Case: 16-13740 Date Filed: 02/28/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13740
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-61197-WPD,
0:14-cr-60277-WPD-1
NEIL NAVARRO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 28, 2017)
Before WILSON, JULIES CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Neil Navarro, proceeding pro se, appeals the district court’s denial of his 28
U.S.C. § 2255 motion. Navarro argues that his conviction and sentence under 18
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U.S.C. § 924(c)(3)(B) are invalid following Johnson v. United States, 135 S. Ct.
2551 (2015). The government contends that Navarro’s claim is barred by the
sentence-appeal waiver in his plea agreement. After a review of the record and
consideration of the parties’ briefs, we affirm.
In a proceeding on a motion to vacate under 28 U.S.C. § 2255, the district
court’s factual findings are reviewed for clear error while legal issues are reviewed
de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per
curiam). 1
Here, we do not reach the question of whether Johnson applies to § 924(c)’s
residual clause because Navarro’s § 924(c) conviction was alternatively premised
on drug trafficking crimes. Section 924(c) makes it a crime for any person to use
or carry a firearm “during and in relation to any crime of violence or drug
trafficking crime.” 18 U.S.C. § 924(c)(1)(A). “[D]rug trafficking crime means
any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et
seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.),
or chapter 705 of title 46.” 18 U.S.C. § 924(c)(2).
We have determined that a conviction under § 924(c) does not require that
the defendant be convicted of or even charged with the predicate offense. United
1
Navarro’s claim likely does not fall within the scope of the waiver because he is
collaterally attacking his conviction through 28 U.S.C. § 2255, and the plain language of the
waiver only covers Navarro’s right to appeal under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
However, we do not need to resolve this issue because his appeal fails regardless.
2
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States v. Frye, 402 F.3d 1123, 1127 (11th Cir. 2005) (per curiam). Instead,
§ 924(c) requires only that the predicate crime be one that may be prosecuted. Id.;
18 U.S.C. § 924(c)(1)(A). To satisfy that requirement, the government must show
that the defendant used or carried a firearm during and in relation to a crime of
violence or drug trafficking crime. Frye, 402 F.3d at 1128. The factual proffer can
be a sufficient basis for a district court to determine that a defendant committed the
underlying drug trafficking crime. See id.
Although Navarro did not plead guilty to the drug trafficking crimes in
counts two and three, the factual proffer, signed by Navarro, established that he
had conspired with his codefendants to steal 15 kilograms of cocaine and then
distribute that cocaine, while armed. Navarro did not need to be convicted of those
crimes in order for them to count as predicates for the § 924(c) conviction. See
Frye, 402 F.3d at 1127-28.
AFFIRMED.
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