          Case: 13-14746    Date Filed: 09/12/2014   Page: 1 of 13


                                                      [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14746
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket Nos. 1:11-cv-22567-ASG,
                         1:01-cr-00208-ASG-7


JESUS AGUERO,

                                                          Petitioner-Appellant.

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                           (September 12, 2014)



Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.



PER CURIAM:
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       Jesus Aguero, a former federal prisoner, 1 proceeding with counsel, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence.

Following a jury trial in 2003, Aguero and other City of Miami Police Department

(“MPD”) officers were convicted of conspiring to obstruct justice, in violation of

18 U.S.C. §§ 371 and 1512(b)(3), and obstruction of justice, in violation of 18

U.S.C. § 1512. The evidence at trial showed that Aguero and his codefendants

were involved in several police-related shootings, that they planted guns -- which

had been stolen from other crimes scenes and held for future use -- at the scenes of

the shootings, and that they made misleading statements to state investigators

about the shootings.

       At trial and later on direct appeal, Aguero argued that the evidence was

insufficient under United States v. Veal, 153 F.3d 1233 (11th Cir. 1998), to show a

“likelihood” that his misleading conduct would be communicated to federal

authorities. We affirmed Aguero’s convictions. United States v. Ronda, 455 F.3d

1273, 1285 (11th Cir. 2006). Applying the rationale in Veal, which said that the

       1
           Aguero was serving his three-year term of supervised release when he filed his § 2255
motion. His term of supervised release expired on August 15, 2011, while his § 2255 motion
was pending. Aguero still meets § 2255’s “in custody” requirement. See United States v.
Brown, 117 F.3d 471, 475 (11th Cir. 1997) (concluding that a § 2255 movant, who was serving
his term of supervised release at the time of filing, was “in custody” within the meaning of §
2255); see also Reed v. United States, 471 F.2d 721, 722 (5th Cir. 1973) (“[I]t is well settled that
if one is imprisoned at the time of the original filing of the [§ 2255] motion, and released before
determination thereof, the cause of action does not become moot.”).


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government need only show that there was a “possibility” or “likelihood” that

communication would be made to federal authorities, we concluded that the

evidence was sufficient to show that Aguero’s misleading conduct was “likely” to

be communicated to federal authorities. Id.

      Aguero filed a § 2255 motion after the Supreme Court’s decision in Fowler

v. United States, 563 U.S. __, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011). Fowler

altered the Veal standard. In his motion, Aguero argued that his convictions should

be vacated because he was convicted under an incorrect legal standard. The

district court denied his § 2255 motion, concluding that the claim he raised in his

motion was procedurally defaulted because (1) he did not attack the Veal standard

on direct appeal, and (2) that even if he had preserved his claim, it failed on the

merits. We issued a certificate of appealability (“COA”) on the following issues:

      (1)    Whether Aguero preserved a challenge to the sufficiency of the
             evidence of a federal nexus for his convictions

      (2)    Assuming that Aguero’s claim is preserved, whether any error was
             harmless.

      On appeal, Aguero argues that he preserved a challenge to the sufficiency of

the evidence of a federal nexus for his convictions. He further argues that he

attacked the Veal standard at trial and on direct appeal. Moreover, given that Veal

was binding precedent at the time, he says by objecting to the application of the

Veal standard, he preserved a challenge to the standard itself. Aguero also


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contends that the failure to employ the Fowler standard at his trial was not

harmless.

      In reviewing a “district court’s denial of a § 2255 motion, we review

findings of fact for clear error and questions of law de novo.” Rhode v. United

States, 583 F.3d 1289, 1290 (11th Cir. 2009). The issue of whether a habeas

petitioner’s claims are subject to procedural default is a mixed question of law and

fact, which we review de novo. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.

2001). The scope of review in a § 2255 appeal is limited to issues specified in the

COA, which we construe “in light of the pleadings and other parts of the record.”

Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). We review

harmlessness under the standard announced in Brecht v. Abrahamson, 507 U.S.

619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), de novo. Burns v. Sec’y, Fla. Dep’t

of Corr., 720 F.3d 1296, 1305 (11th Cir. 2013) (addressing the district court’s

harmless-error determination under the Brecht standard in a § 2254 petition).

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a

one-year statute of limitations for filing a § 2255 motion, which begins to run from

the latest of the following four possible events:

      (1) the date on which the judgment of conviction becomes final;

      (2) the date on which the impediment to making a motion created by
      governmental action in violation of the Constitution or laws of the
      United States is removed, if the movant was prevented from filing by
      such governmental action;
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      (3) the date on which the right asserted was initially recognized by the
      Supreme Court, if that right has been newly recognized by the
      Supreme Court and made retroactively applicable to cases on
      collateral review; or

      (4) the date on which the facts supporting the claim or claims
      presented could have been discovered through the exercise of due
      diligence.

28 U.S.C. § 2255(f). The one-year period under § 2255(f)(3) begins to run on the

date the Supreme Court recognizes a new right. Dodd v. United States, 545 U.S.

353, 358-59, 125 S.Ct. 2478, 2482, 162 L.Ed.2d 343 (2005).

      The Supreme Court has explained that its decisions “holding that a

substantive federal criminal statute does not reach certain conduct . . . necessarily

carry a significant risk that a defendant stands convicted of an act that the law does

not make criminal.” Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604,

1610, 140 L.Ed.2d 828 (1998) (quotation omitted). Accordingly, decisions that

narrow the scope of a criminal statute by interpreting its terms generally apply

retroactively. See Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519,

2522, 159 L.Ed.2d 442 (2004) (citing Bousley, 523 U.S. at 620-21, 118 S.Ct. at

1610). Any court may determine that a Supreme Court decision applies

retroactively for purposes of 28 U.S.C. § 2255(f)(3). See Dodd v. United States,

365 F.3d 1273, 1278 (11th Cir. 2004), aff’d on other grounds, 525 U.S. 353, 125

S.Ct. 2478, 162 L.Ed.2d 343 (2005).


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      Under the procedural default rule, a defendant who fails to raise an available

challenge to a criminal conviction on direct appeal is barred from raising that claim

in a collateral proceeding. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir.

2011). To preserve an argument for collateral review, a party must “plainly and

prominently” raise the issue on direct appeal. Brown v. United States, 720 F.3d

1316, 1332 (11th Cir. 2013), petition for cert. filed, (U.S. Feb. 24, 2014) (No. 13-

8899, 13A607) (concluding that defendant’s § 2255 claim was procedurally

defaulted because defendant failed to cite the relevant law and make legal

argument on the pertinent issue in his brief on direct appeal). A procedural default

may be excused, however, if one of two exceptions applies: (1) cause and actual

prejudice, or (2) actual innocence. Bousley, 523 U.S. at 622, 118 S. Ct. at 1611,

140 L. Ed.2d 828 (1998).

      In Brecht, the Supreme Court determined that the appropriate standard for

harmlessness of a non-structural constitutional error on collateral review is whether

the error “had substantial and injurious effect or influence in determining the jury’s

verdict.” 507 U.S. at 623, 113 S.Ct. at 1714. An error is not harmless if the court

is “in grave doubt about whether a trial error of federal law had substantial and

injurious effect or influence in determining the jury’s verdict.” O’Neal v.

McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995)

(quotation omitted).


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      We have applied the Brecht harmless-error review standard to non-structural

constitutional errors on collateral review. See Ross v. United States, 289 F.3d 677,

681-82 (11th Cir. 2002). A non-structural constitutional error “occurs during the

presentation of the case to the jury” and can be “assessed in the context of other

evidence presented in order to determine the effect it had on the trial.” Brecht, 507

U.S. at 629, 113 S.Ct. at 1717 (quotation and alteration omitted). A structural

error, on the other hand, only occurs in cases where there are “extreme

deprivations of constitutional rights, such as denial of counsel, denial of self

representation at trial, and denial of a public trial.” Ross, 289 F.3d at 681.

      Section 1512(a)(1)(C) of Title 18 provides in relevant part that, “Whoever

kills . . . another person, with intent to . . . prevent the communication by any

person to a law enforcement officer or judge of the United States of information

relating to the commission or possible commission of a Federal offense . . . shall be

punished.” 18 U.S.C. § 1512(a)(1)(C). A person violates 18 U.S.C. § 1512(b)(3)

if the person “engages in misleading conduct toward another person, with intent to

. . . hinder, delay, or prevent the communication to a law enforcement officer or

judge of the United States of information relating to the commission or possible

commission of a Federal offense.” 18 U.S.C. § 1512(b)(3).

      In Fowler, the Supreme Court considered whether a violation of 18 U.S.C.

§ 1512(a)(1)(C) requires that the defendant have the intent not only to prevent


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communication to law enforcement officers in general, but to federal officers in

particular. See Fowler, 563 U.S. at ___, 131 S.Ct. at 2048. Fowler shot and

killed a police officer who had approached him and his codefendants in a cemetery

where they were preparing to rob a bank. Id. Fowler was later charged under

§ 1512(a)(1)(C). Id. After Fowler was convicted in the district court, he appealed

to our Court, arguing that the evidence was insufficient to show that he had killed

the police officer intending to prevent his communication with a federal officer.

Id. We applied the Veal “possibility” standard -- which had addressed convictions

under § 1512(b)(3) -- and affirmed Fowler’s conviction, concluding that a

“possible or potential communication to federal authorities” was sufficient under

the statute. Id. (quotation omitted); see also United States v. Fowler, 603 F.3d 883,

886-87 (11th Cir. 2010), rev’d, 563 U.S. ___, 131 S.Ct. 2045 (2011) (noting that

§ 1512(a)(1)(C) and § 1512(b)(3) contain similar wording).

      The Supreme Court vacated our decision. The Court concluded that to

establish a violation of § 1512(a)(1)(C), the government “must show that there was

a reasonable likelihood that a relevant communication would have been made to a

federal officer.” Fowler, 563 U.S. at ___, 131 S.Ct. at 2048 (emphasis in original).

The Supreme Court rejected the “possibility” standard, writing that “to allow the

Government to show only a mere possibility that a communication would have

been with federal officials is to permit the Government to show little more than the


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possible commission of a federal offense.” Id. at 2051. The Supreme Court

explained that the government was not required to show that the communication, if

it occurred, was federal beyond a reasonable doubt, or even more likely than not.

Id. at 2052. The government, however, “must show that the likelihood of

communication to a federal officer was more than remote, outlandish, or simply

hypothetical.” Id. Because Fowler conceded that he did not argue at trial that the

evidence was insufficient to satisfy the “reasonable likelihood” test, the Supreme

Court remanded the case for the lower courts to determine how this standard

applied to the facts of his case. Id. at 2053.

      As a preliminary matter, the magistrate judge correctly determined that

Aguero’s § 2255 motion -- which was filed three years after his conviction became

final -- qualified for the 28 U.S.C. § 2255(f)(3) exception because Fowler applies

retroactively to final criminal convictions, as it narrowed the scope of a criminal

statute by interpreting its terms. See Dodd, 365 F.3d at 1278 (noting that any

court may determine whether a Supreme Court decision is retroactive for purposes

of § 2255(f)(3)); see also Schiro, 542 U.S. at 351-52, 124 S.Ct. at 2522. Next,

although Fowler interpreted the intent element under § 1512(a)(1)(C), we will

extend the interpretation to the intent element under § 1512(b)(3) because the

statutory language of those two portions of the statute is nearly identical.

Compare 18 U.S.C. § 1512(a)(1)(C), with 18 U.S.C. § 1512(b)(3).


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      Here, the parties agree that Aguero preserved a challenge to the sufficiency

of the evidence of a federal nexus for his convictions, at least as far as that

challenge rests on the Veal “possibility” standard. The claim Aguero raises in his

§ 2255 motion, however, is not merely an evidentiary sufficiency claim, but rather

a general claim that he was convicted under an erroneous legal standard. Aguero

chiefly argues that the evidence was insufficient to convict him under the Fowler

standard. The government argues that Aguero’s Fowler claim is procedurally

defaulted because he did not specifically challenge the Veal “possibility” standard

at trial or on direct appeal. Thus, an issue presented is whether a sufficiency-of-

evidence challenge under the then-applicable legal standard on direct appeal

preserves for collateral review a challenge that a conviction is invalid based on a

later Supreme Court decision that altered that legal standard, making it a higher

standard for conviction.

      We have not had an occasion to address this precise issue in a published

decision. We need not address this issue here either, because as discussed by the

district court, Aguero’s Fowler claim fails on the merits. See Loggins v. Thomas,

654 F.3d 1204, 1215 (11th Cir. 2011) (noting, in the § 2254 context, that it was not

necessary to determine whether the petitioner’s claims were procedurally barred,

because the petition failed on the merits); see also Lynn v. United States, 365 F.3d

1225, 1238 (11th Cir. 2004) (stating that, assuming arguendo that the § 2255


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movant established cause and prejudice to excuse the procedural default, the claim

would still fail on the merits).

      Aguero cannot show that the failure to utilize the Fowler standard at his trial

“had substantial and injurious effect or influence in determining the jury’s verdict.”

See Brecht, 507 U.S. at 623, 113 S.Ct. at 1714; Fowler, 563 U.S. __, 131 S.Ct. at

2052. He does not contest that the evidence at trial showed that he planted

evidence at police-related shootings and provided misleading sworn statements to

investigators. Instead, he argues that no evidence showed a “reasonable

likelihood” that the transmission of information related to these shootings would be

transferred to federal authorities. But ample, to an extent undisputed, evidence

showed “the likelihood of communication to a federal officer was more than

remote, outlandish, or simply hypothetical.” See Fowler, 563 U.S. __, 131 S.Ct. at

2052. Evidence at trial showed a working relationship between the MPD and the

federal government, that a massive investigation results each time a police-related

shooting occurs, and that standard practice existed of forwarding information from

questionable shootings to the FBI. So, we have no significant doubt -- much less

have grave doubt -- that the jury would have found that “the likelihood of

communication to a federal officer was more than remote, outlandish, or simply

hypothetical.” See Fowler, 563 U.S. at __, 131 S.Ct. at 2052. The evidence shows

that it was “reasonably likely” that the misleading information from Aguero and


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his coconspirators would be transferred to federal authorities; thus that the Veal

standard governed at the time of Aguero’s trial had no “substantial and injurious

effect or influence in determining the jury’s verdict.” See Brecht, 507 U.S. at 623,

113 S.Ct. at 1714.

      Furthermore, that the Veal “possibility” standard was the legal, applicable

standard in our Circuit at the time of Aguero’s trial did not influence the jury’s

verdict in fact: neither the government argued to nor the district court instructed the

jury per Veal that no more than a mere possibility of a communication to federal

officers was required for conviction. Aguero and his codefendants objected at the

charge conference to the district court’s suggestion that the jury be instructed that

the “misleading information is likely or possibly to be transferred to a federal law

enforcement officer.” The district court ultimately instructed the jury only that the

government must prove beyond a reasonable doubt that “the defendant intended to

hinder, delay, or prevent communication of information to a law enforcement

officer or Judge of the United States.” This statement tracks the language of the

statute, is not error, and is unchanged by Fowler, which is an elaborating

interpretation of the intent language. See 18 U.S.C. § 1512(b)(3); see also Fowler,

563 U.S. at __, 131 S.Ct. at 2048-52. Thus, no grave doubt exists about the impact

of the Veal mere-“possibility” standard on Aguero’s trial; the Veal standard

actually played no direct or substantial part in the verdict and was not (could not


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be) injurious to Aguero for the verdict. See Brecht, 507 U.S. at 623, 113 S.Ct. at

1714; see also Ross, 289 F.3d at 683. Accordingly, we affirm the district court’s

denial of Aguero’s § 2255 motion.

      AFFIRMED.




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