USA v. Victor Natson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12680
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR NATSON,
a.k.a. Silverback,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:17-cr-00050-LGW-CLR-3
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2 Opinion of the Court 23-12680
____________________
Before J ORDAN, BRANCH , and L AGOA , Circuit Judges.
PER CURIAM:
In 2018, a jury found Victor Natson guilty of conspiracy to
commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count
1); Hobbs Act robbery in violation of § 1951 (Count 2); using,
carrying, brandishing and discharging a firearm during and in
relation to a crime of violence, namely, Hobbs Act robbery as
alleged in Count 2 in violation of 18 U.S.C. § 924(c) (Count
3); attempted Hobbs Act robbery in violation of 18 U.S.C. §§ 1951
and 2 (Count 5); and using, carrying, and brandishing a firearm
during and in relation to a crime of violence, namely, attempted
Hobbs Act robbery in violation of § 924(c) (Count 6). Following
the Supreme Court’s decision in United States v. Taylor, 596 U.S. 845
(2022),1 Natson filed a successful motion to vacate sentence under
28 U.S.C. § 2255, and the district court vacated Count 6 and held a
full resentencing hearing. Natson now appeals from the new
judgment.
On appeal he argues that (1) his § 924(c) conviction in
Count 3 must be vacated because the offense of completed Hobbs
Act robbery is no longer a crime of violence post-Taylor, and
(2) Count 3 was jurisdictionally invalid because the jury
1 The Supreme Court in Taylor held that attempted Hobbs Act robbery does
not categorically qualify as a predicate crime of violence for purposes of
§ 924(c). 596 U.S. at 851.
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23-12680 Opinion of the Court 3
instruction, which was based on the Eleventh Circuit’s Pattern Jury
Instruction, was overbroad and the jury could have convicted him
under circumstances that would not constitute a crime of violence
for purposes of § 924(c). After review, we affirm.
I. Background
A grand jury issued a superseding indictment charging
Natson and two other defendants with seven offenses related to the
armed robbery of, and a second attempted armed robbery of,
Brinks armored trucks. The indictment charged Natson with six
counts: conspiracy to commit Hobbs Act robbery in violation of 18
U.S.C. § 1951 (Count 1); Hobbs Act robbery in violation of § 1951
(Count 2); using, carrying, brandishing and discharging a firearm
during and in relation to a crime of violence, namely, Hobbs Act
robbery as alleged in Count 2 in violation of 18 U.S.C. § 924(c)
(Count 3); attempted Hobbs Act robbery in violation of 18 U.S.C.
§§ 1951 and 2 (Count 5); and using, carrying, and brandishing a
firearm during and in relation to a crime of violence, namely,
attempted Hobbs Act robbery in violation of § 924(c) (Count 6).
Natson proceeded to a jury trial. Prior to deliberations, with
regard to Count 2—which served as the predicate offense for
Count 3—the trial court gave the jury this Court’s pattern jury
instruction for Hobbs Act robbery.2 That instruction provides as
follows:
2 Natson requested the trial court give this instruction.
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It’s a Federal crime to acquire someone else’s
property by robbery and in doing so to obstruct,
delay, or affect interstate commerce.
The Defendant can be found guilty of this crime only
if all the following facts are proved beyond a
reasonable doubt.
(1) the Defendant knowingly acquired
someone else’s personal property;
(2) the Defendant took the property against the
victim's will, by using actual or threatened
force, or violence, or causing the victim to fear
harm, either immediately or in the future; and
(3) the Defendant's actions obstructed,
delayed, or affected interstate commerce.
“Property” includes money, tangible things of value,
and intangible rights that are a source or element of
income or wealth.
“Fear” means a state of anxious concern, alarm, or
anticipation of harm. It includes the fear of financial
loss as well as fear of physical violence.
“Interstate commerce” is the flow of business
activities between one state and anywhere outside
that state.
The Government doesn’t have to prove that the
Defendant specifically intended to affect interstate
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23-12680 Opinion of the Court 5
commerce. But it must prove that the natural
consequences of the acts described in the indictment
would be to somehow delay, interrupt, or affect
interstate commerce. If you decide that there would
be any effect at all on interstate commerce, then that
is enough to satisfy this element. The effect can be
minimal.
See Eleventh Circuit Pattern Jury Instruction O70.3.
The jury found Natson guilty on all six counts, and he was
sentenced to a total of 240 months’ imprisonment. We affirmed
his convictions and sentence on appeal. See United States v. Scott,
798 F. App’x 391 (11th Cir. 2019).
Following the Supreme Court’s decision in Taylor—which
as noted above held that attempted Hobbs Act robbery does not
categorically qualify as a predicate crime of violence for purpose of
§ 924(c)—Natson filed a 28 U.S.C. § 2255 motion to vacate his
§ 924(c) conviction that was predicated on attempted Hobbs Act
robbery (Count 6). The district court granted the motion, vacated
the conviction, and ordered a full resentencing.
At the resentencing stage, Natson argued that the district
court could not resentence him under Count 3 because the pattern
jury instruction for the predicate crime in Count 3—Hobbs Act
robbery—was overbroad in allowing the jury to convict him of
Hobbs Act robbery merely by causing his victims to fear economic
loss, and, therefore Count 3 was a nullity for lack of jurisdiction.
Acknowledging that we had held in In re Saint Fleur, 824 F.3d 1337
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6 Opinion of the Court 23-12680
(11th Cir. 2016), that completed Hobbs Act robbery categorically
qualified as a crime of violence for purposes of § 924(c), Natson
argued that Saint Fleur was no longer good law in light of Taylor.
The district court overruled Natson’s objections, and
resentenced him to a below-guidelines total sentence of 166
months’ imprisonment. This appeal followed.
II. Discussion
A. Whether completed Hobbs Act robbery is crime of
violence post-Taylor
Natson argues that our precedent holding that completed
Hobbs Act robbery categorically qualifies as a crime of violence for
purposes of § 924(c) is no longer valid and must be reconsidered in
light of the Supreme Court’s decision in Taylor.3 Natson’s
argument is squarely foreclosed by binding precedent.
Section 924(c) prohibits the use, carrying, or possession of a
firearm during and in relation to or in furtherance of “any crime of
violence or drug trafficking crime” and provides for a mandatory
consecutive sentence for any defendant who uses a firearm during
a crime of violence. See 18 U.S.C. § 924(c)(1)(A). Section 924(c)’s
“elements clause” defines a “crime of violence” as a felony that “has
3 Whether an offense is a crime of violence under § 924(c) is a question of law
that we review de novo. United States v. Wiley, 78 F.4th 1355, 1360 (11th Cir.
2023).
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as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” § 924(c)(3)(A).
The Hobbs Act robbery statute criminalizes:
the unlawful taking or obtaining of personal property
from the person or in the presence of another, against
his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his
person or property, . . . or the person or property of
. . . anyone in his company at the time of the . . .
obtaining.
18 U.S.C. § 1951(a), (b)(1).
In In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016), we
concluded that a completed Hobbs Act robbery offense “clearly”
qualifies as a crime of violence under § 924(c)’s elements clause,
noting that it “has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another.” Id. at 1340–41 (quoting § 924(c)(3)(A)).4
Subsequently, in United States v. St. Hubert, 909 F.3d 335
(11th Cir. 2018), abrogated on other grounds by Taylor, 596 U.S. 845,
4 To the extent that Natson argues that Saint Fleur should not apply to his case
because it was issued in the context of an application for permission to file a
second or successive motion to vacate sentence, this argument is squarely
foreclosed by our precedent. See In re Lambrix, 776 F.3d 789, 794 (11th Cir.
2015) (“To be clear, our prior-panel-precedent rule applies with equal force as
to prior panel decisions published in the context of applications to file second
or successive petitions. In other words, published three-judge orders issued
under [28 U.S.C.] § 2244(b) are binding precedent in our circuit.”).
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we reaffirmed Saint Fleur, holding that Hobbs Act robbery is a
crime of violence because “[a] conviction for Hobbs Act robbery
by definition requires ‘actual or threatened force, or violence, or
fear of injury, immediate or future, to person or property.’” Id. at
348 (alteration adopted) (quoting § 1951(b)(1)). In so holding, we
reasoned that there was no “plausible scenario” in which the Hobbs
Act applied to a robbery “that did not involve, at a minimum, a
threat to use physical force,” or a situation “in which a Hobbs Act
robber could take property from the victim against his will and by
putting the victim in fear of injury (to his person or property)
without at least threatening to use physical force capable of causing
such injury.” Id.
Although Natson argues that Saint Fleur and its progeny
were wrongly decided in the first instance and have been
undermined to the point of abrogation by Taylor, we have held that
“Taylor did not disturb our holding that completed Hobbs Act
robbery is a crime of violence” for the purposes of § 924(c). Wiley,
78 F.4th at 1365; see also United States v. Kaley, 579 F.3d 1246, 1255
(11th Cir. 2009) (explaining that to disturb our existing precedent,
a “Supreme Court decision must be clearly on point” and “actually
abrogate or directly conflict with, as opposed to merely weaken,
the holding of the prior panel”). Under the prior-panel-precedent
rule, we are bound by Wiley, Saint Fleur, and the otherwise valid
portions of St. Hubert, “unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or
this [C]ourt sitting en banc.” United States v. Dudley, 5 F.4th 1249,
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23-12680 Opinion of the Court 9
1265 (11th Cir. 2021), cert. denied, 142 S. Ct. 1376 (2022) (quotations
omitted). Accordingly, Natson is not entitled to relief on this claim.
B. Whether Count 3 is a nullity for lack of jurisdiction
due to the jury instruction
Natson argues that the district court lacked jurisdiction over
Count 3 because our pattern jury instruction for Hobbs Act
robbery is categorically overbroad as it allowed the jury to convict
him based on mere fear of financial loss, which would remove the
Hobbs Act robbery predicate from § 924(c)’s “crime of violence”
definition. He maintains that “the [c]ourt does not have
jurisdiction to issue judgment as to the categorically overbroad
offenses because such offenses are not ‘offenses against the laws of
the United States’ pursuant to 18 U.S.C. § 3231.”
“We review de novo a district court’s subject matter
jurisdiction even when it is raised for the first time on appeal.”
United States v. Gruezo, 66 F.4th 1284, 1290 (11th Cir.), cert. denied,
144 S. Ct. 178 (2023).
“Subject-matter jurisdiction defines the court’s authority to
hear a given type of case.” Alikhani v. United States, 200 F.3d 732,
734 (11th Cir. 2000); see also United States v. Cotton, 535 U.S. 625, 630
(2002) (“[S]ubject-matter jurisdiction . . . involves a court’s power
to hear a case. . . .”). “Congress bestows that authority on lower
courts by statute.” Alikhani, 200 F.3d at 734. For federal crimes,
Congress has bestowed federal district courts with “original
jurisdiction . . . of all offenses against the laws of the United States.”
18 U.S.C. § 3231. We have held that “[s]o long as the indictment
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10 Opinion of the Court 23-12680
charges the defendant with violating a federal statute . . . it alleges
an offense against the laws of the United States, and, thereby,
invokes the district court’s subject matter jurisdiction.” United
States v. Wilson, 979 F.3d 889, 902 (11th Cir. 2020) (quotations
omitted); United States v. Brown, 752 F.3d 1344, 1354 (11th Cir. 2014)
(same).
Natson does not take issue with court’s subject matter
jurisdiction based on the § 924(c) offense alleged in the indictment.
Nor could he do so because the United States filed an indictment
charging Natson with a violation of 18 U.S.C. § 924(c), which no
one disputes is an offense against the laws of the United States.
Rather, Natson argues that the allegedly overbroad jury instruction
essentially stripped the district court of subject matter jurisdiction
that it otherwise possessed. However, he cites no binding
authority5—and we have located none—holding that an erroneous
jury instruction can deprive the district court of its authority and
power to adjudicate a particular type of case under 18 U.S.C.
5 In support of his position, Natson relies primarily on a two-page unpublished
district court order in United States v. Louis, No. 21-CR-20252, 2023 WL
2240544, at *1–2 (S.D. Fla. Feb. 27, 2023), granting a post-trial motion to arrest
judgment and dismissing numerous § 924(c) counts, under Federal Rule of
Criminal Procedure 34 for lack of jurisdiction. The district court concluded,
without sufficient explanation, that the Hobbs Act robbery pattern jury
instruction O70.3 is categorically overbroad and summarily concluded that
“such overbroad offenses are not offenses against the laws of the United
States.” (quotations omitted). However, as Natson concedes, Louis is not
binding on this Court. Furthermore, the Louis court’s determination is
entirely conclusory and finds no support in the law.
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§ 3231. See United States v. Leonard, 4 F.4th 1134, 1142 (11th Cir.
2021) (“[A] jurisdictional defect occurs only where a federal court
lacks power to adjudicate at all.” (quotations omitted)). To the
extent that Natson argues that because the Hobbs Act robbery jury
instruction was allegedly overbroad, it could not satisfy the “crime
of violence” element of § 924(c), that would mean only that one of
the elements of the § 924(c) charge was not met—not that the
district court would have been stripped of its jurisdiction. See
United States v. Grimon, 923 F.3d 1302, 1306 (11th Cir. 2019) (holding
that “the government’s alleged failure to sufficiently establish an
[element] does not deprive the district court of its subject matter
jurisdiction under § 3231.”). In short, although Natson casts his
jury instruction challenge as one that goes to the district court’s
subject matter jurisdiction, it does not.6
Accordingly, he is not entitled to relief on this claim.
6 Natson’s challenge, at best, amounts to a garden-variety jury instruction
challenge, which we review for plain error because he failed to preserve the
issue at trial. United States v. Duldulao, 87 F.4th 1239, 1257 (11th Cir. 2023). To
establish plain error, the defendant must show that (1) there was error; (2) the
error was plain; (3) the error “affect[ed] [his] substantial rights”; and (4) “the
error seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotations omitted). Natson cannot show that the alleged
error was plain because neither this Court nor the Supreme Court has held
that the pattern jury instruction at issue is overly broad. See United States v.
Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (“[W]here neither the Supreme
Court nor this Court has ever resolved an issue . . . there can be no plain error
in regard to that issue.”).
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III. Conclusion
For the above reasons, we affirm Natson’s sentence.
AFFIRMED.
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