| The Eleventh Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 petition collaterally attacking his conviction for conspiracy to possess a firearm in furtherance of a crime of violence or drug-trafficking crime in violation of 18 U.S.C. 924(o). Defendant argued that conspiracy to commit Hobbs Act robbery no longer qualifies as a valid crime-of-violence predicate after United States v. Davis, 139 S. Ct. 2319, 2336 (2019), and Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019), and that his conviction must be vacated based on the possibility that the jury relied on an invalid predicate and thus convicted him of a non-existent crime. The court concluded that defendant cannot overcome the procedural default of his claim (which he raises for the first time on collateral attack), nor could he otherwise prevail on the merits. The court explained that all of the section 924(o) predicates are inextricably intertwined, arising out of the same cocaine robbery scheme. On this record, the jury could not have found that defendant conspired to possess a firearm in furtherance of a Hobbs Act conspiracy without also finding that he conspired to possess a firearm in furtherance of his attempted Hobbs Act robbery, as well as in furtherance of conspiring and attempting to possess cocaine with intent to distribute and in furtherance of attempting a carjacking. Each of these crimes remains a lawful predicate for the section 924(o) conviction. Therefore, the court concluded that defendant cannot show actual prejudice or actual innocence to excuse his procedural default. Furthermore, the overlapping factual relationship between the alternative predicate offenses renders any error in the jury instructions harmless. |
