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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-15729 Non-Argument Calendar ________________________
D.C. Docket No. 8:15-cr-00337-CEH-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA ANTHONY RIVERA,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(September 2, 2020)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM: Case: 16-15729 Date Filed: 09/02/2020 Page: 2 of 16
After a jury trial, Joshua Rivera 1 was convicted of a string of armed robberies
at convenience stores in June 2015 in the Tampa, Florida area. She appeals,
challenging her convictions and 560-month total prison sentence for four counts of
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), two counts of possession of
a firearm in connection with a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A), and one count of possession of a firearm after a felony conviction,
in violation of 18 U.S.C. § 922(g)(1). She raises four issues on appeal: (1) whether
evidence obtained from a motel room and a vehicle should have been suppressed;
(2) whether the court erred in determining that Hobbs Act robbery counts as a
predicate “crime of violence” for the § 924(c) offenses; (3) whether § 403 of the
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222 (2018), prevented
the court from applying an enhanced consecutive sentence of twenty-five years in
prison for the second § 924(c) offense; and (4) whether trial counsel provided
ineffective assistance by failing to challenge the validity of the search warrants and
to move for a competency hearing.
After careful review, we affirm Rivera’s convictions and sentence. First, the
district court properly denied her motion to suppress, and her arguments challenging
1 Rivera states that, since trial, she has come out as transgender and now identifies as a woman. But there is no dispute that at the time of the events in this case she presented as a man. Therefore, we will use Rivera’s preferred feminine pronouns where possible to do so without creating confusion with the record. 2 Case: 16-15729 Date Filed: 09/02/2020 Page: 3 of 16
the search warrant affidavits were not properly raised below and do not show plain
error on appeal. Second, our precedent establishes that Hobbs Act robbery is a crime
of violence for purposes of § 924(c). Third, our precedent also establishes that § 403
of the First Step Act does not apply to her because she was sentenced before that
Act’s enactment. Finally, the record is not sufficiently developed to consider her
claims of ineffective assistance.
I.
We begin with the motion to suppress. The relevant facts, consistent with the
district court’s findings after a suppression hearing, are as follows. From June 7
through 17, 2015, five convenience stores in the Tampa area were robbed during
early morning hours by an unknown Hispanic male brandishing a short-barreled
shotgun. In four of the robberies, the suspect appeared to be wearing the same white
athletic shoes with black edging. Although the suspect’s face was covered,
surveillance footage from inside one of the convenience stores shortly before it was
robbed showed a Hispanic male, whose face was uncovered, wearing similar shoes
as the robber. This person was seen exiting the store and getting into a Ford
“Expedition or van” parked nearby. A dark Ford Expedition was also seen around
the same area and time of two other robberies. Law enforcement was able to obtain
a license plate number for the Expedition that was seen on June 7.
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With this information, law enforcement located the Expedition, which was
registered to Leila Green, at a Knights Inn motel. Approximately five to seven
officers went to the motel to conduct surveillance on the vehicle. While conducting
surveillance, Detective Ronald Corr observed a Hispanic male who matched the
description of the robbery suspect, later identified as Rivera, and a Black female,
later identified as Green, “screaming and cussing at each other” outside of room 314.
Green entered the room and slammed the door. After briefly walking away, Rivera
returned and tried to open the door, which was locked. Rivera then kicked in the
door and entered the room.
Upon seeing these events, Corr radioed the other officers to inform them of a
potential violent domestic situation involving the suspect, and they made the
decision to check on Green’s safety. The officers approached the motel-room door
and an officer identified himself. After a brief conversation with Rivera, officers
entered the motel room and made contact with Rivera and Green, who had a bruise
on her cheek. Meanwhile, another officer, Sergeant Janak Amin, went straight to
the back of the motel room, checked the bathroom, and then turned around. As he
turned around, he saw a white athletic sneaker with black trim on the floor of the
motel room. Recognizing this sneaker from pictures of the robbery suspect, Amin
yelled to everyone in the room to “get out” so the room could be secured and a
warrant obtained. According to Corr, he could also see the sneaker from about
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halfway inside the room. The room was immediately emptied. The events inside
the motel room lasted no more than two minutes.
Based on the discovery of the sneaker, the officers obtained search warrants
for the motel room and Green’s Expedition. In the Expedition, officers found a
short-barreled shotgun similar to the one used in the robberies, among other pieces
of evidence.
Rivera filed a pretrial motion to suppress the fruits of what she maintained
was an illegal search of the motel room. Rivera asserted that the officers began
searching the motel room immediately after entry and found the shoe in a bag, not
in plain view. She further contended that officers had no justification to enter deeper
into the room, where the shoe could allegedly be seen in plain view, because they
had already secured Rivera and determined that Green was safe.
After holding an evidentiary hearing, at which Corr, Amin, and another officer
testified, the district court denied the motion to suppress. The court found that the
officers’ entry into the motel room was justified by exigent circumstances—to check
on Green’s safety. Once inside the room, the court concluded, the officers were
entitled to conduct a limited protective sweep to ensure no one else was present who
could pose a threat to the officers on the scene. And the court found that the shoe
was in plain sight of both Amin, who conducted the protective sweep, and Corr, who
was in the middle of the room.
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We affirm the district court, reviewing its factual findings for clear error and
its application of the law to those facts de novo. United States v. Holt, 777 F.3d
1234, 1255 (11th Cir. 2015).
While warrantless searches and seizures within a home are presumptively
unreasonable, an exception to the warrant requirement permits police to “enter a
private premises and conduct a search if ‘exigent circumstances’ mandate immediate
action.” United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002); see
United States v. Ross, 963 F.3d 1056, 1062 (11th Cir. 2020) (en banc) (explaining
that the Fourth Amendment’s protections may extend to hotel rooms). As relevant
here, “[u]nder the ‘emergency aid’ exception, officers may enter a home without a
warrant to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” United States v. Timmann, 741 F.3d 1170, 1178
(11th Cir. 2013) (cleaned up)).
When officers are lawfully within the premises, they may undertake a
“protective sweep”—a quick and limited search of the premises to protect the safety
of the officers or others—so long as they “possess[] a reasonable belief based on
specific and articulable facts that the area to be swept harbors an individual posing
a danger to those on the . . . scene.” Id. (quoting Maryland v. Buie, 494 U.S. 325,
337 (1990)). “The sweep must be narrowly confined to a cursory visual inspection
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of those places in which a person might be hiding.” United States v. Yarbrough, 961
F.3d 1157, 1163 (11th Cir. 2020) (quotation marks omitted).
Police can seize evidence discovered in plain view during a protective sweep
and use it to obtain a search warrant. United States v. Williams, 871 F.3d 1197, 1202
(11th Cir. 2017). The “plain view” doctrine permits a warrantless seizure “where
(1) an officer is lawfully located in the place from which the seized object could be
plainly viewed and must have a lawful right of access to the object itself; and (2) the
incriminating character of the item is immediately apparent.” United States v. Folk,
754 F.3d 905, 911 (11th Cir. 2014) (quotation marks omitted).
Rivera does not dispute that her violent entry into the motel room on the heels
of a verbal confrontation with the room’s occupant created exigent circumstances
that justified the officers’ warrantless entry. See Timmann, 741 F.3d at 1178. But
she maintains that Sergeant Amin’s “protective sweep” did not occur until after the
officers had secured her. By that time, in Rivera’s view, any “reasonable suspicion
of danger had ended” because the officers had no reason to believe that they would
find any additional persons or weapons in the motel room. Therefore, Rivera
contends, the “officers had no continuing right to search” the motel room without a
search warrant or some other applicable exception.
Here, the district court properly denied the motion to suppress. To begin with,
it’s not clear that resort to the protective sweep doctrine is even necessary in this
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case. Detective Corr testified that he was able to see the sneaker in plain view from
the middle of the motel room, and the district court credited that testimony. See
Holt, 777 F.3d at 1255 (stating that we ordinarily defer to the factfinder’s credibility
determinations). Rivera makes no argument that Corr was not lawfully in that place
or could not lawfully have accessed the sneaker. See Folk, 754 F.3d at 911.
In any event, we agree with the district court that a protective sweep was
authorized under the circumstances. Although officers entered the motel room under
the emergency-aid exception to the warrant requirement, they also had reason to
believe that Rivera was a suspect in multiple robberies involving the use of short-
barreled shotgun and that he had been assisted by one or more persons in a Ford
Expedition. Moreover, as a result of the presence of the Expedition at the motel, the
officers were uncertain as to whether others, apart from Rivera and Green, might be
present in the motel room. The officers had not been monitoring the door to room
314 before seeing Rivera and Green argue, and they entered the motel room only
minutes later. So, there was a risk that the motel room contained another unknown
person with access to a firearm. See United States v. Standridge, 810 F.2d 1034,
1037 n.2 (11th Cir. 1987) (holding that a protective sweep of a motel room was
permissible where “the police had not followed [the defendant] when he went to the
motel and the room had not been constantly watched,” and “thus, the police could
not know whether [the defendant] was alone”). And while Rivera questions the
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timing of the search, the evidence reflects a very rapid sequence of events, where
Sergeant Amin conducted the protective sweep immediately after other officers
entered and made contact with Rivera and Green.
In the uncertain circumstances facing the officers on the scene, officer safety
justified the officer’s cursory visual inspection of the bathroom and back part of the
motel room—places where a person could be hiding. See Yarbrough, 961 F.3d at
1163. And there is no evidence that the sweep went beyond such a cursory visual
inspection. According to testimony at the suppression hearing, it was a purely visual
inspection that took less than a minute and was limited to areas where a person could
be hiding.
Additionally, the plain-view doctrine applies to the discovery of the sneaker
because it was in plain view and its incriminating character would have been
immediately apparent to the officers. 2 See Folk, 754 F.3d at 911. The masked robber
was wearing sneakers with the same distinctive pattern, Rivera matched the
description of a man wearing similar sneakers just before the robbery, and an
Expedition linked to at least one of the robberies was parked at the motel. While a
person’s “[m]ere possession of a similar sneaker” alone may not be enough, Br. of
Appellant at 26, the combined circumstances made the incriminating character of
2 Contrary to the government’s claim, this argument or something like it was presented during the suppression hearing, even if the district court did not directly rule on it. 9 Case: 16-15729 Date Filed: 09/02/2020 Page: 10 of 16
the sneaker in the motel room where Rivera was present immediately apparent.
Because the sneaker could lawfully have been seized, it clearly could have been used
as support for a search-warrant application. See Williams, 871 F.3d at 1202.
Finally, Rivera argues that the affidavits submitted in support of the search
warrants for the motel room and Expedition failed to establish probable cause in
light of “material inconsistencies from witness reports,” so, in her view, the evidence
found during the subsequent searches should be suppressed. Br. of Appellant at 26–
27. But Rivera did not raise this issue until after sentencing, when she submitted a
pro se motion seeking suppression or a new trial. At that point, it was too late to
seek suppression. See Fed. R. Crim. P. 12(b)(3) (requiring that a motion to suppress
evidence be raised before trial). And we normally do not consider arguments for
suppression that were not timely raised below. See United States v. Curbelo, 726
F.3d 1260, 1266 (11th Cir. 2013) (“A defendant who fails to make a timely
suppression motion cannot raise that claim for the first time on appeal.”).
To the extent review is available here, Rivera must establish a plain error, see
United States v. Johnson, 777 F.3d 1270, 1277 (11th Cir. 2015) (“Johnson did not
raise this argument [for suppression] in the district court, so we review the argument
for plain error.”), which requires showing an error that is “clear under current law,”
United States v. Olano, 507 U.S. 725, 734 (1993). She cannot meet that burden.
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“To attack the veracity of a warrant affidavit, a defendant must make a
preliminary showing that the affiant made intentional misstatements or omissions
(or made misstatements with a reckless disregard for their truthfulness) that were
essential to the finding of probable cause.” United States v. Burston, 159 F.3d 1328,
1333 (11th Cir. 1998). Rivera identifies purported inconsistencies between witness
statements, which she claims were selectively omitted from the warrant applications.
But we are not persuaded that the alleged misstatements and “selective omissions”
she identifies—regarding witness descriptions of the robber’s race, clothing, and
firearm—were clearly essential to the finding of probable cause to search the motel
room and Expedition, such that correction is warranted under plain-error review.
See id.; Johnson, 777 F.3d at 1277.
II.
Next, Rivera’s argument that Hobbs Act robbery does not qualify as a “crime
of violence” for purposes of 18 U.S.C. § 924(c) is foreclosed by circuit precedent.
See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018) (“Hobbs Act
robbery is categorically a crime of violence under the use-of-force clause in
§ 924(c)(3)(A).”), abrogated in part on other grounds by United States v. Davis, 588
U.S. __, 139 S. Ct. 2319 (2019). Under our prior-precedent rule, we are bound by a
prior decision unless and until it is overruled by us sitting en banc or by the Supreme
Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).
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Rivera maintains that our decision in In re St. Fleur, 824 F.3d 1337, 1341
(11th Cir. 2016), where we first held that Hobbs Act robbery qualifies as a crime of
violence under the use-of-force clause in § 924(c)(3)(A), lacks any precedential
value because it failed to apply the categorical approach. But even if we agreed with
that argument, this Court subsequently applied the categorical approach in St. Hubert
and held, consistent with St. Fleur, that Hobbs Act robbery is categorically a crime
of violence under the use-of-force clause in § 924(c)(3)(A). 909 F.3d at 346–50.
We are bound by St. Hubert, which has not been overruled or undermined to the
point of abrogation. See Vega-Castillo, 540 F.3d at 1236. Accordingly, we affirm
Rivera’s § 924(c) convictions.
III.
Staying with § 924(c), Rivera contends that we should vacate and remand for
resentencing in light of § 403 of the First Step Act, which amended the penalties for
§ 924(c) offenses. Again, Circuit precedent forecloses her argument.
When the district court sentenced Rivera, § 924(c)(1)(C) provided that each
“second or subsequent [§ 924(c)] conviction” triggered a sentence of no less than
twenty-five years in prison, see 18 U.S.C. § 924(c)(1)(C) (2015), instead of the
ordinary statutory minimum, see id. § 924(c)(1)(A), (B). Like all sentences under
§ 924(c), this enhanced penalty had to run consecutively to “any other term of
imprisonment imposed on the person.” 18 U.S.C. § 924(c)(1)(D). And in the
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Supreme Court’s view, § 924(c)(1)(C) “unambiguous[ly]” required a twenty-five-
year minimum for a “second” (or third or fourth) conviction obtained in the same
proceeding as the first. See Deal v. United States, 508 U.S. 129, 132–34 (1993).
The Court rejected the argument that § 924(c)(1)(C) applied only when a defendant
had a § 924(c) conviction from a prior, separate proceeding. Id. at 134.
In § 403 of the First Step Act, enacted on December 21, 2018, Congress
effectively overruled Deal. Section 403(a) amended § 924(c)(1)(C) so that the
twenty-five-year minimum applies only where a § 924(c) conviction “occurs after a
prior conviction under this subsection has become final.” First Step Act, § 403(a).
In other words, it prevents a defendant from receiving the enhanced penalty for
multiple violations of § 924(c) for the first time in a single prosecution. Instead, the
ordinary minimums apply to each conviction. Section 403(b) states that this
amendment “shall apply 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.” First Step Act, § 403(b) (emphasis added).
In this case, the district court applied the pre-First-Step-Act rules at Rivera’s
2016 sentencing and sentenced him to thirty-five years of imprisonment for the two
§ 924(c) counts (ten years plus twenty-five years) to run consecutively to the
concurrent sentences for the other counts. If Rivera had been sentenced after the
enactment of the First Step Act, her second § 924(c) conviction would have been
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subject to a ten-year minimum, see 18 U.S.C. § 924(c)(1)(B)(i), not a twenty-five-
year minimum, because it did not “occur[] after a prior conviction under this
subsection has become final.” First Step Act, § 403(a). The difference is huge:
fifteen extra years in prison.
Rivera maintains that we should give retroactive effect to § 403 because it
merely clarified Congress’s original intent for the enhanced penalty to apply to only
true recidivists. She further contends that the rule of lenity applies.
But we recently rejected these same arguments in United States v. Smith, 967
F.3d 1196, 1210–13 (11th Cir. 2020), holding that § 403 does not apply to
defendants who were sentenced before the First Step Act’s date of enactment. We
explained that, while § 403 was titled, “Clarification of Section 924(c),” the title of
a statute cannot limit the plain meaning of the text. Id. at 1211–12. And we
concluded that “there is no ambiguity in § 403(b),” which “plainly draws a line based
on the Act’s enactment date and provides that whether the amendments in § 403(a)
apply to a case depends on which side of that line the imposition of the sentence
falls.” Id. at 1212. We further held that “a sentence is ‘imposed’ for purposes of
§ 403(b) when it is pronounced in the district court,” joining the other circuits that
had decided the issue. Id. at 1213. Finally, we stated the rule of lenity did not apply
because there is no ambiguity in § 403. Id.
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Under Smith, Rivera cannot benefit from § 403 of the First Step Act because
she was sentenced before that Act’s enactment date. See id. at 1212. And because
there is no ambiguity in § 403, the rule of lenity does not apply. Id. at 1213.
Accordingly, the district court was required to apply a consecutive twenty-five-year
minimum sentence for Rivera’s second § 924(c) conviction.
IV.
Finally, we consider Rivera’s arguments that her trial counsel provided
ineffective assistance in two ways: (1) failing to raise as a basis for suppression the
alleged omissions and misrepresentations in the search warrant affidavits; and
(2) failing to raise Rivera’s competency despite evidence of mental-health issues.
“Except in the rare instance when the record is sufficiently developed, we will
not address claims for ineffective assistance of counsel on direct appeal.” United
States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). As the Supreme Court
has explained, because the trial record is “devoted to issues of guilt or innocence,”
it ordinarily will not disclose the facts necessary to judge the reasons for counsel’s
actions or omissions. Massaro v. United States, 538 U.S. 500, 504–05 (2003).
“Without additional factual development, moreover, an appellate court may not be
able to ascertain whether the alleged error was prejudicial.” Id. at 505.
For these reasons, “in most cases a motion brought under § 2255 is preferable
to direct appeal for deciding claims of ineffective assistance.” Id. at 504. That’s
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true “even if the record contains some indication of deficiencies in counsel’s
performance.” Id. In a § 2255 proceeding, the “court may take testimony from
witnesses for the defendant and the prosecution and from the counsel alleged to have
rendered the deficient performance.” Id. at 505. Moreover, the § 2255 motion will
often be decided by the same district judge who presided at trial, so the judge will
have a better perspective for determining counsel’s effectiveness and whether any
deficiencies were prejudicial. Id. at 506.
Here, we decline to consider Rivera’s ineffective-assistance-of-counsel
claims on direct appeal. It appears that Rivera did not raise any dissatisfaction with
counsel until after sentencing, when she filed a pro se motion challenging the search-
warrant affidavits. As we have noted, the district court denied the motion without
addressing the merits of her claims. So the record contains few, if any, facts
necessary to judge the reasons for counsel’s actions or omissions. Accordingly, this
is not a rare case where the record is sufficiently developed to decide claims of
ineffective assistance on direct appeal. See Verbitskaya, 406 F.3d at 1337.
V.
In sum, and for the reasons stated above, we affirm Rivera’s convictions and
total sentence.
AFFIRMED.