Carlos Granda v. United States (11th Cir. March 2021)

The Federal Docket

Firearm Offenses – Error in instructing the jury that conspiracy to commit Hobbs Act robbery was predicate offense under 18 USC 924(o) was not reversible error where the jury found the defendant guilty of the other predicate offenses and those counts were “inextricably intertwined” with the conspiracy count.

Carlos Granda was arrested and charged based on allegations that he served as a lookout during an armed robbery of a tractor trailer that purportedly contained up to 80 kilos of cocaine. He was convicted, his conviction was affirmed, and he subsequently filed a motion under 2255 based on the trial court’s jury instructions regarding his charges for conspiracy to possess a firearm in furtherance of a crime of violence or drug trafficking crime under 18 USC 924(o).

The trial court had instructed the jury that it could rely on predicate crimes including conspiracy to possess cocaine with intent to distribute, attempt to possess cocaine with intent to distribute, attempted Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and attempted carjacking. However, since then, the Supreme Court and Eleventh Circuit had found that conspiracy to commit Hobbs Act robbery no longer qualifies as a crime of violence predicate.

The Court rejected Granda’s appeal from the district court’s denial of his 2255 motion. The Court first held that Granda had procedurally defaulted on his claim. The Court addressed the fact that Granda had filed a 2255 based on Johnson before SCOTUS’s decision in Davis, which directly related to the 924(o) conviction, and found it had jurisdiction. However, Granda had not raised a vagueness challenge to the 924(o) at the trial court or on direct appeal. Therefore, he procedurally defaulted on that claim and had to show cause to excuse the default and actual prejudice or that he was actually innocent.

The Court also held that Granda failed on the merits because, while the conspiracy count could not be a predicate offense, all of the 924(o) predicates in Granda’s case were “inextricably intertwined” and based on the same robbery scheme. As such, the jury “could not have found that Granda conspired to possess a firearm in furtherance of Hobbs Act conspiracy without also finding that he conspired to possess a firearm in furtherance of his attempted Hobbs Act robbery, as well as in furtherance of conspiring and attempting to possess cocaine with intent to distribute and in furtherance of attempting a carjacking. Therefore, he could not show prejudice or actual innocence to excuse his procedural default. For good measure, the Court added that the allegedly erroneous instructions were harmless.

Appeal from the Southern District of Florida
Opinion by Marcus, joined by Jordan and W. Pryor
Concurrence by Jordan

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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