USCA11 Case: 20-14077 Document: 37-1 Date Filed: 05/19/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14077
Non-Argument Calendar
____________________
JOHANN BRITO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:11-cr-00060-ODE-RGV-5
____________________
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2 Opinion of the Court 20-14077
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Johann Brito, a counseled federal prisoner, appeals the dis-
trict court’s order denying his 28 U.S.C. § 2255 motion to vacate.
The government, in turn, has moved for summary affirmance.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1161-62 (5th Cir. 1969). A motion for summary affirmance post-
pones the due date for the filing of any remaining brief until this
Court rules on the motion. See 11th Cir. R. 31-1(c).
Federal prisoners may obtain post conviction relief and set
aside prior convictions when a sentence “was imposed in violation
of the Constitution or laws of the United States.” 28 U.S.C. §
2255(a). When reviewing a district court’s denial of a § 2255 mo-
tion, we review questions of law de novo and factual findings for
clear error. See Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004).
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20-14077 Opinion of the Court 3
Federal law provides for a mandatory consecutive sentence
for any defendant who uses or carries a firearm during a crime of
violence or a drug trafficking crime. See 18 U.S.C. § 924(c)(1). For
the purposes of § 924(c), a “crime of violence” means an offense
that is a felony and
(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)(A), (B). The Supreme Court has referred to
§ 924(c)(3)(A) as the “elements clause” and to § 924(c)(3)(B) as the
“residual clause.” United States v. Davis, 139 S. Ct. 2319, 2323, 2336
(2019). The Supreme Court held in Davis that § 924(c)(3)(B)’s resid-
ual clause was unconstitutionally vague. See Id.
The Supreme Court recently resolved a circuit split and held
that attempted Hobbs Act robbery does not qualify as a predicate
crime of violence under § 924(c)(3)(A)’s “elements clause,” which
“covers offenses that have as an element the use, attempted use, or
threatened use of physical force against the person or property of
another.” Taylor v. United States, 142 S. Ct. 2015, 2019-21 (2022),
overruling in part United States v. St. Hubert, 909 F.3d 335 (11th Cir.
2018).
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4 Opinion of the Court 20-14077
On collateral review, relief is only proper where there is
“grave doubt about whether a trial error of federal law had sub-
stantial and injurious effect or influence in determining the jury’s
verdict.” Foster v. United States, 996 F.3d 1100, 1107 (11th Cir. 2021)
(quotation marks omitted) (addressing errors in both the indict-
ment and jury instructions). This calls for “more than a reasonable
possibility that the error was harmful” and requires “actual preju-
dice” before a court may order relief. Id. (quotation marks omit-
ted). In determining whether the error resulted in actual prejudice,
we ask “whether the error substantially influenced the jury’s deci-
sion.” Id.
For example, in Granda v. United States, 990 F.3d 1272, 1285
(11th Cir. 2021), the defendant’s § 924(c) conviction was premised
on conspiracy to commit Hobbs Act robbery, attempted Hobbs Act
robbery, drug trafficking offenses, and attempted carjacking. We
concluded that, although conspiracy to commit Hobbs Act robbery
was no longer a valid predicate offense in light of Davis, the remain-
ing predicate convictions remained valid predicates. See id. at 1285.
Because the offenses were inextricably intertwined and the rec-
ord—including the indictment and general verdict form—did not
clarify which conviction the jury relied on, we concluded that the
defendant could not make the requisite showing. There was “little
doubt that if the jury found that Granda conspired to possess a fire-
arm in furtherance of his conspiracy to commit Hobbs Act rob-
bery, it also found that he conspired to possess a firearm in further-
ance of the other crime-of-violence and drug-trafficking predicates
of which the jury convicted him.” Id. at 1285, 1289, 1293. We also
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20-14077 Opinion of the Court 5
rejected the argument that it is improper to rely on an alternative
valid predicate based on Stromberg v. People of State of Cal., 283 U.S.
359 (1931), when conducting a harmless error analysis. See Granda,
990 F.3d at 1293 94. And we rejected the contention that we must
apply the categorical approach to a § 924(c) conviction to presume
that that conviction rested on an invalid predicate. See id. at 1295
96. Ultimately, we concluded that a defendant cannot succeed on
the merits of his challenge if there were other valid predicates that
the jury could have relied on to support his conviction. See id. at
1296.
Under our prior panel precedent rule, a prior panel’s holding
is binding unless it has been overruled or abrogated by the Supreme
Court or by this Court sitting en banc. See In re Lambrix, 776 F.3d
789, 794 (11th Cir. 2015). Based on Granda, we grant summary af-
firmance as to the district court’s denial of Mr. Brito’s § 2255 mo-
tion. Mr. Brito’s drug-related convictions (Counts 10 and 11) re-
main valid predicates for his § 924(c) offense. Moreover, his valid
and invalid predicates are inextricably linked such that he cannot
show a substantial likelihood that the jury actually relied on the in-
valid predicate.
Accordingly, we GRANT the government’s motion for sum-
mary affirmance.
AFFIRMED.