Granda v. United States, 17-15194

• Decision Date: 11 March 2021
• Docket Number: No. 17-15194,17-15194
• Citation: 990 F.3d 1272
• Parties: Carlos GRANDA, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

990 F.3d 1272

Carlos GRANDA, Petitioner - Appellant,

v.UNITED STATES of America, Respondent - Appellee.

No. 17-15194

United States Court of Appeals, Eleventh Circuit.

March 11, 2021

Tracy Michele Dreispul, Sara Wilson Kane, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Petitioner - Appellant.

Sivashree Sundaram, U.S. Attorney's Office, West Palm Beach, FL, Andrea G. Hoffman, Emily M. Smachetti, U.S. Attorney's Office, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Respondent - Appellee.

Before WILLIAM PRYOR, Chief Judge, JORDAN and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

This is Carlos Granda's second trip to our Court. In this reverse sting case, Granda served as the lookout for a criminal crew that attempted to rob a tractor trailer purportedly filled with sixty to eighty kilograms of cocaine. The scheme netted him several serious criminal convictions. On direct appeal, we affirmed his convictions and sentence. Now, Granda appeals the denial of his § 2255 petition. He collaterally attacks his conviction for conspiracy to possess a firearm in furtherance of a crime of violence or drug-trafficking crime in violation of 18 U.S.C. § 924(o). The trial court instructed the jury that to convict on this charge, it could rely on any of several predicate crimes: conspiracy to possess cocaine with intent to distribute; attempt to possess cocaine with intent to distribute; attempted Hobbs Act robbery; conspiracy to commit Hobbs Act robbery; and attempted carjacking. The jury found Granda guilty of each of these crimes, which were independently charged in Granda's indictment.

Granda's claim turns entirely on the observation that one of these offenses -- conspiracy to commit Hobbs Act robbery -- no longer qualifies as a valid crime-of-violence predicate after United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019) and Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019). Granda reasons that the indictment, jury instructions, and general verdict make it impossible to tell for sure whether the jury relied on this invalid predicate or on one or more of the undeniably valid predicates to convict him of violating § 924(o). Granda says we must vacate his conviction because of the possibility that the jury relied on an invalid predicate and, therefore, convicted him of a non-existent crime.

Granda faces two insuperable problems: he cannot overcome the procedural default of his claim (which he raises for the first time on collateral attack), nor could he otherwise prevail on the merits. Among the shortcomings that defeat his claim is a fundamental one that cuts across both the procedural and merits inquiries: all of the § 924(o) predicates are inextricably intertwined, arising out of the same cocaine robbery scheme. On this record, the jury could not have found that Granda conspired to possess a firearm in furtherance of a Hobbs Act conspiracy without also finding that he conspired to possess a firearm in furtherance of his attempted Hobbs Act robbery, as well as in furtherance of conspiring and attempting to possess cocaine with intent to distribute and in furtherance of attempting a carjacking. Each of these crimes remains a lawful predicate for the § 924(o) conviction. Thus, Granda cannot show actual prejudice or actual innocence to excuse his procedural default. Moreover, the overlapping factual relationship between the alternative predicate offenses renders any error in the jury instructions harmless.

Accordingly, we affirm.

I.

A.

In 2007, Carlos Granda's ("Granda") brother Paulino told a confidential informant ("CI") that he was putting together a criminal crew and looking for work. On January 26, 2007, the CI introduced Paulino to a detective who was working in an undercover capacity. The undercover agent claimed to be a disgruntled drug trafficker who wanted to rob his boss; and he knew where in Miami his boss kept a tractor-trailer full of some sixty to eighty kilograms of cocaine. Paulino orchestrated a plan to rob the tractor-trailer at gunpoint. He and his crew planned to approach the truck while armed and dressed as a police S.W.A.T. team, remove and detain the drivers, and steal the truck and the drugs. Paulino explained that he would secure the perimeter by having his associates do surveillance. He added that, if it became necessary, he and his crew were willing to shoot the driver and anyone else who resisted. Appellant Granda's role was to serve as a lookout. Paulino also asked him to bring a gun to the robbery.

Granda and the crew met up at his parents' apartment, where members of the crew packed up guns, as well as construction ties to use as handcuffs. The crew then drove to a warehouse where they expected to find the stash truck. Granda stationed himself in his car near the entrance to the warehouse. Just as a member of the crew approached the truck, police officers revealed themselves and initiated a takedown. One of the would-be robbers raised his revolver, triggering a shootout. In the ensuing minutes, the police killed two members of the crew and wounded two others. Granda attempted to flee in his car but encountered a police blockade. He tried to evade the blockade by turning in front of a police car, striking it. The police arrested Granda, and found handcuffs, but not a firearm, in his car. They did find a loaded Hi-Point 9mm semi-automatic pistol in Paulino's car.

B.

A grand jury sitting in the Southern District of Florida returned a superseding indictment against Carlos Granda and his co-defendants. Granda was charged with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (Count 1); attempting to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 2); conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 3); attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 4); attempted carjacking, in violation of 18 U.S.C. § 2119 (Count 5); conspiracy to use and carry a firearm during and in relation to, and to possess a firearm in furtherance of, a crime of violence and drug-trafficking crime, in violation of 18 U.S.C. § 924(o) (Count 6); and possession of a firearm in furtherance of a crime of violence or drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 7). The indictment listed each of the offenses charged in Counts 1, 2, 3, 4, and 5 as predicate crime-of-violence or drug-trafficking offenses for the § 924(o) offense charged in Count 6.

At trial, Granda's counsel insisted that Granda lacked the requisite criminal intent because he thought Paulino was working as a government informant the whole time. Granda also offered the theory that the government failed to establish that he knew the object of the robbery was to obtain cocaine. Plainly unconvinced, the jury returned a general verdict convicting Granda of Counts 1–6 (but acquitting him of Count 7). The district court then sentenced Granda to concurrent prison terms of 360 months as to Counts 1 and 2, 180 months as to Count 5, and 240 months as to Counts 3, 4, and 6. The sentence also included a five-year term of supervised release and a $100 special assessment on each count. We upheld Granda's convictions and sentence on direct appeal. United States v. Granda, 346 F. App'x 524, 529 (11th Cir. 2009).

Granda filed several unsuccessful collateral attacks, including an earlier § 2255 petition and a petition for a writ of audita querela. He did, however, successfully move the district court for a sentence reduction pursuant to section 3582 of Title 18. The trial court reduced his sentence to 324 months in prison, consisting of concurrent terms of 324 months on counts 1 and 2 to run concurrently with the terms for the other counts.

Proceeding pro se, Granda then sought leave to file the instant § 2255 petition; we granted leave to file this second or successive petition in August 2016. He claimed that his § 924(o) conviction had to be vacated because the supporting predicate may have been a crime that qualified as a crime-of-violence predicate only under § 924(c)'s residual clause. In other words, the jury may have used Count 3 -- the conspiracy to commit Hobbs Act robbery -- as the supporting predicate. See 18 U.S.C. § 924(c)(3)(B) (defining "crime of violence" in part as a felony "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"). Granda argued that § 924(c)'s residual clause was unconstitutionally vague under the reasoning of Johnson v. United States, 576 U.S. 591, 597, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which had invalidated a similar residual clause found in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii). Since the general verdict left open the possibility that the jury had relied on an invalid predicate to convict him of the § 924(o) offense, this conviction must be set aside. The government responded that Granda had procedurally defaulted his claim because he did not raise it on direct appeal, and that, in any event, Johnson did not invalidate the § 924(c) residual clause.

A magistrate judge issued a Report and Recommendation concluding that Granda could not establish actual prejudice to overcome procedural default, and that, while the conspiracy to commit Hobbs Act robbery (Count 3) did not independently support Granda's § 924(o) conviction, his drug-trafficking, attempted Hobbs Act robbery, and attempted carjacking crimes were valid predicates that did so. The district court partially adopted the Report and Recommendation, holding based on then-applicable Eleventh Circuit case law that Johnson did not extend to the § 924(c) residual clause. Moreover, even if Johnson did apply, the district court reasoned that Granda "failed to...