USA v. Yoisel Espinosa

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10219
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOISEL ESPINOSA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20823-UU-2
____________________
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2 Opinion of the Court 21-10219
Before J ORDAN, NEWSOM , and H ULL , Circuit Judges.
PER CURIAM:
After pleading guilty, Yoisel Espinosa appeals his convictions
for three counts of brandishing a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). For the first
time on appeal, Espinosa argues (1) that the underlying predicate
offense, Hobbs Act robbery, does not constitute a crime of vio-
lence; (2) that the “failure of Counts 19, 21, and 23 [to which he
pled guilty] to fall within the definition of a ‘crime of violence’ con-
stitutes a jurisdictional defect in the conviction for those counts”;
(3) that “[w]hen Mr. Espinosa pleaded guilty, he waived the right
to challenge most defects in the proceedings against him[,] [b]ut a
defendant can never waive a challenge to a jurisdictional defect”;
(4) because Counts 19, 21, and 23 charged a non-existent criminal
offense, the district court lacked jurisdiction to convict him; and
(5) thus his § 924(c) convictions must be vacated.
After review, we conclude that based on our precedent:
(1) Espinosa’s claim—that Hobbs Act robbery does not constitute
a crime of violence—does raise a jurisdictional-defect claim that
was not waived, but (2) Espinosa’s claim fails on the merits because
Hobbs Act robbery is a crime of violence under § 924(c)’s elements
clause. Therefore, we affirm Espinosa’s convictions and sentences.
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21-10219 Opinion of the Court 3
I. BACKGROUND
A. Indictment and Guilty Plea
An indictment charged Espinosa with conspiracy to commit
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 5);
eight counts of Hobbs Act robbery, in violation of 18 U.S.C.
§§ 1951(a) and 2 (Counts 6, 10, 12, 14, 16, 18, 20, and 22); and eight
counts of brandishing a firearm in furtherance of a crime of vio-
lence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts 7, 11, 13,
15, 17, 19, 21, and 23). Each § 924(c) count was predicated on the
Hobbs Act robbery count immediately preceding it.
In his written plea agreement, Espinosa pled guilty to
Counts 19, 21, and 23, which alleged that Espinosa brandished a
firearm in furtherance of a crime of violence—namely, the Hobbs
Act robberies charged in Counts 18, 20, and 22, respectively. In
exchange, the government agreed to dismiss Counts 5–7, 10–18, 20,
and 22 of the indictment. Pursuant to the written plea agreement,
Espinosa also waived his right to appeal his sentence, unless it ex-
ceeded the statutory maximum or was the result of an upward de-
parture or variance from the advisory sentencing guidelines range
set by the district court at sentencing.
B. Factual Proffer Admits § 924(c) Conduct and Three
Hobbs Act Robberies
As part of his plea agreement, Espinosa agreed that, if the
case were to proceed to trial, the government could prove the fol-
lowing facts beyond a reasonable doubt.
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4 Opinion of the Court 21-10219
As part of a conspiracy to commit robbery, Espinosa and his
co-conspirators, Luis El Mateo and Christian Gongora Estopinan,
committed several robberies in the Southern District of Florida.
On November 10, 2019, the three men drove to a Kwik Stop in Fort
Lauderdale, Florida. As Espinosa and Mateo waited in the car,
Gongora entered the store wielding a semi-automatic pistol and
demanded the cashier open the cash register. Gongora pistol
whipped the cashier twice before the cashier complied, and Gon-
gora then took $300 and fled the store. Gongora re-entered the car
and Espinosa—the getaway driver—drove off. This is the Hobbs
Act robbery charged in Count 18 that is the predicate offense for
Count 19.
Later that night, with Espinosa again serving as getaway
driver, Mateo entered another Kwik Stop in Pompano, Florida.
Armed with a semi-automatic pistol, Mateo brandished the
weapon in front of two store employees and commanded the em-
ployees to open the cash registers. The employees complied, and
Mateo stole $600 before returning to the vehicle. This is the Hobbs
Act robbery charged in Count 20 that is the predicate offense for
Count 21.
On November 16, 2019, the three men drove to a Rite Way
Foods in Miami, Florida, and Mateo and Gongora entered the
store. While Gongora posed as a lookout, Mateo pointed his fire-
arm at the cashier. Mateo stole approximately $300 from two cash
registers, and the two fled the store. Espinosa was again the
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21-10219 Opinion of the Court 5
getaway driver. This is the Hobbs Act robbery charged in Count
22 that is the predicate offense for Count 23.
C. District Court Accepts Guilty Plea
The district court accepted Espinosa’s guilty plea and ad-
judged him guilty of Counts 19, 21, and 23. Neither in his plea
agreement nor during his plea hearing did Espinosa claim that
(1) Hobbs Act robbery was not a valid predicate for his three
§ 924(c) offenses, or (2) the three counts of the indictment to which
he pled guilty charged non-existent offenses and were invalid on
their face.
D. Sentencing
The district court sentenced Espinosa to 84 months of im-
prisonment as to each § 924(c) count, with all sentences running
consecutively for a total term of 252 months of imprisonment. The
district court also imposed five years of supervised release for each
§ 924(c) count, to run concurrently, and ordered Espinosa to pay
$20,670.52 in restitution, jointly and severally with his co-defend-
ants. The district court then granted the government’s motion to
dismiss the remaining fourteen counts in the indictment.
Espinosa timely appealed.
II. DISCUSSION
On appeal, Espinosa argues that (1) the underlying predi-
cate—Hobbs Act robbery—for each of his § 924(c) convictions in
Counts 19, 21, and 23 does not constitute a crime of violence;
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6 Opinion of the Court 21-10219
(2) the failure of those three counts to state an offense is a jurisdic-
tional defect, not waived by his guilty plea; and (3) thus the district
court lacked jurisdiction to convict him of a non-existent offense.1
The government does not respond directly to Espinosa’s jurisdic-
tional claim. Rather, the government argues, “Even assuming that
Espinosa raises a jurisdictional claim that he did not waive by plead-
ing guilty, his claim nevertheless fails on the merits.” Because Es-
pinosa’s claim challenges the district court’s jurisdiction over his
case, we address it first. We then turn to the merits of his claim.
A. Jurisdictional Defect
As Espinosa acknowledges, a defendant’s guilty plea waives
most defects in an indictment.
United States v. Brown, 752 F.3d
1344, 1348 (11th Cir. 2014) (collecting cases). In
Brown, this Court
distinguished “between mere indictment omissions, which are non
jurisdictional defects, and the affirmative allegation of specific con-
duct that is not proscribed by the charging statute, which is a juris-
dictional defect.”
Id. at 1352 (quotation marks omitted). If the in-
dictment fails “to allege an element of the charged offense,” i.e. an
indictment omission, there is no jurisdictional defect.
Id. The
Brown Court held that an indictment that “omitted the mens rea
element” did not contain a jurisdictional defect because that
1 We review
de novo whether an offense is a crime of violence under 18 U.S.C.
§ 924(c).
United States v. Bates, 960 F.3d 1278, 1285 (11th Cir. 2020). Whether
the district court had jurisdiction to convict a defendant is a question of law,
which we also review
de novo.
United States v. Edwards, 997 F.3d 1115, 1117
n.1 (11th Cir. 2021).
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21-10219 Opinion of the Court 7
element was “merely an allegation requisite to liability.”
Id. (quo-
tation marks omitted).
On the other hand,
Brown instructs that if “the indictment
affirmatively alleges conduct that does not constitute a crime at all
because that conduct falls outside the sweep of the charging stat-
ute,” then there is a jurisdictional defect.
Id. That type of indict-
ment defect is jurisdictional because “the indictment fails to invoke
the district court’s statutory authority under 18 U.S.C. § 3231 over
offenses against the laws of the United States.”
Id. at 1353;
see
United States v. Peter, 310 F.3d 709, 713 (11th Cir. 2002) (“[A] dis-
trict court is without jurisdiction to accept a guilty plea to a ‘non-
offense.’”).
Subsequently, in
United States v. St. Hubert, we held that an
indictment alleging a § 924(c) charge based on a predicate offense
that is not a crime of violence contains a jurisdictional defect be-
cause it alleges a specific course of conduct that is outside the reach
of the statute of conviction.
United States v. St. Hubert, 909 F.3d
335, 343–44 (11th Cir. 2018),
abrogated on other grounds by United
States v. Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019).
Accordingly, based on our precedent, we agree with Espi-
nosa that his above claim alleges a jurisdictional defect and was not
waived by his guilty plea.2
See id. We now proceed to whether
2 Under our prior-precedent rule, a panel is bound to follow its own prior,
binding precedent unless and until it is overruled by this Court sitting
en banc
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8 Opinion of the Court 21-10219
Hobbs Act robbery constitutes a crime of violence and falls within
the § 924(c) statute.
B. Merits of Espinosa’s Claim
Under § 924(c), it is a crime to brandish a firearm in further-
ance of “any crime of violence or drug trafficking crime.” 18 U.S.C.
§ 924(c)(1)(A)(ii). For § 924(c) purposes, a predicate offense quali-
fies as a crime of violence if it is a felony and “has as an element the
use, attempted use, or threatened use of physical force against the
person or property of another.”
Id. § 924(c)(3)(A). Subsection (A)
is referred to as the “elements clause.”
See St. Hubert, 909 F.3d at
337, 344–45.
Twice this Court has held that a conviction for Hobbs Act
robbery “clearly qualifies as a crime of violence” under the ele-
ments clause.
In re Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016);
St.
Hubert, 909 F.3d at 345–46. Eight other circuits have also held that
Hobbs Act robbery qualifies as a crime of violence under
§ 924(c)(3)(A)’s elements clause.
See United States v. Richardson,
948 F.3d 733, 741 (6th Cir.),
cert. denied, 141 S. Ct. 344 (2020);
United States v. Barrett, 937 F.3d 126, 128–29 (2d Cir. 2019);
United
States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019);
United States v.
Jones, 919 F.3d 1064, 1072 (8th Cir. 2019);
United States v. Bowens,
907 F.3d 347, 353–54 (5th Cir. 2018),
cert. denied, 139 S. Ct. 1299
(2019);
United States v. García-Ortiz, 904 F.3d 102, 106–09 (1st Cir.
or by the Supreme Court.
United States v. Bowers, 811 F.3d 412, 430 (11th
Cir. 2016).
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21-10219 Opinion of the Court 9
2018),
cert. denied, 139 S. Ct. 1208 (2019);
United States v. Melgar-
Cabrera, 892 F.3d 1053, 1064–66 (10th Cir.),
cert. denied, 139 S. Ct.
494 (2018);
United States v. Rivera, 847 F.3d 847, 848–49 (7th Cir.),
cert. denied, 137 S. Ct. 2228 (2017). Thus, Counts 19, 21, and 23,
to which Espinosa pled guilty, contain no jurisdictional defect.
Based on our precedent, we affirm Espinosa’s § 924(c) con-
victions and sentences on Counts 19, 21, and 23.
AFFIRMED.
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