Jason Davila v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2137
J ASON D AVILA ,
Petitioner‐Appellant,
v.
U NITED STATES OF A MERICA ,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 8403 — Gary Feinerman, Judge.
____________________
A RGUED NOVEMBER 16, 2016 — DECIDED D ECEMBER 13, 2016
____________________
Before EASTERBROOK , KANNE , and HAMILTON, Circuit
Judges.
EASTERBROOK , Circuit Judge. Jason Davila pleaded guilty
to two criminal charges: that he conspired to commit rob‐
bery in violation of the Hobbs Act, 18 U.S.C. §1951, and that
he possessed a firearm in connection with both the planned
robbery and a drug trafficking crime, in violation of 18
U.S.C. §924(c)(1)(A). The indictment charged the drug of‐

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2 No. 16‐2137
fense as a separate substantive count, which was dismissed
as part of a plea bargain. The judge sentenced Davila to con‐
secutive sentences of 6 months’ imprisonment under the
Hobbs Act and 60 months’ imprisonment under §924(c). He
did not appeal.
But after the Supreme Court held in Johnson v. United
States, 135 S. Ct. 2551 (2015), that the residual clause of the
Armed Career Criminal Act, 18 U.S.C. §924(e), is unconstitu‐
tionally vague, Davila filed this collateral attack under 28
U.S.C. §2255. He contends that conspiracy to commit a rob‐
bery could be deemed a crime of violence only under the re‐
sidual clause in §924(c)(3)(B) and that this clause should be
held unconstitutional under Johnson’s reasoning. This court
recently reached that conclusion about the validity of
§924(c)(3)(B). See United States v. Cardena, No. 12‐3680 (7th
Cir. Nov. 18, 2016), slip op. 52–54. Anticipating the possibil‐
ity of that outcome—and without deciding whether a Hobbs
Act conspiracy is a crime of violence under the elements
clause in §924(c)(3)(A)—the district judge held that Davila’s
conviction is valid no matter how conspiracy to rob is classi‐
fied. The indictment charged Davila with possessing the gun
in connection with both that planned robbery and a complet‐
ed drug deal, and the latter is a “drug trafficking crime” un‐
der §924(c)(2). The district court accordingly declined to dis‐
turb the conviction or sentence.
Davila’s appellate brief assumes that a conviction under
§924(c) is proper only if there is also a conviction for a quali‐
fying predicate offense—either a “drug trafficking crime” or
a “crime of violence”. As he pleaded guilty to the Hobbs Act
count but not the drug count, he submits that the drug deal
cannot be considered under §924(c). This approach treats

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No. 16‐2137 3
§924(c) as a sentence‐enhancement statute, and a judge can’t
enhance a sentence unless there has been a conviction for an
underlying offense.
The Armed Career Criminal Act is a sentence‐
enhancement statute, but §924(c) is not. It defines a stand‐
alone crime. Section 924(c)(1)(A) provides that
any person who, during and in relation to any crime of violence
or drug trafficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or de‐
vice) for which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addition to the pun‐
ishment provided for such crime of violence or drug trafficking
crime … be sentenced to a term of imprisonment of not less than
5 years[.]
This requires a minimum sentence of five years if the firearm
is possessed during and in relation to a drug offense or
crime of violence “for which the person may be prosecuted”
(emphasis added); it does not require a prosecution for or
conviction of that other offense. See United States v. Moore,
763 F.3d 900, 908 (7th Cir. 2014); Young v. United States, 124
F.3d 794, 800 (7th Cir. 1997). When stating the factual basis of
his plea, Davila admitted to a substantive drug offense that
made him eligible for conviction under §924(c), no matter
how the Hobbs Act conspiracy is best classified (a subject
that we do not address).
Davila contends that even if a §924(c) conviction is possi‐
ble without a conviction on a predicate offense, he under‐
stood the §924(c) count of the indictment to allege only that
he possessed the gun during and in relation to a crime of vi‐
olence. Yet the §924(c) count is short (about half of a double‐

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4 No. 16‐2137
spaced page) and mentions the Hobbs Act and drug offenses
within a single sentence. The plea colloquy also covered the
relation between his gun and drugs.
There is a deeper problem with Davila’s challenge to his
conviction under §924(c): He pleaded guilty. He did not fight
the charge and contend that the residual clause is invalid or
that conviction of a drug charge is essential to a §924(c) con‐
viction. He gave up those and other possible arguments as
part of a plea bargain, which conferred benefits including
the dismissal of two other serious charges (the substantive
drug count and a felon‐in‐possession count). Davila cannot
keep those benefits while avoiding the criminal responsibil‐
ity to which he admitted.
The Supreme Court has held many times that a plea of
guilty is all that is necessary for a conviction:
[W]hen the judgment of conviction upon a guilty plea has be‐
come final and the offender seeks to reopen the proceeding, the
inquiry is ordinarily confined to whether the underlying plea
was both counseled and voluntary. If the answer is in the affirm‐
ative then the conviction and the plea, as a general rule, foreclose
the collateral attack. There are exceptions where on the face of
the record the court had no power to enter the conviction or im‐
pose the sentence.
United States v. Broce, 488 U.S. 563, 569 (1989). Davila’s plea
was counseled, and he does not contend that it was involun‐
tary. His brief tells us that he does not want the plea set aside
and the prosecution restarted. That leaves the question
whether the court had “power to enter the conviction”—in
other words, subject‐matter jurisdiction. A later passage in
Broce contemplates the possibility that a plea might be inva‐
lid if the very act of initiating a criminal prosecution violated
the Constitution, see id. at 574–75, but Davila does not con‐

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No. 16‐2137 5
tend that there was any problem with this prosecution’s ini‐
tiation. He argues only that he is entitled to the benefit of the
later decision in Johnson.
The district court had subject‐matter jurisdiction under
18 U.S.C. §3231. See United States v. Martin, 147 F.3d 529 (7th
Cir. 1998). This leads Davila to contend that, whenever a
constitutional problem crops up in a case that had been re‐
solved by a guilty plea, the district court retroactively loses
jurisdiction despite §3231. That position runs headlong into
Broce, for the Court there held that a guilty plea prevents col‐
lateral relief even on the assumption that the conviction vio‐
lated the Double Jeopardy Clause of the Fifth Amendment.
Broce is hardly the only holding to that effect. The Court
observed, 488 U.S. at 571–72, that in Brady v. United States,
397 U.S. 742 (1970), it had rejected the contention that a con‐
stitutional flaw revealed by post‐plea developments permits
a court to set aside a plea. Brady had been charged with cap‐
ital kidnapping and pleaded guilty to a lesser charge to
avoid the risk of the death penalty. Nine years after Brady
entered that plea, United States v. Jackson, 390 U.S. 570 (1968),
held that the Constitution precluded the death‐penalty sys‐
tem established by the statute under which Brady had been
charged. But this did Brady no good because “a voluntary
plea of guilty intelligently made in the light of the then ap‐
plicable law does not become vulnerable because later judi‐
cial decisions indicate that the plea rested on a faulty prem‐
ise.” Brady, 397 U.S. at 757, quoted in Broce, 488 U.S. at 572.
What was true for Brady and Broce is true for Davila as well.
Johnson did not order the prosecution dismissed for lack
of subject‐matter jurisdiction. Instead the Supreme Court
ruled in Johnson’s favor on the merits. Likewise we decided

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6 No. 16‐2137
Cardena on the merits. Unless a suit is laughably frivolous at
the outset, a decision that the plaintiff loses because the law
favors the defense leads to a decision on the merits, not a
dismissal for lack of subject‐matter jurisdiction. See Bell v.
Hood, 327 U.S. 678 (1946). So Davila loses for two independ‐
ent reasons: first, conviction of a drug crime is not essential
to a conviction under §924(c) for possessing a gun during
and in relation to a drug offense; second, Davila’s guilty plea
forecloses a collateral attack based on Johnson or any other
development that does not concern subject‐matter jurisdic‐
tion or imply that the very institution of the criminal charge
violated the Constitution.
A FFIRMED

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