Case: 16-13508 Date Filed: 01/06/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13508
Non-Argument Calendar
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D.C. Docket Nos. 0:16-cv-60929-WPD,
0:14-cr-60277-WPD-2
DANNY HERRERA,
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
________________________
(January 6, 2020)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WILSON, JILL PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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We previously reviewed, and affirmed, the district court’s denial of Danny
Herrera’s 28 U.S.C. § 2255 motion to vacate the sentence for his 18 U.S.C.
§ 924(c) conviction. The Supreme Court, after its decision in United States v.
Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019), vacated our decision and remanded
for us to reconsider Herrera’s motion in light of Davis. Because his § 924(c)
conviction remains supported by a valid predicate offense, we affirm the district
court. United States v. Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019).
As background, Herrera was charged by indictment with conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1); conspiracy
to possess with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 2); attempted possession with
intent to distribute five kilograms or more of cocaine, in violation of §§ 841(a)(1),
(b)(1)(A), and 846 (Count 3); conspiracy to use a firearm during and in relation to
a crime of violence (as charged in Count 1) and a drug-trafficking offense (as
charged in Counts 2 and 3), in violation of § 924(c) (Count 4); carrying a firearm
during and in relation to a crime of violence (Count 1) or a drug-trafficking crime
(Counts 2 and 3), in violation of § 924(c) (Count 5); and possession of a firearm by
a convicted felon (Count 6). He pled guilty to Counts 1 and 5 and waived his right
to direct appeal. He then filed his § 2255 motion, arguing that his § 924(c)
conviction was invalidated by the Supreme Court’s ruling in Johnson v. United
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States, 576 U.S. ___, 135 S. Ct. 2551 (2015) (holding that the residual clause in the
Armed Career Criminal Act was unconstitutionally vague).
In our prior opinion, we affirmed the district court’s denial of Herrera’s
§ 2255 motion, holding that conspiracy to commit Hobbs Act robbery qualified as
a predicate crime of violence under the residual clause of § 924(c)(3)(B).
Subsequently, the Supreme Court in Davis struck down the residual clause in
§ 924(c)(3)(B) as unconstitutionally vague. 139 S. Ct. at 2336. We must now
review Herrera’s claim in light of Davis.1
Recently, we decided that conspiracy to commit Hobbs Act does not
constitute a crime of violence under the still-valid elements clause of
§ 924(c)(3)(A). Brown v. United States, 942 F.3d 1069, 1075 (2019) (per curiam).
Thus, Herrera’s § 924(c) conviction remains valid only if it is supported by a
predicate offense other than conspiracy to commit Hobbs Act robbery. A
defendant may be convicted under § 924(c) without being convicted of, or even
charged with, the predicate offense. United States v. Frye, 402 F.3d 1123, 1127–
28 (11th Cir. 2005) (per curiam). “Section 924(c) requires only that the drug
trafficking crime be one that ‘may be prosecuted.’” Id. at 1127.
1
In an appeal challenging the district court’s resolution of a § 2255 motion, we review factual
findings for clear error and legal issues de novo. Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004) (per curiam).
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Here, the signed plea agreement stated that Herrera’s § 924(c) conviction
was predicated on both a crime of violence and a drug-trafficking crime. And the
factual proffer that Herrera affirmed contained sufficient facts to established that
he committed the drug-trafficking crimes charged in Counts Two and Three.
Specifically, it established that Herrera conspired with two others to steal and then
distribute over five kilograms of cocaine from a stash house and that the group
took steps toward completing the robbery before they were arrested. Thus, Herrera
is not entitled to relief under Davis because his § 924(c) conviction is
independently supported by his drug-trafficking-related conduct.
AFFIRMED.
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