Mario Bachiller v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 20, 2021
• Docket: 18-11161
• Status: Unpublished

Opinion

USCA11 Case: 18-11161 Date Filed: 05/20/2021 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11161 ________________________

D.C. Docket Nos. 1:16-cv-23880-WJZ; 1:06-cr-20592-WJZ-4

MARIO BACHILLER,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee.

________________________

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

(May 20, 2021)

Before JILL PRYOR, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM: USCA11 Case: 18-11161 Date Filed: 05/20/2021 Page: 2 of 13

Mario Bachiller was ensnared in a reverse sting operation during which he

and several codefendants attempted to rob a tractor-trailer truck purportedly

carrying 80 kilograms of cocaine. A jury convicted him of, among other offenses,

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

trafficking crime, in violation of 18 U.S.C. § 924(c). We affirmed his convictions

and sentence on direct appeal, see United States v. Gomez, 302 F. App’x 868 (11th

Cir. 2008) (unpublished), but after a series of relevant decisions from the Supreme

Court of the United States, his case has returned to us, this time in the form of an

appeal from the denial of his 28 U.S.C. § 2255 motion to vacate his § 924(c)

sentence. After careful review, and with the benefit of oral argument, we affirm.

I.

These are the essential facts of Bachiller’s conviction. Federal law

enforcement agents received information from a confidential informant that a man

named Nelson Peña was interested in robbing a drug stash house. Under the

supervision of federal agents, the CI arranged a meeting with Peña. At that

meeting, a second confidential informant (the “CI”) told Peña that he was looking

for people to steal cocaine stashed in a tractor-trailer, Peña said he was willing to

commit the robbery, and the two discussed some details, including that Peña would

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“get some guys” to commit the robbery with him. Crim. Doc. 272-1 at 177. 1 Peña

then called Reynaldo Aviles, Aviles called Emilio Gomez, and Gomez called

Bachiller.

A few days later, the CI and Peña met to discuss more concrete plans for the

robbery: the CI told Peña he expected the tractor-trailer to contain 80 kilograms of

cocaine, and Peña assured the CI that his crew was trustworthy. Immediately

before and after that meeting, Peña called Gomez, and later that day Bachiller

called Gomez.

The CI eventually met with Aviles and Gomez but not Bachiller. During the

meeting, the CI gave Peña, Aviles, and Gomez details about the tractor-trailer

truck, its drivers, the location of the drugs, how the robbery would take place, and

how the men would divide the drugs afterwards. When Gomez asked whether the

drivers of the truck would be armed, the CI told the men that they “have to take

[their] equipment”—meaning firearms—because he couldn’t “guarantee how those

people are going to react.” Crim. Doc. 273-1 at 48. Gomez also suggested that the

men commit the robbery dressed as police. Within an hour after the meeting

concluded, Aviles called Bachiller twice, Gomez called Bachiller twice, and

Bachiller called Gomez.

1 “Crim. Doc.” numbers refer to the district court’s docket entries in Bachiller’s underlying criminal case, S.D. Fla. No. 1:06-cr-20592. 3 USCA11 Case: 18-11161 Date Filed: 05/20/2021 Page: 4 of 13

The next day, the day of the robbery, the CI, Peña, and Aviles met to discuss

final details of the robbery plan. Immediately before the meeting, Peña, Gomez,

and Bachiller made a flurry of phone calls: Peña called Gomez twice, then Gomez

immediately called Bachiller, then Peña called Gomez again, then Bachiller called

Gomez. Over the course of the hour after the meeting, numerous phone calls were

made among Peña, Guevara, Aviles, Gomez, and Bachiller. Guevara’s friend

Jorge Torres also joined the crew.

That evening, Peña and his crew gathered three or four times at Torres’s

house to “g[e]t everything ready, the guns and stuff.” Crim. Doc. 274-1 at 169.

They discussed their plan to wear police shirts and to shout “Police!” as they

approached the tractor-trailer. Aviles and Peña provided crew members with

police shirts, walkie-talkies, and flashlights. Bachiller arrived at the last of these

meetings and parked his car outside Torres’s house. At the meeting, according to

Guevara, Bachiller “started asking how the stuff was going to happen.” Crim.

Doc. 274-1 at 171. Peña and Aviles explained to Bachiller that they were going to

“ripoff the truck and get the cocaine. Everybody’s going to get their cut. We’re

gonna scream out ‘police’ and everybody go their way.” Id. at 173. Bachiller also

was told the crew planned to use firearms to commit the robbery, and Torres put a

loaded 12-gauge shotgun in the backseat of the Cadillac he, Bachiller, and Guevara

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would drive to the robbery. A few minutes after 10:00 p.m., Peña called the CI to

tell him that the crew was assembled, ready, and waiting.

Approximately 50 minutes later, Peña, Gomez, and Aviles drove to meet the

CI one final time for a drive-by of the parked tractor-trailer. While en route,

Aviles called Bachiller three times. Peña, Gomez, and Aviles met up with the CI

and drove by the tractor-trailer in the CI’s car. Peña told the CI that they planned

to bring firearms and use two or three cars to carry out the robbery. At the

conclusion of the meeting, Peña, Gomez, and Aviles drove away in Gomez’s car.

The three men drove back to Torres’s house, and on the way Aviles called

Bachiller, who was at Torres’s house or nearby.

Torres and Guevara left Torres’s house in the Cadillac, and at some point

Bachiller joined them, sitting in the back seat. Torres and Guevara told Bachiller

he was “sitting on top of the gun and it was loaded.” Crim. Doc. 274-1 at 196. A

little after midnight, the occupants of the Cadillac and their other crew members,

split between two cars, convened at the tractor-trailer’s location, all the while

talking on the phone with one another. When they arrived at the entrance of the

parking lot, Torres, Guevara, and Bachiller donned the police shirts. Several of the

crew members exited their cars; Guevara and Torres, armed with a firearm,

approached the tractor-trailer, and Torres opened the tractor-trailer’s door as Aviles

yelled “police, police” from behind the trunk of his car. Agents immediately

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seized the men, shooting Guevara and Torres in the process. Torres died as a result

of his wounds. When agents arrested Bachiller they found him in possession of a

notebook with Gomez’s cell phone number written in it and keys to the car parked

outside Torres’s house. Bachiller’s cell phone was recovered underneath the gun

in the backseat of the Cadillac.

A grand jury returned an indictment charging Bachiller and his codefendants

with conspiracy to possess with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846 (Count 1);

attempted possession with intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846, and 18 U.S.C. § 2 (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), 2

(Count 4); knowingly carrying a firearm during and in relation to a crime of

violence and drug trafficking crime, and possessing a firearm in furtherance

thereof, as set forth in Counts 1, 2, 3, and 4, in violation of 18 U.S.C.

§§ 924(c)(1)(A), 2 (Count 5); and possessing a firearm and ammunition as a person

previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count 6).

At trial, the government presented the evidence described above. Bachiller

testified in his defense that he hitched a ride with Guevara and Torres not knowing

that they had planned to commit a robbery, that he was forced at gunpoint to don

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the police shirt, and that he tried to escape when he arrived at the scene. He

acknowledged having previously been convicted of several felony offenses.

Before the case went to the jury, the district court instructed that Bachiller

could be guilty of Count 5 if he (1) “committed a drug trafficking offense or crime

of violence charged in Count 1, 2, 3, or 4” and (2) “during the commission of that

offense” he either “knowingly carried a firearm in relation to that drug trafficking

crime or crime of violence” or “knowingly possessed the firearm in furtherance of

that drug trafficking crime or crime of violence.” Crim. Doc. 204 at 19 (emphasis

added). 2 The court further instructed that although it was “sufficient if the

[g]overnment prove[d], beyond a reasonable doubt, that [Bachiller] knowingly

violated the law in either way,” the jury “must unanimously agree upon the way in

which [Bachiller] committed the violation.” Id. at 20. The jury returned a general

verdict finding Bachiller guilty on all counts. The district court sentenced him to a

2 Section 924(c) provides, “any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,” shall receive an additional term of imprisonment. 18 U.S.C. § 924(c)(1)(A). A “crime of violence” means any offense that is a felony and that: (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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). Generally we refer to subsection (A) as the “elements clause” and subsection (B) as the “residual clause.” A “drug trafficking crime” is, as relevant here, “any felony punishable under the Controlled Substances Act,” id. § 924(c)(2), which includes the drug offenses in Counts 1 and 2 of Bachiller’s indictment.

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term of life imprisonment, which included a consecutive 84-month sentence for

Count 5.

Bachiller appealed, and we affirmed his convictions and sentence. Gomez,

302 F. App’x at 869–70. He did not argue that his § 924(c) conviction was based

on an invalid predicate offense. Bachiller filed an initial § 2255 motion raising

issues not relevant here; again, he did not challenge his § 924(c) conviction based

on the predicate on which it was based. His motion was unsuccessful.

Proceeding pro se, Bachiller sought leave to file the instant § 2255 motion,

and we granted him leave to do so. In this § 2255 motion, Bachiller claimed that

his Count 5 § 924(c) conviction must be vacated because it may have been

predicated on conspiracy to commit Hobbs Act robbery, an offense that qualified

as a crime of violence only under § 924(c)’s residual clause. 3 And, he argued, the

residual clause of § 924(c) was invalid under Johnson v. United States, 576 U.S.

591, 597 (2015), which invalidated a similar residual clause in the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). The government opposed

Bachiller’s motion, arguing that Johnson did not invalidate § 924(c)’s residual

clause and that, even if Johnson applied, Bachiller procedurally defaulted his claim

3 At the time he received authorization to file a new § 2255 motion, we had not yet decided whether conspiracy to commit Hobbs Act robbery qualified as a crime of violence only under § 924(c)’s residual clause. Since then, we have held that conspiracy to commit Hobbs Act robbery can qualify as a crime of violence only under that definition. See Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019).

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by failing to raise it during his trial proceedings or on direct appeal. The district

court denied Bachiller relief. With respect to the government’s assertion of

procedural default, the court explained that Bachiller had demonstrated cause to

excuse the default but could not show prejudice because Johnson did not invalidate

§ 924(c)’s residual clause.

This Court denied Bachiller a certificate of appealability because, at the

time, the district court’s decision was in accord with circuit precedent. See Ovalles

v. United States, 905 F.3d 1231, 1252 (11th Cir. 2018) (en banc), abrogated by

Davis v. United States, 139 S. Ct. 2319 (2019). Bachiller sought review in the

Supreme Court. While his petition for a writ of certiorari was pending, the

Supreme Court held that § 924(c)’s residual clause was void for vagueness for the

same reasons that ACCA’s residual clause was void. See Davis, 139 S. Ct. at

2336. The Supreme Court granted Bachiller’s petition for review, vacated this

Court’s judgment, and remanded for further consideration in light of Davis. See

Bachiller v. United States, 140 S. Ct. 101 (2019). On remand, this Court granted

Bachiller a certificate of appealability on his claim that his § 924(c) conviction is

now invalid after Davis.4

4 We have jurisdiction to entertain Bachiller’s Davis claim even though we originally granted him authorization to file a claim based on Johnson. See Granda v. United States, 990 F.3d 1272, 1283–84 (11th Cir. 2021). On remand from the Supreme Court, this Court granted Bachiller a certificate of appealability on “[w]hether, considering . . . Davis . . . , the district court erred in dismissing 9 USCA11 Case: 18-11161 Date Filed: 05/20/2021 Page: 10 of 13

II.

Bachiller challenges his Count 5 conviction on the ground that it may have

rested on an invalid predicate, conspiracy to commit Hobbs Act robbery. See

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

that the jury may instead have based it on a valid predicate—the Count 1 and 2

drug trafficking offenses or the Count 4 attempted Hobbs Act robbery—but argues

that the indictment, general verdict, and jury instructions do not demonstrate as

much, so we must vacate his conviction. The government in turn argues that

Bachiller’s claim is subject to a procedural default and he cannot establish cause

and prejudice or actual innocence such that we can excuse that default. In

response, Bachiller asserts that his claim is jurisdictional in nature and therefore

not subject to a procedural default. He further argues that even if his claim would

have been subject to a procedural default, the government waived the defense by

failing to challenge the district court’s finding of cause.

We need not resolve the parties’ dispute over whether Bachiller’s claim is

procedurally defaulted because his claim fails on the merits. See Dallas v.

Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“As we have said many times and

as the Supreme Court has held, a federal court may skip over the procedural default

Bachiller’s 28 U.S.C. § 2255 motion.” The question of whether Bachiller’s Davis claim is procedurally defaulted is a “threshold ruling” that his certificate of appealability necessarily encompasses. Wright v. Sec’y, Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir. 2002).

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analysis if a claim would fail on the merits in any event.”). The Hobbs Act

conspiracy for which Bachiller was convicted was “inextricably intertwined” with

the drug trafficking convictions that remain valid § 924(c) predicate offenses after

Davis. Granda v. United States, 990 F.3d 1272, 1293 (11th Cir. 2021). Thus, “the

inclusion of an invalid predicate offense—the Hobbs Act conspiracy—in his

indictment and jury instructions was harmless.” Foster v. United States, No. 19-

14771, __ F.3d __, 2021 WL 1742267, at *5 (11th Cir. May 4, 2021).

“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.’”

Granda, 990 F.3d at 1292 (alteration adopted) (quoting Davis v. Ayala, 576 U.S.

257, 267–68 (2015)). “There must be more than a ‘reasonable possibility’ that the

error was harmful.’” Davis, 576 U.S. at 268 (quoting Brecht v. Abrahamson, 507

U.S. 619, 637 (1993)). “Put another way, the court may order relief only if the

error ‘resulted in actual prejudice.’” Granda, 990 F.3d at 1292 (quoting Brecht,

507 U.S. at 637). We must “ask directly whether the error substantially influenced

the jury’s decision,” and if we “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,” then we must conclude that

the error was not harmless. Foster, 2021 WL 1742267, at *5 (internal quotation

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marks omitted). We review de novo the question of harmlessness. Granda,

990 F.3d at 1293.

On this record, we have no grave doubt about whether Bachiller’s § 924(c)

conviction rested on an invalid ground. Bachiller’s conspiracy to commit Hobbs

Act robbery “was inextricably intertwined with the other predicate offenses” that

Bachiller concedes are still valid. Id at 1293. Based on his role in the conspiracy

and attempt to rob the tractor-trailer of a stash of cocaine, the jury unanimously

found him guilty of conspiracy and attempt to possess cocaine with intent to

distribute, conspiracy to commit Hobbs Act robbery, and attempted Hobbs Act

robbery. As in Granda, which is factually very similar to this case, “[t]he 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 [Bachiller] had conspired and attempted to rob the truck in order to

possess and distribute the cocaine it held.” Id. at 1289. Bachiller was a part of

preliminary discussions between Peña and his crew about the plan to rob the

tractor-trailer, met up with them before the attempted robbery and received a

briefing on the plan—including that the crew was stealing cocaine and would be

armed—and rode with his codefendants to the scene. “The objective of the

robbery and the [cocaine charges] was the same: to obtain and [possess] the multi-

kilogram quantity of cocaine that was to be taken by force from the truck.” Id. So

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the jury could not have concluded that Bachiller possessed a firearm in furtherance

of the robbery conspiracy without also finding at the same time that he possessed

the firearm in furtherance of the conspiracy and attempt to obtain the cocaine and

the attempt at the robbery itself. See id.; see also Foster, 2021 WL 1742267, at

*5–6 (same).

Bachiller offered an alternate theory at trial, but the jury rejected it by

finding him guilty. See Granda, 990 F.3d at 1290–91. “And we know that the

jurors did not split into two camps,” id. at 1291, one of which found that Bachiller

only possessed a firearm in furtherance of the Hobbs Act conspiracy, because no

evidence suggests a split and the district court instructed the jury that it “must

unanimously agree upon the way in which [Bachiller] committed the [§ 924(c)]

violation,” Doc. 204 at 20; see Granda, 990 F.3d at 1291.

Each of the predicate offenses for which Bachiller was convicted “arose

from the same plan and attempt to commit armed robbery of a tractor-trailer full of

cocaine.” Granda, 990 F.3d at 1291. “The tightly bound factual relationship of

the predicate offenses” precludes Bachiller from making the requisite showing for

reversible error under Brecht. Id.; see Foster, 2021 WL 1742267, at *6. We

therefore affirm the district court’s denial of his § 2255 motion.

AFFIRMED.