Case: 16-13508   Date Filed: 01/06/2020   Page: 1 of 4


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13508
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket Nos. 0:16-cv-60929-WPD,
                         0:14-cr-60277-WPD-2


DANNY HERRERA,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (January 6, 2020)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WILSON, JILL PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
              Case: 16-13508     Date Filed: 01/06/2020    Page: 2 of 4


      We previously reviewed, and affirmed, the district court’s denial of Danny

Herrera’s 28 U.S.C. § 2255 motion to vacate the sentence for his 18 U.S.C.

§ 924(c) conviction. The Supreme Court, after its decision in United States v.

Davis, 588 U.S. ___, 

(2019), vacated our decision and remanded

for us to reconsider Herrera’s motion in light of Davis. Because his § 924(c)

conviction remains supported by a valid predicate offense, we affirm the district

court. United States v. Davis, 588 U.S. ___, 

(2019).

      As background, Herrera was charged by indictment with conspiracy to

commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1); conspiracy

to possess with intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 2); attempted possession with

intent to distribute five kilograms or more of cocaine, in violation of §§ 841(a)(1),

(b)(1)(A), and 846 (Count 3); conspiracy to use a firearm during and in relation to

a crime of violence (as charged in Count 1) and a drug-trafficking offense (as

charged in Counts 2 and 3), in violation of § 924(c) (Count 4); carrying a firearm

during and in relation to a crime of violence (Count 1) or a drug-trafficking crime

(Counts 2 and 3), in violation of § 924(c) (Count 5); and possession of a firearm by

a convicted felon (Count 6). He pled guilty to Counts 1 and 5 and waived his right

to direct appeal. He then filed his § 2255 motion, arguing that his § 924(c)

conviction was invalidated by the Supreme Court’s ruling in Johnson v. United


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States, 576 U.S. ___, 

(2015) (holding that the residual clause in the

Armed Career Criminal Act was unconstitutionally vague).

       In our prior opinion, we affirmed the district court’s denial of Herrera’s

§ 2255 motion, holding that conspiracy to commit Hobbs Act robbery qualified as

a predicate crime of violence under the residual clause of § 924(c)(3)(B).

Subsequently, the Supreme Court in Davis struck down the residual clause in

§ 924(c)(3)(B) as unconstitutionally 

. We must now

review Herrera’s claim in light of Davis.1

       Recently, we decided that conspiracy to commit Hobbs Act does not

constitute a crime of violence under the still-valid elements clause of

§ 924(c)(3)(A). Brown v. United States, 

, 1075 (2019) (per curiam).

Thus, Herrera’s § 924(c) conviction remains valid only if it is supported by a

predicate offense other than conspiracy to commit Hobbs Act robbery. A

defendant may be convicted under § 924(c) without being convicted of, or even

charged with, the predicate offense. United States v. Frye, 

, 1127–

28 (11th Cir. 2005) (per curiam). “Section 924(c) requires only that the drug

trafficking crime be one that ‘may be prosecuted.’” 

1
  In an appeal challenging the district court’s resolution of a § 2255 motion, we review factual
findings for clear error and legal issues de novo. Lynn v. United States, 

, 1232
(11th Cir. 2004) (per curiam).
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      Here, the signed plea agreement stated that Herrera’s § 924(c) conviction

was predicated on both a crime of violence and a drug-trafficking crime. And the

factual proffer that Herrera affirmed contained sufficient facts to established that

he committed the drug-trafficking crimes charged in Counts Two and Three.

Specifically, it established that Herrera conspired with two others to steal and then

distribute over five kilograms of cocaine from a stash house and that the group

took steps toward completing the robbery before they were arrested. Thus, Herrera

is not entitled to relief under Davis because his § 924(c) conviction is

independently supported by his drug-trafficking-related conduct.

      AFFIRMED.




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