The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11776
____________________
DONTE J. SMITH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket Nos. 4:20-cv-00328-RH,
4:99-cr-00066-RH-CAS-6
____________________
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2 Opinion of the Court 21-11776
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
Following a trial, a jury convicted Donte J. Smith of one
count of conspiracy to commit Hobbs Act robbery, four counts of
substantive Hobbs Act robbery, and four counts of using a firearm
in furtherance of a “crime of violence” under 18 U.S.C. § 924(c).
Smith now collaterally attacks his § 924(c) convictions be-
cause, in his view, the jury instructions in this case allowed the jury
to convict him on the § 924(c) charges based solely on his conspir-
acy offense. And if the jury in fact did that, those convictions could
not stand under the Supreme Court’s decision in United States v.
Davis, 139 S. Ct. 2319 (2019), and our later decision holding that
Hobbs Act conspiracy is not a “crime of violence.” Brown v. United
States, 942 F.3d 1069, 1075 (11th Cir. 2019).
But our review of the record reveals that the information
provided to the jury—including the amended indictment and full
jury instructions—made clear that Smith could be convicted under
§ 924(c) only if the jury found him guilty of substantive Hobbs Act
robbery. And as Smith acknowledges, substantive Hobbs Act rob-
bery is a “crime of violence” that can support his § 924(c) convic-
tions. So after careful review of the record, and with the benefit of
oral argument, we affirm the denial of Smith’s motion to vacate his
§ 924(c) convictions.
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21-11776 Opinion of the Court 3
I. BACKGROUND
A. Factual Background and Smith’s Trial
In connection with four robberies of small businesses that
occurred in Tallahassee, Florida, in 1998 and 1999, a grand jury
charged Smith with one count of conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951 (Count One); four counts
of Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Counts
Two, Four, Six, and Eight); and four counts of knowingly using,
carrying, and brandishing a firearm in furtherance of a crime of vi-
olence, in violation of 18 U.S.C. § 924(c) (Counts Three, Five,
Seven, and Nine). The initial indictment provided that each charge
under § 924(c) could be supported by either the initial Hobbs Act
conspiracy charge or one of the substantive Hobbs Act robbery
charges.
Smith’s trial began in December 1999. 1 During the trial, the
government abandoned its reliance on the theory that the conspir-
acy charge could support the § 924(c) charges. Instead, the govern-
ment clarified that it would pursue the § 924(c) charges on the basis
of only the alleged substantive Hobbs Act robbery offenses. So the
government prepared and submitted an amended indictment,
which removed all references to the conspiracy charge as a poten-
tial basis to support any of the § 924(c) charges. Doc. No. 101.
1 Smith was tried alongside one of his codefendants, Mitchell McIntosh.
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4 Opinion of the Court 21-11776
The district court instructed the jury on each of the charges
in the amended indictment, beginning with the substantive rob-
bery charges, followed by the conspiracy charge, and finally the
§ 924(c) firearms charges. When discussing the firearms charges,
the district court explained to the jury that each charge corresponds
with one of the substantive Hobbs Act robbery charges. After de-
scribing the charges, the court instructed the jury on two general
principles of criminal law: aiding-and-abetting liability and cocon-
spirator liability. As to coconspirator liability, the district court in-
structed,
So, in this case, with regard to Counts Two through
Nine, if you have first found a Defendant guilty of the
conspiracy offense as charged in Count One of the in-
dictment, you may also find that Defendant guilty of
any offense charged against him in a later count, even
though that Defendant did not personally participate
in such offense, if you find beyond a reasonable doubt
each of the following:
First: That the offense charged against him was
committed by a conspirator during the existence
of the conspiracy and in furtherance of its objects;
Second: That the Defendant was a knowing and
willful member of the conspiracy at the time of
the commission of such offense; and
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21-11776 Opinion of the Court 5
Third: That the commission of such offense by a
co-conspirator was a reasonably foreseeable con-
sequence of the conspiracy.
Doc. No. 100 at 22–23.
Before completing its instructions, the district court again
emphasized for the jury that if it “f[oun]d a Defendant not guilty
on any given robbery count (that is, Count Two, Four, Six or
Eight), [it] must also find that same Defendant not guilty on the
corresponding firearm counts (that is, Count Three, Five, Seven or
Nine).” Id. at 25–26.
The verdict form provided to the jury specified that each of
the firearms charges must correspond to a substantive robbery
charge. For example, the verdict form for Count Three stated, “As
to the offense charged in Count Three of the indictment, using or
carrying a firearm during and in relation to the robbery at Pentaltha
Jewelry charged in Count Two, we find the Defendant Donte J.
Smith” guilty or not guilty. Doc. No. 102 at 2. And the verdict
form directed the jury to skip Count Three if it found Smith not
guilty of Count Two. Id. The jury ultimately convicted Smith on
all counts.
Smith was initially sentenced to 1,172 months’ imprison-
ment. His sentence was later reduced to 1,105 months.
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6 Opinion of the Court 21-11776
B. Instant Proceedings
Twenty years after his conviction, Smith moved to vacate
his § 924(c) convictions, alleging that they are invalid after the Su-
preme Court’s decision in Davis. 2 He argued that the court could
not determine with certainty whether his § 924(c) convictions were
based on the substantive Hobbs Act robbery charges (which would
be proper) or his Hobbs Act conspiracy charge (which would not).
The government responded that Smith’s Davis claim failed
because the record conclusively established that his substantive
Hobbs Act robberies were the predicates for his § 924(c) convic-
tions. It also asserted that, even if the jury were confused by the
court’s instructions, the jury likely would not convict Smith on the
§ 924(c) charges based solely on the Hobbs Act conspiracy rather
than the substantive Hobbs Act robberies since those crimes were
inextricably intertwined. Finally, the government argued that
Smith’s claim was procedurally barred because he did not raise it
on direct appeal.
The district court denied Smith’s motion. It concluded that
Smith’s § 924(c) convictions were properly supported by the sub-
stantive Hobbs Act robbery charges. In so doing, the district court
observed that the jury convicted Smith of substantive Hobbs Act
robbery. So the court reasoned, it did not matter, for purposes of
2 We granted Smith’s application to file a second or successive motion to va-
cate, set aside, or correct his sentence under 28 U.S.C. § 2255(h). In re Smith,
No. 19-12719 (11th Cir. Aug. 8, 2019).
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§ 924(c), whether the substantive convictions were based on the
theory that Smith himself committed Hobbs Act robbery or on the
theory of coconspirator liability under which Smith is vicariously
liable for the substantive crimes. What mattered, in the district
court’s view, was simply that Smith was convicted of substantive
Hobbs Act robbery. Therefore, the court concluded, the § 924(c)
convictions were proper.
While the district court denied Smith’s motion, it granted a
certificate of appealability because it found that jurists of reason
could debate whether Smith is entitled to relief.
II. STANDARD OF REVIEW
On a district court’s order denying relief on a motion to va-
cate under 28 U.S.C. § 2255, we review the court’s legal determina-
tions de novo and its factual determinations for clear error. Riolo
v. United States, 38 F.4th 956, 967 (11th Cir. 2022).
III. DISCUSSION
A conviction under § 924(c) can be supported only when a
defendant “uses or carries a firearm” “during and in relation to any
crime of violence or drug trafficking crime” or if the defendant
“possesses a firearm” “in furtherance of any such crime.” 18 U.S.C.
§ 924(c). Also in § 924(c), Congress defined a “crime of violence”
in two alternative ways. These have come to be known as the “el-
ements clause” and the “residual clause.” Davis, 139 S. Ct. at 2324
(quoting 18 U.S.C. § 924(c)(3)).
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8 Opinion of the Court 21-11776
In Davis, the Supreme Court held that one of these paths—
the residual clause—is unconstitutionally vague. Id. at 2336. So
after Davis, only one path remains. For an offense to be a “crime
of violence” that can serve as a predicate offense to support a
§ 924(c) conviction, the offense must satisfy the elements clause.
That means it must have “as an element the use, attempted use, or
threatened use of physical force against the person or property of
another.” 18 U.S.C. § 924(c)(3)(A).
Our cases both before and after Davis have sought to deter-
mine whether given offenses meet this definition. As relevant here,
in In re Saint Fleur, we held that substantive Hobbs Act robbery
“clearly qualifies as a ‘crime of violence’” under the elements clause
in § 924(c)(3)(A) because the elements of that offense “require the
use, attempted use, or threatened use of physical force ‘against the
person or property of another.’” 824 F.3d 1337, 1340–41 (11th Cir.
2016) (quoting 18 U.S.C. § 924(c)). By contrast, in Brown, we held
that conspiracy to commit Hobbs Act robbery does not qualify as
a “crime of violence” under the elements clause and therefore can-
not support a § 924(c) conviction. 942 F.3d at 1075. Unlike Hobbs
Act robbery, Hobbs Act conspiracy does not “necessitate[] the ex-
istence of a threat or attempt to use force.” Id. Rather, we ex-
plained, a conspiracy defendant’s “voluntary participation may
manifest itself in any one of countless non-violent ways.” Id.
Smith does not challenge any of those decisions here nor
does he seek to otherwise relitigate our precedent. Instead, Smith
argues that because of the allegedly confusing jury instructions
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21-11776 Opinion of the Court 9
delivered in his case, we cannot be sure whether the jury deter-
mined that the underlying “crime[s] of violence” that supported his
§ 924 convictions were his substantive Hobbs Act robbery convic-
tions or his Hobbs Act conspiracy conviction. And if uncertainty
exists about whether his § 924(c) convictions were based on Hobbs
Act conspiracy, the argument goes, then those convictions must be
set aside because Hobbs Act conspiracy can no longer be consid-
ered a “crime of violence” after Davis and Brown.
We are not convinced. In particular, we disagree that any
ambiguity exists about the bases for Smith’s § 924(c) convictions.
Rather, the record makes clear that his § 924(c) convictions were
based on his substantive Hobbs Act robbery convictions, and as
we’ve noted, Hobbs Act robbery remains a “crime of violence”
even after Davis. Three distinct documents in the record lead us to
that conclusion: the amended indictment, the full jury instruc-
tions, and the verdict form.
We start with the amended indictment. It expressly states
that the alleged “crime of violence” supporting each § 924(c) charge
is a substantive Hobbs Act robbery charge. The amended indict-
ment includes no suggestion that the Hobbs Act conspiracy charge
in Count One can serve as the basis for the § 924(c) convictions.
Indeed, the government abandoned that precise theory of liability
at trial and prepared the amended indictment to clarify that the
§ 924(c) charges could be sustained based on only a substantive
Hobbs Act robbery charge. So while the original indictment would
have introduced the ambiguity that Smith suggests, the amended
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indictment removed any such ambiguity. And Smith does not con-
tend that the original indictment was presented to the jury or oth-
erwise affected the verdict.
Next, we move to the full jury instructions. When the court
first instructed the jury about the § 924(c) charges, the court said
that each of Counts Three, Five, Seven, and Nine is based on “using
or carrying a firearm during and in relation to the crime of vio-
lence” alleged in the substantive Hobbs Act robbery charges—
Counts Two, Four, Six, and Eight. So from the beginning, the
court instructed the jury about the necessary connection between
these charges.
The district court then explained two general principles of
criminal law: aiding-and-abetting liability and coconspirator liabil-
ity. In its discussion of aiding-and-abetting liability, the court in-
structed the jury that the defendant’s guilt “may be proved without
evidence that the Defendant personally did every act involved in
the commission of the crime charged” and that, in some cases, “the
law holds the Defendant responsible for the conduct of [another]
person just as though the Defendant has personally engaged in
such conduct.” In other words, the court advised the jury that it
could find Smith guilty of substantive Hobbs Act robbery based on
the conduct of one of his codefendants if they were working to-
gether to commit the substantive crime.
The court also explained coconspirator liability and told the
jury that “[i]n some instances a conspirator may be held responsible
under the law for a substantive offense in which he or she had no
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direct or personal participation if such offense was committed by
other members of the conspiracy during the course of such con-
spiracy and in furtherance of its objects.”
The court then instructed the jury based on the Supreme
Court’s decision in Pinkerton v. United States, 328 U.S. 640 (1946). In
Pinkerton, the Court held that each party to a continuing conspiracy
may be held vicariously liable for a coconspirator’s substantive of-
fenses that occur during the course of and in furtherance of the
conspiracy. Id. at 646–47. Coconspirator liability, the Supreme
Court explained, is proper for only those offenses that “fall within
the scope” of the conspiracy and that are “reasonably foresee[able]
as a necessary or natural consequence of the unlawful agreement.”
Id. at 647–48.
The district court’s instructions in this case tracked the Su-
preme Court’s discussion in Pinkerton. The court told the jury that
if it found Smith guilty of Hobbs Act conspiracy and if three other
conditions were met—(1) one of Smith’s coconspirators commit-
ted a substantive offense during the existence of and in furtherance
of the conspiracy; (2) at the time of the substantive offense, Smith
was a knowing and willful member of the conspiracy; and (3) the
substantive offense was a reasonably foreseeable consequence of
the conspiracy—then Smith could be found guilty of the substan-
tive offenses as well.
Smith contends that these instructions were confusing be-
cause the district court also said that, “with regard to Counts Two
through Nine, if [the jury] ha[s] first found [Smith] guilty of the
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conspiracy offense as charged in Count One of the indictment, [the
jury] may also find [Smith] guilty of any offense charged against
him in a later count . . . .” On Smith’s reading, this instruction gave
the jury license to stop deliberating after it reached a decision on
Count One and then convict Smith of all charges based solely on
his participation in the conspiracy.
But we cannot ignore the rest of the court’s instructions,
which make clear to the jury that it could use Count One as a basis
for the remaining charges only if the jury “f[ou]nd beyond a rea-
sonable doubt each of the” three criteria for coconspirator liability
that the court provided—the three criteria that derive from Pinker-
ton. Put differently, under the court’s instructions—which we pre-
sume the jury followed, In re Price, 964 F.3d 1045, 1049 (11th Cir.
2020)—the jury could not have stopped its deliberations after find-
ing Smith guilty of Hobbs Act conspiracy and then just convicted
him of the eight other substantive charges. The jury also had to
analyze the elements of coconspirator liability and determine
whether they provided a basis to convict Smith. Only then could
the jury conclude that Smith was guilty of substantive Hobbs Act
robbery. And only after that could the jury find him guilty of the
corresponding § 924(c) offenses.
Finally, we consider the verdict form. That form provided
the jury with a roadmap of how all the charges against Smith fit
together. As the jury reached conclusions about particular charges,
the verdict form highlighted the consequences those conclusions
had on the remaining charges. For example, and as we’ve noted,
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the verdict form for Count Two asked the jury whether it found
Smith guilty or not guilty of substantive Hobbs Act robbery. It
then instructed that if the jury found him not guilty on that count,
the jury should skip Count Three (the § 924(c) charge correspond-
ing with Count Two) and proceed directly to Count Four (the next
substantive Hobbs Act robbery charge). Because of this sequenc-
ing, the jury could not have convicted Smith on any § 924(c) charge
without also convicting him on the required predicate offense—
substantive Hobbs Act robbery.
All told, when read collectively, the record does not support
Smith’s contention that the jury could have used his Hobbs Act
conspiracy conviction to support his § 924(c) convictions. Instead,
the amended indictment, full jury instructions, and verdict form
show that each of Smith’s § 924(c) convictions is supported by a
corresponding substantive Hobbs Act robbery conviction. And
even after Davis, substantive Hobbs Act robbery remains a “crime
of violence” for purposes of Smith’s § 924(c) convictions. So we
have “no uncertainty” about whether the jury “relied on a predi-
cate offense that is a violent crime” to support Smith’s § 924(c) con-
victions. Price, 964 F.3d at 1048. It did. 3
3 We need not and do not address whether a substantive conviction based on
Pinkerton liability can always support a § 924(c) conviction. At oral argument,
Smith’s counsel said that Smith’s argument did not depend on that legal ques-
tion and that Smith’s challenge was based on the allegedly confusing nature of
the jury instructions delivered here. Oral Arg. at 13:18–13:44.
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IV. CONCLUSION
The record demonstrates that each of Smith’s convictions
under § 924(c) is properly supported by a corresponding substan-
tive Hobbs Act robbery conviction. We therefore affirm the dis-
trict court’s order denying Smith’s motion to vacate.4
AFFIRMED
4 As with the district court’s order, nothing in this opinion is intended to opine
on Smith’s eligibility for a reduced sentence under 18 U.S.C. § 3582(c)(1)(A).