some indication that” the challenged § 924(o) conviction “did not rest solely” on a

Hobbs Act conspiracy predicate “because (1) the robberies were inextricably

intertwined with the [alternative predicate of] conspiracy to possess with intent to

distribute cocaine and marijuana, and (2) the jury found the narcotics conspiracy

proven beyond a reasonable doubt.”); In re Navarro, 931 F.3d 1298, 1302 & n.2

(11th Cir. 2019) (concluding based on the record available -- a factual proffer

which the § 2255 petitioner had acknowledged was accurate -- that Hobbs Act

conspiracy and drug trafficking predicates “seem[ed] inextricably intertwined,

given the planned robbery underlying the charge for conspiracy to commit Hobbs

Act robbery was the robbery of a drug stash house”).

Granda cites no record evidence to suggest otherwise. At trial, he did not

offer a theory that would have permitted the jury to drive a wedge between any

plan to possess a firearm in furtherance of his conspiracy-to-rob and his attempt-to-

rob. As we’ve noted, Granda’s defense at trial was that he believed Paulino, the

leader of the conspiracy, was working as a government informant; Granda thus

argued that he thought he was assisting a legitimate law enforcement effort and

lacked the requisite criminal intent. But the jury plainly did not credit this account,

finding Granda guilty of conspiracy and attempt to commit robbery and to possess

cocaine with intent to distribute, along with attempted carjacking. If the jury did

24 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 25 of 38

not believe Granda’s claim that he thought he was helping a government agent

with respect to planning to possess a firearm in furtherance of the conspiracy-to-

rob count, it could not believe this claim with respect to the other counts, either.

Granda did offer a theory that might have permitted jurors to distinguish

between his conspiracy-to-rob and the drug-trafficking offenses -- he argued “that

he knowingly participated in a robbery, but not a cocaine robbery,” Granda, 346 F.

App’x at 527 -- but the jury rejected this defense, too, finding beyond a reasonable

doubt that he conspired and attempted to possess cocaine with the intent to

distribute.3 And we know 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. Besides the lack of any record

evidence to suggest such a split, the district court instructed the jury that it must

“unanimously agree upon the way in which the defendant” violated § 924(o). See

Lance Cannon, No 16-16194, manuscript op. at 46 (relying on a similar instruction

to conclude “that it is not possible some of the jurors found that the defendants

carried a firearm only during the Hobbs Act robbery conspiracy, while some other

3 We also rejected Granda’s lack-of-knowledge argument on direct appeal because there was sufficient evidence from which the jury “could have reasonably inferred that [Granda] was a knowing participant in a drug conspiracy.” Granda, 346 F. App’x at 527. And that is exactly the inference the jury drew.

25 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 26 of 38

jurors found that they did so only during the cocaine conspiracy”); In re Price, 964

F.3d 1045, 1049 (11th Cir. 2020) (“We not only can, but we must, presume that

juries follow their instructions.”).

Granda argues, nevertheless, that the jury’s acquittal on Count 7 -- which

charged Granda with using and carrying a firearm during, and with possessing a

firearm in furtherance of, a crime of violence and drug-trafficking crime in

violation of § 924(c) -- suggests “that the jury convicted him of § 924(o) based on

his conduct in joining the conspiracy, rather than because the jury found that he

used or possessed a firearm in connection with any substantive crime.” But the

jury’s conclusion that Granda did not actually possess a firearm in connection with

a crime of violence or drug-trafficking crime, but did conspire to do so, is just as

consistent with predicating the § 924(o) conviction on the other inchoate crimes --

attempt-to-rob, attempt-to-carjack, and attempt/conspiracy to possess cocaine with

intent to distribute -- as it is with predicating the § 924(o) conviction on the

conspiracy-to-rob crime. Such equipoise does not help Granda meet his burden to

show a substantial likelihood of actual prejudice.

In short, just as in Lance Cannon, the alternative predicate offenses are

inextricably intertwined -- each arose from the same plan and attempt to commit

armed robbery of a tractor-trailer full of cocaine. The tightly bound factual

relationship of the predicate offenses precludes Granda from showing a substantial

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likelihood that the jury relied solely on Count 3 to predicate its conviction on

Count 6. Cf. Lomelo v. United States, 891 F.2d 1512, 1516, 1519 (11th Cir.

1990).

3. Granda cannot show actual innocence.

Inasmuch as Granda cannot establish both cause and prejudice, his only way

around procedural default would be to establish that he is actually innocent of the

§ 924(o) conviction. This he cannot do. The actual innocence exception to the

procedural default bar is “exceedingly narrow in scope as it concerns a petitioner’s

actual innocence rather than his legal innocence. Actual innocence means factual

innocence, not mere legal innocence.” Lynn v. United States, 365 F.3d 1225, 1235

n.18 (11th Cir. 2004) (alterations accepted) (internal quotation marks and citations

omitted). “To establish actual innocence, [the] petitioner must demonstrate that, in

light of all the evidence, it is more likely than not that no reasonable juror would

have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal

quotation marks and citation omitted).

To demonstrate actual innocence of the § 924(o) offense, Granda would

have to show that no reasonable juror would have concluded he conspired to

possess a firearm in furtherance of any of the valid predicate offenses. In the face

of the overwhelming corpus of evidence of Granda’s plan to possess a firearm in

furtherance of an attempted robbery of a cocaine truck, Granda cannot make this

27 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 28 of 38

showing, nor does he try. Instead, he admits that his actual innocence argument

“rises and falls with the merits of [his] argument that his [§ 924(o)] conviction is

‘based on’ conspiracy to commit Hobbs Act robbery.” But the same shortcoming

that prevents Granda from showing actual prejudice -- that the valid drug-

trafficking and crime-of-violence predicates are inextricably intertwined with the

invalid conspiracy-to-rob predicate -- makes it impossible for Granda to show that

his § 924(o) conviction was in fact based on the conspiracy-to-rob predicate.

Since Granda can show neither cause, nor prejudice, nor actual innocence,

he cannot overcome procedural default.

C. Even were we to assume that the overlap between the valid and invalid

predicates did not bar Granda’s claim on procedural default grounds, the same

problem would rear its head again on the merits. The inextricability of the

alternative predicate crimes compels the conclusion that the error Granda

complains about -- instructing the jury on a constitutionally invalid predicate as

one several of potential alternative predicates -- was harmless.

On collateral review, the harmless error standard mandates that “relief is

proper 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

28 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 29 of 38

harmful.” Davis v. Ayala, 576 U.S. 257, 267–68 (2015) (internal quotation marks

and citations omitted); Ross v. United States, 289 F.3d 677, 682 (11th Cir. 2002)

(per curiam) (applying this standard to a § 2255 motion). Put another way, the

court may order relief only if the error “resulted in actual prejudice.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks and citation

omitted).

“We do not phrase the [Brecht] requirement as a burden of proof, for it is

not.” Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1111 n.26 (11th Cir.

2012); see O’Neal v. McAninch, 513 U.S. 432, 436, 438 (1995) (explaining that

Brecht’s use of language suggesting the petitioner must establish prejudice “is not

determinative” and “deliberately phras[ing] the issue . . . in terms of a judge’s

grave doubt, instead of in terms of ‘burden of proof’”); McWilliams v. Comm’r,

Ala. Dep’t of Corr., 940 F.3d 1218, 1230 (11th Cir. 2019) (Jordan, J., concurring in

the judgment) (Brecht “is not a burden of proof.”). Instead, the reviewing court

should “ask directly” whether the error substantially influenced the jury’s decision.

O’Neal, 513 U.S. at 436. Still, if the court “cannot say, with fair assurance, after

pondering all that happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error,” the court must

conclude that the error was not harmless. Trepal, 684 F.3d at 1114 (quoting

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O’Neal, 513 U.S. at 437). We review de novo the question of harmlessness under

Brecht. Phillips v. United States, 849 F.3d 988, 993 (11th Cir. 2017).

This record does not provoke grave doubt about whether Granda’s § 924(o)

conviction rested on an invalid ground. As we have explained, Granda’s

conspiracy to commit Hobbs Act robbery was inextricably intertwined with the

other predicate offenses. There is little doubt that if the jury found that Granda

conspired to possess a firearm in furtherance of his conspiracy to commit Hobbs

Act robbery, it also found that he conspired to possess a firearm in furtherance of

the other crime-of-violence and drug-trafficking predicates of which the jury

convicted him. On this record, there can be no grave doubt about whether the

inclusion of the invalid predicate had a substantial influence in determining the

jury’s verdict. See O’Neal, 513 U.S. at 435 (1995) (“By ‘grave doubt’ we mean

that, in the judge’s mind, the matter is so evenly balanced that he feels himself in

virtual equipoise as to the harmlessness of the error.”); cf. Lance Cannon, No. 16-

16194, manuscript op. at 41 (trial record “ma[de] clear” that no rational juror could

have found that defendants carried firearms in connection with a conspiracy to rob

a cocaine stash house but not also in connection with a conspiracy to possess with

intent to distribute the cocaine to be taken from the house).

Granda marshals several arguments against the application of Brecht. None

are persuasive. First, Granda says that it is improper to rely on the presence of

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alternative, valid grounds for conviction to conduct a harmless error analysis. This

argument largely rests on Stromberg v. California, 283 U.S. 359, 367–68 (1931),

which stands for “the principle that, where a provision of the Constitution forbids

conviction on a particular ground, the constitutional guarantee is violated by a

general verdict that may have rested on that ground.” Griffin v. United States, 502

U.S. 46, 53 (1991); see also Yates v. United States, 354 U.S. 298, 312 (1957)

(“[W]e think the proper rule to be applied is that which requires a verdict to be set

aside in cases where the verdict is supportable on one ground, but not on another,

and it is impossible to tell which ground the jury selected.”), overruled in part on

other grounds by Burks v. United States, 473 U.S. 1, 10–18 (1978).

In Parker v. Sec’y for Dep’t of Corr., also cited by the petitioner, we held

that Stromberg barred the conclusion that an allegedly deficient felony murder

instruction -- the judge had given a written instruction on felony murder but had

failed to mention felony murder during his oral instructions -- was harmless solely

because there was a valid, alternative basis for the petitioner’s first-degree murder

conviction (a premeditation instruction). 331 F.3d 764, 778–79 (11th Cir. 2003)

(“[E]rror with respect to one independent basis 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.”); see also Adams v. Wainwright, 764

F.2d 1356, 1362 (11th Cir. 1985). Thus, in Parker, a panel of this Court focused its

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harmless error analysis only on the allegedly invalid basis for the first-degree

murder conviction (felony murder). 331 F.3d at 779–80. Granda, therefore,

argues that Parker bars us from looking behind his verdict to determine whether his

§ 924(o) conviction might have rested on an alternative, valid ground.

But, notably, after we decided Parker, the Supreme Court held in Hedgpeth

v. Pulido that Stromberg error is subject to the Brecht harmless error standard.

Hedgpeth, 555 U.S. 57, 58, 62 (2008) (per curiam). The Court concluded that a

Stromberg error is not structural; it does not “require[] automatic reversal.” Id. at

60–62. It expressly rejected the standard the Ninth Circuit had applied in that case,

which required that the conviction be overturned unless the court was “absolutely

certain” that the jury relied on a valid ground. Id. at 62 (citation omitted). This

standard was “plainly inconsistent with” Brecht, id., which held that reversal is

warranted only when the petitioner suffered “actual prejudice” from the error,

Brecht, 507 U.S. at 637 (citation omitted). “An instructional error arising in the

context of multiple theories of guilt” does not “vitiate[] all the jury’s findings.”

Hedgpeth, 555 U.S. at 61.

Thus, it is proper to 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. Limiting harmless error review to the invalid basis alone, as Granda

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suggests, would in this case effectively entitle Granda to relief if the jury may have

relied on the invalid predicate to convict. But this result cannot be reconciled with

with Brecht’s requirement that “[t]here must be more than a reasonable possibility

that the error was harmful,” Ayala, 576 U.S. at 268 (internal quotation marks and

citation omitted), or with the Supreme Court’s rejection in Hedgpeth of a standard

requiring automatic reversal if there is any chance that the jury relied on an invalid

basis, see id. (explaining that Brecht rejects the idea that relief is appropriate based

on “mere speculation that the defendant was prejudiced by trial error”) (internal

Supreme Court cases decided since Hedgpeth confirm this conclusion. See

Skilling v. United States, 561 U.S. 358, 414 n.46 (2010) (“The Fifth Circuit

appeared to prejudge this issue, noting that, ‘if any of the three objects of Skilling’s

conspiracy offers a legally insufficient theory,’ it ‘must set aside his conviction.’

That reasoning relied on the mistaken premise that [Hedgpeth] governs only cases

on collateral review. Harmless-error analysis, we clarify, applies equally to cases

on direct appeal. Accordingly, the Fifth Circuit, on remand, should take a fresh

look at the parties’ harmless-error arguments.” (citations omitted)); see also Black

v. United States, 561 U.S. 465, 467, 474 (2010) (recognizing the possibility that

error in instructing an honest-services fraud defendant’s jury on two alternative

theories, one of which was invalidated by Skilling, 561 U.S. at 368, may have been

33 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 34 of 38

harmless). Skilling and Black involved direct review, but to the extent this

distinction makes any difference, the harmlessness inquiry is more searching on

collateral review than on direct review. See Brecht, 507 U.S. at 637.

Next, Granda claims that “[t]he categorical approach requires the Court to

presume that [his] conviction [on] Count 6 rests on [the] Hobbs Act conspiracy.”

This argument misapprehends the categorical approach, which courts use 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 ACCA, 18

U.S.C. § 924(e)(2)(B)(i). Under the categorical approach, we “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) (internal

quotation marks and citation omitted). We first 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. Id.

(quoting Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013)). Next, the court

determines whether that act has an element that brings the offense within the ambit

of the relevant clause. Id.

Granda reasons that because the general verdict does not reveal which

predicate the jury relied on to find guilt for the § 924(o) offense, we should apply

34 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 35 of 38

the categorical approach and just assume that the jury rested its conclusion on the

least culpable of the alternative offenses, which Granda contends is the invalid

Hobbs Act conspiracy predicate. But Granda cites no authority that justifies

extending the categorical approach -- a method for determining whether a

conviction under a particular statute qualifies as a predicate offense under a

particular definitional clause -- to the context of determining on which of several

alternative predicates a jury’s general verdict relied.

Granda claims that the categorical approach must apply because determining

that the jury did not rely solely on the Hobbs Act conspiracy predicate to convict

would constitute impermissible judicial factfinding in violation of Alleyne v.

United States, 570 U.S. 99, 114–16 (2013). Alleyne applies to findings of fact that

increase a mandatory minimum, thereby “alter[ing] the prescribed range of

sentences to which a defendant is exposed . . . in a manner that aggravates the

punishment.” Id. at 108. Such facts, Alleyne holds, must be proven to a jury

beyond a reasonable doubt. Id. For example, a sentencing judge may not look at

the evidence afresh to determine by a preponderance of the evidence whether a

defendant “brandished” a firearm during an offense and is therefore subject to an

increased mandatory minimum. See id. at 117. But 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

35 USCA11 Case: 17-15194 Date Filed: 03/11/2021 Page: 36 of 38

invalid predicate substantially influenced what the jury already found beyond a

reasonable doubt. See Phillips, 849 F.3d at 993. Absent any sound reason for

doing so, we decline Granda’s invitation to adopt what we see as an unprecedented

expansion of the categorical approach.

Finally, In re Gomez, 830 F.3d 1225 (11th Cir. 2016) does not help Granda.

In Gomez, a § 2255 petitioner’s indictment had charged him with carrying and

possessing a firearm “in relation to a crime of violence and a drug trafficking

crime” in violation of § 924(c). Id. at 1226–27. The indictment listed as

predicates two of the other counts charged, conspiracy to commit Hobbs Act

robbery and attempted Hobbs Act robbery. Id. at 1227. A jury convicted Gomez

with a general verdict. Id. We held that Gomez had made a prima facie showing

sufficient to receive authorization to file a second or successive § 2255 motion

alleging that his § 924(c) conviction rested on an invalid predicate “[s]ince the jury

may have found that Gomez only ‘possessed’ a firearm during his Hobbs Act

conspiracy offense.” Id. at 1228. The “general verdict of guilty [did] not reveal

any unanimous finding by the jury that the defendant was guilty of conspiring to

carry a firearm during one of the potential predicate offenses, all of [the] predicate

offenses, or guilty of conspiring during some and not others.” Id. at 1227.

But this prima facie decision is not inconsistent with a holding that, on the

merits, the harmless error inquiry requires an examination of whether alternative,

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valid predicates grounded Granda’s conviction. In Gomez, this Court expressly

noted that it was for the district court to consider the merits of Gomez’s petition --

so it left open the possibility that the district court would apply Brecht on the

merits. Id. at 1228; see also id. at 1229 (Carnes, C.J., concurring) (“The district

court will determine, in the first instance, which crimes constitute the basis for

Gomez’s § 924(c) sentence.”). Thus, Gomez does not 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.

We, therefore, hold, in addition to our conclusion that procedural default

bars Granda’s claim, that Granda did not suffer harm from the erroneous jury

instruction.

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JORDAN, Circuit Judge, concurring in part and concurring in the judgment.

I join Parts I, II, III.A, and III.C of the court’s opinion and concur in the

judgment. Because Mr. Granda cannot prevail on the merits, I would not address

the issue of procedural default and therefore do not join Part III.B.