USA v. Jorge L. Torres

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14416
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
versus
JORGE L. TORRES,
Defendant-Appellant,
Cross-Appellee.
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2 Opinion of the Court 20-14416
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:08-cr-20231-PCH-6,
1:19-cv-25150-PCH
____________________
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and
BRANCH, Circuit Judges.
PER CURIAM:
Jorge Torres appeals and the United States cross-appeals the
order granting his successive motion to vacate, 28 U.S.C. § 2255,
and imposing a new sentence of 360 months of imprisonment for
conspiring to and attempting to distribute cocaine, 21 U.S.C.
§§ 841, 846, and for conspiring to and attempting to commit a
Hobbs Act robbery, 18 U.S.C. § 1951. Torres challenges the reason-
ableness of his new sentence, and the United States argues that
Torres procedurally defaulted his grounds for challenging his orig-
inal sentence. Based on our recent decisions in
Granda v. United
States, 990 F.3d 1272 (11th Cir. 2021),
cert. denied, No. 21-6171
(U.S. Mar. 7, 2022), we agree with the government. We vacate and
remand.
I. BACKGROUND
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20-14416 Opinion of the Court 3
Officers arrested Torres as he and his coconspirators
planned to steal drugs from an alleged stash house in a reverse-
sting operation. An undercover agent of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives posed as a disgruntled drug
courier for a Colombian drug organization. The agent recruited
seasoned armed robbers led by Freddy Crespo, to steal his alleged
shipment of cocaine. During conversations the agent recorded,
the conspirators prepared for the agent to be accompanied by an
armed guard. Crespo also offered to provide a lookout for law en-
forcement and to contribute police gear, which he and his associ-
ates typically wore when conducting narcotics robberies.
On the day of the planned robbery, Torres and two associ-
ates met at the Cookie Dollar Store. In response to a call from
Crespo, the three associates drove to an area near a warehouse
district. After leaving Torres in the parking lot of a McDonald’s
restaurant to surveil the area, the other associates went to a
nearby gas station, where they met with other conspirators and
the undercover agent as he awaited a telephone call for the loca-
tion of the cocaine.
Federal agents then arrested the conspirators. The agents
searched the car in which Torres had been a passenger and dis-
covered gloves, a large machete, and a baseball cap affixed with
the seal of the United States of America. The agents discovered in
another vehicle similar baseball caps, a shirt bearing a SWAT
logo, additional gloves, two gold police-type badges, handcuffs,
and loaded firearms.
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An associate arrested at the gas station later confessed to
committing numerous robberies with Crespo and Torres during
which he used a pistol that Torres owned. The associate identified
Torres’s pistol among the firearms that the agents seized. The as-
sociate also recounted three telephone calls in which Torres in-
structed coconspirators to meet at the gas station, imparted that
Crespo and two cohorts “were all together with the people with
whom the robbery was going to be done,” and informed Crespo
that “this thing was looking good” and to go to the warehouse.
Torres was convicted of six crimes: conspiring to possess
with intent to distribute 5 kilograms or more of cocaine, 21 U.S.C.
§§ 841, 846; attempting to possess with intent to distribute 5 kilo-
grams or more of cocaine,
id. § 841; conspiring to commit Hobbs
Act robbery, 18 U.S.C. § 1951(a); attempted Hobbs Act robbery,
id.; conspiring to carry a firearm during and in relation to a crime
of violence and a drug trafficking crime,
id. § 924(o); and using
and carrying a firearm during and in relation to a crime of vio-
lence and a drug trafficking crime,
id. § 924(c)(1)(A). Torres’s in-
dictment listed both drug charges and both Hobbs Act charges as
predicate offenses for the firearm charges.
The district court instructed the jury that the evidence had
to prove beyond a reasonable doubt that each firearm crime was
committed in relation to or in furtherance of “one of the federal
drug trafficking crimes, or one of the federal crimes of violence,
or both, as charged in Counts 1, 2, 3, or 4 of the indictment.” For
each firearm charge, the district court also instructed the jury that
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20-14416 Opinion of the Court 5
“[i]t is sufficient if the Government proves, beyond a reasonable
doubt, that [Torres] knowingly violated the law in one of those
ways; but, in that event, you must unanimously agree upon the
way in which [he] committed the violation.” The jury found
Torres guilty on all counts in a general verdict.
Torres, a career offender, faced an advisory guideline range
of 360 months to life imprisonment and a consecutive term of 60
months of imprisonment for possessing a firearm. The district
court sentenced Torres to 380 months of imprisonment, consist-
ing of 320 months for each drug crime and 230 months for each
Hobbs Act crime and for conspiring to use a firearm, all to run
concurrently, and of a consecutive term of 60 months for using a
firearm.
Torres challenged the sufficiency of the evidence for each
conviction on direct appeal, and we affirmed.
U.S. v. Torres, 361
F. App’x 109 (11th Cir. 2010). We concluded that the evidence of
Torres’s discussion of the robbery at the dollar store, travel to the
McDonald’s restaurant, conversation with an associate en route
to the restaurant, and contribution of a gun to use during the rob-
bery supported his convictions for conspiring to and attempting
to distribute cocaine.
Id. at 116–17. That same evidence, we con-
cluded, proved that Torres had conspired to and attempted to af-
fect interstate commerce by “knowingly join[ing] in a plan to rob
[the undercover agent], and [taking] a substantial step toward that
crime by, among other things, arriving at the McDonald’s to
await further instructions.”
Id. at 117. And we upheld Torres’s
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firearm convictions based on the evidence that he “participated in
the Cookie Dollar Store meeting . . . and one of the guns found
. . . belonged to him,” which provided a “link between [him] and
. . . one of the guns used in the attempted robbery” and supported
the jury’s finding that he knew “a gun was going to be used in the
narcotics robbery.”
Id. at 118.
Torres twice moved for postconviction relief without suc-
cess.
See 28 U.S.C. § 2255. Torres first moved to vacate his sen-
tence on the ground the district court was biased, but the district
court denied his motion. And we denied him a certificate of ap-
pealability.
United States v. Torres, No. 11-14136-G (11th Cir.
Feb. 3, 2012). Later, Torres applied for leave to file a second mo-
tion based on
Johnson v. United States, 576 U.S. 591 (2015), but
we denied that application.
United States v. Torres, No. 16-13543
(11th Cir. July 1, 2016).
We later granted Torres leave to file a successive motion
challenging the validity of his firearm offenses based on
United
States v. Davis, 139 S. Ct. 2319 (2019).
See 28 U.S.C. § 2255(h)(2).
We ruled that Torres “made a
prima facie showing that his claim
satisfie[d] the statutory criteria of § 2255(h)(2) on the basis that his
§ 924(c) and § 924(o) convictions in Counts 5 and 6 may be uncon-
stitutional . . . as [based on] the now invalid residual clause of
§ 924(c)(3)(B).”
With the assistance of appointed counsel, Torres filed an
amended motion to vacate. 28 U.S.C. § 2255. He argued that the
district court had to presume that his two firearm convictions
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rested upon the least of the criminal acts that he committed,
which was conspiracy to commit Hobbs Act robbery. Torres ar-
gued that, after
Davis, Hobbs Act conspiracy no longer qualified
as a crime of violence and was an invalid predicate offense that
could not support his firearm convictions. And Torres argued,
based on
Stromberg v. California, 283 U.S. 359 (1931), that the dis-
trict court could set aside a general verdict if the jury could have
relied on multiple grounds, one of which was invalid. The gov-
ernment responded that Torres’s
Davis claim was procedurally
defaulted.
The district court granted Torres’s motion and vacated his
convictions and sentences for his two firearm offenses. The dis-
trict court ruled that Torres’s
Davis claim was not barred by pro-
cedural default because his claim was “jurisdictional in nature”
and, in the alternative, he provided “cause and prejudice” to over-
come the procedural default. The district court then imposed a
new sentence of 360 months of imprisonment.
II. STANDARD OF REVIEW
The application of the doctrine of procedural default to a
motion to vacate presents a mixed question of fact and law, which
we review
de novo.
Granda, 990 F.3d at 1286.
III. DISCUSSION
A federal prisoner can move to vacate, set aside, or correct
his sentence on the “ground that . . . sentence was imposed in vio-
lation of the Constitution or laws of the United States.” 28 U.S.C.
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§ 2255(a). This motion for collateral relief is subject to the doc-
trine of procedural default.
Granda, 990 F.3d at 1280. That doc-
trine bars a defendant from obtaining postconviction relief based
on an argument that he could have raised at trial and on direct ap-
peal.
McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011).
The defendant can overcome the bar by proving cause and preju-
dice to excuse his procedural default, or he can bypass the bar by
establishing that the alleged sentencing error is jurisdictional.
United States v. Bane, 948 F.3d 1290, 1294 (11th Cir. 2020).
Jurisdiction refers to “the courts’ statutory or constitutional
power to adjudicate the case.”
United States v. Cotton, 535 U.S.
625, 630 (2002) (quoting
Steel Co. v. Citizens for Better Env’t, 523
U.S. 83, 89 (1998)). The district courts have the power to adjudi-
cate “all offenses against the laws of the United States.”18 U.S.C.
§ 3231. “So [as] long as the indictment charges the defendant with
violating a valid federal statute as enacted in the United States
Code, it alleges an ‘offense against the laws of the United States’
and, thereby, invokes the district court’s subject-matter jurisdic-
tion.”
United States v. Brown, 752 F.3d 1344, 1354 (11th Cir.
2014).
The district court erred by classifying Torres’s challenge as
jurisdictional. “A jurisdictional defect is one that strips the court
of its power to act and makes its judgment void.”
McCoy v.
United States, 266 F.3d 1245, 1249 (11th Cir. 2001) (internal quota-
tion marks omitted and alterations adopted). To be sure, after
Da-
vis, 139 S. Ct. 2319, Torres’s crime of conspiring to commit
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20-14416 Opinion of the Court 9
Hobbs Act robbery no longer qualifies as a crime of violence. But
the invalidation of one of Torres’s four predicate offenses did not
divest the district court of the power to adjudicate his criminal
charges. Torres’s indictment charged him with violating federal
laws that prohibited conspiring to and attempting to use a firearm
during and in relation to a crime of violence and a drug trafficking
crime. 18 U.S.C. § 924(o), (c)(1)(A). And his indictment alleged
three valid predicate offenses: conspiring to possess with intent to
traffic cocaine, attempting to possess with intent to traffic cocaine,
and attempting to commit a Hobbs Act robbery.
Our recent decision in
Granda controls this appeal. Torres
procedurally defaulted and “cannot collaterally attack his convic-
tion on a vagueness theory” he failed to advance at trial or on di-
rect appeal.
See Granda, 990 F.3d at 1285–86. Like the movant in
Granda, Torres challenged the validity of his firearms convictions
based on
Davis.
See id. at 1281–83. And Torres’s indictment also
alleged predicate offenses consisting of crimes of violence, one of
which was invalid, and of drug trafficking crimes, which were
valid.
See id. at 1281. And like the movant in
Granda, Torres’s
jury returned a general guilty verdict after being instructed that
they could convict on finding that the firearm offenses were com-
mitted in relation to or in furtherance of either a drug trafficking
crime, a crime of violence, or both, so long as the jury agreed
unanimously on the predicate offense.
See id. at 1280.
Granda also forecloses Torres’s argument that he can es-
tablish cause and prejudice to overcome his procedural default.
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Torres possessed at the time of his direct appeal “the building
blocks . . . [to make] a due process vagueness challenge to the
§ 924(c) residual clause.”
See id. at 1286–88. And Torres cannot
prove actual prejudice to excuse his procedural default. Torres
failed to “establish a substantial likelihood that the jury relied only
on the . . . conviction [for conspiracy to commit Hobbs Act rob-
bery], because reliance on any of [his other convictions] would
have provided a wholly independent, sufficient, and legally valid
basis to convict” him for conspiring to possess and for possessing
a firearm, 18 U.S.C. § 924(o), (c)(1)(A).
Granda, 990 F.3d at 1288.
All of Torres’s “predicates are inextricably intertwined, arising out
of the same cocaine robbery scheme.”
See id. at 1280. Torres pro-
vided a firearm, acted as a lookout, and coordinated the move-
ments of his cohorts to execute their plan to steal cocaine. The
jury necessarily must have found that Torres conspired to possess
and possessed a firearm in furtherance of the conspiracy to com-
mit a Hobbs Act robbery as well as in furtherance of his other
crimes of attempting to commit Hobbs Act robbery and of con-
spiring to and of attempting to obtain the cocaine.
See id. at 1289.
Torres’s argument that actual innocence excuses his proce-
dural default also fails. “Actual innocence means factual inno-
cence, not mere legal innocence.”
Id. at 1292 (quoting
Lynn v.
United States, 365 F.3d 1225, 1235 n.18 (11th Cir. 2004)). Torres
argues he is innocent of the firearm offense due to the invalidity
of his predicate offense. But we do not “extend the actual inno-
cence of sentence exception to claims of legal innocence of a
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predicate offense justifying an enhanced sentence.”
McKay, 657
F.3d at 1199. And Torres concedes that
Granda forecloses “his
challenge to his § 924(c) conviction [as] based on ‘mere legal insuf-
ficiency’ rather than ‘factual innocence’ . . . .”
See Granda, 990
F.3d at 1292.
IV. CONCLUSION
We VACATE the order granting Torres’s motion to vacate
and REMAND for further proceedings consistent with this opin-
ion.
VACATED and REMANDED.
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