Pablo Arrechavaleta v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12866
Non-Argument Calendar
____________________
PABLO ARRECHAVALETA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent- Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 0:20-cv-61166-WPD,
0:09-cr-60245-WPD-4
____________________
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2 Opinion of the Court 20-12866
Before BRANCH , LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Pablo Arrechavaleta, a federal prisoner, appeals from the dis-
trict court’s denial of his 28 U.S.C. § 2255 motion. He argues that
the district court erred by denying relief on his claim that his 18
U.S.C. § 924(c) conviction is no longer valid in light of
United States
v. Davis, 139 S. Ct. 2319 (2019), which held that the statute’s resid-
ual clause was unconstitutionally vague. The district court agreed
that his Section 924(c) conviction was invalidated by
Davis, but de-
nied relief under the concurrent sentence doctrine. For the reasons
below, we affirm.
I.
Arrechavaleta was charged with: (1) conspiracy to commit
Hobbs Act robbery, (2) conspiracy to possess with intent to distrib-
ute five kilograms or more of cocaine, (3) attempted possession
with intent to distribute five kilograms or more of cocaine, (4) con-
spiracy to use a firearm in relation to a crime of violence or drug
trafficking crime, and (5) use of a firearm during a crime of violence
(Count One) or drug trafficking crime (Counts Two and Three).
Arrechavaleta eventually pleaded guilty to Counts One
(conspiracy to commit Hobbs Act robbery) and Five (use of a fire-
arm during a crime of violence). In the written plea agreement,
Count Five was identified as use of a firearm during a crime of vio-
lence in violation of Section 924(c), with the conspiracy charge in
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20-12866 Opinion of the Court 3
Count One serving as the predicate offense. The plea agreement—
unlike the superseding indictment—did not mention the drug traf-
ficking crimes in Counts Two and Three as potential predicate of-
fenses for the Section 924(c) violation. The drug trafficking charges
were instead dismissed. During the change of plea colloquy, the
sentencing court mentioned only the conspiracy charge in Count
One when discussing the predicate offense for the Section 924(c)
violation.
The court sentenced Arrechavaleta to terms of 33 months
imprisonment on Count One and 60 months imprisonment on
Count Five, set to run consecutively. It then imposed terms of
three-years supervised release on Count One, and five-years super-
vised release on Count Five, set to run concurrently.
After completing his prison sentence and approximately two
years of supervised release, Arrechavaleta violated his supervised
release by traveling to Ohio with a convicted felon and committing
felony credit card fraud. The government prosecuted Arrechava-
leta for that crime in Ohio, he pled guilty, and an Ohio federal court
sentenced him to 129 months imprisonment. In the Florida revo-
cation proceeding, Arrechavaleta admitted that his actions in Ohio
violated his supervised release. The Florida sentencing court sen-
tenced him to eleven additional months imprisonment, to run con-
secutive to the Ohio sentence, with no additional supervised re-
lease to follow.
Arrechavaleta later filed a Motion to Vacate, Set Aside, or
Correct Sentence under Section 2255. He argued, first, that his
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4 Opinion of the Court 20-12866
conviction for Count Five—use of a firearm in committing a crime
of violence in violation of Section 924(c)—was invalid because con-
spiracy to commit Hobbs Act robbery no longer qualified as a pred-
icate crime of violence.
See Davis, 139 S. Ct. at 2337;
Brown v.
United States, 942 F.3d 1069, 1075 (11th Cir. 2019). Second, he ar-
gued that counsel was ineffective in not moving to dismiss Count
Five.
The district court denied the motion and held that the con-
current sentence doctrine served as grounds for denying relief. The
district court further held that denying relief created no adverse
collateral consequences for Arrechavaleta. Finally, it held that Ar-
rechavaleta’s trial counsel was not ineffective for failing to antici-
pate the change in the law announced in
Davis. Arrechavaleta
timely appealed.
II.
When reviewing a district court’s denial of a Section 2255
motion, we review questions of law
de novo and factual findings
for clear error.
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004). The concurrent sentence doctrine is a “rule of judicial con-
venience” the application of which we review for abuse of discre-
tion.
Benton v. Maryland, 395 U.S. 784, 792 (1969);
see also United
States v. Davis, 730 F.2d 669, 671 n.2 (11th Cir. 1984).
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20-12866 Opinion of the Court 5
III.
Because the government concedes that Arrechavaleta’s Sec-
tion 924(c) conviction is no longer valid, the only issue is the district
court’s application of the concurrent sentence doctrine. Arrechava-
leta first argues that applying the doctrine adversely impacted his
sentence for the Ohio credit card fraud and his immigration status.
He then argues that the district court should have applied the “sen-
tencing package doctrine” to resentence him on Count One. We
address each argument in turn.
Section 2255 allows federal prisoners to obtain post-convic-
tion relief when a sentence “was imposed in violation of the Con-
stitution or laws of the United States.” 28 U.S.C. § 2255. The con-
current sentence doctrine provides that, if a defendant is given con-
current sentences on several counts and the conviction on one of
those counts is valid, a court need not consider a challenge to the
validity of the convictions on the other counts.
United States v.
Bradley, 644 F.3d 1213, 1293 (11th Cir. 2011). A court may decline
review under the doctrine if the defendant will not suffer “adverse
collateral consequences” from the unreviewed conviction.
In re
Williams, 826 F.3d 1351, 1356 (11th Cir. 2016). The doctrine re-
mains applicable where “the likelihood of harm to the defendant in
the form of adverse collateral consequences is so remote as to be
insignificant.”
Davis, 730 F.2d at 671 n.2. The doctrine is not a ju-
risdictional bar, but merely a “rule of judicial convenience” that a
court may invoke at its discretion.
Id.
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6 Opinion of the Court 20-12866
Because Arrechavaleta has already served his original prison
sentence for the now-invalid Section 924(c) conviction, the only
question is whether the 11-month prison sentence he received
upon revocation of his supervised release should be vacated in light
of
United States v. Davis, 139 S. Ct. 2319 (2019). Under the concur-
rent sentence doctrine, the answer is “no.”
First, Arrechavaleta’s Section 924(c) conviction did not affect
his revocation sentence. Arrechavaleta committed the Ohio credit
card fraud less than two years into his term of supervised release—
well within the three-year term attached to his valid conviction for
the Hobbs Act robbery conspiracy. The 11-month prison sentence
the court imposed was below the two-year statutory maximum for
violating a supervised release term based on Hobbs Act robbery
conspiracy (a Class C felony). 18 U.S.C. § 3583(e)(3). Finally, the
court revoked the five-year term of supervised release attached to
the Section 924(c) conviction and ordered no additional supervised
release following the 11-month prison term. In other words, Ar-
rechavaleta’s conduct violated his supervised release with or with-
out the invalid conviction on his record, and the conviction had no
discernible impact on his revocation sentence, which the district
court explained “would have been the same had he just been on
supervised release on Count One.” In these circumstances, the dis-
trict court’s application of the concurrent sentence doctrine was
appropriate.
Second, Arrechavaleta has not suffered adverse collateral
consequences because of the district court’s decision.
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20-12866 Opinion of the Court 7
Arrechavaleta’s immigration status is not adversely affected by his
invalid conviction remaining in place because he is subject to re-
moval on several other independent grounds. The Immigration
and Nationality Act provides that “[a]ny alien who is convicted of
an aggravated felony at any time after admission is deportable.” 8
U.S.C. § 1227(a)(2)(A)(iii). Arrechavaleta’s valid Hobbs Act robbery
conspiracy conviction—for which he served 33 months in prison—
already qualifies him as an aggravated felon, rendering him remov-
able by statute. 8 U.S.C. § 1101(a)(43)(G), (U) (an “aggravated fel-
ony” includes both “a theft offense . . . for which the term of im-
prisonment [is] at least one year” and “an attempt or conspiracy”
to commit such an offense). Even if that were not the case, Ar-
rechavaleta’s commission of credit card fraud in Ohio is another
independent basis for removal. 8 U.S.C. § 1101(a)(43)(M)(i) (an “ag-
gravated felony” includes “an offense that–involves fraud or deceit
in which the loss to the victim or victims exceeds $10,000”).
Moreover, the Ohio sentence that Arrechavaleta argues was
adversely affected by his invalid conviction was recently vacated.
So whether the invalid conviction affected that sentence is now im-
material. Arrechavaleta was resentenced for the Ohio credit card
fraud after briefs were filed in this appeal, at which point he had the
opportunity to clarify that his Section 924(c) conviction was invali-
dated by
Davis and ought not to affect his new sentence in that
case. 139 S. Ct. at 2337.
See U.S.S.G. § 4A1.2, cmt. n.6 (“Sentences
resulting from convictions that . . . have been ruled constitutionally
invalid in a prior case are not to be counted.”);
see also United
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8 Opinion of the Court 20-12866
States v. Cooper, 203 F.3d 1279, 1287 (11th Cir. 2000) (“When a
defendant, facing sentencing, sufficiently asserts facts that show
that an earlier conviction is ‘presumptively void,’ the Constitution
requires the sentencing court to review this earlier conviction be-
fore taking it into account.”) (cleaned up) (quoting
United States v.
Roman, 989 F.2d 1117, 1120 (11th Cir.1993)).
Finally, Arrechavaleta also argues that, in addition to re-
manding to the district court with instructions to vacate his Section
924(c) conviction, we should instruct the district court to employ
the “sentencing package doctrine” to resentence him on Count
One. That doctrine is relevant only if we instruct the district court
to vacate the invalid Section 924(c) conviction.
See United States v.
Fowler, 749 F.3d 1010, 1015 (11th Cir. 2014) (“[W]hen a conviction
on one or more of the component counts
is vacated for good, the
district court should be free to reconstruct the sentencing pack-
age.”) (emphasis added). Because we affirm the district court’s de-
cision declining to vacate Arrechavaleta’s Section 924(c) convic-
tion, the sentencing package doctrine is not a basis for relief.
IV.
Accordingly, the district court did not abuse its discretion in
applying the concurrent sentence doctrine and denying relief. The
district court’s decision is AFFIRMED.
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