Filed: Apr. 29, 2020
Latest Update: Apr. 29, 2020
Summary: Case: 19-12889 Date Filed: 04/29/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-12889 Non-Argument Calendar _ D.C. Docket No. 0:19-cr-60055-UU-2 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GEDEON JOSEPH, Defendant - Appellant. _ No. 19-12891 Non-Argument Calendar _ D.C. Docket No. 0:19-cr-60055-UU-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus Case: 19-12889 Date Filed: 04/29/2020 Page: 2 of 9 ZYHEEM IAN SMITH, De
Summary: Case: 19-12889 Date Filed: 04/29/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-12889 Non-Argument Calendar _ D.C. Docket No. 0:19-cr-60055-UU-2 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GEDEON JOSEPH, Defendant - Appellant. _ No. 19-12891 Non-Argument Calendar _ D.C. Docket No. 0:19-cr-60055-UU-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus Case: 19-12889 Date Filed: 04/29/2020 Page: 2 of 9 ZYHEEM IAN SMITH, Def..
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Case: 19-12889 Date Filed: 04/29/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12889
Non-Argument Calendar
________________________
D.C. Docket No. 0:19-cr-60055-UU-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEDEON JOSEPH,
Defendant - Appellant.
________________________
No. 19-12891
Non-Argument Calendar
________________________
D.C. Docket No. 0:19-cr-60055-UU-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
Case: 19-12889 Date Filed: 04/29/2020 Page: 2 of 9
ZYHEEM IAN SMITH,
Defendant - Appellant.
________________________
No. 19-12922
Non-Argument Calendar
________________________
D.C. Docket No. 0:19-cr-60055-UU-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WATVERLY MORTIMER,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(April 29, 2020)
Before WILSON, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Gedeon Joseph, Zyheem Smith, and Watverly
Mortimer each challenges his conviction for brandishing a firearm in furtherance
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of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. All
three were charged with conspiracy to commit Hobbs Act robbery in violation of
18 U.S.C. § 1951(a) (Count One), substantive Hobbs Act robbery in violation of 18
U.S.C. §§ 1951(a) and 2 (Count Two), and brandishing a firearm in furtherance of
a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count
Three). Count Three specified that the predicate crime of violence was substantive
Hobbs Act robbery as charged in Count Two of the indictment. All three
defendants pled guilty to Counts One and Three in return for the government
dismissing Count Two. Joseph’s and Smith’s plea agreements waived their rights
to appeal their convictions based on the constitutionality of the statutes of
conviction and whether the admitted conduct fell within the scope of the statutes of
conviction.
Now, Joseph and Mortimer assert that their § 924(c) convictions were
predicated on the conspiracy to commit Hobbs Act robbery charge, not the
substantive Hobbs Act robbery charge. In light of the Supreme Court’s decision in
United States v. Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019), which invalidated
§ 924(c)(3)’s residual clause, and our decision in Brown v. United States,
942 F.3d
1069 (11th Cir. 2019) (per curiam), where we held that conspiracy to commit
Hobbs Act robbery is not a “crime of violence” under § 924(c)(e)’s elements
clause, Joseph and Mortimer argue that their conspiracy to commit Hobbs Act
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robbery charge is insufficient to support their respective § 924(c) convictions.
Smith advances a different argument, which Joseph adopts via motion, that
§ 924(c)(3)’s elements clause is not severable from the residual clause and, thus,
Davis invalidated both.
After careful review of the parties’ briefs and the record, we dismiss
Joseph’s and Smith’s appeals as barred by their appeal waivers and affirm
Mortimer’s conviction.
I.
We review the validity of an appeal waiver de novo. United States v.
Hardman, 778 F.3d 896, 899 (11th Cir. 2014). A guilty plea by itself does not bar
a defendant from challenging the constitutionality of the statute of conviction on
direct appeal. Class v. United States, 583 U.S. ___,
138 S. Ct. 798, 803 (2018).
But an appeal waiver in a plea agreement is enforceable if it was made knowingly
and voluntarily.
Hardman, 778 F.3d at 899. To establish that the waiver was
made knowingly and voluntarily, the government must show that (1) the district
court questioned the defendant about the waiver during the plea colloquy, or (2)
the record makes clear that the defendant otherwise understood the full
significance of the waiver.
Id. “An appeal waiver includes the waiver of the right
to appeal difficult or debatable legal issues or even blatant error.” United States v.
Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir. 2005) (per curiam). A district
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court’s comments at sentencing cannot alter a waiver that a defendant knowingly
and voluntarily executed. United States v. Bascomb, 451 F.3d 1292, 1297 (11th
Cir. 2006).
Joseph’s and Smith’s challenges to their § 924(c) convictions are barred by
their appeal waivers. Their written plea agreements contain a provision waiving
the right “to assert any claim that (1) the statutes to which the defendant is pleading
guilty are unconstitutional; and/or (2) the admitted conduct does not fall within the
scope of the statutes of conviction.” The district court discussed their plea
agreements with them during their respective plea colloquies, and both testified
that they understood they were giving up the right to appeal their sentences and
convictions. They both indicated that they had full opportunities to review their
plea agreements with their counsel and that they understood “each and every term”
of their agreements. Therefore, they both knowingly and voluntarily waived their
rights to raise the challenges at issue in their appeals.
Further, the comments made by the government and the district court at
Joseph’s and Smith’s sentencing did not alter their appeal waivers. Because their
plea agreements were with the government, not the district court, the district
court’s comments at sentencing could not alter their waivers. See Bascomb, 451
F.3d at 1297. And the government made clear that “[t]he Defendant is bound by
his agreement.” As the agreements do not allow Joseph and Smith to challenge
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§ 924(c)’s constitutionality or whether their conduct falls within its scope on
appeal, we must dismiss their challenges.
II.
We review the denial of a motion to dismiss a charge in an indictment for
abuse of discretion and the sufficiency of an indictment de novo. United States v.
Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). Section 924(c) provides
mandatory minimum sentences for any defendant who uses or carries a firearm
during a crime of violence or a drug-trafficking crime. 18 U.S.C. § 924(c)(1). It
does not require the defendant to be convicted of, or even charged with, the
predicate offense if the fact of the offense is established. United States v. Frye,
402 F.3d 1123, 1127–28 (11th Cir. 2005) (per curiam). For the purposes of
§ 924(c), a “crime of violence” is a felony that:
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) 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.
§ 924(c)(3). The first clause is referred to as the elements clause, and the second
clause is referred to as the residual clause. In Davis, the Supreme Court ruled that
the residual clause was unconstitutionally vague. 139 S. Ct. at 2336.
A Hobbs Act offense occurs when a defendant
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obstructs, delays, or affects commerce or the movement of any article
or commodity in commerce, by robbery or extortion or attempts or
conspires so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do anything in
violation of this section.
18 U.S.C. § 1951(a). Robbery is defined in the Hobbs Act as
the unlawful taking or obtaining of personal property from the person
or in the presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate or future, to
his person or property, or property in his custody or possession, or the
person or property of a relative or member of his family or of anyone
in his company at the time of the taking or obtaining.
§ 1951(b)(1).
Whoever aids and abets an offense against the United States is punishable as
a principal. 18 U.S.C. § 2. “To prevail under a theory of aiding and abetting, the
government must prove: (1) the substantive offense was committed by someone;
(2) the defendant committed an act which contributed to and furthered the offense;
and (3) the defendant intended to aid in its commission.” United States v.
Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016) (alteration accepted) (internal
quotation mark omitted).
We have held that substantive Hobbs Act robbery under § 1951(b)(1) is a
“crime of violence” under 924(c)(3)’s elements clause. In re Fleur, 824 F.3d 1337,
1340–41 (11th Cir. 2016). We have also held that aiding and abetting a
substantive Hobbs Act robbery under § 2 is, likewise, a “crime of violence” under
the elements clause because “an aider and abettor is responsible for the acts of the
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principal as a matter of law.” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016).
Conspiracy to commit Hobbs Act robbery under § 1951(a), however, is not a
“crime of violence” under the elements clause.
Brown, 942 F.3d at 1075.
As an initial matter, Mortimer has abandoned any argument regarding
whether substantive Hobbs Act robbery or aiding and abetting a substantive Hobbs
Act robbery qualifies as a “crime of violence” under § 924(c)’s elements clause by
waiting until his reply brief to raise those issues. See United States v. Magluta,
418 F.3d 1166, 1185–86 (11th Cir. 2005) (“[A]n appellant may not raise an issue
for the first time in a reply brief.”). And regardless, we are bound by our prior
precedent in In re Fleur and In re Colon that such crimes qualify as crimes of
violence under § 924(c)’s elements clause. See United States v. St. Hubert,
909
F.3d 335, 346 (11th Cir. 2018) (holding that published orders on applications to
file second or successive 28 U.S.C. § 2255 motions are “binding precedent on all
subsequent panels of this Court, including those reviewing direct appeals and
collateral attacks, unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc” (alteration
accepted) (internal quotation mark omitted)), abrogated on other grounds by
Davis,
139 S. Ct. 2319.
As to his primary argument, the indictment specified that Mortimer’s
§ 924(c) charge was predicated on the substantive Hobbs Act charge, not Hobbs
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Act conspiracy. Nothing in the plea agreement changed that; its language does not
suggest that it changed the § 924(c) predicate offense identified in the indictment.
The conviction thus stands as long as the facts of the predicate offense are
established. See Frye, 402 F.3d at 1127–28.
Here, Mortimer’s factual proffer established the facts of the offense of
aiding and abetting a substantive Hobbs Act robbery, allowing it to serve as the
predicate for his § 924(c) charge. First, there is no question that the Hobbs Act
robbery occurred. Second, Mortimer contributed to and furthered the offense by
renting the getaway vehicle and by, as an employee of the restaurant, letting in
Joseph and Smith to commit the robbery. Finally, Mortimer’s actions—including
planning the robbery with Joseph and Smith, renting the car, and advising Smith
and Joseph to wait to enter the restaurant until after the manager arrived so he
could open the safe—show that he intended to aid in the commission of the
robbery. Accordingly, we affirm Mortimer’s § 924(c) conviction.
DISMISSED IN PART AND AFFIRMED IN PART.
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