United States v. Ismael Camacho

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 10, 2023
• Docket: 21-10943
• Status: Unpublished

Opinion

USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-10943 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISMAEL CAMACHO,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:96-cr-00443-JEM-6 ____________________ USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 2 of 13

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No. 21-11753 Non-Argument Calendar ____________________

ISMAEL CAMACHO, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-24658-JEM ____________________

Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Ismael Camacho, a federal prisoner, appeals the district court’s partial denial of his authorized successive 28 U.S.C. § 2255 USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 3 of 13

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motion to vacate. The district court granted a certificate of appeal- ability (COA) on the following issue: Whether a § 2255 movant raising a Davis 1 claim bears the burden to show that it is more likely than not that his [18 U.S.C.] § 924(c) conviction resulted solely from the application of § 924(c)’s unconstitutional residual clause and, if not, whether movant is entitled to relief on his Davis challenge to his § 924(c) conviction in Count XI. Camacho argues that his § 924(c) conviction in Count 11 is uncon- stitutional because it is predicated on attempted Hobbs Act extor- tion, which is not a crime of violence post-Davis. Despite that con- viction also being predicated on carjacking, he contends that the invalid predicate is operative because the jury returned a general verdict and attempted Hobbs Act extortion is the least culpable of- fense. Camacho also appeals his 535-month total imprisonment sentence imposed following the partial grant of his § 2255 motion and vacatur of two other § 924(c) convictions. He asserts that the district court erred in refusing to apply the First Step Act of 2018 at resentencing. 2 Because his previous sentence was vacated, he

1 United States v. Davis, 139 S. Ct. 2319 (2019). 2 Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22 (“First Step Act”). USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 4 of 13

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argues that the district court should have applied the Act at the time of his resentencing, which was after the Act’s enactment. 3 We subsequently granted Camacho’s motion to permit sup- plemental briefing as to the impact of the Supreme Court’s decision in United States v. Taylor, 142 S. Ct. 2015 (2022), on his remaining § 924(c) counts after he was resentenced. Camacho argues that his § 924(c) conviction in Count 8 that was predicated on attempted Hobbs Act robbery is invalid after Taylor and that his conviction on Count 8 thus should be vacated and his sentence on his remain- ing § 924(c) count in Count 8 should be reduced from 240 months imprisonment to 60 months. I When reviewing a district court’s denial of a 28 U.S.C. § 2255 motion, we review questions of law de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Similarly, we review de novo whether procedural default precludes a § 2255 movant’s claim, which is a mixed ques- tion of law and fact. Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021), cert. denied 142 S. Ct. 1233 (2022). While the scope of review in a § 2255 appeal is limited to issues specified in the COA, we will read the COA to encompass

3 Camacho moves to stay appellate briefings until we render our decision in United States v. Beneby, No. 19-13387, because it contemplates this same is- sue. Because we needn’t resolve this issue regarding the Act to decide Camacho’s appeal, his motion is DENIED. USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 5 of 13

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procedural issues that must be resolved before we can reach the merits of the underlying claim. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (determining that we could consider the government’s procedural arguments regarding McCoy’s § 2255 motion even though they were not included in the COA). How- ever, we have also held that we may skip procedural default issues if the claim would fail on the merits. See Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020), cert. denied, 142 S. Ct. 124 (2021). We may affirm for any reason supported by the record. Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016). Section 2255 allows federal prisoners to obtain post-convic- tion relief and set aside convictions when a sentence “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). In relevant part, 18 U.S.C. § 924(c) provides: [A]ny person who, during and in relation to any crime of violence . . . for which the person may be prose- cuted 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 punish- ment provided for such crime of violence . . . be sen- tenced to a term of imprisonment of not less than 5 years . . . . 18 U.S.C. § 924(c)(1)(A)(i). The statute defines “crime of violence” as an offense that is a felony and: USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 6 of 13

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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)(A)–(B). The first clause is referred to as the “ele- ments clause” and the latter, the “residual clause.” Davis, 139 S. Ct. at 2324. In Davis, the Supreme Court held that § 924(c)(3)(B)’s residual clause is unconstitutionally vague. Id. at 2324, 2336. Davis announced a new rule of constitutional law that was previously un- available and made retroactive to cases on collateral review by the Supreme Court. In re Hammoud, 931 F.3d 1032, 1037–39 (11th Cir. 2019); see 28 U.S.C. § 2255(h)(2). The Supreme Court recently held that attempted Hobbs Act robbery is not a crime of violence under the elements clause. Taylor, 142 S. Ct. at 2020–21. But car- jacking is a crime of violence under the elements clause. In re Smith, 829 F.3d 1276, 1280–81 (11th Cir. 2016). On collateral review, the harmless-error standard mandates that collateral relief on a Davis claim is proper only if we have “grave doubt” about whether an error had a “substantial and inju- rious effect or influence” in determining the verdict. Granda, 990 F.3d at 1292. In Granda, we explained that a petitioner must show more than a reasonable possibility that the error was harmful and that we would grant relief “only if the error ‘resulted in actual prej- udice’” to the movant. Id. There, we reasoned that the record did USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 7 of 13

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not provoke a grave doubt about whether Granda’s § 924(o) con- viction rested solely on the invalid predicate because it was inextri- cably intertwined with other valid predicate offenses. Id. at 1293. We explained that it was proper to look at the record to determine whether the defendant was actually prejudiced by the invalid pred- icate, in that it led to his conviction as opposed to the jury finding him guilty under a valid predicate. Id. at 1294. We held that “[t]he inextricability of the alternative predicate crimes compels the con- clusion that” instructing the jury on a constitutionally invalid pred- icate as one of several potential alternative predicates was harm- less. Id. at 1292. A § 2255 claim may also, however, be procedurally defaulted if the movant failed to raise the claim on direct appeal. Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998). A movant can overcome this procedural bar by establishing either (1) cause for the default and actual prejudice from the alleged error or (2) actual innocence of the crimes for which he was convicted. Howard v. United States, 374 F.3d 1068, 1072 (11th Cir. 2004). A movant may show cause for failing to raise a claim when, at the time of the default, the claim was “so novel” that the legal basis of the claim was not reasonably available to counsel—but not simply when “subsequent legal developments” made the claim eas- ier to pursue. McCoy, 266 F.3d at 1258 (quotation marks omitted). In Granda, we reasoned that Granda did not lack the building blocks of a due process vagueness challenge to § 924(c)(3)(B)’s re- sidual clause at the time of his appeal in 2009, thus the challenge USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 8 of 13

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was not novel. Granda, 990 F.3d at 1287. To show actual inno- cence, the movant must demonstrate that it is more likely than not a reasonable juror would not have convicted him. Bousley v. United States, 523 U.S. 614, 623 (1998). In Granda, we reasoned that Granda could not make that showing because his Hobbs Act conspiracy charge was inextricably intertwined with valid predi- cate offenses. Granda, 990 F.3d at 1292. Here, Camacho cannot show any error resulted in actual prejudice because attempted Hobbs Act extortion was inextricably intertwined with carjacking, which remained a valid predicate for Camacho’s § 924(c) conviction in Count 11. The record shows that Camacho’s carjacking charge arose out of the same conduct as his attempted Hobbs Act extortion charge, so no reasonable jury could have concluded that Camacho used a firearm in relation to the at- tempted extortion without also concluding that he used a firearm in relation to the carjacking. Accordingly, we affirm as to this issue. II We review de novo a district court’s interpretation of a stat- ute. United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009). When interpreting a statute, we give effect to its plain terms and, if the statute’s language is clear, there is no need to go beyond it into legislative history. United States v. Noel, 893 F.3d 1294, 1297 (11th Cir. 2018). The district court is to apply the law in effect at the time it renders its decision unless there is statutory direction to the contrary. Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 711 (1974). USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 9 of 13

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Section 924(c) imposes a 5-year mandatory minimum sen- tence for the first time someone uses or carries a firearm during and in relation to a crime of violence. 18 U.S.C. § 924(c)(1)(A)(i). Prior to December 21, 2018, if a defendant was convicted of multi- ple violations of § 924(c) for the first time in a single prosecution, each § 924(c) conviction after the first carried a mandatory mini- mum consecutive 25-year sentence.4 Davis, 139 S. Ct. at 2324 n.1. The First Step Act amended § 924(c) on December 21, 2018, to re- quire a 25-year mandatory minimum sentence be imposed only for a violation of § 924(c) “that occurs after a prior conviction under [§ 924(c)] has become final,” thus preventing a defendant from re- ceiving 25-year minimum sentences for multiple violations of § 924(c) for the first time in a single prosecution. See First Step Act § 403(a). Regarding its application to pending cases, § 403 states, “[t]his section, and the amendments made by this section, shall ap- ply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Id. § 403(b). About the section, the Su- preme Court has stated, “Congress changed the law so that, going forward, only a second § 924(c) violation committed ‘after a prior § 924(c) conviction has become final’ will trigger the 25-year mini- mum.” Davis, 139 S. Ct. at 2324 n.1.

4 At the time of Camacho’s convictions, the statute imposed 20-year consecu- tive sentences for multiple violations of § 924(c). 18 U.S.C. § 924(c)(1) (1996). USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 10 of 13

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Under Federal Rule Criminal Procedure 52(a), any error that does not affect substantial rights is harmless and must be disre- garded. Non-constitutional errors are harmless if, viewing the pro- ceedings in their entirety, a court determines that the error did not affect the sentence or had but very slight effect. United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005). Accordingly, even if the district court committed an error at sentencing, remand is unnecessary where that error did not affect the sentence imposed. Williams v. United States, 503 U.S. 193, 203 (1992). An error does not affect the sentence imposed when the district court expressly states that it would have imposed the same sentence regardless of that error. See United States v. Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006). Here, any error by the district court in concluding that § 403(a) did not apply at Camacho’s resentencing was harmless. It is clear from the record, particularly the court’s statements at re- sentencing that are amply supported by the record, that the court’s ruling as to the applicability of § 403(a) did not affect the sentence. Accordingly, we affirm as to this issue. III We review our appellate jurisdiction de novo. United States v. Cody, 998 F.3d 912, 914 (11th Cir. 2021), cert. denied, 142 S. Ct. 1419 (2022). A federal prisoner who wishes to file a second or successive motion to vacate, set aside, or correct sentence is required to move USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 11 of 13

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the court of appeals for an order authorizing the district court to consider such a motion. See 28 U.S.C. § 2255(h), cross-referencing 28 U.S.C. § 2244. A three-judge panel of the court of appeals may grant such authorization only if the proposed motion contains claims premised on either (1) “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no rea- sonable factfinder would have found the movant guilty of the of- fense,” or (2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previ- ously unavailable.” 28 U.S.C. § 2255(h)(1), (2). “The court of ap- peals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie show- ing that the application satisfies the requirements of this subsec- tion.” Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351, 1357–58 (11th Cir. 2007) (explaining that our deter- mination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determina- tion). The district court lacks jurisdiction to hear a claim in a sec- ond or successive § 2255 motion unless we have authorized it. Far- ris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). “[S]ubject matter jurisdiction cannot be waived or conferred on a court by consent of the parties.” Eagerton v. Valuations, Inc., 698 F.2d 1115, 1118 (11th Cir. 1983). “Unless a circuit justice or judge issues a certificate of appeal- ability, an appeal may not be taken to the court of appeals from . . . USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 12 of 13

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the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “[I]n an appeal brought by an unsuccessful habeas pe- titioner, appellate review is limited to the issues specified in the COA.” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). We may construe an appellant’s notice of appeal as a request for a COA. See Dean-Mitchell v. Reese, 837 F.3d 1107, 1112 (11th Cir. 2016) (citing Fed. R. App. P. 22(b)(2) and 11th Cir. R. 22-1(b)). We also may expand a COA sua sponte for exceptional circum- stances. Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013) (collecting cases). “The certificate-of-appealability requirement applies not only to an appeal from the final order in a proceeding under section 2255 but also to an appeal from an amended criminal judgment, to the extent it raises section 2255 issues.” Cody, 998 F.3d at 915. “For example, even in an appeal from a new sentence, to the extent a prisoner appeals the denial of his section 2255 motion as to his con- viction, those claims are part of his section 2255 proceedings and we may not consider them without a certificate of appealability.” Id. (alterations adopted). “By contrast, direct appeal matters that arise after the proceeding under section 2255—for example, an ar- gument that the district court misapplied the sentencing guidelines at a prisoner’s resentencing—do not require a certificate of appeal- ability.” Id. (alterations adopted). USCA11 Case: 21-10943 Document: 49-1 Date Filed: 04/10/2023 Page: 13 of 13

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In St. Hubert, we held that attempted Hobbs Act robbery qualified as a crime of violence under § 924(c)(3)(A)’s elements clause. United States v. St. Hubert, 909 F.3d 335, 347 (11th Cir. 2018), overruled in part by Davis, 132 S. Ct. at 2336, and Taylor, 142 S. Ct. at 2019–21. But, in Taylor, the Supreme Court held that attempted Hobbs Act robbery does not qualify as a crime of vio- lence under § 924(c)(3)(A)’s elements clause. Taylor, 142 S. Ct. at 2019–21 (quotation marks and brackets omitted). Here, we sua sponte expand the COA to include Camacho’s challenge that Count 8 is invalid in light of Taylor. However, we do not have jurisdiction to hear Camacho’s challenge to Count 8 because we explicitly considered and denied Camacho’s request for leave to bring a Davis claim challenging Count 8 in our order grant- ing in part his application to file a second or successive § 2255 mo- tion. Accordingly, we dismiss the claim he raised in his supple- mental brief for lack of jurisdiction. 5 AFFIRMED IN PART AND DISMISSED IN PART.

5Nothing in our decision today, of course, precludes Camacho from seeking permission to file yet another successive § 2255 motion challenging Count 8 on Taylor grounds.