In re Navarro

• Decision Date: 30 July 2019
• Docket Number: No. 19-12612-E,19-12612-E
• Citation: 931 F.3d 1298
• Parties: IN RE: Neil NAVARRO, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

931 F.3d 1298

IN RE: Neil NAVARRO, Petitioner.

No. 19-12612-E

United States Court of Appeals, Eleventh Circuit.

July 30, 2019

Neil Navarro, Coleman, FL, pro se.

Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Successive Habeas Respondent.

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)

Before: ED CARNES, Chief Judge, ROSENBAUM and BLACK, Circuit Judges.

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Neil Navarro has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(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 reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corr. , 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

I. BACKGROUND

Navarro was charged by indictment with several crimes, including conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count One); conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846 (Count Two); attempted possession with intent to distribute cocaine, in violation of §§ 841 and 846 (Count Three); and carrying a firearm in furtherance of a crime of violence and in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Five). Notably, the indictment specified Navarro’s § 924(c) charge was predicated on both conspiracy to commit Hobbs Act robbery, as charged in Count One, and drug-trafficking crimes, as charged in Counts Two and Three.

Pursuant to a written plea agreement, Navarro agreed to plead guilty to Counts One and Five. Like the indictment, the plea agreement clarified that the § 924(c) charge was predicated on both a crime of violence—conspiracy to commit Hobbs Act robbery—and drug-trafficking crimes. Specifically, the agreement stated Navarro

agrees to plead guilty to counts 1 and 5 of the indictment, which counts charge the defendant with knowingly and intentionally conspiring to obstruct, delay, and affect interstate commerce and the movement of articles and commodities in commerce by means of robbery, and knowingly using and carrying a firearm during and in relation to a crime of violence and a drug trafficking crime and possessing a firearm in furtherance of such crimes, in violation of Title 18, United States Code, Sections 1951(a) and 924(c)(1), respectively.

(emphasis added).

The factual proffer supporting the plea agreement stated that, had Navarro proceeded to trial, the government would have established the following. A confidential informant introduced Navarro to an undercover officer (UC) who presented himself as a disgruntled narcotics courier seeking someone to rob at least 15 kilograms of cocaine stored at a stash house. Navarro and Danny Herrera, one of his codefendants, expressed interest in carrying out the robbery, telling the UC, "this is what we do." Navarro informed the UC of his plan, which involved Navarro and his "crew" presenting themselves as law enforcement officers to the guards at the stash house. Navarro assured the UC he and his crew had the guns necessary to commit the robbery. The plan was to split the cocaine they robbed from the stash house evenly among the UC and the members of the crew.

At a subsequent meeting, Navarro and Herrera introduced the UC to a third codefendant, Adrian Gonzales, who would be the final member of the robbery team. The group discussed additional details concerning the robbery, including how they would split the stolen cocaine and how to discreetly sell it following the robbery. On the day the robbery was supposed to occur, the group followed the UC to an undercover facility where they were to await confirmation of the location of the stash house. Once inside the facility, the group had further recorded discussions with the UC regarding the details of their plan to rob the stash house before being arrested. A search of the defendants and their vehicle uncovered two loaded semi-automatic pistols and approximately 27 rounds of ammunition, among other items. Navarro signed both the plea agreement and factual proffer.

At the change-of-plea hearing, Navarro acknowledged he had signed both the plea agreement and factual proffer. He further acknowledged he had read both documents with his attorney prior to signing them and understood the terms of the plea agreement. The court accepted Navarro’s plea, and he subsequently received a total sentence of 93 months’ imprisonment, comprised of a 33-month sentence as to Count One and a consecutive 60-month sentence as to Count Five.

II. DISCUSSION

In his application, Navarro states that he wishes to raise two grounds for relief, both of which rely on United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), as a new rule of constitutional law. In his first claim, Navarro contends that he is serving an unconstitutional sentence because Davis rendered the residual clause of § 924(c)(3)(B) unconstitutionally vague, as a result of which conspiracy to commit Hobbs Act robbery no longer qualifies as a predicate crime of violence. In his second claim, Navarro argues, without elaboration, that Davis also rendered U.S.S.G. § 2K2.1(a)¹ of the Sentencing Guidelines unconstitutionally vague.

On June 24, 2019, the Supreme Court, in Davis extended its holdings in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), to § 924(c) and held that § 924(c)(3)(B) ’s residual clause, like the residual clauses in the Armed Career Criminal Act and 18 U.S.C. § 16(b), is unconstitutionally vague. Davis , 139 S. Ct. at 2324-25, 2336. The Court resolved a circuit split on the issue, rejecting the position that § 924(c)(3)(B) ’s residual clause could remain constitutional if read to encompass a case-specific, conduct-based approach, rather than a categorical approach. Id. at 2325 & n.2, 2332-33. The Court in Davis emphasized that there was no "material difference" between the language or scope of § 924(c)(3)(B) and the residual clauses struck down in Johnson and Dimaya , and, therefore, concluded that § 924(c)(3)(B) was unconstitutional for the same reasons. Id. at 2326, 2336.

In In re Hammoud , we recently resolved several preliminary issues with respect to successive applications involving proposed Davis claims. No. 19-12458, manuscript op. at 4, 931 F.3d 1032, ––––, 2019 WL 3296800 (11th Cir. July 23, 2019). First, we held that Davis , like Johnson , announced a new rule of constitutional law within the meaning of § 2255(h)(2), as the rule announced in Davis was both "substantive"—in that it "restricted for the first time the class of persons § 924(c) could punish and, thus, the government’s ability to impose punishments on defendants under that statute"—and was "new"—in that it extended Johnson and Dimaya to a new statutory context and that its result was not necessarily "dictated by precedent." Id. at 1038. Second, we held that, even though the Supreme Court in Davis did not expressly discuss retroactivity, the retroactivity of Davis ’s rule was "necessarily dictated" by the holdings of multiple cases, namely, the Court’s holding in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1264-65, 1268, 194 L.Ed.2d 387 (2016), that Johnson ’s substantially identical constitutional rule applied retroactively to cases on collateral review. Id. at 1038–39 (quoting Tyler v. Cain , 533 U.S. 656, 662-64, 666, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ).

We also note that Navarro’s proposed claims are not barred under In re Baptiste , 828 F.3d 1337, 1339-40 (11th Cir. 2016), despite his having filed a prior successive application, based on Dimaya , similarly arguing that § 924(c)(3)(B) ’s residual clause was unconstitutionally vague. As we explained in In re Hammoud , "[a]lthough the rationale underlying Johnson and Dimaya ... is the same rationale that underlies Davis ," In re Baptiste does not bar Navarro’s current Davis -based application because " Davis announced a new substantive rule of constitutional law in its own right, separate and apart from (albeit primarily based on) Johnson and Dimaya ." No. 19-12458, manuscript op. at 9, 931 F.3d at 1040. Thus, Navarro’s current application seeks to assert new Davis claims, not Dimaya claims, and is not barred by In re Baptiste . See id.

Having disposed of those preliminary issues, we turn to the substance of Navarro’s proposed claims. While Davis announced a new rule of constitutional law that is retroactively applicable to cases on collateral review, it is not enough that Navarro’s application cites Davis . We still must determine whether Navarro has made a prima facie showing as to his purported Davis claims. That is, we must determine whether Navarro’s substantive claims fall within Davis ’s scope.

A. Navarro’s § 924(c) Claim

Navarro has not made a prima facie showing that, regarding...