United States v. Shamarcus Brandon Nesbitt

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 24, 2020
• Docket: 18-11125
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11125 Non-Argument Calendar ________________________

D.C. Docket No. 8:14-cr-00254-SCB-MAP-1

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

SHAMORCUS BRANDAN NESBITT, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 24, 2020)

Before ED CARNES, Chief Judge, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

Shamorcus Nesbitt appeals from the district court’s second amended final

judgment concerning his conviction and sentence for Hobbs Act robbery,

conspiracy to commit Hobbs Act robbery, using and possessing a firearm in

connection with those crimes, and possessing a firearm as a convicted felon. Case: 18-11125 Date Filed: 04/24/2020 Page: 2 of 13

I.

On February 12, 2015, after a trial in the United States District Court for the

Middle District of Florida, a jury found Nesbitt guilty of conspiracy to commit

Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and 1951(a) (Count 1); Hobbs

Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 2); brandishing a firearm

during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)

(Count 3); and two counts of possession of a firearm or ammunition by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (Counts 4 and 5). Although the jury

verdict did not specify what crime of violence Count 3 was predicated on, the

superseding indictment alleged that the § 924(c) count in Count 3 related to both

the conspiracy to commit Hobbs Act robbery offense in Count 1 and the

substantive Hobbs Act robbery offense in Count 2. Doc. 48 at 2. And the district

court instructed the jury that Nesbitt could be found guilty of Count 3 if the jury

found beyond a reasonable doubt that, among other things, he “committed the

crime of violence charged in Counts I or II of the indictment.” Doc. 126 at 14

(emphasis added).

The district court sentenced Nesbitt to 348 months imprisonment, which

included an 84-month consecutive prison term for Count 3. Nesbitt’s sentence was

enhanced because he was classified as an armed career criminal under the United

States Sentencing Guidelines § 4B1.4. Nesbitt appealed his convictions in July

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2015, raising a single issue: Whether there was insufficient evidence to show that

he brandished the firearm for Count 3. In September 2016, we rejected his

argument and affirmed the district court. United States v. Nesbitt, 669 Fed. App’x

534 (11th Cir. 2016).

On March 29, 2017, Nesbitt moved to vacate his sentence under 28 U.S.C.

§ 2255 for several reasons. Nesbitt v. United States, 2017 WL 5971682, *2 (M.D.

Fla. Dec. 1, 2017). The district court denied some of his claims but set aside his

sentence because he was no longer an armed career criminal under the United

States Sentencing Guidelines after Johnson v. United States, 135 S. Ct. 2551

(2015). Id. The court then conducted a resentencing on March 8, 2018, and

imposed a term of 240 months imprisonment, which included an 84-month

consecutive prison term for Count 3. On March 16, 2018, the court entered a

second amended judgment reflecting its decision.

Nesbitt appeals that second amended judgment.

II.

Nesbitt contends that his 18 U.S.C. § 924(c) conviction was unconstitutional

because it was not predicated on a crime of violence. To be valid, his conviction

must be predicated on a crime of violence as defined by § 924(c)(3)(A). Section

924(c)(3)(A), known as the elements clause, defines a “crime of violence” as “an

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offense that is a felony and has an element the use, attempted use, or threatened use

of physical force against the person or property of another.”

There is a second alternative definition of crime of violence under 18 U.S.C.

§ 924(c)(3)(B), known as the residual clause, but the Supreme Court held that the

residual clause definition is unconstitutionally vague. United States v. Davis, 139

S. Ct. 2319, 2323–36 (2019). Because of Davis, many crimes that were once

classified as crimes of violence no longer are. See, e.g., Brown v. United States,

942 F.3d 1069, 1075–76 (11th Cir. 2019) (concluding conspiracy to commit Hobbs

Act robbery does not qualify as a crime of violence under the elements clause).

Based on the superseding indictment and jury instructions, Nesbitt’s

§ 924(c) conviction was predicated on either conspiracy to commit Hobbs Act

robbery or substantive Hobbs Act robbery. Doc. 126 at 14. Conspiracy to commit

Hobbs Act robbery is not a crime of violence under the elements clause. Brown,

942 F.3d at 1075. But substantive Hobbs Act robbery is. In re Saint Fleur, 824

F.3d 1337, 1340 (11th Cir. 2016).

So based on the superseding indictment and jury instructions it is unclear if a

crime of violence was the predicate offense for Count 3. Neither party contests

any of the analysis contained in the previous four paragraphs. But they do have

their differences. The government argues that the law of the case doctrine bars

Nesbitt’s challenge to his § 924(c) conviction because he did not raise a challenge

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to the residual clause in his 2015 appeal. Nesbitt disagrees, arguing that we should

reach the merits and conclude that the district court plainly erred by permitting

Count 3 to be predicated on either conspiracy to commit Hobbs Act robbery or

substantive Hobbs Act robbery. He asserts that error prejudiced him because there

is a reasonable probability the jury convicted him on Count 3 based only on

conspiracy to commit Hobbs Act robbery, which is not a crime of violence and

thus not a valid predicate offense.

A.

First, law of the case. The law of the case doctrine states that an issue

decided at one stage of a case is binding at later stages of the same case, including

where a party had the opportunity to appeal a lower court’s ruling on an issue but

did not do so. United States v. Escobar-Urrego, 110 F.3d 1556, 1560–61 (11th Cir.

1997). The doctrine prevents an appellant from getting multiple “bites at the

appellate apple.” United States v. Fiallo-Jacome, 874 F.2d 1479, 1482 (11th Cir.

1989). But the “law of the case comes into play only with respect to issues

previously determined.” See Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979); see

also Entek GRB, LLC v. Stull Ranches, LLC, 840 F.3d 1239, 1240 (10th Cir.

2016) (Gorsuch, J.) (concluding the issues must have been “either expressly or

implicitly resolved in prior proceedings in the same court”). And we have

recognized three exceptions to the doctrine: “when (1) the evidence on a

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subsequent trial was substantially different, (2) controlling authority has since

made a contrary decision of the law applicable to the issue, or (3) the previous

decision was clearly erroneous and would work a manifest injustice.” Westbrook

v. Zant, 743 F.2d 764, 768 (11th Cir. 1984).

The government argues that because Nesbitt did not argue in his original

direct appeal (back in July 2015) that his § 924(c) conviction was invalid because

one of the predicate offenses was not a crime of violence, he is barred from raising

that issue now.1 The government’s theory rests on the premise that the district

court “expressly or implicitly resolved” the issue against him in 2015, and he could

have, but did not, challenge that ruling on appeal.

But even if we assume that the government is correct and the law of the case

doctrine applies, Nesbitt can still raise the issue of whether his § 924(c) conviction

was predicated on a crime of violence. He can because “controlling authority has

since made a contrary decision of the law applicable to the issue” after Nesbitt’s

first appeal was decided. See Westbrook, 743 F.2d at 768–69. If we accept the

1 The government states in its briefing that “Nesbitt did not challenge his section 924(c) conviction on any ground in his first direct appeal” but that is incorrect. Nesbitt did challenge his 924(c) conviction in his original direct appeal, on the ground that there was insufficient evidence proving he brandished a firearm. Nesbitt, 669 Fed. App’x 534. But that is not relevant to the government’s argument that because he failed to challenge his conviction in his original appeal “on the ground that it improperly rests on the residual clause of section 924(c)(3)(B) or that Hobbs Act conspiracy does not constitute a crime of violence” he is barred from doing so now.

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government’s position that the district court, at least implicitly, decided this issue

against Nesbitt, it did so because under the law in effect at the time of his direct

appeal in 2015 the residual clause was constitutional. That remained the law until

the Supreme Court held otherwise on June 24, 2019. See Davis, 139 S. Ct. 2319.

Because Davis established a new constitutional rule, see In re Hammond, 931 F.3d

1032, 1039–40 (11th Cir. 2019), and because Davis overruled this Court’s contrary

law, see Davis, 139 S. Ct. 2319 (overruling Ovalles v. United States, 905 F.3d

1231 (11th Cir. 2018)), the law of the case doctrine does not bar Nesbitt’s claim.

B.

Second, the merits. Nesbitt contends that his § 924(c) conviction is invalid

because Count 3, upon which it rests, is a “duplicitous count,” by which he means

“it charges two or more ‘separate and distinct’ offenses.” See In re Gomez, 830

F.3d 1225 (11th Cir. 2016). After all, the government could have charged two

§ 924(c) counts, one predicated on the conspiracy and one predicated on the

substantive crime.

A duplicitous count poses several dangers, including the risk that a “jury

may convict a defendant without unanimously agreeing on the same offense.”

Another risk, limited to cases such as this one, is that the jury convicted Nesbitt

only because it unanimously agreed on the predicate offense of conspiracy to

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commit Hobbs Act robbery, which is not a crime of violence and therefore not a

proper predicate offense.

The parties agree that the question of whether Nesbitt’s § 924(c) conviction

is valid is analyzed under plain error review because Nesbitt failed to raise the

duplicity issue in the district court at the time the error occurred (including when

the district court instructed the jury that it could base its § 924(c) verdict on either

Count 1 or Count 2). See Fed. R. Crim. P. 52(b). The plain error rule places a

“daunting obstacle” before Nesbitt. United States v. Pielago, 135 F.3d 703, 708

(11th Cir. 1998). “To demonstrate plain error, the defendant must show that there

is (1) error, (2) that is plain and (3) that affects substantial rights.” United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). “If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. The plain error test is meant to be difficult to satisfy.

See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005) (“[W]e have

explained that our power to review for plain error is limited and circumscribed,

that the plain error test is difficult to meet, and that the plain error rule places a

daunting obstacle before the appellant.”) (quotations and citations omitted);

Pielago, 135 F.3d at 709 (“The narrowness of the plain error rule is a reflection of

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the importance, indeed necessity, of the contemporaneous objection rule to which

it is an exception.”). Nesbitt cannot satisfy it.

Even if the district court committed an error “that is plain” by permitting two

predicate offenses to underly the § 924(c) charge, Nesbitt cannot show that error

affected his substantial rights. To establish that the error affected his substantial

rights, he would have to demonstrate “a reasonable probability that, but for the

error, the outcome of the proceeding would have been different.” Molina-Martinez

v. United States, 136 S. Ct. 1338, 1343 (2016) (quotation marks omitted). He has

not, and cannot, do that.

The evidence is overwhelming that substantive Hobbs Act robbery was a

predicate offense for Nesbitt’s § 924(c) count. Nesbitt does not contest that he is

guilty of substantive Hobbs Act robbery. And as we already held in our opinion

addressing his 2015 direct appeal, the evidence showed that “Nesbitt displayed all

or part of the firearm during the robbery in order to intimidate” one of the

employees of the Little Ceaser’s restaurant that he robbed. Nesbitt, 669 Fed.

App’x at 535 (alterations and quotation marks omitted). Nesbitt did “not dispute

that he robbed the Little Caesar’s, or that he carried a gun while doing so.” Id.

And the only time during trial it was alleged that he brandished a firearm was

during the robbery, as opposed to a time before the robbery but during the

conspiracy. Nesbitt offers no evidence that had he contemporaneously objected to

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the allegedly duplicitous count the outcome of the proceeding would have been

any different.

Had Nesbitt objected to the superseding indictment and prevailed, he would

have been charged with two § 924(c) firearm counts: one count would have had

conspiracy to commit Hobbs Act robbery as the predicate and the other would have

had substantive Hobbs Act robbery as the predicate. Nesbitt cannot show a

reasonable probability that he would not have been convicted of the § 924(c) count

tied to substantive Hobbs Act robbery, which would have left him in the same

place, guilty of one § 924(c) count.2 Had he objected to the jury instructions, the

outcome also would have been the same. The judge would have required the jury

to unanimously agree on the predicate offense, and the evidence is clear the jury

would have all agreed substantive Hobbs Act robbery was a predicate offense. In

either scenario, no reasonable probability of a different outcome exists.

Nesbitt’s counterarguments don’t convince us otherwise. He argues that In

re Gomez requires us to assume that his § 924(c) offense rests on the least culpable

of the offenses alleged to support the conviction, in this case conspiracy to commit

Hobbs Act robbery. 830 F.3d 1225 (11th Cir. 2016). But Gomez involved an

2 We assume any § 924(c) conviction tied to conspiracy to commit Hobbs Act robbery would be invalid because conspiracy to commit Hobbs Act robbery is no longer a qualifying crime of violence. Brown, 942 F.3d at 1075.

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application for permission to file a second or successive 28 U.S.C. § 2255 motion.

Id. at 1226. In that scenario, all an applicant has to do to obtain permission is

make a prima face showing that he satisfies the criteria of § 2255. See id. at 1229

(noting applicant has only made “a prima facie showing that his conviction may”

be unlawful) (emphasis added) (Carnes, J., concurring); In re Holladay, 331 F.3d

1169, 1173 (11th Cir. 2003) (applicant need show only a “reasonable likelihood”

of success). But here the merits are before us, so we can decide if substantive

Hobbs Act robbery supports Nesbitt’s § 924(c) conviction — and it does.

Nesbitt cites Alleyne v. United States in support. 570 U.S. 99 (2013). In

Alleyne the Supreme Court held that factual findings that increase the mandatory

minimum sentence for any crime are “elements [of the offense] and must be

submitted to the jury and found beyond a reasonable doubt.” Id. at 103. We have

held that an “indictment that lists multiple predicates in a single § 924(c) count

allows for a defendant’s mandatory minimum to be increased without the

unanimity Alleyne required.” Gomez, 830 F.3d at 1227. That is because some of

the jurors might have though Nesbitt used the gun during the conspiracy to commit

Hobbs Act robbery, while the others thought he did so only during the substantive

Hobbs Act robbery. See id. So Alleyne prohibits a judge from making the factual

determination about which predicate offense supported the § 924(c) count when it

is not clear what the jury has decided. Id. Alleyne does not help Nesbitt because

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the district court did not make a factual determination about which predicate

offense supported the § 924(c) count.

Nesbitt cites Alleyne and In re Gomez to argue that we cannot conduct plain

error review because in order to determine if a reasonable probability of a different

outcome would result, we would have to engage in prohibited factfinding. So

presumably, we should ignore the requirements of the plain error rule and conduct

a full-on merits review. That is wrong. Neither Alleyne nor In re Gomez bars us

from determining if “a reasonable probability [exists] that, but for the error, the

outcome of the proceeding would have been different.” Molina-Martinez, 136 S.

Ct. at 1343; cf. Hedgepeth v. Pulido, 555 U.S. 57, 58 (2008) (improperly

instructing the jury on multiple theories of guilt, one of which is invalid, is not a

structural error and is subject to harmless error review). 3 That is not factfinding. It

is standard third-prong plain error review. And once again, given the

overwhelming evidence that substantive Hobbs Act robbery supports his § 924(c)

conviction, Nesbitt cannot show that a reasonable probability of a different

outcome exists.4

3 In fact, all Alleyne errors are subject to plain error review, which involves the same kind of “reasonable probability” analysis we engage in here. United States v. McKinley, 732 F.3d 1291, 1295–96 (11th Cir. 2013). 4 Nesbitt also suggests that aiding and abetting substantive Hobbs Act robbery is not a crime of violence. It is. In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016) (concluding that aiding and abetting substantive Hobbs Act robbery is a crime of violence under the elements clause and thus supports an aiding and abetting § 924(c) firearm charge). Nesbitt also argues 12 Case: 18-11125 Date Filed: 04/24/2020 Page: 13 of 13

AFFIRMED.

that substantive Hobbs Act robbery is not a crime of violence if a person is convicted under a theory of Pinkerton liability. See Pinkerton v. United States, 328 U.S. 640, 647–48 (1946) (holding that criminal defendants are liable for the reasonably foreseeable actions of their co- conspirators). But that argument is not relevant because the evidence is overwhelming that Nesbitt’s guilt was not dependent on Pinkerton liability; he did not dispute in this trial or during his last direct appeal that he robbed the restaurant and carried a firearm while doing so. See United States v. Gallo-Chamorro, 48 F.3d 502, 506–508 (11th Cir. 1995) (discussing aiding and abetting versus Pinkerton liability and noting that aiding and abetting “has a broader application” and “rests on a broader base” than Pinkerton liability) (quoting Nye & Nissen v. United States, 336 U.S. 613, 620 (1949)). 13