Unises Chapotin v. United States

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 1 of 20

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10586

Non-Argument Calendar

____________________

UNISES CHAPOTIN,

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 Nos. 1:16-cv-21965-JEM,

1:04-cr-20305-JEM-3

____________________

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 2 of 20

2 Opinion of the Court 21-10586

Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Unises Chapotin, a federal prisoner, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence.

The district court granted him a certificate of appealability on the

following three issues: (1) whether sentences under the former

mandatory pre-Booker 1 sentencing guidelines are subject to a

void-for-vagueness challenge; (2) whether published orders issued

in the context of applications for leave to file second or successive

motions to vacate are binding upon district courts in determining

an initial motion to vacate; and (3) whether the district court erred

in applying the reasonable probability harmless error review

standard to the Stromberg 2 error in his trial, and whether the court

erred in determining that the Stromberg error was harmless. After

review, we affirm.

I. Background

We described the facts of this case in Chapotin’s direct

appeal as follows:

1

United States v. Booker, 543 U.S. 220 (2005).

2

In Stromberg v. California, the Supreme Court held that where a jury returns

a general verdict which may have been based on any of several grounds, one

of which is constitutionally invalid, and it is “impossible to say” on which

ground the jury rested its verdict, “the conviction cannot be upheld.” 283 U.S.

359, 368 (1931).

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 3 of 20

21-10586 Opinion of the Court 3

Unises Chapotin was among a group of men who

agreed to rob a drug courier of a large quantity of

cocaine. The operation was planned so it would

appear to the supplier of cocaine that an actual

robbery, known in the illegal drug business as a “rip-

off,” had occurred, when in fact the drug courier was

in on the robbery. Unbeknownst to Chapotin and his

confederates, one of the participants was a

confidential informant, the disgruntled drug courier

was actually a government agent, and the drugs and

the supplier were fictitious.

Chapotin became involved in the operation at the last

minute because another intended participant was a

no-show. On the day the robbery was to occur,

Chapotin was picked up in a car driven by an

uninvolved party and occupied by co-conspirators

Oscar Torres and Jorge Moreno. The group then

drove to a restaurant parking lot, where Torres,

Moreno and Chapotin were picked up in a vehicle

driven by the confidential informant, known by the

first name “Ulises” (not to be confused with

Chapotin’s first name, “Unises”). Torres was seated

in the front passenger seat, Moreno was sitting in the

back seat behind the driver, and Chapotin was sitting

in the back seat behind Torres. The parties drove to

a warehouse area to pick up a van which was to be

used to transport the drugs following the robbery.

Upon arriving there, they were arrested.

United States v. Chapotin, 173 F. App’x 751, 752 (11th Cir. 2006)

(unpublished). Chapotin was charged with conspiracy to possess

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 4 of 20

4 Opinion of the Court 21-10586

with intent to distribute cocaine in violation of 21 U.S.C. §§ 846,

841(b)(1)(A) (Count 1); conspiracy to commit Hobbs Act robbery

in violation of 18 U.S.C. § 1951(a) (Count 2); conspiracy to carry a

firearm during and in relation to, or to possess a firearm in

furtherance of, a crime of violence and/or a drug trafficking crime

in violation of 18 U.S.C. § 924(o) (Count 3); attempted possession

of cocaine with intent to distribute it in violation of 21 U.S.C.

§§ 846, 841(b)(1)(A) (Count 4); carrying a firearm during and in

relation to, or possessing a firearm in furtherance of, a crime of

violence and/or a drug trafficking crime in violation of 18 U.S.C.

§ 924(c) (Count 5); and possession of a firearm and ammunition by

a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 8).

Importantly, Counts 3 and 5 specified that the predicates for those

counts were the offenses “set forth in Counts 1, 2, and 4.”

The jury instructions for Chapotin’s § 924(c) charge in

Count 5 provided that it was a crime to “carry a firearm during and

in relation to or possess a firearm in furtherance of a federal drug

trafficking crime, crime of violence, or both.” (emphasis added).

The instructions explained that, to find Chapotin guilty, the jury

had to find beyond a reasonable doubt that he “committed a drug

trafficking offense or crime of violence charged in Counts 1, 2, or 4

of the indictment.” The instructions also provided that it was not

necessary for the government to prove that Chapotin violated the

law in both of those ways. Rather, it was sufficient if the

government proved either one of those ways beyond a reasonable

doubt, and the jury had to unanimously agree upon the way in

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 5 of 20

21-10586 Opinion of the Court 5

which Chapotin committed the violation. The jury instructions for

Count 3—the § 924(o) count—were materially identical. The jury

found Chapotin guilty on all counts, but did not specify whether

the predicate for Counts 3 and 5 was Count 1, 2, or 4 alone or a

combination of those Counts.

Applying the then mandatory 2004 Sentencing Guidelines,3

the district court determined that Chapotin was a career offender

under U.S.S.G. § 4B1.1 based on two prior qualifying crime of

violence convictions—(1) Florida battery on a law enforcement

officer, and (2) Florida aggravated assault with a deadly weapon.4

Chapotin argued that his criminal history score of VI, which was

based on his career-offender status, overrepresented his criminal

history, and so he requested a downward departure. The district

court agreed to depart downward to a category V, which resulted

in a guidelines range of 324 to 405 months’ imprisonment, plus a

consecutive term of 60 months’ imprisonment. 5 The district court

3

In 2005, the Supreme Court held that the Sixth Amendment right to a trial

by jury was violated where, under a mandatory guidelines scheme, a

defendant’s sentence was increased because of an enhancement based on facts

found by the judge that were neither admitted by the defendant nor found by

the jury. Booker, 543 U.S. at 233–37. Following Booker, the guidelines

scheme is now advisory. Id. at 245.

4

Chapotin unsuccessfully objected to the career-offender enhancement,

arguing, in relevant part, that his conviction for battery on a law enforcement

officer was not a crime of violence.

5

Chapotin faced a statutory maximum of life imprisonment.

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 6 of 20

6 Opinion of the Court 21-10586

imposed a total sentence of 384 months’ imprisonment followed

by five years of supervised release. 6

On direct appeal, we reversed Chapotin’s conviction for

possession of a firearm by a convicted felon because there was

insufficient evidence to support it, but affirmed his other

convictions and sentences. Chapotin, 173 F. App’x at 752–53. The

district court entered an amended judgment in 2006.

Nine years later, the Supreme Court struck down the

residual clause in the Armed Career Criminal Act’s (“ACCA”)

definition of a violent felony as unconstitutionally vague. See

Johnson v. United States, 576 U.S. 591, 597–602 (2015). Thereafter,

the Supreme Court held that Johnson announced a new

substantive rule that applied retroactively to cases on collateral

review. Welch v. United States, 578 U.S. 120, 127–30, 134–35

(2016).

Chapotin in turn filed his first pro se 28 U.S.C. § 2255 motion

to vacate sentence in 2016. He argued that the residual clause in

the mandatory guidelines’ crime of violence definition—which was

virtually identical to the ACCA’s residual clause—was

unconstitutionally vague, and that he no longer qualified as a

6

Specifically, the district court imposed concurrent terms of 324 months’

imprisonment for Counts 1 and 4, 240 months’ imprisonment as to Counts 2

and 3, and 120 months as to Count 8, plus a consecutive term of 60 months’

imprisonment as to Count 5. Notably, the district court explained that it

would have imposed the same sentence even without the mandatory

guidelines framework.

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 7 of 20

21-10586 Opinion of the Court 7

career offender because his conviction for battery of a law

enforcement officer no longer qualified as a crime of violence post-

Johnson. He also argued that his § 924(c) conviction (Count 5) for

possession of a firearm in relation to a crime of violence and/or a

drug trafficking crime was unconstitutional, because conspiracy to

commit Hobbs Act Robbery—the purported crime of violence—

was no longer a crime of violence post-Johnson. The district court

appointed counsel to represent Chapotin, and counsel filed

supplemental briefing.

The government opposed the § 2255 motion, arguing that

Johnson had no effect on the guidelines, and, therefore, Chapotin’s

career-offender challenge was not cognizable, was untimely and

procedurally barred, and was foreclosed by our decision in In re

Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016), in which we held that

“[t]he Guidelines—whether mandatory or advisory—cannot be

unconstitutionally vague because they do not establish the

illegality of any conduct and are designed to assist and limit the

discretion of the sentencing judge.” It also argued that Chapotin

procedurally defaulted his § 924(c) challenge because he failed to

raise it at trial or on direct appeal. Finally, it argued that his claims

failed on the merits.

Chapotin filed a motion to hold the district court

proceedings in abeyance pending the Supreme Court’s decision in

Beckles v. United States, No. 15-8544, which involved a Johnson-

based challenge to the career-offender provision of the advisory

sentencing guidelines. The district court granted the motion.

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 8 of 20

8 Opinion of the Court 21-10586

Subsequently, in Beckles, the Supreme Court held that the advisory

guidelines are not subject to a vagueness challenge under the Due

Process Clause, and, therefore, the residual clause of the career-

offender guideline’s definition of “crime of violence” was not void

for vagueness. Beckles v. United States, 137 S. Ct. 886, 892 (2017).

Beckles did not address vagueness challenges in the context of the

mandatory guidelines scheme.

Additionally, while Chapotin’s § 2255 motion was pending

in the district court, the Supreme Court extended its holding in

Johnson to 18 U.S.C. § 16(b)’s residual clause, and 18 U.S.C.

§ 924(c)’s residual clause, holding that those clauses were also

unconstitutionally vague. Sessions v. Dimaya, 138 S. Ct. 1204, 1216

(2018) (addressing § 16(b)’s residual clause); United States v. Davis,

139 S. Ct. 2319, 2336 (2019) (addressing § 924(c)).

Following supplemental briefing by the parties on the effect

of Beckles and Davis, 7 a magistrate judge issued a report and

recommendation (“R&R”), recommending that Chapotin’s § 2255

motion be denied.

First, the magistrate judge concluded that Chapotin’s career-

offender challenge was not cognizable because his sentence was

7

In his supplemental briefing, Chapotin also argued that both his § 924(o)

conviction (Count 3) and § 924(c) conviction (Count 5) must be vacated in

light of Davis and because there was a Stromberg error in that the general

verdict did not specify whether the jury convicted him of possessing a firearm

during and in relation to the crime of violence of the drug trafficking crimes.

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 9 of 20

21-10586 Opinion of the Court 9

less than the statutory-maximum. The magistrate judge also

concluded that the career-offender claim was foreclosed by Griffin,

and rejected Chapotin’s argument that Beckles had abrogated

Griffin.

Second, the magistrate judge concluded that Chapotin’s

§ 924(c) challenge failed because he did not prove by a

preponderance of the evidence that his § 924(c) and § 924(o)

convictions were based on the now invalid crime of violence

predicate—conspiracy to commit Hobbs Act robbery (Count 2)—

and not on the still-valid predicate drug-trafficking crimes in

Counts 1 or 4. The magistrate judge found that, even though there

was a Stromberg error in Chapotin’s case, the error was harmless.

Nevertheless, the magistrate judge recommended that a

certificate of appealability (COA) issue on the following:

(1) whether sentences under the former mandatory pre-Booker

sentencing guidelines are subject to a void-for-vagueness

challenge; (2) whether published orders issued in the context of

applications for leave to file second or successive motions to vacate

are binding upon district courts in determining an initial motion to

vacate; and (3) whether the district court erred in applying the

reasonable probability harmless error review standard to the

Stromberg error, and whether the court erred in determining that

the Stromberg error in this case was harmless.

Chapotin objected to the R&R, arguing that his career-

offender claim was cognizable and was not foreclosed by Griffin,

which he maintained was wrongly decided and abrogated by

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 10 of 20

10 Opinion of the Court 21-10586

Beckles. He further argued that applying Griffin to all movants,

even though Griffin arose in the context of an application for leave

to file a second or successive § 2255 motion, violated the Due

Process Clause. He also maintained that his career-offender

challenge was timely. With regard to his Davis-based challenge,

Chapotin asserted that the district court applied the wrong

standard, that the Stromberg error was not harmless, that his

§§ 924(c) and (o) convictions were unconstitutional, and that he

established cause and prejudice and actual innocence to overcome

any procedural default. 8

The district court adopted the R&R.9 Nevertheless, the

district court agreed with the magistrate judge’s recommendation

to issue a COA on the three issues specified “[g]iven the

complexities and legal controversy concerning the issues in this

case.”

II. Standard of Review

“When we review the denial of a motion to vacate a

sentence . . . we review legal conclusions de novo and findings of

8

The government also filed objections to the R&R because the R&R failed to

discuss the procedural arguments that it had raised related to timeliness and

procedural default.

9 Thedistrict court also concluded that Chapotin’s career-offender challenge

was untimely and that both Chapotin’s career-offender and § 924 challenges

were procedurally defaulted.

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 11 of 20

21-10586 Opinion of the Court 11

fact for clear error.” Spencer v. United States, 773 F.3d 1132, 1137

(11th Cir. 2014) (en banc) (quotation omitted).

III. Discussion

A. Issues 1 and 2

The first two issues are related: (1) whether sentences under

the former mandatory sentencing guidelines are subject to a void-

for-vagueness challenge, and (2) whether published orders issued

in the context of applications for leave to file second or successive

motions to vacate are binding upon district courts in determining

an initial motion to vacate. Therefore, we address them together.

Chapotin argues that the district court erred in denying his

career-offender challenge based on Griffin. He maintains that

Griffin was wrongly decided and regardless has been undermined

to the point of abrogation by Beckles and Dimaya. Relatedly, he

argues that Griffin should not be binding outside of the second or

successive application context, and that our decision to the

contrary in United States v. St. Hubert 10 was wrongly decided.

Chapotin’s argument is unpersuasive.

Following the Supreme Court’s decision in Johnson, we held

in United States v. Matchett that Johnson did not render the

residual clause of the career-offender guideline unconstitutional

because the vagueness doctrine does not apply to advisory

10

909 F.3d 335 (11th Cir. 2018), overruled in part on other grounds by Davis,

139 S. Ct. 2319, and United States v. Taylor, 142 S. Ct. 2015 (2022).

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 12 of 20

12 Opinion of the Court 21-10586

guidelines. 802 F.3d 1185, 1193–96 (11th Cir. 2015). Thereafter, in

Griffin, in denying an application for leave to file a second or

successive motion under § 2255, we extended Matchett’s holding

to the mandatory guidelines. 823 F.3d at 1354 (“[T]he logic and

principles established in Matchett also govern our panel as to

Griffin’s guidelines sentence when the Guidelines were

mandatory.”). We held that “[t]he Guidelines—whether

mandatory or advisory—cannot be unconstitutionally vague

because they do not establish the illegality of any conduct and are

designed to assist and limit the discretion of the sentencing judge.”

Id.

The Supreme Court in Beckles subsequently adopted the

same view of vagueness challenges to the advisory guidelines,

holding that “the advisory Sentencing Guidelines are not subject to

a vagueness challenge under the Due Process Clause and that

§ 4B1.2(a)’s residual clause is not void for vagueness.” 137 S. Ct. at

895. Beckles did not address whether the vagueness doctrine

applies to the mandatory guidelines.

Under the prior-panel-precedent rule, “a prior panel’s

holding is binding on all subsequent panels unless and until it is

overruled or undermined to the point of abrogation by the

Supreme Court or by this court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The holding of the

first panel to address an issue is binding, even if a later panel

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 13 of 20

21-10586 Opinion of the Court 13

concludes that the prior case was wrongly decided. 11 United States

v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998).

Chapotin argues that we are not bound by Griffin because it

has been abrogated by the Supreme Court’s decision in Beckles

and Dimaya. “To conclude that we are not bound by a prior

holding in light of a Supreme Court case, we must find that the case

is ‘clearly on point’ and that it ‘actually abrogate[s] or directly

conflict[s] with, as opposed to merely weaken[s], the holding of the

prior panel.’” United States v. Dudley, 5 F.4th 1249, 1265 (11th Cir.

2021), cert. denied, 142 S. Ct. 1376 (2022) (quoting United States v.

Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009)).

Although Beckles touched on the distinction between the

mandatory and advisory guidelines when it held that the advisory

guidelines were not subject to a vagueness challenge, see Beckles,

137 S. Ct. at 894, it did not abrogate Griffin because it did not decide

or squarely address whether the vagueness doctrine applies to the

mandatory guidelines. Instead, Beckles left “open the question” of

whether the pre-Booker mandatory guidelines could be subject to

a vagueness challenge. Id. at 903 n.4 (Sotomayor, J., concurring in

the judgment).

Similarly, the Supreme Court’s decision in Dimaya did not

abrogate Griffin. Like Beckles, Dimaya did not decide or squarely

address whether the vagueness doctrine applies to the mandatory

11

Thus, Chapotin’s argument that Griffin was wrongly decided is unavailing.

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 14 of 20

14 Opinion of the Court 21-10586

guidelines scheme. See generally 138 S. Ct. 1204. Indeed, Dimaya

did not involve the guidelines at all, but rather a challenge to 18

U.S.C. § 16(b)’s residual clause. See id.

Accordingly, because Beckles and Dimaya are not “clearly

on point” and do not directly conflict with Griffin, we remain

bound by Griffin.

Now we turn to Chapotin’s second issue. In an attempt to

overcome Griffin, he argues that published decisions, like Griffin,

that are issued in the context of an application for leave to file a

second or successive § 2255 motion should not be binding in other

types of proceedings such as an initial § 2255 proceeding.

However, we have repeatedly rejected this argument, and have

held that published three-judge orders issued in the successive

application context are binding precedent in our circuit. See, e.g.,

Steiner v. United States, 940 F.3d 1282, 1293 n.4 (11th Cir. 2019)

(rejecting argument that decisions issued in the successive

application context are not binding in an initial § 2255 proceeding

based on prior-panel-precedent rule); St. Hubert, 909 F.3d at 345

(holding that decisions published in the successive application

context were binding in a direct appeal); In re Lambrix, 776 F.3d

789, 794 (11th Cir. 2015) (holding that “our prior-panel-precedent

rule applies with equal force as to prior panel decisions published

in the context of applications to file second or successive petitions.

In other words, published three-judge orders issued under [28

U.S.C.] § 2244(b) are binding precedent in our circuit.”).

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 15 of 20

21-10586 Opinion of the Court 15

Accordingly, Griffin squarely forecloses Chapotin’s career-

offender claim, and we are bound to apply Griffin. Thus, the

district court did not err in denying this claim. 12

B. Issue 3

Chapotin argues that his §§ 924(c) and (o) convictions are

invalid post-Davis because conspiracy to commit Hobbs Act

robbery (Count 2) is no longer a qualifying crime of violence and it

is possible the jury relied on the invalid predicate for the §§ 924(c)

and (o) convictions, and the district court applied the wrong

standard in assessing whether the Stromberg error in his case was

harmless. Chapotin concedes that his argument essentially fails

under our decision in Granda v. United States 13 which issued after

the district court denied Chapotin’s § 2255 motion, but he

maintains that Granda was wrongly decided. For the reasons that

follow, we conclude that Chapotin cannot prevail on this claim.

Section 924(c) criminalizes the use or carrying of a firearm

in furtherance of a crime of violence or drug trafficking crime, and

provides for a separate, mandatory consecutive sentence. 18

12

Because we conclude that Griffin forecloses Chapotin’s career-offender

claim, we do not address the parties’ arguments related to the issues of

timeliness and procedural default. See Dallas v. Warden, 964 F.3d 1285,

1307 (11th Cir. 2020), cert. denied, 142 S. Ct. 124 (2021) (explaining that “a

federal court may skip over the procedural default analysis if a claim would

fail on the merits in any event”).

13

990 F.3d 1272 (11th Cir. 2021), cert. denied 142 S. Ct. 12333 (2022).

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 16 of 20

16 Opinion of the Court 21-10586

U.S.C. § 924(c)(1). For purposes of § 924(c), “crime of violence” is

defined as a felony offense that either:

(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.

Id. § 924(c)(3)(A)–(B). In relevant part, § 924(o) provides that “[a]

person who conspires to commit an offense under subsection (c)

shall be imprisoned for not more than 20 years, fined under this

title, or both.” 18 U.S.C. § 924(o).

Section 924(c)(3)(A) is known as the elements clause, and

subsection (B) is known as the residual clause. Davis, 139 S. Ct. at

2323–24. In Davis, the Supreme Court extended its holdings in

Johnson and Dimaya to § 924(c) and held that § 924(c)’s residual

clause is unconstitutionally vague. 139 S. Ct. at 2336. We then

held that Davis announced a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable. In re Hammoud, 931 F.3d 1032,

1038–39 (11th Cir. 2019). We also held post-Davis that conspiracy

to commit Hobbs Act robbery does not qualify as a crime of

violence under the elements clause of § 924(c) and, thus, is not a

valid predicate for a § 924(c) charge. Brown v. United States, 942

F.3d 1069, 1075–76 (11th Cir. 2019).

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 17 of 20

21-10586 Opinion of the Court 17

In Granda, the defendant was convicted of conspiracy to use

or carry a firearm during and in relation to a crime of violence or a

drug-trafficking crime, in violation of § 924(o). 990 F.3d at 1284.

The indictment listed five possible predicates for the § 924(o)

offense—three crimes of violence and two drug-trafficking crimes.

Id. at 1284–85. One of the listed crimes of violence, conspiracy to

commit Hobbs Act robbery, was not a valid predicate post-Davis.

Id. at 1285. The jury instructions provided that the jury could find

Granda guilty if they found “beyond a reasonable doubt that ‘the

object of the unlawful plan was to use or carry a firearm during and

in relation to, or to possess a firearm 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, 4, or 5 of the

Superseding Indictment.’” Id. The jury returned a general verdict.

Id. It was thus impossible to tell from the indictment, jury

instructions, or the general verdict which count or combination of

counts the jury relied on for the § 924(o) offense. Id. Following

Davis, Granda filed a § 2255 motion, arguing, in relevant part, that

because the court could not definitely rule out the possibility that

the jury relied on an invalid predicate, his § 924(o) conviction had

to be vacated. Id. We disagreed.

We explained that collateral relief for a Davis-based claim is

proper only if the court has “grave doubt” about whether a trial

error had a “substantial and injurious effect or influence” in

determining the verdict. Id. at 1292 (quotation omitted); see also

Foster v. United States, 996 F.3d 1100, 1107 (11th Cir.), cert. denied,

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 18 of 20

18 Opinion of the Court 21-10586

142 S. Ct. 500 (2021) (“On collateral review, the harmless error

standard mandates that relief is proper only if the . . . court has

grave doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining the

jury’s verdict.” (quotation omitted)). A petitioner must show more

than a reasonable possibility that the error was harmful, and we

will grant relief “only if the error ‘resulted in actual prejudice’” to

the petitioner. Granda, 990 F.3d at 1292 (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)). Under this standard, the

reviewing court must ask directly whether the error substantially

influenced the jury’s verdict. Id. at 1293. Thus, it is not enough for

a movant to show that the jury may have relied on the now-invalid

residual clause; he must show a “substantial likelihood” that the

jury did rely on that subsection. Id. at 1288. We concluded that

“[t]he inextricability of the alternative predicate crimes compel[led]

the conclusion that the error Granda complain[ed] about . . . was

harmless.” Id. at 1292–96. Additionally, we rejected the argument

that a Stromberg error is not subject to the harmless error standard

and that Stromberg precludes relying on an alternative valid

predicate when conducting a harmless error analysis. Id. at 1293–

94.

Like Granda, Chapotin’s § 924(c) and § 924(o) convictions

had multiple possible predicate offenses—conspiracy to commit

Hobbs Act robbery and two drug-trafficking offenses—and these

predicate offenses were “inextricably intertwined” as they arose

from the same planned robbery. The jury returned a general

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 19 of 20

21-10586 Opinion of the Court 19

verdict, and neither the indictment nor the jury instructions

indicate which count or combination of counts the jury relied on

for the § 924(c) and § 924(o) offenses. Although conspiracy to

commit Hobbs Act robbery is no longer a valid predicate post-

Davis, on this record, there can be no grave doubt about whether

the inclusion of the invalid predicate had a substantial influence in

determining the jury’s verdict. The objective of the robbery

conspiracy was to obtain cocaine from the drug courier. Chapotin,

173 F. App’x at 751. Thus, the jury could not have found that

Chapotin’s gun use or possession (or his conspiracy to do those

things) was connected to his conspiracy to commit Hobbs Act

robbery without also finding at that same time that the gun

offenses were connected to his conspiracy and attempted

possession with intent to distribute cocaine that he planned to

procure from the robbery. In other words, “[t]he inextricability of

the alternative predicate crimes compel the conclusion that the

error [Chapotin] complains about . . . was harmless.” 14 Granda, 990

F.3d at 1292; see also Foster, 996 F.3d at 1107–08 (applying Granda

to a § 2255 movant’s § 924(o) and § 924(c) convictions and holding

that any error from the inclusion of an invalid predicate was

harmless because the alternative predicate offenses were

inextricably intertwined).

14

Because we conclude that Chapotin’s Davis challenge fails on the merits, we

do not reach the parties’ arguments concerning procedural default. Dallas,

964 F.3d at 1307.

USCA11 Case: 21-10586 Date Filed: 07/21/2022 Page: 20 of 20

20 Opinion of the Court 21-10586

Although Chapotin argues that Granda was wrongly

decided, as explained previously there is no wrongly decided

exception to our prior-panel-precedent rule. Steele, 147 F.3d at

1318. Accordingly, we affirm the district court’s denial of

Chapotin’s § 2255 motion.

AFFIRMED.