United States v. Jorge L. Torres

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 28, 2022
• Docket: 20-14416
• Status: Unpublished

Opinion

USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-14416 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, Cross-Appellant, versus JORGE L. TORRES,

Defendant-Appellant, Cross-Appellee. USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 2 of 11

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Appeals from the United States District Court for the Southern District of Florida D.C. Docket Nos. 1:08-cr-20231-PCH-6, 1:19-cv-25150-PCH ____________________

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and BRANCH, Circuit Judges. PER CURIAM: Jorge Torres appeals and the United States cross-appeals the order granting his successive motion to vacate, 28 U.S.C. § 2255, and imposing a new sentence of 360 months of imprisonment for conspiring to and attempting to distribute cocaine, 21 U.S.C. §§ 841, 846, and for conspiring to and attempting to commit a Hobbs Act robbery, 18 U.S.C. § 1951. Torres challenges the reason- ableness of his new sentence, and the United States argues that Torres procedurally defaulted his grounds for challenging his orig- inal sentence. Based on our recent decisions in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021), cert. denied, No. 21-6171 (U.S. Mar. 7, 2022), we agree with the government. We vacate and remand. I. BACKGROUND USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 3 of 11

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Officers arrested Torres as he and his coconspirators planned to steal drugs from an alleged stash house in a reverse- sting operation. An undercover agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives posed as a disgruntled drug courier for a Colombian drug organization. The agent recruited seasoned armed robbers led by Freddy Crespo, to steal his alleged shipment of cocaine. During conversations the agent recorded, the conspirators prepared for the agent to be accompanied by an armed guard. Crespo also offered to provide a lookout for law en- forcement and to contribute police gear, which he and his associ- ates typically wore when conducting narcotics robberies. On the day of the planned robbery, Torres and two associ- ates met at the Cookie Dollar Store. In response to a call from Crespo, the three associates drove to an area near a warehouse district. After leaving Torres in the parking lot of a McDonald’s restaurant to surveil the area, the other associates went to a nearby gas station, where they met with other conspirators and the undercover agent as he awaited a telephone call for the loca- tion of the cocaine. Federal agents then arrested the conspirators. The agents searched the car in which Torres had been a passenger and dis- covered gloves, a large machete, and a baseball cap affixed with the seal of the United States of America. The agents discovered in another vehicle similar baseball caps, a shirt bearing a SWAT logo, additional gloves, two gold police-type badges, handcuffs, and loaded firearms. USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 4 of 11

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An associate arrested at the gas station later confessed to committing numerous robberies with Crespo and Torres during which he used a pistol that Torres owned. The associate identified Torres’s pistol among the firearms that the agents seized. The as- sociate also recounted three telephone calls in which Torres in- structed coconspirators to meet at the gas station, imparted that Crespo and two cohorts “were all together with the people with whom the robbery was going to be done,” and informed Crespo that “this thing was looking good” and to go to the warehouse. Torres was convicted of six crimes: conspiring to possess with intent to distribute 5 kilograms or more of cocaine, 21 U.S.C. §§ 841, 846; attempting to possess with intent to distribute 5 kilo- grams or more of cocaine, id. § 841; conspiring to commit Hobbs Act robbery, 18 U.S.C. § 1951(a); attempted Hobbs Act robbery, id.; conspiring to carry a firearm during and in relation to a crime of violence and a drug trafficking crime, id. § 924(o); and using and carrying a firearm during and in relation to a crime of vio- lence and a drug trafficking crime, id. § 924(c)(1)(A). Torres’s in- dictment listed both drug charges and both Hobbs Act charges as predicate offenses for the firearm charges. The district court instructed the jury that the evidence had to prove beyond a reasonable doubt that each firearm crime was committed in relation to or 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, or 4 of the indictment.” For each firearm charge, the district court also instructed the jury that USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 5 of 11

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“[i]t is sufficient if the Government proves, beyond a reasonable doubt, that [Torres] knowingly violated the law in one of those ways; but, in that event, you must unanimously agree upon the way in which [he] committed the violation.” The jury found Torres guilty on all counts in a general verdict. Torres, a career offender, faced an advisory guideline range of 360 months to life imprisonment and a consecutive term of 60 months of imprisonment for possessing a firearm. The district court sentenced Torres to 380 months of imprisonment, consist- ing of 320 months for each drug crime and 230 months for each Hobbs Act crime and for conspiring to use a firearm, all to run concurrently, and of a consecutive term of 60 months for using a firearm. Torres challenged the sufficiency of the evidence for each conviction on direct appeal, and we affirmed. U.S. v. Torres, 361 F. App’x 109 (11th Cir. 2010). We concluded that the evidence of Torres’s discussion of the robbery at the dollar store, travel to the McDonald’s restaurant, conversation with an associate en route to the restaurant, and contribution of a gun to use during the rob- bery supported his convictions for conspiring to and attempting to distribute cocaine. Id. at 116–17. That same evidence, we con- cluded, proved that Torres had conspired to and attempted to af- fect interstate commerce by “knowingly join[ing] in a plan to rob [the undercover agent], and [taking] a substantial step toward that crime by, among other things, arriving at the McDonald’s to await further instructions.” Id. at 117. And we upheld Torres’s USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 6 of 11

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firearm convictions based on the evidence that he “participated in the Cookie Dollar Store meeting . . . and one of the guns found . . . belonged to him,” which provided a “link between [him] and . . . one of the guns used in the attempted robbery” and supported the jury’s finding that he knew “a gun was going to be used in the narcotics robbery.” Id. at 118. Torres twice moved for postconviction relief without suc- cess. See 28 U.S.C. § 2255. Torres first moved to vacate his sen- tence on the ground the district court was biased, but the district court denied his motion. And we denied him a certificate of ap- pealability. United States v. Torres, No. 11-14136-G (11th Cir. Feb. 3, 2012). Later, Torres applied for leave to file a second mo- tion based on Johnson v. United States, 576 U.S. 591 (2015), but we denied that application. United States v. Torres, No. 16-13543 (11th Cir. July 1, 2016). We later granted Torres leave to file a successive motion challenging the validity of his firearm offenses based on United States v. Davis, 139 S. Ct. 2319 (2019). See 28 U.S.C. § 2255(h)(2). We ruled that Torres “made a prima facie showing that his claim satisfie[d] the statutory criteria of § 2255(h)(2) on the basis that his § 924(c) and § 924(o) convictions in Counts 5 and 6 may be uncon- stitutional . . . as [based on] the now invalid residual clause of § 924(c)(3)(B).” With the assistance of appointed counsel, Torres filed an amended motion to vacate. 28 U.S.C. § 2255. He argued that the district court had to presume that his two firearm convictions USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 7 of 11

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rested upon the least of the criminal acts that he committed, which was conspiracy to commit Hobbs Act robbery. Torres ar- gued that, after Davis, Hobbs Act conspiracy no longer qualified as a crime of violence and was an invalid predicate offense that could not support his firearm convictions. And Torres argued, based on Stromberg v. California, 283 U.S. 359 (1931), that the dis- trict court could set aside a general verdict if the jury could have relied on multiple grounds, one of which was invalid. The gov- ernment responded that Torres’s Davis claim was procedurally defaulted. The district court granted Torres’s motion and vacated his convictions and sentences for his two firearm offenses. The dis- trict court ruled that Torres’s Davis claim was not barred by pro- cedural default because his claim was “jurisdictional in nature” and, in the alternative, he provided “cause and prejudice” to over- come the procedural default. The district court then imposed a new sentence of 360 months of imprisonment. II. STANDARD OF REVIEW The application of the doctrine of procedural default to a motion to vacate presents a mixed question of fact and law, which we review de novo. Granda, 990 F.3d at 1286. III. DISCUSSION A federal prisoner can move to vacate, set aside, or correct his sentence on the “ground that . . . sentence was imposed in vio- lation of the Constitution or laws of the United States.” 28 U.S.C. USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 8 of 11

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§ 2255(a). This motion for collateral relief is subject to the doc- trine of procedural default. Granda, 990 F.3d at 1280. That doc- trine bars a defendant from obtaining postconviction relief based on an argument that he could have raised at trial and on direct ap- peal. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). The defendant can overcome the bar by proving cause and preju- dice to excuse his procedural default, or he can bypass the bar by establishing that the alleged sentencing error is jurisdictional. United States v. Bane, 948 F.3d 1290, 1294 (11th Cir. 2020). Jurisdiction refers to “the courts’ statutory or constitutional power to adjudicate the case.” United States v. Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998)). The district courts have the power to adjudi- cate “all offenses against the laws of the United States.”18 U.S.C. § 3231. “So [as] long as the indictment charges the defendant with violating a valid federal statute as enacted in the United States Code, it alleges an ‘offense against the laws of the United States’ and, thereby, invokes the district court’s subject-matter jurisdic- tion.” United States v. Brown, 752 F.3d 1344, 1354 (11th Cir. 2014). The district court erred by classifying Torres’s challenge as jurisdictional. “A jurisdictional defect is one that strips the court of its power to act and makes its judgment void.” McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001) (internal quota- tion marks omitted and alterations adopted). To be sure, after Da- vis, 139 S. Ct. 2319, Torres’s crime of conspiring to commit USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 9 of 11

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Hobbs Act robbery no longer qualifies as a crime of violence. But the invalidation of one of Torres’s four predicate offenses did not divest the district court of the power to adjudicate his criminal charges. Torres’s indictment charged him with violating federal laws that prohibited conspiring to and attempting to use a firearm during and in relation to a crime of violence and a drug trafficking crime. 18 U.S.C. § 924(o), (c)(1)(A). And his indictment alleged three valid predicate offenses: conspiring to possess with intent to traffic cocaine, attempting to possess with intent to traffic cocaine, and attempting to commit a Hobbs Act robbery. Our recent decision in Granda controls this appeal. Torres procedurally defaulted and “cannot collaterally attack his convic- tion on a vagueness theory” he failed to advance at trial or on di- rect appeal. See Granda, 990 F.3d at 1285–86. Like the movant in Granda, Torres challenged the validity of his firearms convictions based on Davis. See id. at 1281–83. And Torres’s indictment also alleged predicate offenses consisting of crimes of violence, one of which was invalid, and of drug trafficking crimes, which were valid. See id. at 1281. And like the movant in Granda, Torres’s jury returned a general guilty verdict after being instructed that they could convict on finding that the firearm offenses were com- mitted in relation to or in furtherance of either a drug trafficking crime, a crime of violence, or both, so long as the jury agreed unanimously on the predicate offense. See id. at 1280. Granda also forecloses Torres’s argument that he can es- tablish cause and prejudice to overcome his procedural default. USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 10 of 11

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Torres possessed at the time of his direct appeal “the building blocks . . . [to make] a due process vagueness challenge to the § 924(c) residual clause.” See id. at 1286–88. And Torres cannot prove actual prejudice to excuse his procedural default. Torres failed to “establish a substantial likelihood that the jury relied only on the . . . conviction [for conspiracy to commit Hobbs Act rob- bery], because reliance on any of [his other convictions] would have provided a wholly independent, sufficient, and legally valid basis to convict” him for conspiring to possess and for possessing a firearm, 18 U.S.C. § 924(o), (c)(1)(A). Granda, 990 F.3d at 1288. All of Torres’s “predicates are inextricably intertwined, arising out of the same cocaine robbery scheme.” See id. at 1280. Torres pro- vided a firearm, acted as a lookout, and coordinated the move- ments of his cohorts to execute their plan to steal cocaine. The jury necessarily must have found that Torres conspired to possess and possessed a firearm in furtherance of the conspiracy to com- mit a Hobbs Act robbery as well as in furtherance of his other crimes of attempting to commit Hobbs Act robbery and of con- spiring to and of attempting to obtain the cocaine. See id. at 1289. Torres’s argument that actual innocence excuses his proce- dural default also fails. “Actual innocence means factual inno- cence, not mere legal innocence.” Id. at 1292 (quoting Lynn v. United States, 365 F.3d 1225, 1235 n.18 (11th Cir. 2004)). Torres argues he is innocent of the firearm offense due to the invalidity of his predicate offense. But we do not “extend the actual inno- cence of sentence exception to claims of legal innocence of a USCA11 Case: 20-14416 Date Filed: 03/28/2022 Page: 11 of 11

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predicate offense justifying an enhanced sentence.” McKay, 657 F.3d at 1199. And Torres concedes that Granda forecloses “his challenge to his § 924(c) conviction [as] based on ‘mere legal insuf- ficiency’ rather than ‘factual innocence’ . . . .” See Granda, 990 F.3d at 1292.

IV. CONCLUSION We VACATE the order granting Torres’s motion to vacate and REMAND for further proceedings consistent with this opin- ion. VACATED and REMANDED.