Case: 17-11989 Date Filed: 05/31/2017 Page: 1 of 17
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11989-E
________________________
IN RE: ORESTES HERNANDEZ,
Petitioner.
__________________________
Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)
_________________________
Before MARCUS, MARTIN, and JILL PRYOR, Circuit Judges.
B Y T H E P A N E L:
Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Orestes Hernandez has
filed an application seeking an order authorizing the district court to consider a
second or successive motion to vacate, set aside, or correct his federal sentence, 28
U.S.C. § 2255. Such authorization may be granted only if this Court certifies that
the second or successive motion contains a claim involving:
(1) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
Case: 17-11989 Date Filed: 05/31/2017 Page: 2 of 17
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or
successive application only if it determines that the application makes a prima facie
showing that the application satisfies the requirements of this subsection.” Id.
§ 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58
(11th Cir. 2007) (explaining that this Court’s determination that an applicant has
made a prima facie showing that the statutory criteria have been met is simply a
threshold determination).
In his application, Hernandez seeks to raise one claim in a second or
successive § 2255 motion. Hernandez asserts that his claim relies on a new rule of
constitutional law, citing Johnson v. United States, 135 S. Ct. 2551 (2015), in which
the Supreme Court held that the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. He also asserts that his
claim relies on Mathis v. United States, 136 S. Ct. 2243 (2016). Hernandez
contends that the Supreme Court’s holding in Johnson implicates the mandatory
terms of imprisonment he received under 18 U.S.C. § 924(c) for using a firearm
during a crime of violence. He argues that his convictions for Hobbs Act robbery
and extortion, 18 U.S.C. § 1951, and carjacking, 18 U.S.C. § 2119, no longer qualify
2
Case: 17-11989 Date Filed: 05/31/2017 Page: 3 of 17
as crimes of violence under § 924(c), after the Supreme Court’s holding in Johnson
and Mathis.
Under 28 U.S.C. § 2244(b)(1), a claim presented in a second or successive
habeas corpus application under § 2254 that was presented in a prior application
must be dismissed. 28 U.S.C. § 2244(b)(1). This Court has held that §
2244(b)(1)’s mandate applies to applications for leave to file a second or successive
§ 2255 motion. In re Baptiste, 828 F.3d 1337, 1339-40 (11th Cir. 2016).
Hernandez has previously filed an application for leave to file a second or successive
§ 2255 motion based on Johnson. In that application, Hernandez contended that his
§ 924(c) convictions were no longer valid. We denied his application, reasoning
that Hernandez’s Hobbs Act convictions qualified as crimes of violence under §
924(c)(3)(A)’s use-of-force clause. In re: Orestes Hernandez, No. 16-11862,
manuscript op. at 2-3 (11th. Cir. May 17, 2016). We noted that Hernandez’s
indictment confirmed that he was convicted under the part of § 1951 that contained a
use of force. Id. at 3. Accordingly, we denied his application, reasoning that
Hernandez’s sentence was valid even if Johnson invalidated § 924(c)’s residual
clause. Id. Because Hernandez raises the same argument in this application that
we previously denied on the merits, under binding precedent his application must be
denied. Baptiste, 828 F.3d at 1339.
3
Case: 17-11989 Date Filed: 05/31/2017 Page: 4 of 17
Moreover, Mathis does not provide an independent basis for his application,
as the Supreme Court’s holding in Mathis did not announce a “new rule of
constitutional law.” See 28 U.S.C. § 2255(h). Rather, the Supreme Court in
Mathis provided guidance to courts in interpreting an existing criminal statute. See
Mathis, 136 S. Ct. at 2248-57.
Accordingly, because Hernandez has failed to make a prima facie showing of
the existence of either of the grounds set forth in 28 U.S.C. § 2255, his application
for leave to file a second or successive motion is hereby DENIED.
4
Case: 17-11989 Date Filed: 05/31/2017 Page: 5 of 17
MARTIN, Circuit Judge, concurring in result, joined by JILL PRYOR, Circuit
Judge:
Orestes Hernandez was sentenced to 775-months imprisonment. 300
months of his sentence—25 years in prison—came from three
mandatory-minimum sentencing enhancements he got for using a gun in the
commission of his crimes under 18 U.S.C. § 924(c). Mr. Hernandez asks us to
make sure the crimes he was charged with qualify as crimes of violence so as to
justify the 25 extra years he received under § 924(c). However, we are barred
from reviewing his application by In re Baptiste, 828 F.3d 1337 (11th Cir. 2016),
which held that “the federal habeas statute requires us to dismiss a claim that has
been presented in a prior application” to file a § 2255 motion. Id. at 1339. I
have stated my view that this bar created by our Court in Baptiste has no basis in
the text of the habeas statute:
Baptiste was construing . . . 28 U.S.C. § 2244(b)(1),
which says any “claim presented in a second or
successive habeas corpus application under section 2254
that was presented in a prior application shall be
dismissed.” Of course, [] § 2255 motions . . . are filed
by federal prisoners [and] § 2255 motions are certainly
not brought “under section 2254,” which governs
petitions filed by state prisoners. But the Baptiste panel
ruled that even though § 2244(b)(1) does not mention §
2255 motions, it applies to them anyway, since “it would
be odd [] if Congress had intended to allow federal
prisoners” to do something state prisoners can’t do.
5
Case: 17-11989 Date Filed: 05/31/2017 Page: 6 of 17
In re Clayton, 829 F.3d 1254, 1266 (11th Cir. 2016) (Martin, J., concurring). And
Baptiste is inconsistent with the statute in a second way.
The text of the habeas statute shows that it requires
courts to dismiss only claims that were already presented
in an actual § 2255 motion, as opposed to a mere request
for certification of a successive § 2255 motion. Both
§ 2244 and § 2254 distinguish between “applications”
(which are the § 2254 petitions and § 2255 motions filed
in district courts) and “motions” (which are the earlier
request for certification filed in a court of appeals).
Baptiste assumes that “motion” and “application” mean
the same thing, even though Congress carefully
distinguished the two. When Congress uses different
words in this way, courts must presume those words
mean different things.
In re Anderson, 829 F.3d 1290, 1296 (11th Cir. 2016) (Martin, J., dissenting).
My colleagues have articulated other problems with Baptiste. See In re Jones,
830 F.3d 1295, 1297 (11th Cir. 2016) (Rosenbaum and Jill Pryor, J.J., concurring).
Baptiste is blocking relief to prisoners like Mr. Hernandez who ask us to
take a second look at their case after we made a mistake in ruling on their case the
first time. It seems we did get Mr. Hernandez’s case wrong the first time we saw
it. For Mr. Hernandez, this might mean he is required to serve 25 years in prison
based on a sentence that is contrary to law. For me, I am left to explain the
mistakes the panel and I made the first time he presented us with his problematic
sentence.
Mr. Hernandez was sentenced under 18 U.S.C. § 924(c), which requires a
6
Case: 17-11989 Date Filed: 05/31/2017 Page: 7 of 17
longer prison sentence whenever a defendant uses a firearm during a “crime of
violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The statute gives
more than one definition of “crime of violence,” including any felony “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.” Id.
§ 924(c)(3)(B). Mr. Hernandez claims this definition is unconstitutional in light
of Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), which held this
phrase: “involves conduct that presents a serious potential risk of physical injury to
another” in 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague.
We recently held that Johnson could invalidate the “very similar”
§ 924(c)(3)(B) language. In re Pinder, 824 F.3d 977, 978 (11th Cir. 2016). If
Johnson does apply to invalidate this language in § 924(c)(3)(B), then Mr.
Hernandez’s predicate offenses may not “categorically” qualify as a crime of
violence for purposes of § 924(c)’s elements clause. Mr. Hernandez was charged
with three counts of violating § 924(c). Count 3’s predicate conviction was Hobbs
Act extortion. Counts 6 and 11 relied on Mr. Hernandez’s attempted Hobbs Act
extortion and carjacking convictions from two separate occasions.
The panel denied Mr. Hernandez’s last application after summarily
concluding each of his § 924(c) convictions were based on predicate convictions of
7
Case: 17-11989 Date Filed: 05/31/2017 Page: 8 of 17
Hobbs Act extortion, which “has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” In re
Hernandez, No. 16-11862, manuscript op. at 3 (11th Cir. May 17, 2016) (quoting
18 U.S.C. § 924(c)(3)(A)). I believe the panel, of which I was a member, may
have been wrong for a number of reasons.
I.
It is not clear to me that Hobbs Act extortion—the predicate conviction for
Count 3—is necessarily a “crime of violence” for the purposes of § 924(c). The
panel said that it was, but we cited no caselaw or other authority on that crime.
This may have been due to our haste to rule on the application, which was decided
(as called for by the statute) within a month of when Mr. Hernandez filed his pro se
application, and without the benefit of advocacy or argument from a lawyer. As I
have discussed in another case:
Forgoing a detailed merits review makes sense because
our decisions at this stage are typically based on nothing
more than a form filled out by a prisoner. Without any
briefing or other argument made by a lawyer, we are ill
equipped to decide the merits of the claim. On top of that,
we are expected to decide these applications within 30
days of their filing. “Things are different in the district
court. That court has the benefit of submissions from
both sides, has access to the record, has an opportunity to
inquire into the evidence, and usually has time to make
and explain a decision about whether the petitioner’s
claim truly does meet the § 2244(b) requirements.”
8
Case: 17-11989 Date Filed: 05/31/2017 Page: 9 of 17
Given those limitations, it would be much more prudent,
I believe, to allow the District Court to decide the merits
of these cases in the first instance. . . . While the merits
of Mr. Saint Fleur’s proposed claim seem easier than in
some other cases, it is hard to be sure based on the
limited record we have at this stage.
In re Saint Fleur, 824 F.3d 1337, 1341–42, 1344 (11th Cir. 2016) (Martin, J.,
concurring) (citation omitted). Because of this, I overlooked the possibility that
Hobbs Act extortion can be committed without any actual, attempted, or threatened
use of force. “Extortion” is defined by 18 U.S.C. § 1951(b)(2) as “the obtaining
of property from another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear.” In evaluating someone’s criminal history, we
are required to look for the least culpable conduct that could have resulted in the
conviction. That means, for the purposes of this case, we must assume that Mr.
Hernandez’s conviction rests on the fear of financial loss. The Eleventh Circuit’s
pattern jury instructions tell the jury they can convict a defendant of Hobbs Act
extortion so long as they believe the defendant consented to giving up property
“because of the wrongful use of . . . fear.” 11th Cir. Pattern Jury Instructions 70.1
(emphasis added). This definition “includes the fear of financial loss as well as
fear of physical violence.” Id. (emphasis added).
The Supreme Court has told us that the term “physical force” as used in
§ 924(c)(3)(A) requires “violent force,” which means “strong physical force” or
9
Case: 17-11989 Date Filed: 05/31/2017 Page: 10 of 17
“force capable of causing physical pain or injury to another person.” Curtis
Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010)
(quotation omitted). Of course, any given defendant’s crime may have involved
“physical force” as described by Curtis Johnson. But the actual facts of Mr.
Hernandez’s convictions have no legal relevance to our decision about whether the
crime he was convicted of is a “crime of violence” under § 924(c)’s elements
clause. Rather, this question is one “we must answer ‘categorically’—that is, by
reference to the elements of the offense, and not the actual facts of [the
defendant’s] conduct.” United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir.
2013) (O’Connor, J.). Pursuant to this categorical approach, if Hobbs Act
extortion can be committed without “the use, attempted use, or threatened use of
physical force,” which our pattern instructions say it can, then that crime obviously
can’t have “as an element the use, attempted use, or threatened use of physical
force.”
It also bears repeating that Hobbs Act extortion can be committed “by
wrongful use of actual or threatened force, violence, or fear.” 18 U.S.C.
§ 1951(b)(2). Even though this language says Hobbs Act extortion can be
committed either with actual/threatened force, violence, or mere fear, “our inquiry
can’t end with simply looking at whether the statute is written disjunctively (with
10
Case: 17-11989 Date Filed: 05/31/2017 Page: 11 of 17
the word ‘or’). The text of a statute won’t always tell us if a statute is listing
alternative means or definitions, rather than alternative elements.” United States
v. Lockett, 810 F.3d 1262, 1268 (11th Cir. 2016). Mathis v. United States, 579
U.S. ___, 136 S. Ct. 2243 (2016), tells us what to do when faced with an
alternatively phrased statute:
The first task for a sentencing court . . . is [] to determine
whether its listed items are elements or means. If they
are elements, the court should do what we have
previously approved: review the record materials to
discover which of the enumerated alternatives played a
part in the defendant’s prior conviction, and then
compare that element (along with all others) to those of
the generic crime. But if instead they are means, the
court has no call to decide which of the statutory
alternatives was at issue in the earlier prosecution.
Id. at 2256 (citation omitted). Mathis examined the statute’s use of the word
“burglary” and in doing so made the distinction between the elements that define a
crime and the means by which it can be committed. Id. But this distinction may
be even more significant for § 924(c)’s “elements clause.” This “elements
clause” expressly requires as an “element” the use, attempted use, or threatened use
of physical force against the person or property of another. The law has long been
clear that alternative means of committing a crime set out in a federal criminal
statute are not alternative “elements.” See, e.g., Richardson v. United States, 526
U.S. 813, 817, 119 S. Ct. 1707, 1710 (1999). And again, whether a crime is
11
Case: 17-11989 Date Filed: 05/31/2017 Page: 12 of 17
“within the ambit of 18 U.S.C. § 924(c) . . . is a question . . . we must answer
‘categorically’—that is, by reference to the elements of the offense.” McGuire,
706 F.3d at 1336 (emphasis added). If Hobbs Act extortion is not a crime of
violence as defined by the Supreme Court, then Mr. Hernandez’s § 924(c) sentence
is unlawful.
II.
Mr. Hernandez’s § 924(c) convictions under Counts 6 and 11 may be wrong
for other reasons as well. Both these counts relied on predicate convictions of
attempted Hobbs Act extortion and carjacking. Because these counts relied on
two predicate crimes, it is impossible to tell from the jury’s verdict whether the
jury unanimously agreed that each § 924(c) conviction related to any one particular
underlying offense. See In re Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016).
That means that if either predicate crime does not qualify as a “crime of violence”
under § 924(c) in light of Johnson, then both Count 6 and Count 11 are unlawful.
See id. (“[A] general verdict of guilty does not reveal any unanimous finding by
the jury that the defendant was guilty of conspiring to carry a firearm during one of
the potential predicate offenses, all of predicate offenses, or guilty of conspiring
during some and not others.”).
12
Case: 17-11989 Date Filed: 05/31/2017 Page: 13 of 17
In addition to what I have said about Hobbs Act extortion, attempted Hobbs
Act extortion is even less likely to qualify as a “crime of violence” in light of
Johnson. As this Court recognized in Gomez, even if the underlying offense
(Hobbs Act extortion) is a crime of violence, the attempt to commit that crime may
not categorically be a “crime of violence.” Id. at 1228. Beyond the issues I
have raised about what qualifies as “extortion,” there is also the unsettled question
of whether a defendant can be convicted of attempting Hobbs Act extortion even if
he did not take substantial steps toward using or threatening the use of force. See
id. Again, we must look to the least culpable conduct for which someone could
be convicted of this crime: attempting to cause someone to give up property using
the fear of financial loss. It seems to me “the plausible applications of” attempted
Hobbs Act extortion might not “all require the [attempted] use or threatened use of
force.” See McGuire, 706 F.3d at 1337. Our panel therefore should have
granted Mr. Hernandez’s application last time and sent it to the District Court to
decide these questions “fresh, or in the legal vernacular, de novo.” Jordan v.
Sec’y, Dep’t of Corr., 485 F.3d 1351, 1358 (11th Cir. 2007).
III.
As I’ve said, the panel’s decision on Mr. Hernandez’s first application was
made quickly after this Court received his pro se application, and without the
13
Case: 17-11989 Date Filed: 05/31/2017 Page: 14 of 17
benefit of counsel. Since Baptiste issued, it has been used to bar countless
§ 924(c) prisoners from even filing a § 2255 motion after we discovered a mistake
in our first decision. Mr. Hernandez is among this number. These cases are
always troubling, but considering how severe § 924(c) sentences can be, this is
especially so. I am also well aware of how often § 924(c) is used to require
exceptionally harsh sentences in this circuit. Mr. Hernandez received three
§ 924(c) sentences for these crimes all charged in a single indictment. In other
words, Mr. Hernandez’s record does not show someone who violated § 924(c), got
punished for it, then violated it again. That means he received a 475-month
sentence for three violations the first time he ever faced this charge. But the
§ 924(c) violations (charged because Mr. Hernandez used a gun in the crimes)
added to his sentence an additional mandatory 300 months (25 years).1
Since the time Mr. Hernandez got his over-60-year sentence, the United
States Sentencing Commission has reported to Congress that “[t]he ‘stacking’ of
mandatory minimum penalties for multiple violations of section 924(c) results in
excessively severe and unjust sentences.” U.S.S.C. Report to Congress,
1
Under § 924(c), any person who brandishes a firearm in furtherance of a crime of
violence is subject to a statutory mandatory minimum sentence of 7-years imprisonment, which
must run consecutively to any other term of imprisonment imposed. 18 U.S.C.
§§ 924(c)(1)(A)(ii), (D)(ii). Also, anyone with “a second or subsequent conviction under this
subsection . . . shall be sentenced to a term of imprisonment of not less than 25 years,” which also
must run consecutively to any other term of imprisonment imposed. Id. §§ 924(c)(1)(C)(i),
(D)(ii).
14
Case: 17-11989 Date Filed: 05/31/2017 Page: 15 of 17
Mandatory Minimum Penalties in the Federal Criminal Justice System, October
2011, at 359. They use the term “stacking” to refer to the practice of charging
more than one § 924(c) violation together in a single indictment. “Stacking”
results in each violation building on top of the other to trigger a higher mandatory
minimum sentence. The first requires at least 5 years in prison, and each one
adds 25 years consecutive. Though this system of escalating penalties may have
been intended to punish repeat offenders who served one § 924(c) sentence and
then violated § 924(c) again later, 2 prosecutors can charge multiple § 924(c)
counts to dramatically increase a defendant’s minimum sentence for a series of
crimes committed close in time. This includes crimes that all happened in the
same day. And “[s]uch a result may occur even if the offender has no prior
record.” Id.
According to the Commission’s report to Congress, “[t]he sentences for
offenders convicted of multiple counts of an offense under section 924(c) were the
highest average sentences for any offenders convicted of an offense carrying a
mandatory minimum penalty in fiscal year 2010.” Id. Citing testimony by the
Judicial Conference of the United States, the Commission told Congress that
sentences under § 924(c) are often greater “than the guideline sentences for
2
For more on the intent behind § 924(c), see United States v. Rawlings, 821 F.2d 1543
(11th Cir. 1987).
15
Case: 17-11989 Date Filed: 05/31/2017 Page: 16 of 17
offenders who commit the most serious, violent crimes.” Id. at 361. The
Sentencing Commission also acknowledged that “the Judicial Conference has
urged Congress on at least two occasions to amend the ‘draconian’ penalties
established at section 924(c) by making it a ‘true recidivist statute, if not rescinding
it all together.’” Id. at 360–61. The Sentencing Commission joined the Judicial
Conference of the United States in concluding that the practice of “stacking”
§ 924(c) sentences is so unjust that Congress should eliminate it. Id. at 364.
Although many things about this case are troubling, perhaps most worrisome
is that Mr. Hernandez might never have received this sentence if he had been
sentenced in another part of the country. The Sentencing Commission also
reported to Congress that the practice of “stacking” § 924(c) charges happens in
very few districts. The Commission’s data showed “no evidence that those
offenses occur more frequently in those districts than in others.” Id. at 361. The
Sentencing Commission thus concluded that “this geographic concentration is
attributable to inconsistences in the charging of multiple violations of § 924(c).”
Id. at 361–62. As it happens, the Southern District of Florida, where Mr.
Hernandez was sentenced, is one of the districts recognized as exceptionally
prolific in charging § 924(c) crimes. In fiscal year 2010, at least one in thirty-five
of our entire nation’s § 924(c) sentences came from the Southern District of
16
Case: 17-11989 Date Filed: 05/31/2017 Page: 17 of 17
Florida. Id. at 276. The Southern District of Florida was one of only twelve
districts in the country that reported having over 50 of these cases that year. Id.
For the same period, 38 districts reported having ten or fewer. Id.
III.
If we got it wrong on Mr. Hernandez’s first application (and I fear we did),
his sentence may be unlawful. All Mr. Hernandez asked us to do is let the
District Court hear a § 2255 motion that would ask if his sentence is illegal. As I
wrote in Saint Fleur:
The stakes in these cases are very high, since many of
these applicants claim they are in prison beyond the
lawful limit of their sentence. And the margin for error
is very low, since the “denial of an authorization by a
court of appeals to file a second or successive application
shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.”
Federal judges are rarely authorized to make legal
decisions that are not subject to review. In the few
circumstances for which Congress has given us this
authority, we ought to wield it with extreme caution.
824 F.3d at 1344 (Martin, J., concurring) (citation omitted). Baptiste appears to
set our earlier decision in stone, even when we get it wrong. Nevertheless
Baptiste is binding precedent in this circuit, so Mr. Hernandez will not be allowed to
present his case to a District Court for an examination of whether his sentence is
legal.
17