USA v. Ismael Camacho

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10943
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL CAMACHO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:96-cr-00443-JEM-6
____________________
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2 Opinion of the Court 21-10943
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No. 21-11753
Non-Argument Calendar
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ISMAEL CAMACHO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-24658-JEM
____________________
Before R OSENBAUM , NEWSOM , and GRANT, Circuit Judges.
PER CURIAM:
Ismael Camacho was convicted in 1998 for his part in a string
of brutal kidnappings. The jury convicted him on ten Counts and
he was sentenced to just under 85 years in prison.
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21-10943 Opinion of the Court 3
On the heels of a 2019 Supreme Court decision, Camacho
filed a successive 28 U.S.C. § 2255 motion in which he sought to
vacate three of his ten convictions. The district court granted the
motion in part and denied it in part, vacating two of the convictions
but upholding the third. Camacho was resentenced, and the dis-
trict court imposed a reduced term of just under 45 years in prison.
He then filed two appeals, which we consolidated. First, he chal-
lenges the district court’s partial denial of his 28 U.S.C. § 2255(a)
motion. Second, he argues that the district court erred when it
failed to apply Section 403 of the First Step Act at resentencing. We
affirm.
I
We begin with Camacho’s 28 U.S.C. § 2255 motion, in
which he contends that his conviction for the use of a firearm dur-
ing a crime of violence is unconstitutional.
See 18 U.S.C. § 924(c).
We disagree.1
Section 924(c) imposes stiff penalties for anyone who uses a
firearm in connection with a “crime of violence.” It defines a
“crime of violence” as either: (1) a felony that “has as an element
the use, attempted use, or threatened use of physical force against
the person or property of another,” or (2) a felony “that by its na-
ture, involves a substantial risk that physical force against the
1 “In a Section 2255 proceeding, we review legal issues
de novo and factual
findings under a clear error standard.”
Lynn v. United States, 365 F.3d 1225,
1232 (11th Cir. 2004) (per curiam) (quotation omitted).
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4 Opinion of the Court 21-10943
person or property of another may be used in the course of com-
mitting the offense.” 18 U.S.C. § 924(c)(3). But the Supreme
Court recently held that the latter of those two definitions—the so-
called “residual” clause—is unconstitutionally vague.
United
States v. Davis, 139 S. Ct. 2319, 2324 (2019). That is the basis of
Camacho’s § 2255 motion.
The conviction that Camacho challenges contained two
predicate crimes (
i.e., two crimes of violence)—Hobbs Act extor-
tion (Count 9) and carjacking (Count 10). Camacho argues that his
conviction is unconstitutional, and should thus be vacated, because
Davis’s vagueness holding renders Hobbs Act extortion no longer
a crime of violence. And because the jury returned a general ver-
dict, Camacho argues, it is impossible to determine whether the
jury’s verdict was founded on a valid basis.
But because Camacho did not argue in the district court or
on direct appeal that his conviction was invalid due to vagueness,
he has procedurally defaulted that claim.
See United States v. Diaz,
248 F.3d 1065, 1083 (11th Cir. 2001) (summarizing Camacho’s ar-
guments on appeal);
see also Granda v. United States, 990 F.3d
1272, 1285–86 (11th Cir. 2021). “[A] defendant generally must ad-
vance an available challenge to a criminal conviction on direct ap-
peal or else the defendant is barred from raising that claim in a ha-
beas proceeding.”
Fordham v. United States, 706 F.3d 1345, 1349
(11th Cir. 2013). Accordingly, he “cannot succeed on collateral re-
view unless he can either (1) show cause to excuse the default
and
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21-10943 Opinion of the Court 5
actual prejudice from the claimed error, or (2) show that he is ac-
tually innocent.”
Granda, 990 F.3d at 1286.
To be sure,
Davis “announced [a] new constitutional rule[].”
Id. It is therefore conceivable that Camacho’s vagueness claim was
not “available” to him when he was convicted, excusing his default.
See Howard v. United States, 374 F.3d 1068, 1072 (11th Cir. 2004)
(explaining that a claim’s “novelty” can “meet the cause require-
ment” to excuse a procedural default). But novelty will excuse a
default only when “a constitutional claim is so novel that its legal
basis is not reasonably available to counsel.”
Reed v. Ross, 468 U.S.
1, 16 (1984). And we’ve previously held—notwithstanding
Davis’s
“new” rule—that “the tools existed to challenge . . . [§ 924(c)’s] re-
sidual clause” on vagueness grounds even before
Davis was de-
cided.
Granda, 990 F.3d at 1288. Consequently, Camacho cannot
“show cause to excuse the default.”
Id. at 1286.
Neither can Camacho satisfy the “actual innocence” excep-
tion, which “is exceedingly narrow in scope as it concerns a peti-
tioner’s ‘actual’ innocence rather than his ‘legal’ innocence.”
Lynn
v. United States, 365 F.3d 1225, 1235 n.18 (11th Cir. 2004) (per cu-
riam) (quotation omitted). Simply put, there is no evidence to in-
dicate that Camacho is actually innocent, nor does he argue as
much.2
2 Even if Camacho had not procedurally defaulted his claim, we would none-
theless affirm because any error was harmless.
See Granda, 990 F.3d at 1292.
Camacho concedes that the carjacking offense is a valid “crime of violence.”
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6 Opinion of the Court 21-10943
* * *
Camacho has procedurally defaulted his § 2255 claim. Ac-
cordingly, we affirm the district court’s denial.
II
Next, Camacho argues that Section 403 of the First Step
Act—which was passed in 2018 and, if applicable, would reduce the
mandatory minimum sentence for his § 924(c) convictions—
should apply.3 Whether the First Step Act applies to a defendant
whose initial sentence was imposed and became final
before the
Act’s enactment, but whose prior sentence is vacated
after enact-
ment, is an open question in this Circuit. But because any error
was harmless, we need not address it.4
A sentencing error is harmless if it does not “affect the dis-
trict court’s selection of the sentence imposed.”
Williams v. United
And the carjacked vehicle was taken in the course of the attempted Hobbs Act
extortion. Thus, “[t]he inextricability of the alternative predicate crimes com-
pels the conclusion that . . . instructing the jury on a constitutionally invalid
predicate as one . . . alternative predicate[] . . . was harmless” error.
Id.
3 “We review questions of statutory interpretation
de novo.”
United States v.
Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009).
4 Camacho moved to stay appellate proceedings in this case pending the reso-
lution of
United States v. Beneby, No. 19-13387, and we carried Camacho’s
motion with the case. The
Beneby panel heard oral argument on February
10, 2021 and will resolve a nearly identical question. But because we need not
reach the question, we need not wait on
Beneby to resolve it. Accordingly,
we deny Camacho’s stay motion.
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21-10943 Opinion of the Court 7
States, 503 U.S. 193, 203 (1992). Here, the district court stated that
“even if” the First Step Act “did apply,” it would have imposed the
same sentence. The district court first noted—even if the First Step
Act applied—that it was within its discretion to impose up to life in
prison. In light of that discretion, and because of “the seriousness
of the offenses”—which, the court observed, were “particularly
egregious and depraved”—the court plainly stated that a lower
statutory minimum would not have affected the sentence it im-
posed. Thus, whether the First Step Act applies or not, “the district
court has already told us that it would impose exactly the same sen-
tence.”
United States v. Keene, 470 F.3d 1347, 1350 (11th Cir.
2006). Accordingly, any error was harmless.
Id.
* * *
We AFFIRM the district court’s denial of Camacho’s § 2255
motion. We likewise AFFIRM the sentence that the court im-
posed. We DENY Camacho’s motion to stay appellate proceed-
ings.
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