           Case: 18-11615   Date Filed: 04/21/2020   Page: 1 of 14



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11615
                         Non-Argument Calendar
                       ________________________

         D.C. Docket Nos. 1:16-cv-22447-JEM; 1:05-cr-20079-JEM-2



JHONNY CALDERON,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                              (April 21, 2020)



Before WILSON, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Jhonny Calderon, a federal prisoner, appeals the district court’s denial of his

28 U.S.C. § 2255 motion to vacate his sentence for conspiracy to commit Hobbs

Act robbery, in violation of 18 U.S.C. § 1951(a), and using, carrying, and

brandishing a firearm in furtherance of a crime of violence, in violation of 18

U.S.C. § 924(c). This Court granted a certificate of appealability (COA) on the

following three issues:

       1. Whether United States v. Davis, 139 S. Ct. 2319 (2019), 1
       established a new constitutional right that is retroactively applicable to
       cases on collateral review?

       2. Whether In re Gomez, 830 F.3d 1225, 1226-28 (11th Cir. 2016),
       applies to cases involving a guilty plea to an indictment charging
       multiple companion offenses for an 18 U.S.C. § 924(c) count?

       3. If so, whether Mr. Calderon’s 18 U.S.C. § 924(c) conviction and
       sentence are unconstitutional under Davis?

Since the COA was issued, our Court has decided the first issue. In In re

Hammoud, we held that Davis announced a new rule of constitutional law that

applied retroactively to cases on collateral review. 931 F.3d 1032, 1038-40 (11th

Cir. 2019).

       As to the other issues, Calderon argues that his indictment was improperly

duplicitous as it charged multiple § 924(c) offenses in a single § 924(c) count—one

based on Hobbs Act conspiracy and the other based on Hobbs Act robbery. He


       1
         In Davis, the Supreme Court held the residual clause of § 924(c)(3)(B) was
unconstitutionally vague. 139 S. Ct. at 2336.
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asserts because it is unclear which predicate formed the basis of the offense, this

Court must use the lesser of the two predicates, the Hobbs Act conspiracy, to

analyze the constitutionality of his § 924(c) offense.

       After review,2 we affirm the district court’s denial of Calderon’s § 2255

motion because Calderon’s § 924(c) conviction was based not only on his non-

qualifying Hobbs Act conspiracy offense, but also on his offense for Hobbs Act

robbery, which qualifies as a crime of violence under § 924(c)’s elements clause. 3

See Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019) (holding

conspiracy to commit Hobbs Act robbery does not qualify as a “crime of violence”

under § 924(c)’s elements clause and thus would only qualify as a predicate

offense under the unconstitutional residual clause); United States v. St. Hubert, 909

F.3d 335, 349-50 (11th Cir. 2018) (holding a conviction for Hobbs Act robbery

qualifies as a predicate offense under § 924(c)’s elements clause), abrogated in

part on other grounds by Davis, 139 S. Ct. 2319.




       2
          In a proceeding on a § 2255 motion, we review the district court’s factual findings for
clear error and the legal issues de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004).
       3
         The Government argues that Calderon has procedurally defaulted his Davis claim.
Because Calderon cannot show his § 924(c) conviction is impacted by Davis, we need not
resolve the procedural default issue.


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                               I. BACKGROUND

      In 2005, a grand jury indicted Calderon and his codefendants on the

following charges: (1) conspiracy to interfere with commerce by means of robbery

(Count 1), in violation of 18 U.S.C. § 1951(a) (Hobbs Act conspiracy);

(2) interference with commerce by means of robbery (Count 2), in violation of 18

U.S.C. § 1951(a) (Hobbs Act robbery); (3) conspiracy to use and possess a firearm

during the commission of a crime of violence (Count 3), in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) and (n); and (4) using and possessing a firearm during the

commission of a crime of violence (Count 4), in violation of 18 U.S.C. § 924(c)(A)

A)(ii). In Count 4, the indictment specified the “crime of violence” was based on

the offenses “set forth in Counts 1 and 2.” All counts were based on offenses that

occurred on or about January 18, 2005. Further, both Counts 1 and 2 related to the

theft of funds from J.C. and M.C.

      Calderon signed a written plea agreement on June 16, 2005, stating that he

agreed to plead guilty to Count 1—Hobbs Act conspiracy, and Count 4—using and

possessing a firearm during the commission of a crime of violence. His plea to

Count 4 stated:

      The defendant also agrees to plead guilty to Count 4 of the
      Indictment, which count charges the defendant with knowingly using,
      carrying, and brandishing a firearm during and in relation to a crime
      of violence, which is a felony prosecutable in a court of the United
      States, specifically violation of Title 18, United States Code, Section
      1951(a), as set forth in Count 1 and 2 of the Indictment; all in
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       violation of Title 18, United States Code, Sections 924(c)(1)(A)(ii)
       and 2.

The Government agreed to dismiss Count 2 and 3 after sentencing. On June 27,

2005, Calderon appeared in person with counsel before the district judge4 and

pleaded guilty to Counts 1 and 4. After Calderon was sworn, the district court

inquired as to Calderon’s guilt, and after being satisfied there was a factual basis

for the plea, accepted Calderon’s guilty plea and found him guilty as charged in

Counts 1 and 4.

       According to the presentencing investigation report (PSI), Calderon was one

of the members of a conspiracy to commit robbery against two victims, a husband

and wife, Julio and Maria Cruz, who owned and operated a check cashing and

money transfer businesses. For about two months, members of the conspiracy

surveilled the husband, who had previously been seen depositing large amounts of

cash at the bank. On January 18, 2005, the conspiracy’s surveillance team notified

Calderon and four other co-conspirators that the husband was headed to the bank,

followed by his wife in a second car. Calderon, who had a black gun, and his co-

conspirators got into two different cars and followed the victims to the bank. After

the victims pulled into the bank, the co-conspirators parked in front of and beside



       4
         Although a transcript of the plea colloquy is unavailable, the record contains both the
signed plea agreement and the minutes from the change of plea.


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their vehicles, effectively boxing them in. One of the co-conspirators punched and

broke the wife’s window, placed the barrel of a gun against her forehead, yelled at

her to give him the money, and tried to grab her keys. At the same time, Calderon

and another co-conspirator pointed a gun at the husband, and one of them started

hitting the husband in the face and head with a firearm and tried to get the husband

to give him a bag of money. As one of the co-conspirators continued to hit the

husband, another broke the husband’s window and grabbed a duffel bag containing

$717,884 from the car. The co-conspirators then fled the crime scene, and

Calderon and his codefendants were apprehended after crashing into two other

vehicles. While it was disputed which of the co-conspirators possessed and

brandished the firearms and who pistol-whipped the husband, it was known that

Calderon and his codefendants all participated in the “violent robbery” of the

victims.

                                  II. APPLICABLE LAW

      In In re Gomez, we granted a movant leave to file a second or successive

§ 2255 motion raising a Johnson 5-based challenge to his § 924(c) conviction after

a jury trial, where it was unclear from the indictment as to which of four possible

companion crimes a single § 924(c) count related. 830 F.3d at 1226-28.

Specifically, the movant’s indictment charged him with violating § 924(c) by


      5
           Johnson v. United States, 135 S. Ct. 2551 (2015).
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carrying a firearm in relation to “a crime of violence and a drug trafficking crime,”

and referenced as predicates two drug-trafficking offenses, as well as the offenses

of conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. Id.

at 1227-28. We noted that Gomez’s indictment was duplicitous, as the single

§ 924(c) charge referenced multiple, distinct companion offenses. Id. at 1227. We

stated that, because the indictment was duplicitous and the jury returned a general

guilty verdict, it was impossible to tell whether the jury unanimously agreed that

the § 924(c) count related to any one particular companion crime, or even all of

them, thereby allowing Gomez’s mandatory minimum to be increased without the

unanimity required by Alleyne v. United States, 570 U.S. 99 (2013). Gomez, 830

F.3d at 1227-28. We stated that, though we could possibly “make a guess based on

the PSI or other documents from [the movant’s] trial or sentencing,” Alleyne

expressly prohibited judges from engaging in such “judicial factfinding” that

would increase a defendant’s mandatory minimum sentence. Id. at 1228.

      Shortly after the COA issued in this case, this Court issued In re Navarro,

which arose in the context of a duplicitous indictment where the defendant entered

a guilty plea. 931 F.3d 1298, 1299-1300 (11th Cir. 2019). There, the movant

applied for leave to file a successive § 2255 application, arguing that his conviction

under § 924(c) was unconstitutional because, under Davis, his Hobbs Act

conspiracy offense no longer qualified as a predicate crime of violence. Id. The


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movant had been charged in the indictment with several crimes, including

conspiracy to commit Hobbs Act robbery, conspiracy to distribute and possess

with intent to distribute cocaine, attempted possession with intent to distribute

cocaine, and carrying a firearm in furtherance of a crime of violence and in

furtherance of a drug-trafficking crime, in violation of § 924(c). Id. at 1299. The

indictment specified that his § 924(c) charge was predicated on both his Hobbs Act

conspiracy offense and drug-trafficking offenses. Id. Pursuant to a written plea

agreement, which clarified the § 924(c) charge was predicated on both a crime of

violence and drug-trafficking crimes, the movant pled guilty to conspiracy to

commit Hobbs Act robbery and the § 924(c) charge. Id. He signed both the plea

agreement and the government’s factual proffer, which set forth the details that

gave rise to his charges. Id. At the change-of-plea hearing, he acknowledged he

had read, understood, and signed both the plea agreement and the factual proffer,

and the district court accepted his plea. Id.

      We determined that, although the movant only pled guilty to the Hobbs Act

conspiracy offense and a § 924(c) violation, “his plea agreement and the attendant

factual proffer more broadly establish that his § 924(c) charge was predicated both

on conspiracy to commit Hobbs Act robbery and drug-trafficking crimes.” Id. at

1302. We determined that, in particular, the factual proffer established the movant

committed the charged drug trafficking crimes and carried a firearm while doing


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so. Id. Accordingly, we held the movant had not shown his § 924(c) conviction

was unconstitutional under Davis, “as his conviction was independently supported

by the charged drug-trafficking crimes.” Id. at 1303. We noted this case was

distinguishable from our decision in In re Gomez, which “involved a jury trial, and

because the jury returned a general verdict, it was unclear which crime or crimes

the jury concluded actually supported the § 924(c) conviction.” Id. at n.4. We

determined the concerns raised in Gomez did not apply in this case because “there

[was] no uncertainty as to which of the three predicate offenses identified in the

indictment underlie [the movant]’s § 924(c) conviction. Instead, the plea

agreement and factual proffer make clear the conviction was based on all three.”

Id.

      Also instructive is our decision in In re Cannon, 931 F.3d 1236, 1243 (11th

Cir. 2019). There, the movant was charged, in relevant part, under § 924(o), which

“referenced multiple, distinct predicate offenses, including two carjackings, four

drug crimes, and one conspiracy to commit Hobbs Act robberies of drug stash

houses,” and the jury returned a general guilty verdict. He applied for leave to file

a successive § 2255 application, arguing in part that his § 924(o) conviction was

invalid because the indictment charged multiple predicate offenses in a single

§ 924(o) count and his Hobbs Act conspiracy offense no longer qualified as a

crime of violence. Id. at 1240-41. We noted there was “some indication” that the


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§ 924(o) conviction did not rest solely on the Hobbs Act conspiracy offense given

that the robberies were “inextricably intertwined” with the narcotics conspiracy

offense, which the jury found proven beyond a reasonable doubt. Id. at 1243-44.

In other words, we determined it would be difficult for a jury to “have concluded

that [the movant] was guilty of using a firearm during and in furtherance of the

underlying Hobbs Act predicates without at the same time also concluding that he

did so during and in furtherance of the underlying drug and carjacking predicates.”

Id. at 1243. Nevertheless, we concluded it was “somewhat unclear which crime or

crimes served as the predicate offense” for the § 924(o) conviction and therefore

granted him leave to file a successive application as to that conviction. Id.

        Additionally, citing to our decision in Beeman v. United States, 871 F.3d

1215 (11th Cir. 2017), we stated the movant bears the burden of proving the

likelihood that the jury based its guilty verdict solely on a Hobbs Act conspiracy

offense, rather than on another valid predicate offense identified in the indictment.

Id. Similarly, in In re Hammoud, we cited to Beeman and noted, “in the district

court, [the movant] will bear the burden of showing that he is actually entitled to

relief on his Davis claim, meaning he will have to show that his § 924(c)

conviction resulted from application of solely the residual clause.” 931 F.3d at

1041.




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       In Beeman, we determined a Johnson violation only occurs “if the [§ 2255]

movant would not have been sentenced as an armed career criminal absent the

existence of the residual clause.” 871 F.3d at 1221. We explained that would only

be the case under two circumstances:

       (1) if the sentencing court relied solely on the residual clause, as
       opposed to also or solely relying on either the enumerated offenses
       clause or elements clause (neither of which were called into question
       by Johnson) to qualify a prior conviction as a violent felony, and (2) if
       there were not at least three other prior convictions that could have
       qualified under either of those two clauses as a violent felony, or as a
       serious drug offense.

Id. We thus held to prove a Johnson claim a § 2255 movant has the burden to

prove it was “more likely than not” the use of the residual clause of the ACCA led

the sentencing court to impose a sentencing enhancement. Id. at 1221-22. We

elaborated that, “[i]f it is just as likely that the sentencing court relied on the

[ACCA’s] elements or enumerated offenses clause, solely or as an alternative basis

for the enhancement, then the movant has failed to show that his enhancement was

due to use of the residual clause.” Id. at 1222.

                                    III. ANALYSIS

       This Court’s decision in Navarro establishes the decision in Gomez does not

apply to cases involving a guilty plea to an indictment charging multiple

companion offenses for a § 924(c) count, at least where there is no uncertainty as

to which predicate offenses in the indictment underlie the defendant’s § 924(c)


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conviction. See Navarro, 931 F.3d at 1303 n.4. Accordingly, whether Gomez

controls in this case depends on whether it is certain that Calderon’s § 924(c)

conviction was based on both his Hobbs Act robbery offense (which qualifies

under the elements clause) and his Hobbs Act conspiracy offense (which qualifies

only under the unconstitutional residual clause).

       Here, as in Navarro, the indictment and written plea agreement specified the

“crime of violence” for the § 924(c) offense in Count 4 was predicated on the

Hobbs Act violations in both Counts 1 (Hobbs Act conspiracy) and 2 (Hobbs Act

robbery). The indictment charged conduct that occurred on the same day with the

same victims, and Calderon does not dispute on appeal that the offenses arose from

the same incident. Thus, as in Cannon, the predicate offenses are “inextricably

intertwined” such that it would be difficult for the court to find that Calderon used

a weapon in furtherance of the Hobbs Act conspiracy without also finding that he

used a weapon in furtherance of the Hobbs Act robbery that formed the basis of

that conspiracy. See Cannon, 931 F.3d at 1243. Therefore, even relying solely on

the Shepard6 documents, the district court did not clearly err in finding there was

no uncertainty that Calderon’s § 924(c) conviction was supported by his offenses




       6
          Shepard v. United States, 544 U.S. 13 (2005) provides that both the charging
document and terms of a plea agreement may be relied upon for the facts of the offense to which
the defendant admitted.
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for both Hobbs Act robbery and Hobbs Act conspiracy, and thus Gomez does not

apply.

         Further, because this case involves a guilty plea, rather than a jury verdict,

the same Sixth Amendment concerns that applied in Gomez do not apply here, and

therefore the district court did not err in determining that Calderon’s § 924(c)

conviction was based on both offenses. See Navarro, 931 F.3d at 1303 n.4.

Additionally, this Court has only applied the “least culpable offense” rule when

determining whether an offense qualifies as a crime of violence, not when

determining which crime of violence underlies a defendant’s § 924(c) conviction.

See e.g., Navarro, 931 F.3d at 1303; St. Hubert, 909 F.3d at 349. Thus, the district

court was not required to consider the Hobbs Act conspiracy as the sole underlying

offense.

         Moreover, Calderon has not met the burden to establish that it was more

likely than not that he was sentenced solely under § 924(c)’s residual clause, and

not also under the elements clause. See Beeman, 871 F.3d at 1221-22. Calderon

cannot do so here because it is just as likely that his conviction for § 924(c) was

based on the elements clause as it was based on the residual clause, given that the

charges arose from the same incident, and the indictment and the plea agreement

referenced both the Hobbs Act conspiracy offense, which qualifies only under the

residual clause, and the Hobbs Act robbery offense, which qualifies under the


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elements clause. Accordingly, the district court did not err in determining that

Calderon’s § 924(c) conviction was validly based on the substantive Hobbs Act

robbery offense. Because Calderon’s Hobbs Act robbery offense qualifies as a

predicate offense under the elements clause, his § 924(c) conviction is valid on the

merits. Accordingly, we affirm.

      AFFIRMED.




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