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                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-10716
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:18-cr-00325-MSS-JSS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

JOSEPH DELEON,
a.k.a. Joseph Nieves,
                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (May 7, 2020)



Before WILSON, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:
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      Joseph Deleon appeals his convictions for one count of Hobbs Act robbery,

in violation of 18 U.S.C.§ 1951(a), (b) (Count 1); and one count of brandishing and

knowingly possessing a firearm in furtherance of a crime of violence, in violation

of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2). He also appeals his 240-month total

sentence. He asserts four issues on appeal, which we address in turn. After

review, we affirm his convictions, but vacate and remand for resentencing in light

of United States v. Eason, 953 F.3d 1184 (11th Cir. 2020).

                                  I. DISCUSSION

A. 18 U.S.C. § 924(c)

      Deleon first asserts his conviction for Hobbs Act robbery should be vacated

because Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c),

and he therefore could not have been carrying a firearm in furtherance of a “crime

of violence.” He acknowledges this Court’s precedent forecloses his argument, but

seeks to preserve the issue for further review. See United States v. St. Hubert (St.

Hubert I), 909 F.3d 335, 345 (11th Cir.), petition for cert. docketed, (U.S. July 23,

2019) (No. 19-5267) (holding Hobbs Act robbery is a “crime of violence” under

§ 924(c)’s elements clause); see also In re Saint Fleur, 824 F.3d 1337, 1340 (11th

Cir. 2016).




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       Deleon’s concession is correct. Our binding precedent forecloses his

argument that Hobbs Act robbery is not a “crime of violence,” and we affirm the

denial of his pretrial motion to dismiss.1 See St. Hubert I, 909 F.3d at 345.

B. Stipulation

       Second, Deleon contends the district court erred by accepting a stipulation to

an essential element of 18 U.S.C. § 924(c)(1)(A), which violated his Fifth and

Sixth Amendment rights. He asserts the district court erred by accepting the

pretrial stipulation the robber “knowingly possessed a firearm in committing that

robbery,” which is one of the elements the Government had to prove to obtain a

conviction under § 924(c).

       Once a criminal defendant pleads not guilty, the Fifth Amendment affords

him the right to demand that a jury find him guilty of all elements of the charged

crime, and the Sixth Amendment “puts the prosecution to its proof as to all

elements of the crime charged.” United States v. Hardin, 139 F.3d 813, 815 (11th

Cir. 1998) (quotations omitted). Under § 924(c), the government must establish

the defendant (1) knowingly (2) possessed a firearm (3) in furtherance of any crime

of violence. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008).




       1
         Although a petition for certiorari has been docketed in St. Hubert I, and remains
pending, the case has not been overruled.
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      We allow a defendant or his counsel to make certain factual stipulations that

may “waive[] the government’s burden of proving an element of the offense, and

thus waive[] a defendant’s right to a jury trial on that element of the offense.”

Poole v. United States, 832 F.2d 561, 563 (11th Cir. 1987). A defendant’s

affirmative stipulation to a specific factual element, whether in a written plea

agreement or at sentencing, is the equivalent of a jury finding on that issue,

because the stipulation takes the issue away from the jury. United States v.

Sanchez, 269 F.3d 1250, 1271 n.40 (11th Cir. 2001) (en banc), abrogated in part

on other grounds as recognized by United States v. Duncan, 400 F.3d 1297, 1308

(11th Cir. 2005). Moreover, a stipulation eliminates the government’s burden to

produce evidence of the stipulated facts. Hardin, 139 F.3d at 816 (holding the

government did not need to present any evidence of the defendant’s felony status

because the defendant himself agreed to the stipulation that he was a felon, which

was an essential element of the crime charged).

      We will not review Deleon’s claims under the Fifth and Sixth Amendments

because he invited the error when he expressly agreed to the stipulation that the

“knowingly possessed” element of § 924(c) was met. See United States v. Silvestri,

409 F.3d 1311, 1327-28 (11th Cir. 2005) (stating we cannot reverse when a party

has invited the error and the doctrine of invited error is implicated where the party

affirmatively requested or specifically agreed with the challenged action of the


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district court); United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th Cir. 2003)

(concluding that a defendant, whose counsel affirmatively stipulated to the playing

of a taped statement, invited any error resulting from the jury hearing the tape). To

clarify, it was the Government, not the court, that first proposed the stipulation.

That the district court may have later suggested the parties enter into the stipulation

does not mean that Deleon did not invite any error. See Jernigan, 341 F.3d at

1290. Contrary to his arguments, when both Deleon and his counsel signed the

stipulation the robber “knowingly possessed a firearm,” Deleon effectively caused

and invited the error about which he is complaining—that the Government was

impermissibly relieved of proving that he “knowingly possessed” the firearm in

committing the robbery. See Silvestri, 409 F.3d at 1327; Jernigan, 341 F.3d at

1290.

C. Motion for Judgment of Acquittal

        Third, Deleon argues the district court erred in denying his motion for

judgment of acquittal because the Government failed to prove beyond a reasonable

doubt that he was the individual in the video robbing the store.

        “The jury is free to choose between or among the reasonable conclusions to

be drawn from the evidence presented at trial, and the court must accept all

reasonable inferences and credibility determinations by the jury.” United States v.

Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (quotations omitted). “It is not


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necessary that the evidence exclude every reasonable hypothesis of innocence or

be wholly inconsistent with every conclusion except that of guilt, provided that a

reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.” United States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994)

(quotations omitted).

      When all issues and reasonable inferences are resolved in the Government’s

favor, a rational jury could reasonably conclude that Deleon was, beyond a

reasonable doubt, the robber. See Garcia, 447 F.3d at 1334; Harris, 20 F.3d at

452. The Government conceded it had no physical evidence, such as fingerprints

or DNA, connecting Deleon to the scene of the robbery. However, the surveillance

video showed the robber was of similar height and build as Deleon and had similar

tattoos and skin tone. Additionally, the video showed that, like Deleon, the robber

was left-handed. At trial, the store clerk, and only eyewitness, did not mention any

tattoos and testified the robber was taller than Deleon. However, in the video, the

height chart indicated the robber’s height was more akin to Deleon’s actual height.

Although the robber’s hat and manner of wear may not have been uncommon, the

police found an identical hat in Deleon’s hotel room. There was also evidence that

Deleon owned the same shirt worn by the robber and bought the same brand of

cigarettes.




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      Moreover, while there may have been reason to doubt the lay witnesses’ and

law enforcement officers’ credibility, there was also reason to give them credence.

Both Mathis Lee and Ramon Morales were familiar with Deleon, and, in light of

their credibility issues, the court informed the jury their testimony should be more

scrupulously considered.

      When those issues and reasonable inferences are resolved in the

Government’s favor, a rational jury could reasonably conclude that Deleon was,

beyond a reasonable doubt, the robber. United States v. Cochran, 683 F.3d 1314,

1321-22 (11th Cir. 2012) (examining the evidence “in the light most favorable to

the government, with all reasonable inferences and credibility choices made in the

government’s favor” and stating the verdict should be affirmed “if a reasonable

trier of fact could conclude that the evidence establishes guilt beyond a reasonable

doubt”); Garcia, 447 F.3d at 1334; Harris, 20 F.3d at 452. Accordingly, the

district court did not err in denying Deleon’s motion for judgment of acquittal as to

Counts 1 and 2.

D. Career Offender Enhancement

      Finally, Deleon argues he was not a career offender, and the district court

erred in finding that his conviction for Hobbs Act robbery was a “crime of

violence” under the Guidelines. Deleon’s claim is reviewed for plain error because




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he makes it for the first time on appeal.2 See United States v. Olano, 507 U.S.

725, 732 (1993). To show plain error, Deleon must show (1) an error occurred;

(2) the error was plain; (3) it affected his substantial rights; and (4) it seriously

affected the fairness of the judicial proceedings. See id.

       A defendant is a career offender if: (1) he is at least 18 years of age at the

commission of the offense of conviction; (2) the offense of conviction is a felony

that is a crime of violence or a controlled substance offense; and (3) he has at least

two prior felony convictions for a crime of violence or a controlled substance

offense. U.S.S.G. § 4B1.1(a). Section 4B1.2 defines a “crime of violence,” in

relevant part, as any felony that “has as an element the use, attempted use, or

threatened use of physical force against the person of another . . . .” Id.

§ 4B1.2(a)(1). We recently held that Hobbs Act robbery is not a “crime of

violence” for purposes of § 4B1.2(a). Eason, 953 F.3d at 1187.




       2
          The invited error doctrine does not preclude our review of Deleon’s argument that he
was not a career offender under U.S.S.G. § 4B1.1(a). See Jernigan, 341 F.3d at 1289-90. At
sentencing, Deleon’s counsel told the court there was no objection that Deleon’s two predicate
offenses qualify under the career offender enhancement, and his counsel did not object when the
Government said that Deleon qualifies as a career offender, which impliedly conceded his Hobbs
Act robbery falls under the career offender Guidelines provisions. Although it may be implied in
Deleon’s counsel’s silence, neither he nor Deleon affirmatively suggested or specifically argued
his Hobbs Act robbery qualifies as a “crime of violence” under the Guidelines. See Silvestri, 409
F.3d at 1327; Jernigan, 341 F.3d at 1289-90. Accordingly, Deleon did not invite any error with
respect to this issue. See id.

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       The district court plainly erred in sentencing Deleon as a career offender

because his conviction for Hobbs Act robbery is not a crime of violence. To be

sentenced as a career offender, Deleon’s current offense of conviction had to be a

crime of violence or controlled substance offense. U.S.S.G. § 4B1.1(a). Because

the Hobbs Act robbery did not qualify, Deleon did not have the three qualifying

convictions necessary to be sentenced as a career offender. 3 As for the plainness of

that error, “an intervening decision by this Court or the Supreme Court squarely on

point may make an error plain.” United States v. Jones, 743 F.3d 826, 829-30

(11th Cir. 2014) (quotations omitted). Eason is an intervening decision squarely

on point.

       Deleon has also shown that the error affected his substantial rights because it

rendered him eligible for the career offender enhancement. See Molina-Martinez

v. United States, 136 S. Ct. 1338, 1346-47 (2016) (“In most cases a defendant who

has shown that the district court mistakenly deemed applicable an incorrect, higher

Guidelines range has demonstrated a reasonable probability of a different

outcome.”). Further, such an error seriously affects the fairness, integrity, and



       3
          We reject the Government’s argument in supplemental briefing that Deleon’s current
§ 924(c) conviction is a qualifying conviction. The commentary to § 4B1.2 provides “[a]
violation of 18 U.S.C. § 924(c) or § 929(a) is a ‘crime of violence’ or a ‘controlled substance
offense’ if the offense of conviction established that the underlying offense was a ‘crime of
violence’ or a ‘controlled substance offense.’” U.S.S.G. § 4B1.2, comment. (n.1). Since
Deleon’s underlying offense was Hobbs Act robbery, his § 924(c) conviction cannot be used as a
crime of violence.
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public reputation of judicial proceedings. See Olano, 507 U.S. at 732, Rosales-

Mireles v. United States, 138 S. Ct. 1897, 1911 (2018) (“In the ordinary case, as

here, the failure to correct a plain Guidelines error that affects a defendant’s

substantial rights will seriously affect the fairness, integrity, and public reputation

of judicial proceedings.”). Since he has satisfied the test set forth in Olano, we

vacate Deleon’s career-offender-enhanced sentence and remand for resentencing.

                                 II. CONCLUSION

      We affirm Deleon’s convictions on Counts 1 and 2, but vacate his career-

offender-enhanced sentence and remand for resentencing consistent with this

opinion.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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