21-2685 Tavarez v. United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2022
(Argued: January 27, 2023 Decided: August 31, 2023)
No. 21-2685
––––––––––––––––––––––––––––––––––––
EMMANUEL TAVAREZ
Petitioner-Appellant
-v.-
UNITED STATES OF AMERICA
Respondent-Appellee.
Before: LIVINGSTON, Chief Judge, CABRANES, Circuit Judge, and KOVNER, District Judge. *
Petitioner Emmanuel Tavarez challenges his conviction for brandishing a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. § 924(c). Tavarez argues that his firearms conviction cannot survive United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), which held that one of the offenses upon which his § 924(c) conviction was predicated, conspiracy to
Judge Rachel P. Kovner of the United States District Court for the Eastern District *
of New York, sitting by designation.
1 commit Hobbs Act robbery, does not qualify as a “crime of violence.” The United States District Court for the Eastern District of New York (Block, J.) denied Tavarez’s petition, pursuant to 28 U.S.C. § 2255, to vacate his conviction, holding that a drug trafficking conspiracy, for which Tavarez was also convicted, remains as a valid predicate to sustain his firearms conviction. We AFFIRM.
FOR PETITIONER-APPELLANT: ALLEGRA GLASHAUSSER, Assistant Federal Defender, Federal Defenders of New York, Inc., New York, NY.
FOR RESPONDENT-APPELLEE: ALEXANDER A. SOLOMON, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), on behalf of Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.
DEBRA ANN LIVINGSTON, Chief Judge:
Defendant-Appellant Emmanuel Tavarez appeals from an order entered on
August 24, 2021, in the Eastern District of New York (Block, J.), denying his
petition, pursuant to 28 U.S.C. § 2255, to vacate his conviction for a firearms offense
in violation of 18 U.S.C. § 924(c). Tavarez argues that this count of conviction
must be vacated because it is improperly predicated on a conspiracy to commit
Hobbs Act robbery, which is not a “crime of violence.” 1 We agree with Tavarez
1 In relevant part, § 924(c) provides for a mandatory term of imprisonment of five years for “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
2 that his conviction is not properly predicated on his allocution during plea
proceedings to participation in a Hobbs Act robbery conspiracy. We nonetheless
disagree that his firearms conviction and sentence as to Count Three must be
vacated in light of his allocution at the same time to participation in a drug
trafficking conspiracy in which he brandished a firearm. Accordingly, the order
of the district court is AFFIRMED.
BACKGROUND
I. Factual Background
Petitioner Emmanuel Tavarez pled guilty in 2011 to three crimes arising
from his participation in a robbery crew that stole both money and drugs from
drug dealers. Tavarez, a former New York City Police Department officer, used
his law enforcement position to help crew members pose as police and carry out
staged raids on their victims, wearing fake badges and serving fake warrants.
During plea proceedings, Tavarez admitted to participating in multiple
crimes, but focused in particular on two incidents in the early 2000s: a robbery in
Connecticut, in which Tavarez brandished a firearm, and a theft in Long Island,
States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” and seven years “if the firearm is brandished . . . .” 18 U.S.C. § 924(c)(1)(A).
3 during which over five kilograms of cocaine were stolen. 2 Tavarez served as a
lookout in both. The goal of these crimes, Tavarez said, was to steal “narcotics . . .
or money” from “drug dealers,” keeping the cash and selling or otherwise
distributing whatever drugs were taken. App’x 51–52. Tavarez specifically
admitted to knowing at the time he acted as a lookout that robberies were to be
committed, and that their purpose was to obtain “narcotics,” which would either
be sold or in some other manner distributed, “and/or money.” App’x 50, 52. He
pled guilty—without a written agreement—to conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a) (Count One); conspiracy to distribute
narcotics, in violation of 21 U.S.C. §§ 841 and 846 (Count Two); and the use of a
firearm in furtherance of a crime of violence and drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count Three).
At his plea hearing, Tavarez’s initial allocution to these crimes was at times
confused and equivocal, likely in no small part because he decided to plead guilty
at the last minute, on the morning of jury selection before his trial. During this
impromptu allocution before Magistrate Judge Victor Pohorelsky, Tavarez
2 The government asserted during the plea proceedings that as to the Long Island incident, it would prove at trial the theft of drugs from inside a tractor-trailer.
4 initially claimed to not “really have any knowledge of anyone brandishing or
having a firearm” in connection with the Connecticut or Long Island offenses, but
appeared to admit knowledge of the use of firearms in other robberies. App’x
53–54. He then denied that he personally possessed a firearm during the
Connecticut or Long Island crimes, but acknowledged awareness that others did,
and that this was “part of the plan for committing the robberies.” He denied
assisting others in obtaining guns. After much back and forth with both Tavarez
and the government (which included a discussion of aiding and abetting the use
of a firearm in connection with Count Three), Magistrate Judge Pohorelsky
concluded the proceedings and recommended that the district court accept
Tavarez’s guilty plea as to all three counts.
Further plea proceedings commenced before the district court several weeks
later, at Tavarez’s request. These proceedings were for the stated purpose of
“mak[ing] sure the record is clear in terms of [Tavarez’s] involvement with the
conspiracy of those acts that support this indictment”—in particular, his use of a
firearm during the Connecticut robbery and, as his counsel put it, “him being more
than a lookout on the Connecticut robbery.” App’x 77–78. Tavarez’s counsel
focused on clarifying Counts One and Three, explaining that Tavarez did not wish
5 to vacate his plea as to those counts, which the district court had already accepted,
but rather sought to clarify his involvement in the underlying conduct, which he
had minimized in the earlier plea proceeding in light of, inter alia, his
embarrassment in the presence of family members there for the anticipated trial. 3
At that second allocution, after being sworn, Tavarez reaffirmed his guilty plea to
Counts One and Three. In response to the district court’s question about what he
did in connection with the Connecticut robbery, Tavarez clarified that he “was the
lookout and there was a commotion in the house in the side entrance and [he]
entered the house.” App’x 83–85. Tavarez admitted that he did personally
possess a firearm “with respect to the Connecticut robbery specifically” (his
attorney’s words) and acknowledged that he “pulled the gun out” (his own words)
during that robbery. App’x 84–85. Although Tavarez denied that he pointed
his gun at, or “menace[d]” anyone with it, he repeatedly responded “Yes” to the
district court’s questions as to whether he “brandished” the weapon. App’x 85,
87, 90. Tavarez also admitted that he “had my firearm with me in other
robberies” as well. App’x 87.
3 The government indicated that Tavarez was seeking to “correct some misstatements that were made with respect to his role [in] the offense . . . so that he can clarify and get acceptance of responsibility points,” which the government did not oppose. App’x 80.
6 Tavarez was sentenced to 216 months imprisonment on Counts One and
Two, to run concurrently, and 84 months (the mandatory minimum) on Count
Three, to run consecutively. App’x 94; see also 18. U.S.C. § 924(c)(1)(A)(ii). He
did not appeal.
II. Procedural History
After the Supreme Court’s decisions in Johnson v. United States, 576 U.S. 591
(2015), and United States v. Davis, 139 S. Ct. 2319 (2019), and this Court’s decision
in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), Tavarez filed a petition to
vacate his conviction and sentence, pursuant to 28 U.S.C. § 2255, on Count Three,
the gun charge. 4 See United States v. Tavarez, No. 08-CR-242 (FB) (E.D.N.Y.)
(“District Court Docket”), Docket Nos. 1231, 1330. In light of Barrett’s
determination that a conspiracy to commit Hobbs Act robbery does not
4 All three of these cases address § 924’s scheme of enhanced punishment for certain categories of armed offenders. First, Johnson invalidated as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act, which subjected defendants convicted of being a felon in possession of a firearm to harsher punishment if they had three or more previous convictions for a “serious drug offense” or a “violent felony.” See 18 U.S.C. § 924(e)(2)(B). In a similar vein, Davis voided on vagueness grounds § 924(c)’s “risk of force” clause, which set forth punishment for anyone who uses a firearm in connection with 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.” See id., § 924(c)(3)(B). Finally, Barrett held, in light of Davis, that conspiracy to commit Hobbs Act robbery does not categorically qualify as a § 924(c) crime of violence.
7 categorically qualify as a crime of violence and, therefore, can no longer serve as a
valid predicate for a § 924(c) conviction, Tavarez argued that his conviction on
Count Three had to be vacated because it had been predicated only upon the Hobbs
Act robbery conspiracy charged in Count One. The government argued, to the
contrary, that Tavarez’s conviction on the gun charge was not infirm because, even
if not properly predicated upon the Hobbs Act robbery conspiracy, it was still
properly predicated upon the conspiracy to distribute narcotics (Count Two), with
which the robbery conspiracy was intertwined.
The district court denied Tavarez’s petition. The district court reasoned
that because the narcotics conspiracy involved the distribution of drugs stolen
over the course of the robbery conspiracy, Tavarez’s allocution on the firearm
count logically could not have depended solely upon Count One, but rather was
“inextricably intertwined” with both conspiracies. The district court rejected
Tavarez’s argument that, because “Count [Two’s] narcotics charge was not
discussed at his re-allocution,” the “true basis of his plea” to the § 924(c) charge
was his participation in the Hobbs Act robbery conspiracy. App’x 107–08.
The district court concluded that Tavarez’s “use of a gun during various robberies
was ‘inextricably intertwined with, and indeed, in furtherance of [a] narcotics
8 conspiracy,’ such that ‘there was no possibility’ that Tavarez pled guilty ‘only [to]
the Hobbs Act Robbery predicate.’” App’x 106 (quoting United States v. Vasquez,
672 F. App’x 56, 61 (2d Cir. 2016) (summary order)).
We granted a certificate of appealability, and this appeal followed.
DISCUSSION
On appeal, Tavarez argues that (1) his plea allocutions did not connect the
robbery conspiracy to the “separate” drug conspiracy, such that the latter cannot
serve as a predicate for the § 924(c) conviction; and (2) his arguable allocution to
substantive robbery (an uncharged offense) likewise cannot predicate the gun
count. We need address only the first of these arguments.
* * *
We review the district court’s decision to deny Tavarez’s § 2255 petition de
novo. See Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (“We review
a district court’s findings of fact for clear error, and its denial of a Section 2255
petition de novo.”).
As relevant here, a prisoner serving a sentence imposed by a federal court
may petition a court to “vacate, set aside or correct” a sentence where the sentence
was “imposed in violation of the Constitution or laws of the United States, . . . was
in excess of the maximum authorized by law, or is otherwise subject to collateral
9 attack.” 28 U.S.C. § 2255(a). We have previously addressed § 2255 petitions
asserting that a jury was erroneously instructed that it could convict a defendant
on a § 924(c) charge based on an invalid predicate. See, e.g., Colotti v. United States,
71 F.4th 102, 115 (2d Cir. 2023); Stone v. United States, 37 F.4th 825 (2d Cir. 2022).
In that context, collateral relief may be appropriate, but only when the petitioner
establishes both an instructional error and that such instructional error “‘had
substantial and injurious effect or influence in determining the jury’s verdict.’”
Stone, 37 F.4th at 829 (quoting Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008)). We have
said that a § 2255 petitioner asserting Yates error in the context of a § 924(c)
conviction “cannot obtain relief from [the] instructional error . . . when the court,
on the basis of the amplitude of the evidence, combined with the jury’s findings,
concludes with a high degree of confidence ‘that a properly instructed jury would
have found’ that [the petitioner] committed a § 924(c) offense” based on the proper
predicate. 5 Colotti, 71 F.4th at 119 (quoting Stone, 37 F.4th at 832).
In the context of pleas, the Supreme Court has “strictly limited the
circumstances under which a guilty plea may be attacked on collateral review.”
5 Yates error—sometimes called Stromberg error—occurs when a jury is “instructed on alternative theories of guilt and may have relied on an invalid one.” Hedgpeth, 555 U.S. at 58 (citing Stromberg v. California, 283 U.S. 359 (1931); Yates v. United States, 354 U.S. 298 (1957)).
10 Bousley v. United States, 523 U.S. 614, 621 (1998). This is both because of the broad
interest in finality that attends a criminal judgment, see United States v. Frady, 456
U.S. 152, 164 (1982), and the general precept that pleas, which are “considered an
admission of all the elements of the crime,” are “not ordinarily subject to collateral
attack,” Salas v. United States, 139 F.3d 322, 324 (2d Cir. 1998). A petitioner may
seek collateral relief to challenge the constitutional validity of a guilty plea where
a subsequent substantive constitutional or statutory holding creates “a significant
risk that a defendant stands convicted of an act that the law does not make
criminal.” Bousley, 523 U.S. at 620 (internal quotation marks and citation
omitted). But where such a claim was not raised on direct review “the defendant
[must] first demonstrate either ‘cause’ and actual ‘prejudice’ . . . or that he is
‘actually innocent.’” Id. at 622 (citations omitted).
Because the government has not argued otherwise, we assume without
deciding that Tavarez has not procedurally defaulted his claim. 6 On the merits,
we apply the new substantive rule the Supreme Court announced in Davis and
6 We add that because Tavarez pled guilty without a written plea agreement, we do not have occasion to consider any effect of a collateral attack waiver. We generally enforce such agreements when entered into knowingly and voluntarily. See Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016) (“[T]he possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.” (citation omitted)).
11 that we applied in Barrett, recognizing that a § 924(c) conviction based on an
invalid predicate is error. 7 See United States v. Dussard, 967 F.3d 149, 156 (2d Cir.
2020). But even when collateral relief is available, harmless error analysis still
applies. See Kassir v. United States, 3 F.4th 556, 564 (2d Cir. 2021) (“Our Court has
long reserved § 2255 relief for prejudicial errors that are so grave, they ‘result[ ] in
a complete miscarriage of justice.’” (quoting Nnebe v. United States, 534 F.3d 87, 90
(2d Cir. 2008)). And this proposition alone is enough to doom Tavarez’s claim
because Tavarez’s plea to Count Three was predicated not only upon a now-
invalid Hobbs Act robbery conspiracy, but also the still-valid drug trafficking
conspiracy to which he also pled guilty. Accordingly, any Davis error is harmless
because the conviction was, in fact, predicated both on an invalid predicate and a
valid one.8
7 Our decision in Barrett applied the Supreme Court’s holding in Davis to conclude that conspiracy to commit Hobbs Act robbery no longer qualifies as a categorical crime of violence. We have since held that Davis applies retroactively on collateral review. See Hall v. United States, 58 F.4th 55, 62 (2d Cir. 2023). 8 In Kassir, we noted that this Court has not yet decided what harmless error standard applies in the context of a § 2255 proceeding. See 3 F.4th at 564 n.43. We need not reach the question here, as any error in predicating Tavarez’s guilty plea as to Count Three on his participation in a Hobbs Act robbery conspiracy was harmless under either of the two potentially applicable standards. See also Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997).
12 Count Three, the § 924(c) count at issue, charges that from on or about
January 1, 2001, to March 12, 2009, Tavarez and his co-conspirators used and
carried firearms during and in relation to the Hobbs Act robbery conspiracy
charged in Count One and the drug trafficking conspiracy charged in Count Two.
See District Court Docket No. 438 at 3–4. Count Three further charges that these
firearms were knowingly and intentionally possessed in furtherance of these
conspiracies, and were brandished. Tavarez entered a guilty plea to Count Three
and also to both of the underlying conspiracy counts (Counts One and Two).
During his two plea allocutions, moreover, Tavarez admitted to facts that establish
that he possessed and brandished a gun in furtherance not only of a Hobbs Act
robbery conspiracy, but also the drug trafficking conspiracy with which the
robbery conspiracy was factually intertwined. Cf. Salas, 139 F.3d at 324 (noting
that when a § 2255 petitioner invokes an intervening change in law to challenge
whether the facts to which he admitted constitute a crime, he “cannot . . . challenge
the facts underlying his guilty plea”).
At the initial plea allocution, Tavarez was asked what he did in connection
with the two conspiracies, and he replied, “I participated with the robbing of drug
dealers.” App’x 51. When asked whether he knew that the purpose of the
13 robberies was “to obtain narcotics and/or money,” he replied “Yes,” also affirming
that he understood that the narcotics would be sold or otherwise distributed,
App’x 52, and that cocaine in excess of five kilograms was obtained during the
theft of drugs in Long Island, during which he served as a lookout, App’x 56.
Although Tavarez initially disclaimed knowledge of any firearms being involved
in the two conspiracies, App’x 53, he stated later in his first plea allocution that he
knew that some of his co-conspirators were carrying firearms on the two specific
occasions during which he admitted serving as a lookout, and that this was part
of the plan for committing those crimes, App’x 65.
Tavarez’s statements during the initial plea proceeding were further
clarified at his own request during the second proceeding before the district court.
He admitted under oath that during the Connecticut robbery, specifically, he had
his gun with him and, upon noting a commotion in the house during the course of
the robbery, he entered the house and pulled his gun out. App’x 85. When
specifically asked whether he brandished the gun, Tavarez three times responded,
“Yes.” App’x 87, 89–90. He admitted to having his firearm with him in other
robberies as well. App’x 87.
14 Tavarez argues that because the second plea proceeding focused on
clarifying his role with respect to Count One, the Hobbs Act robbery conspiracy,
and Count Three, the § 924(c) charge, “the plea record only connect[s] the § 924(c)
count to a robbery conspiracy.” Appellant’s Br. at 11. We disagree. At the
start, as we have said before, Ҥ 924(c) does not require the defendant to be
convicted of (or even charged with) the predicate crime, so long as there is legally
sufficient proof that the predicate crime was, in fact, committed.” 9 Johnson v.
United States, 779 F.3d 125, 129 (2d Cir. 2015); see also Dussard, 967 F.3d at 157–58.
But here, Tavarez pled guilty to participation in a drug trafficking conspiracy
during the first plea proceeding, and to a § 924(c) count premised in the indictment
9 Thus, in United States v. Rivera, 679 F. App’x 51 (2d Cir. 2017) (summary order), the defendant pled guilty to aiding and abetting murder in connection with an attempted armed narcotics robbery, and urged on appeal that his conviction pursuant to § 924(j) should be vacated because it could not be predicated on attempted robbery after the Supreme Court’s ruling in Johnson. Id. at 55; see also 18 U.S.C. § 924(j) (establishing penalties for anyone who “in the course of a violation of [§ 924(c)] causes the death of a person through the use of a firearm”). We rejected this argument because Rivera had allocuted to “the attempted robbery of [the victim] of narcotics and narcotics proceeds,” id. at 53, such that “his § 924 conviction rest[ed] on a valid predicate in any event, specifically a drug trafficking felony,” id. at 55, even though he only pled guilty to the single § 924(j) count, United States v. Rivera, No. 16-191 (2d Cir. 2017), Docket No. 25 at 23. “Rivera’s own allocution provided the factual basis for the underlying narcotics offense,” we said, notwithstanding the fact that at sentencing the government dismissed the substantive drug trafficking charge. Rivera, 679 F. App’x at 55. 15 on both the admittedly invalid robbery conspiracy predicate and the valid drug
trafficking conspiracy. See District Court Docket No. 438 at 4.
Tavarez argues that his second allocution makes plain that the robbery
and drug trafficking conspiracies were factually distinct, such that his admission
to pulling out and brandishing a gun in connection with the Connecticut robbery
is an inadequate basis on which to conclude that he violated § 924(c) in connection
with his admitted participation in the drug trafficking conspiracy. But this is
incorrect.
To be sure, during the plea proceedings the parties appeared at times to
assume that Tavarez’s account of the Connecticut robbery in which he participated
provided the factual basis for his plea to Count One (the Hobbs Act robbery
conspiracy), whereas the Long Island episode related to Count Two (the drug
distribution conspiracy). Read as a whole, however, Tavarez’s allocution makes
clear that the Connecticut and Long Island jobs were undertaken by the same crew
for the same reasons, and in furtherance of agreements to rob drug dealers and
distribute any drugs that were obtained. Although Tavarez maintained, as a
precise factual matter, that he never brandished a gun in Long Island, he never
suggested that either job was not part and parcel of the same series of criminal
16 acts. He simply allocuted to one event for the purpose of satisfying the essentials
of the drug trafficking conspiracy (i.e., the quantity of drugs involved 10) and to the
other for the purpose of establishing the elements of the conspiracy to commit
Hobbs Act robbery (i.e., to take property from another by use of force, rather than
mere theft). 11
Thus, as a legal matter, Tavarez was charged with, and allocuted to, two
distinct conspiracies. But as a factual matter, Tavarez’s two allocutions make
clear that the two charged conspiracies were intertwined. When Tavarez
admitted to brandishing a firearm in furtherance of one, he necessarily admitted
to brandishing it in furtherance of the other. Accordingly, Tavarez is not entitled
to collateral relief based on the fact that the Hobbs Act robbery conspiracy is no
longer a valid predicate for a § 924(c) charge.
10 Count Two charged Tavarez with conspiracy to distribute and possess with intent to distribute one or more controlled substances, involving one kilogram or more of a substance containing heroin; five kilograms or more of a substance containing cocaine; a substance containing MDMA; and a substance containing marijuana. District Court Docket No. 438 at 3; see also App’x 33, 92. 11In assessing these facts, we consider both of Tavarez’s two allocutions together. We see no merit in Tavarez’s suggestion that a district court may not choose in its discretion to clarify the factual record by means of a partial re-allocution.
17 CONCLUSION
Because Tavarez’s firearms conviction remains properly predicated upon
his participation in a drug trafficking conspiracy, the district court correctly denied
his § 2255 petition. We therefore AFFIRM the judgment of the district court.