          Case: 16-15090   Date Filed: 05/06/2020    Page: 1 of 3



                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-15090
                     ________________________

                D.C. Docket Nos. 0:16-cv-61258-WPD,
                       0:05-cr-60022-WPD-3


BERNARD DONJOIE,

                                                    Petitioner-Appellant,

                               versus

UNITED STATES OF AMERICA,

                                                Respondent-Appellee.

                     ________________________

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

                            (May 6, 2020)
                Case: 16-15090       Date Filed: 05/06/2020      Page: 2 of 3



Before WILSON, MARCUS, and THAPAR,∗ Circuit Judges.

PER CURIAM:

       Over fifteen years ago, the government indicted Bernard Donjoie for a slew

of drug and gun crimes, including one count under 18 U.S.C. § 924(c). That

provision requires the defendant to use or carry a firearm during some underlying

offense, either a “crime of violence” or “drug trafficking crime.”                          Id.

§ 924(c)(1)(A). The indictment in Donjoie’s case alleged three predicate offenses:

one count of conspiracy to commit Hobbs Act robbery and two drug crimes. A

jury ultimately convicted Donjoie on all counts but didn’t specify which predicate

crime (or crimes) it used for the § 924(c) conviction.                 This court affirmed

Donjoie’s convictions on direct appeal. United States v. Orisnord, 483 F.3d 1169,

1173 (11th Cir. 2007).

       Last year, however, the Supreme Court found a provision of § 924(c) to be

unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019).

Based on that decision, Donjoie now seeks postconviction relief, arguing that

his § 924(c) conviction is invalid because one of his predicate offenses, conspiracy

to commit Hobbs Act robbery, no longer qualifies as a “crime of violence” under




       ∗
         Honorable Amul R. Thapar, United States Circuit Judge for the Sixth Circuit, sitting by
designation.

                                               2
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§ 924(c). See Brown v. United States, 942 F.3d 1069, 1076 (11th Cir. 2019) (per

curiam).

      Here’s the problem with that argument: the jury didn’t convict Donjoie

based on the robbery count. How do we know this? Because the district court

instructed the jury to convict on the § 924(c) count “only if” it found that Donjoie

carried a firearm during one of the drug crimes charged in the indictment. R. 162

at 20. The jury instructions didn’t even mention the robbery count as a potential

predicate. And based on these instructions, we can know with “certainty”—or at

least as much certainty as any jury verdict—that the jury convicted based on one

(if not both) of the drug counts. Shepard v. United States, 544 U.S. 13, 25 (2005)

(plurality opinion); see also Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)

(explaining that courts can use jury instructions to determine the crime of

conviction); cf. Weeks v. Angelone, 528 U.S. 225, 234 (2000) (explaining that

juries are presumed to follow their instructions).

      Donjoie doesn’t dispute that his drug crimes still qualify as predicates under

§ 924(c). Hence he cannot prevail on his Davis claim. See In re Navarro, 931

F.3d 1298, 1302–03 (11th Cir. 2019) (per curiam).

      We affirm the district court’s denial of postconviction relief.




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