          Case: 19-12889   Date Filed: 04/29/2020   Page: 1 of 9



                                                       [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 19-12889
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 0:19-cr-60055-UU-2



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                 versus

GEDEON JOSEPH,

                                                       Defendant - Appellant.


                     ________________________

                           No. 19-12891
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 0:19-cr-60055-UU-1



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                 versus
              Case: 19-12889    Date Filed: 04/29/2020   Page: 2 of 9



ZYHEEM IAN SMITH,

                                                            Defendant - Appellant.


                          ________________________

                                No. 19-12922
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:19-cr-60055-UU-3



UNITED STATES OF AMERICA,

                                                               Plaintiff - Appellee,

                                      versus

WATVERLY MORTIMER,

                                                           Defendant - Appellant.

                          ________________________

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

                                 (April 29, 2020)

Before WILSON, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Gedeon Joseph, Zyheem Smith, and Watverly

Mortimer each challenges his conviction for brandishing a firearm in furtherance


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of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. All

three were charged with conspiracy to commit Hobbs Act robbery in violation of

18 U.S.C. § 1951(a) (Count One), substantive Hobbs Act robbery in violation of 18

U.S.C. §§ 1951(a) and 2 (Count Two), and brandishing a firearm in furtherance of

a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count

Three). Count Three specified that the predicate crime of violence was substantive

Hobbs Act robbery as charged in Count Two of the indictment. All three

defendants pled guilty to Counts One and Three in return for the government

dismissing Count Two. Joseph’s and Smith’s plea agreements waived their rights

to appeal their convictions based on the constitutionality of the statutes of

conviction and whether the admitted conduct fell within the scope of the statutes of

conviction.

      Now, Joseph and Mortimer assert that their § 924(c) convictions were

predicated on the conspiracy to commit Hobbs Act robbery charge, not the

substantive Hobbs Act robbery charge. In light of the Supreme Court’s decision in

United States v. Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019), which invalidated

§ 924(c)(3)’s residual clause, and our decision in Brown v. United States, 942 F.3d

1069 (11th Cir. 2019) (per curiam), where we held that conspiracy to commit

Hobbs Act robbery is not a “crime of violence” under § 924(c)(e)’s elements

clause, Joseph and Mortimer argue that their conspiracy to commit Hobbs Act


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robbery charge is insufficient to support their respective § 924(c) convictions.

Smith advances a different argument, which Joseph adopts via motion, that

§ 924(c)(3)’s elements clause is not severable from the residual clause and, thus,

Davis invalidated both.

      After careful review of the parties’ briefs and the record, we dismiss

Joseph’s and Smith’s appeals as barred by their appeal waivers and affirm

Mortimer’s conviction.

                                          I.

      We review the validity of an appeal waiver de novo. United States v.

Hardman, 778 F.3d 896, 899 (11th Cir. 2014). A guilty plea by itself does not bar

a defendant from challenging the constitutionality of the statute of conviction on

direct appeal. Class v. United States, 583 U.S. ___, 138 S. Ct. 798, 803 (2018).

But an appeal waiver in a plea agreement is enforceable if it was made knowingly

and voluntarily. Hardman, 778 F.3d at 899. To establish that the waiver was

made knowingly and voluntarily, the government must show that (1) the district

court questioned the defendant about the waiver during the plea colloquy, or (2)

the record makes clear that the defendant otherwise understood the full

significance of the waiver. Id. “An appeal waiver includes the waiver of the right

to appeal difficult or debatable legal issues or even blatant error.” United States v.

Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (per curiam). A district


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court’s comments at sentencing cannot alter a waiver that a defendant knowingly

and voluntarily executed. United States v. Bascomb, 451 F.3d 1292, 1297 (11th

Cir. 2006).

      Joseph’s and Smith’s challenges to their § 924(c) convictions are barred by

their appeal waivers. Their written plea agreements contain a provision waiving

the right “to assert any claim that (1) the statutes to which the defendant is pleading

guilty are unconstitutional; and/or (2) the admitted conduct does not fall within the

scope of the statutes of conviction.” The district court discussed their plea

agreements with them during their respective plea colloquies, and both testified

that they understood they were giving up the right to appeal their sentences and

convictions. They both indicated that they had full opportunities to review their

plea agreements with their counsel and that they understood “each and every term”

of their agreements. Therefore, they both knowingly and voluntarily waived their

rights to raise the challenges at issue in their appeals.

      Further, the comments made by the government and the district court at

Joseph’s and Smith’s sentencing did not alter their appeal waivers. Because their

plea agreements were with the government, not the district court, the district

court’s comments at sentencing could not alter their waivers. See Bascomb, 451

F.3d at 1297. And the government made clear that “[t]he Defendant is bound by

his agreement.” As the agreements do not allow Joseph and Smith to challenge


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§ 924(c)’s constitutionality or whether their conduct falls within its scope on

appeal, we must dismiss their challenges.

                                          II.

      We review the denial of a motion to dismiss a charge in an indictment for

abuse of discretion and the sufficiency of an indictment de novo. United States v.

Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). Section 924(c) provides

mandatory minimum sentences for any defendant who uses or carries a firearm

during a crime of violence or a drug-trafficking crime. 18 U.S.C. § 924(c)(1). It

does not require the defendant to be convicted of, or even charged with, the

predicate offense if the fact of the offense is established. United States v. Frye,

402 F.3d 1123, 1127–28 (11th Cir. 2005) (per curiam). For the purposes of

§ 924(c), a “crime of violence” is a felony that:

      (A)    has as an element the use, attempted use, or threatened use of
             physical force against the person or property of another, 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). The first clause is referred to as the elements clause, and the second

clause is referred to as the residual clause. In Davis, the Supreme Court ruled that

the residual clause was unconstitutionally vague. 139 S. Ct. at 2336.

      A Hobbs Act offense occurs when a defendant



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      obstructs, delays, or affects commerce or the movement of any article
      or commodity in commerce, by robbery or extortion or attempts or
      conspires so to do, or commits or threatens physical violence to any
      person or property in furtherance of a plan or purpose to do anything in
      violation of this section.

18 U.S.C. § 1951(a). Robbery is defined in the Hobbs Act as

      the unlawful taking or obtaining of personal property from the person
      or in the presence of another, against his will, by means of actual or
      threatened force, or violence, or fear of injury, immediate or future, to
      his person or property, or property in his custody or possession, or the
      person or property of a relative or member of his family or of anyone
      in his company at the time of the taking or obtaining.

§ 1951(b)(1).

      Whoever aids and abets an offense against the United States is punishable as

a principal. 18 U.S.C. § 2. “To prevail under a theory of aiding and abetting, the

government must prove: (1) the substantive offense was committed by someone;

(2) the defendant committed an act which contributed to and furthered the offense;

and (3) the defendant intended to aid in its commission.” United States v.

Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016) (alteration accepted) (internal

quotation mark omitted).

      We have held that substantive Hobbs Act robbery under § 1951(b)(1) is a

“crime of violence” under 924(c)(3)’s elements clause. In re Fleur, 824 F.3d 1337,

1340–41 (11th Cir. 2016). We have also held that aiding and abetting a

substantive Hobbs Act robbery under § 2 is, likewise, a “crime of violence” under

the elements clause because “an aider and abettor is responsible for the acts of the
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principal as a matter of law.” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016).

Conspiracy to commit Hobbs Act robbery under § 1951(a), however, is not a

“crime of violence” under the elements clause. Brown, 942 F.3d at 1075.

      As an initial matter, Mortimer has abandoned any argument regarding

whether substantive Hobbs Act robbery or aiding and abetting a substantive Hobbs

Act robbery qualifies as a “crime of violence” under § 924(c)’s elements clause by

waiting until his reply brief to raise those issues. See United States v. Magluta,

418 F.3d 1166, 1185–86 (11th Cir. 2005) (“[A]n appellant may not raise an issue

for the first time in a reply brief.”). And regardless, we are bound by our prior

precedent in In re Fleur and In re Colon that such crimes qualify as crimes of

violence under § 924(c)’s elements clause. See United States v. St. Hubert, 909

F.3d 335, 346 (11th Cir. 2018) (holding that published orders on applications to

file second or successive 28 U.S.C. § 2255 motions are “binding precedent on all

subsequent panels of this Court, including those reviewing direct appeals and

collateral attacks, unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc” (alteration

accepted) (internal quotation mark omitted)), abrogated on other grounds by

Davis, 139 S. Ct. 2319.

      As to his primary argument, the indictment specified that Mortimer’s

§ 924(c) charge was predicated on the substantive Hobbs Act charge, not Hobbs


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Act conspiracy. Nothing in the plea agreement changed that; its language does not

suggest that it changed the § 924(c) predicate offense identified in the indictment.

The conviction thus stands as long as the facts of the predicate offense are

established. See Frye, 402 F.3d at 1127–28.

      Here, Mortimer’s factual proffer established the facts of the offense of

aiding and abetting a substantive Hobbs Act robbery, allowing it to serve as the

predicate for his § 924(c) charge. First, there is no question that the Hobbs Act

robbery occurred. Second, Mortimer contributed to and furthered the offense by

renting the getaway vehicle and by, as an employee of the restaurant, letting in

Joseph and Smith to commit the robbery. Finally, Mortimer’s actions—including

planning the robbery with Joseph and Smith, renting the car, and advising Smith

and Joseph to wait to enter the restaurant until after the manager arrived so he

could open the safe—show that he intended to aid in the commission of the

robbery. Accordingly, we affirm Mortimer’s § 924(c) conviction.

      DISMISSED IN PART AND AFFIRMED IN PART.




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