United States v. Carlos McClammy

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 24, 2023
• Docket: 21-6658
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6658

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CARLOS MCCLAMMY, a/k/a Carlos T. McClammy,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:14-cr-00004-HEH-1; 3:15-cv- 00277-HEH)

Argued: December 7, 2022 Decided: July 24, 2023

Before WILKINSON and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished opinion. Judge Rushing wrote the opinion, in which Judge Wilkinson and Senior Judge Floyd joined.

ARGUED: Laura Jill Koenig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 21-6658 Doc: 61 Filed: 07/24/2023 Pg: 2 of 10

RUSHING, Circuit Judge:

Carlos McClammy, a federal prisoner, appeals the district court’s denial of his 28

U.S.C. § 2255 motion challenging the validity of his firearms conviction under 18 U.S.C.

§ 924(c). Because McClammy procedurally defaulted his claim and no grounds for

excusing his default apply, we affirm.

I.

From March 2012 to July 2012, McClammy and two others committed six armed

bank robberies, stealing approximately $46,000. For his role, the Government charged

McClammy with four counts in a criminal information. Two counts were related to the

robberies, and two were related to the firearms.

Count One charged McClammy with conspiracy to commit Hobbs Act robbery in

violation of 18 U.S.C. § 1951. That count listed the six armed robberies as overt acts in

furtherance of the conspiracy. Count Two charged McClammy with committing or aiding

and abetting an April 23, 2012, bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2.

Count Three charged McClammy with brandishing a firearm in furtherance of the April

23, 2012, bank robbery, or aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)

and 2. Finally, Count Four, which is central to this appeal, charged McClammy with

discharging a firearm in furtherance of conspiracy to commit Hobbs Act robbery “as

charged in Count One, Overt Act 6,” or aiding and abetting the same, in violation of 18

U.S.C. §§ 924(c) and 2. J.A. 13. “Count One, Overt Act 6” described a July 10, 2012,

armed bank robbery that McClammy aided and abetted.

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McClammy pleaded guilty to all four counts. In his plea agreement, McClammy

agreed that he was “plead[ing] guilty because [he] is in fact guilty of the charged

offense[s].” J.A. 44. He also “admit[ted] the facts set forth in the statement of facts”

accompanying the plea agreement. J.A. 44. The statement of facts detailed the six bank

robberies McClammy committed, and McClammy acknowledged the Government could

have proven these facts beyond a reasonable doubt. McClammy admitted to aiding and

abetting each bank robbery “by means of actual and threatened force, violence and fear of

injury, immediate and future” against the bank employees. J.A. 56. Regarding the July 10

robbery, the statement of facts described how McClammy “aided and abetted two other[s]

. . . in the armed robbery” of a bank, during which McClammy “possessed, brandished, and

discharged a firearm in furtherance of the crime of violence.” J.A. 56. McClammy

discharged “the firearm . . . inside the bank and in the presence of multiple credit union

employees and customers.” J.A. 56.

At his plea hearing, the district court asked McClammy if he understood what the

Government’s evidence would have been if he had gone to trial, and he answered, under

oath, that he did. McClammy verified that he had “gone over” his “involvement in the

various bank robberies that [we]re charged” with his attorney. J.A. 22. And he

acknowledged that he “explained to [his attorney] the circumstances of a firearm being

discharged during a bank robbery on July 10, 2012.” J.A. 22. His decision to plead guilty,

McClammy confirmed, was “based upon the information” he had regarding the

Government’s case, and his “involvement in these robberies.” J.A. 22. McClammy

affirmed that he was “guilty of discharging a firearm in furtherance of a crime of violence

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as charged in Count [Four].” J.A. 24. He also agreed that the “statement of facts [was]

correct.” J.A. 36. At the conclusion of the hearing, the district court accepted

McClammy’s guilty plea.

The court sentenced McClammy to 432 months’ imprisonment, consistent with the

parties’ joint sentencing recommendation in the plea agreement. McClammy did not

appeal.

A little over a year later, McClammy filed a pro se motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. While McClammy’s motion was pending,

the Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), which

invalidated the residual clause of the Armed Career Criminal Act’s definition of “violent

felony.” And so, over a year after he filed his initial pro se motion, McClammy, now with

the help of counsel, moved to amend his Section 2255 motion to include an argument

related to Johnson. McClammy argued that his Count Four conviction was no longer valid

because “post-Johnson, conspiracy to commit a Hobbs Act robbery fails to categorically

qualify as a ‘crime of violence’” under Section 924(c). J.A. 69. The district court denied

McClammy’s Section 2255 motion as procedurally defaulted and denied as untimely his

motion to amend to include the Johnson claim.

McClammy appealed and, while his appeal was pending, the Supreme Court

decided United States v. Davis, 139 S. Ct. 2319 (2019), which held that Section 924(c)’s

residual clause was unconstitutionally vague. The Government waived its timeliness

challenge to McClammy’s Section 2255 motion and asked this Court to deny relief on

procedural-default grounds instead. Given these changed circumstances, and without

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opining on the merits of McClammy’s Davis claim, we vacated the district court’s order

and remanded McClammy’s motion.

On remand, McClammy reasserted his claim that his Count Four conviction under

Section 924(c) is invalid because it was predicated on conspiracy to commit Hobbs Act

robbery. Specifically, he argued that because Davis invalidated Section 924(c)’s residual

clause and this Court, in United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc),

held that Hobbs Act conspiracy is not a crime of violence under Section 924(c)’s force

clause, his conviction can no longer stand.

The district court again denied McClammy relief. It reasoned that Count Four did

not “only allege[] that the firearm was used or carried during and in relation to conspiracy

to commit Hobbs Act robbery,” but rather it was “predicated on a specific substantive bank

robbery offense” that occurred “on July 10, 2012.” J.A. 183. And bank robbery, the court

continued, remained a qualifying crime of violence.

We granted a certificate of appealability to consider “whether the district court erred

by holding that McClammy’s challenged 18 U.S.C. § 924(c) conviction remains valid

because it was based on the predicate offense of bank robbery, rather than Hobbs Act

conspiracy.” J.A. 187. We have jurisdiction under 28 U.S.C. § 1291, and we “may affirm

on any legal and factual basis fairly presented in the district court.” United States v.

Hopkins, 268 F.3d 222, 224 (4th Cir. 2001) (internal quotation marks omitted).

II.

The Government argues that McClammy procedurally defaulted his challenge to his

Count Four Section 924(c) conviction by failing to raise it in his plea proceedings or on

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direct appeal and that no grounds exist to excuse his default. We agree.

Collateral relief is “an extraordinary remedy” that “will not be allowed to do service

for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal quotation

marks omitted). A prisoner procedurally defaults on a claim if he fails to raise an argument

“in his initial criminal proceeding or on direct appeal.” Marlowe v. Warden, FCI Hazelton,

6 F.4th 562, 571 (4th Cir. 2021). We may excuse such a default only if a prisoner can

demonstrate “either cause and actual prejudice or that he is actually innocent.” United

States v. McKinney, 60 F.4th 188, 193 (4th Cir. 2023) (internal quotation marks omitted).

There is no serious dispute that McClammy procedurally defaulted the claim he

raises now. McClammy never challenged his Section 924(c) conviction during his plea

proceeding or in a direct appeal. 1 See United States v. Fugit, 703 F.3d 248, 253 (4th Cir.

2012). So we can consider his claim only if he can establish (1) cause and prejudice or

(2) that he is actually innocent. Bousley, 523 U.S. at 622.

A.

Our analysis begins with cause and prejudice. We need not address whether

McClammy can establish cause to excuse his procedural default because we conclude that

he cannot show he was prejudiced by the default.

To establish prejudice, a prisoner must show more than “‘a possibility of

prejudice.’” Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original) (quoting

1 McClammy argues that he cannot procedurally default a Davis claim because it presents a new rule of constitutional law. We have held otherwise. See United States v. Green, 67 F.4th 657, 666 (4th Cir. 2023). 6 USCA4 Appeal: 21-6658 Doc: 61 Filed: 07/24/2023 Pg: 7 of 10

United States v. Frady, 456 U.S. 152, 170 (1982)). Instead, he “must show that the default

‘worked to his actual and substantial disadvantage’ and has ‘constitutional dimensions.’”

United States v. Green, 67 F.4th 657, 667–668 (4th Cir. 2023) (quoting Murray, 477 U.S.

at 494) (emphasis in original). And where, as here, a conviction is based on a guilty plea,

we ask if there is a “reasonable probability that, but for the error, [the prisoner] would not

have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). In

other words, a prisoner “‘must convince the court’ that such a decision [to not plead guilty]

‘would have been rational under the circumstances.’” Fugit, 703 F.3d at 260 (quoting

Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). This is a “fact specific” inquiry,

McKinney, 60 F.4th at 196 n.5, that depends on “the particular circumstances of the

individual case,” Frady, 456 U.S. at 170. So we must determine “whether proceeding to

trial would have been objectively reasonable in light of all the facts.” Fugit, 703 F.3d at

260.

On the record before us, McClammy cannot meet this standard. In the statement of

facts expressly incorporated into his plea agreement, McClammy admitted that he aided

and abetted an armed bank robbery on July 10, 2012, where he “possessed, brandished,

and discharged a firearm in furtherance of the crime.” J.A. 56. Bank robbery remains a

valid predicate under Section 924(c)’s force clause. United States v. Caldwell, 7 F.4th 191,

212–213 (4th Cir. 2021). Nothing in the record before us suggests that McClammy would

not have pleaded guilty to the Section 924(c) offense if the Government had labeled the

predicate offense as bank robbery instead of conspiracy to commit Hobbs Act robbery.

Indeed, McClammy admitted he was guilty of both the conspiracy and the specified overt

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act—the July 10 bank robbery itself. McClammy explained to the district court that he

pleaded guilty based on the evidence the Government had against him as well as his

involvement in the various bank robberies. He also admitted he was guilty of discharging

a firearm in furtherance of the robbery. Because the factual basis and the penalty for the

Section 924(c) offense would have been the same, there is no reasonable probability that

McClammy would have proceeded to trial had the Government labeled the predicate

offense as the bank robbery he admitted to committing instead of Hobbs Act conspiracy.

McClammy identifies nothing in the record to suggest that he would not have

pleaded guilty. Indeed, because McClammy admitted that he committed all six armed bank

robberies, that he used firearms in at least two of them, and that the Government could

have proven all this beyond a reasonable doubt, he “was lucky to receive the deal that he

did.” Fugit, 703 F.3d at 260. Had he gone to trial, McClammy “would have undoubtedly

opened himself up to multiple additional charges relating to multiple other” bank robberies

and Section 924(c) convictions. Id. In short, given the circumstances of his case,

McClammy cannot show that he was actually prejudiced by the failure to raise the Davis

objection in his initial criminal proceedings because he cannot show that he would not have

pleaded guilty had the predicate offense been labeled differently.

B.

Nor can McClammy excuse his procedural default by showing that he is actually

innocent. To establish actual innocence, a prisoner must demonstrate that, “in light of all

the evidence,” “it is more likely than not that no reasonable juror would have convicted

him.” Schlup v. Delo, 513 U.S. 298, 327–328 (1995) (internal quotation marks omitted).

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Actual innocence means “factual innocence, not mere legal insufficiency.” Bousley, 523

U.S. at 623. “[T]his standard is not satisfied by a showing that a petitioner is legally, but

not factually, innocent.” United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010)

(internal quotation marks omitted).

McClammy cannot show actual innocence. As noted, McClammy admitted to

discharging a firearm in furtherance of the July 10 bank robbery. So he cannot show that

no reasonable juror would have convicted him of discharging a firearm during a crime of

violence. See Fugit, 703 F.3d at 258 (“[Defendant’s] conceded conduct so surely satisfies

the [statutory] element that it is difficult to conceive of any reasonable juror not convicting

him.” (emphasis in original)); see also Granda v. United States, 990 F.3d 1272, 1292 (11th

Cir. 2021) (concluding that petitioner could not establish actual innocence because of the

“overwhelming corpus of evidence” that he conspired to possess a firearm in furtherance

of an attempted robbery), cert. denied, 142 S. Ct. 1233 (2022). And McClammy does not

provide any new evidence calling into doubt his confession. See, e.g., Reid v. True, 349

F.3d 788, 806 (4th Cir. 2003) (“He offers no new evidence at all, and his assertion of actual

innocence fails on this basis.”); Finch v. McKoy, 914 F.3d 292, 298–299 (4th Cir. 2019)

(“To establish an actual innocence claim [Petitioner] must support allegations of

constitutional error with new reliable evidence that was not proffered [previously].”).

McClammy contends he is actually innocent because Hobbs Act conspiracy is no

longer a valid predicate offense. But the classification of a predicate offense is a purely

legal question. See United States v. Evans, 848 F.3d 242, 245 (4th Cir. 2017). Thus, any

success on that claim amounts to showing legal insufficiency, not factual innocence. Cf.

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Pettiford, 612 F.3d at 284 (“[A]ctual innocence applies in the context of habitual offender

provisions only where the challenge to eligibility stems from factual innocence of the

predicate crimes, and not from the legal classification of the predicate crimes.”). 2

III.

Because McClammy procedurally defaulted the claim he seeks to raise and has not

shown that his procedural default should be excused, the judgment of the district court is

AFFIRMED.

2 McClammy also argues that bank robbery is not a crime of violence after Borden v. United States, 141 S. Ct. 1817 (2021). We need not consider that argument because McClammy did not raise it in his informal brief, he waived it in the district court, it falls outside the scope of the certificate of appealability, and it is procedurally defaulted without excuse. See United States v. Boyd, 55 F.4th 272, 279–280 (4th Cir. 2022); United States v. Herrera-Pagoada, 14 F.4th 311, 318 (4th Cir. 2021); United States v. Hairston, 754 F.3d 258, 260 (4th Cir. 2014). Even if we considered his argument, it would fail on the merits. McClammy claims that to be a crime of violence, an offense must require a mens rea greater than knowledge. But that is an incorrect interpretation of Borden. See United States v. Manley, 52 F.4th 143, 150 (4th Cir. 2022), cert. denied, 2023 WL 3158388 (U.S. May 1, 2023) (No. 22-946). 10