Victor Maurino v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14589
Non-Argument Calendar
____________________
VICTOR MAURINO,
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. 1:19-cv-23161-CMA,
1:09-cr-20143-CMA-1
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2 Opinion of the Court 20-14589
____________________
Before J ILL PRYOR , LAGOA , and ANDERSON, Circuit Judges.
PER CURIAM:
Victor Reinaldo Abreu Maurino, a counseled federal pris-
oner, appeals the order of the district court denying his 28 U.S.C.
§ 2255 motion to vacate. The government, in turn, moves for sum-
mary affirmance and to stay the briefing schedule.
I.
Maurino filed the present counseled motion to vacate under
28 U.S.C. § 2255 in 2019, challenging the validity of his conviction
for one count of possession of a firearm in furtherance of a crime
of violence and drug trafficking crime. 18 U.S.C. § 924(c).
According to court filings, Maurino and several coconspira-
tors met with a confidential source and an undercover officer to
discuss a plan to steal multiple kilograms of cocaine from a stash
house owned by a fictional Colombian drug lord. Maurino asked
for guns from the officer, who did not provide them. On the day
of the attempted robbery, Maurino and his codefendants entered
the vehicle of a confidential informant from the Bureau of Alcohol,
Tobacco, Firearms, and Explosives and drove to the warehouse.
He brought guns, ski masks, gloves, and plastic flex cuffs. He and
the others were arrested on their arrival.
In June 2009, a federal grand jury charged Maurino in a su-
perseding indictment with, in relevant part, conspiracy to possess
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20-14589 Opinion of the Court 3
with intent to distribute cocaine, 21 U.S.C. § 846 (“Count 4”); at-
tempted possession with attempt to distribute cocaine, 21 U.S.C. §
846 (“Count 5”); conspiracy to commit Hobbs Act robbery,
18 U.S.C. § 1951(a) (“Count 6”); attempted Hobbs Act robbery,
18 U.S.C. § 1951(a) (“Count 7”); and possession of a firearm in fur-
therance of a crime of violence and drug trafficking crime,
18 U.S.C. § 924(c) (“Count 8”). Notably, the superseding indict-
ment listed Counts 4 to 7 as the predicate offenses for Count 8.
After Maurino pled not guilty, the case proceeded to trial.
Following trial, a jury entered a general verdict against Maurino,
finding him guilty of Counts 4 to 8. The district court ultimately
sentenced Maurino to a total of 238 months’ imprisonment—178
months for Counts 4 to 7, to be served concurrently, and 60 months
for Count 8, set to run consecutive to the other terms. Maurino
appealed but did not challenge his § 924(c) conviction (Count 8) for
vagueness or invalid penalties. We affirmed his convictions in
2010.
See United States v. Maurino, 379 F. App’x 861, 862–63 (11th
Cir. 2010) (unpublished).
After the Supreme Court decided
United States v. Davis, 139
S. Ct. 2319 (2019), we granted Maurino leave to file a successive
§ 2255 motion1 raising a
Davis-based claim. In his successive mo-
tion, Maurino argued that he was actually innocent of Count 8
1 Maurino filed his original 28 U.S.C. § 2255 motion in 2011, which the district
court denied with prejudice. He would later file a second motion, with our
permission, that the district court denied in 2017.
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4 Opinion of the Court 20-14589
because
Davis rendered one of his predicates for his § 924(c) mo-
tion invalid, which invalided his conviction. He also asserted that
Counts 6 and 7—conspiracy to commit and attempted Hobbs Act
robbery—both were invalid predicates and the operative predi-
cates. This, he contended, combined with the vagueness of the
general verdict meant that the district court had to consider his
§ 924(c) conviction invalid.
The district court denied Maurino’s motion, finding that he
lacked a reasonable basis for attacking the residual clause until the
Supreme Court decided
Johnson v. United States, 576 U.S.
591 (2015), and extended that decision to
Davis, meaning he over-
came the procedural bar. Substantively, it found that the jury was
instructed it could convict him of Count 8 on multiple predicates,
including invalid ones. However, it found that any reliance on an
invalid predicate was harmless because the predicates in his case
were inextricably intertwined, and there was no reasonable proba-
bility the jury relied solely on the invalid predicates.
Despite the preceding, the district court issued a certificate
of appealability as to: “(1) whether [it had] erred in applying the
reasonable probability harmless-error review standard to an error
arising from a jury that was instructed on multiple possible predi-
cate crimes—one of which is invalid—and a general verdict that
does not specify the predicate(s) on which the jury relied; and (2)
whether [it had] erred in determining the error was harmless.”
This timely appeal follows.
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20-14589 Opinion of the Court 5
II.
On appeal, Marino, who is still counseled, argues that the
district court erred by using a harmless error standard in denying
his motion. Rather, he argues that the proper standard is the con-
viction must be reversed if it is impossible to determine which
ground the verdict rests on. He asserts that because his conviction
for Count 8 was supported by the two invalid predicates of Counts
6 and 7, any error was not harmless. Maurino also asserts that the
district court’s inextricably intertwined reasoning is untenable be-
cause it improperly interpreted § 924(c) to allow for multiple pred-
icates to attach to each count of the conviction, meaning that chal-
lenges to that conviction would require purely speculative inquir-
ies into jury deliberations.
Rather than responding, the government moves for sum-
mary affirmance and to stay the briefing schedule. It contends, in
part, that Maurino’s invalid Hobbs Act robbery predicates (Counts
6 and 7) were inextricably intertwined with his still-valid drug traf-
ficking offenses (Counts 4 and 5), meaning any errors in the general
verdict were harmless.2
2 The government also argues that Maurino procedurally defaulted his
Davis-
based claim because he failed to raise it on direct appeal. The government
further argues that he cannot overcome that default, as his claims existed be-
fore his direct appeal became final in 2010 and he could not show a substantial
likelihood that the jury used the invalid predicates as the only predicate for his
§ 924(c) conviction. In light of our present disposition, we find it unnecessary
for us to address these points.
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Summary disposition is appropriate, in part, where “the po-
sition of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969). A motion for summary affirmance shall postpone the due
date for the filing of any remaining brief until we rule on such mo-
tion. 11th Cir. R. 31-1(c).
When reviewing a district court’s denial of a § 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).
We review questions of harmlessness
de novo.
Granda v. United
States, 990 F.3d 1272, 1293 (11th Cir. 2021),
cert. denied, 142 S. Ct.
1233 (2022).
Under 28 U.S.C. § 2255(a), a federal court may grant post-
conviction relief to a federal prisoner under certain circumstances,
such as when there has been a constitutional error. Relief still may
not be warranted, however, if such an error was “harmless.”
Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). An error is harm-
less on collateral review if it did not have a substantial or injurious
effect or influence on the jury’s verdict.
Id. at 637.
Section 924(c), the basis for Maurino’s conviction on Count
8, provides:
Except to the extent that a greater minimum sentence
is otherwise provided by this subsection or by any
other provision of law,
any person who, during and
in relation to any crime of violence or drug trafficking
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20-14589 Opinion of the Court 7
crime . . . for which the person may be prosecuted in
a court of the United States,
uses or carries a firearm,
or who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided
for such crime of violence—
(i) be sentenced to a term of imprisonment of not less
than 5 years . . . .
§ 924(c)(1)(A) (emphasis added).
Under § 924(c)(3), a crime of violence is an offense that is a
felony and (A) “has an element the use, attempted use, or threat-
ened use of physical force against the person or property of an-
other,” or (B) “
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.” § 924(c)(3)(A)–(B)
(emphasis added). We have referred to § 924(c)(3)(A) as the “ele-
ments clause” and to § 924(c)(3)(B) as the “residual clause.”
Brown
v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019). And, under
§ 924(c)(2), a drug trafficking crime means any felony punishable
under the Controlled Substances Act, 21 U.S.C. § 801.
In
Davis, the Supreme Court held that the residual clause
was unconstitutionally vague. 139 S. Ct. at 2336. Subsequently,
we held that Hobbs Act conspiracy did not qualify as a “crime of
violence” under the elements clause, because none of the elements
of Hobbs Act conspiracy “necessitate[] the existence of a threat or
attempt to use force.”
Brown, 942 F.3d at 1075. However, we have
also held that substantive Hobbs Act robbery is a “crime of
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8 Opinion of the Court 20-14589
violence” under the elements clause.
In re Fleur, 824 F.3d 1337,
1340–41 (11th Cir. 2016).
Recently, in
Unites States v. Taylor, 142 S. Ct. 2015 (2022),
the Supreme Court held that attempted Hobbs Act robbery did not
qualify as a “crime of violence” under the elements clause because
“no element of attempted Hobbs Act robbery requires proof that
the defendant used, attempted to use, or threatened to use force
.”
Id. at 2021.
If valid and invalid predicate offenses are inextricably inter-
twined, any error resulting from instructing the jury on a constitu-
tionally invalid predicate is harmless.
Granda, 990 F.3d at 1292. On
collateral review, the harmless error standard mandates that relief
is proper only if the court has grave doubts about whether a trial
error of federal law had substantial and injurious effect or influence
in determining the jury’s verdict.
Id. “There must be more than a
reasonable possibility that the error was harmful.”
Id. (quoting
Da-
vis v. Ayala, 576 U.S. 257, 267–68 (2015)). The reviewing court
should ask directly whether the error substantially influenced the
jury’s decision, and if it cannot say with fair assurance that the judg-
ment was not substantially swayed by the error, it must conclude
that the error was not harmless.
Id. at 1292–93. Thus, it is appro-
priate to look at the record to determine whether the invalid pred-
icate actually led to the conviction, or instead whether a jury found
the defendant guilty under a valid theory.
Id. at 1294.
III.
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Here, we grant summary affirmance as to the district court’s
resolution of Maurino’s Count 8 challenge on the merits. Specifi-
cally, we conclude that the district court did not err in rejecting
Maurino’s Count 8 challenge alternatively on the merits because it
found that the four predicate offenses—two of which were
valid—were inextricably intertwined. The conspiracy and attempt
to possess with intent to distribute cocaine offenses (Counts 4 and
5) were part of the conspiracy and attempt to commit Hobbs Act
robbery. Maurino’s two drug trafficking offenses were still valid
predicates, so any such error resulting from the jury being in-
structed in the Hobbs Act robbery predicates would be harmless.
Granda, 990 F.3d at 1292–94. Thus, we grant the government’s
motion for summary affirmance on this ground.
Accordingly, we GRANT the government’s motion for
summary affirmance and DENY its motion to stay the briefing
schedule.
Groendyke Transp., 406 F.2d at 1162.
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