United States v. Victor Natson

USCA11 Case: 23-12680 Document: 21-1 Date Filed: 04/26/2024 Page: 1 of 12

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12680

Non-Argument Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR NATSON,

a.k.a. Silverback,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 4:17-cr-00050-LGW-CLR-3

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2 Opinion of the Court 23-12680

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Before JORDAN, BRANCH, and LAGOA, Circuit Judges.

PER CURIAM:

In 2018, a jury found Victor Natson guilty of conspiracy to

commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count

1); Hobbs Act robbery in violation of § 1951 (Count 2); using,

carrying, brandishing and discharging a firearm during and in

relation to a crime of violence, namely, Hobbs Act robbery as

alleged in Count 2 in violation of 18 U.S.C. § 924(c) (Count

3); attempted Hobbs Act robbery in violation of 18 U.S.C. §§ 1951

and 2 (Count 5); and using, carrying, and brandishing a firearm

during and in relation to a crime of violence, namely, attempted

Hobbs Act robbery in violation of § 924(c) (Count 6). Following

the Supreme Court’s decision in United States v. Taylor, 596 U.S. 845

(2022), 1 Natson filed a successful motion to vacate sentence under

28 U.S.C. § 2255, and the district court vacated Count 6 and held a

full resentencing hearing. Natson now appeals from the new

judgment.

On appeal he argues that (1) his § 924(c) conviction in

Count 3 must be vacated because the offense of completed Hobbs

Act robbery is no longer a crime of violence post-Taylor, and

(2) Count 3 was jurisdictionally invalid because the jury

1 The Supreme Court in Taylor held that attempted Hobbs Act robbery does

not categorically qualify as a predicate crime of violence for purposes of

§ 924(c). 596 U.S. at 851.

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instruction, which was based on the Eleventh Circuit’s Pattern Jury

Instruction, was overbroad and the jury could have convicted him

under circumstances that would not constitute a crime of violence

for purposes of § 924(c). After review, we affirm.

I. Background

A grand jury issued a superseding indictment charging

Natson and two other defendants with seven offenses related to the

armed robbery of, and a second attempted armed robbery of,

Brinks armored trucks. The indictment charged Natson with six

counts: conspiracy to commit Hobbs Act robbery in violation of 18

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

(Count 2); using, carrying, brandishing and discharging a firearm

during and in relation to a crime of violence, namely, Hobbs Act

robbery as alleged in Count 2 in violation of 18 U.S.C. § 924(c)

(Count 3); attempted Hobbs Act robbery in violation of 18 U.S.C.

§§ 1951 and 2 (Count 5); and using, carrying, and brandishing a

firearm during and in relation to a crime of violence, namely,

attempted Hobbs Act robbery in violation of § 924(c) (Count 6).

Natson proceeded to a jury trial. Prior to deliberations, with

regard to Count 2—which served as the predicate offense for

Count 3—the trial court gave the jury this Court’s pattern jury

instruction for Hobbs Act robbery. 2 That instruction provides as

follows:

2 Natson requested the trial court give this instruction.

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It’s a Federal crime to acquire someone else’s

property by robbery and in doing so to obstruct,

delay, or affect interstate commerce.

The Defendant can be found guilty of this crime only

if all the following facts are proved beyond a

reasonable doubt.

(1) the Defendant knowingly acquired

someone else’s personal property;

(2) the Defendant took the property against the

victim's will, by using actual or threatened

force, or violence, or causing the victim to fear

harm, either immediately or in the future; and

(3) the Defendant's actions obstructed,

delayed, or affected interstate commerce.

“Property” includes money, tangible things of value,

and intangible rights that are a source or element of

income or wealth.

“Fear” means a state of anxious concern, alarm, or

anticipation of harm. It includes the fear of financial

loss as well as fear of physical violence.

“Interstate commerce” is the flow of business

activities between one state and anywhere outside

that state.

The Government doesn’t have to prove that the

Defendant specifically intended to affect interstate

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commerce. But it must prove that the natural

consequences of the acts described in the indictment

would be to somehow delay, interrupt, or affect

interstate commerce. If you decide that there would

be any effect at all on interstate commerce, then that

is enough to satisfy this element. The effect can be

minimal.

See Eleventh Circuit Pattern Jury Instruction O70.3.

The jury found Natson guilty on all six counts, and he was

sentenced to a total of 240 months’ imprisonment. We affirmed

his convictions and sentence on appeal. See United States v. Scott,

798 F. App’x 391 (11th Cir. 2019).

Following the Supreme Court’s decision in Taylor—which

as noted above held that attempted Hobbs Act robbery does not

categorically qualify as a predicate crime of violence for purpose of

§ 924(c)—Natson filed a 28 U.S.C. § 2255 motion to vacate his

§ 924(c) conviction that was predicated on attempted Hobbs Act

robbery (Count 6). The district court granted the motion, vacated

the conviction, and ordered a full resentencing.

At the resentencing stage, Natson argued that the district

court could not resentence him under Count 3 because the pattern

jury instruction for the predicate crime in Count 3—Hobbs Act

robbery—was overbroad in allowing the jury to convict him of

Hobbs Act robbery merely by causing his victims to fear economic

loss, and, therefore Count 3 was a nullity for lack of jurisdiction.

Acknowledging that we had held in In re Saint Fleur, 824 F.3d 1337

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(11th Cir. 2016), that completed Hobbs Act robbery categorically

qualified as a crime of violence for purposes of § 924(c), Natson

argued that Saint Fleur was no longer good law in light of Taylor.

The district court overruled Natson’s objections, and

resentenced him to a below-guidelines total sentence of 166

months’ imprisonment. This appeal followed.

II. Discussion

A. Whether completed Hobbs Act robbery is crime of

violence post-Taylor

Natson argues that our precedent holding that completed

Hobbs Act robbery categorically qualifies as a crime of violence for

purposes of § 924(c) is no longer valid and must be reconsidered in

light of the Supreme Court’s decision in Taylor. 3 Natson’s

argument is squarely foreclosed by binding precedent.

Section 924(c) prohibits the use, carrying, or possession of a

firearm during and in relation to or in furtherance of “any crime of

violence or drug trafficking crime” and provides for a mandatory

consecutive sentence for any defendant who uses a firearm during

a crime of violence. See 18 U.S.C. § 924(c)(1)(A). Section 924(c)’s

“elements clause” defines a “crime of violence” as a felony that “has

3 Whether an offense is a crime of violence under § 924(c) is a question of law

that we review de novo. United States v. Wiley, 78 F.4th 1355, 1360 (11th Cir.

2023).

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as an element the use, attempted use, or threatened use of physical

force against the person or property of another.” § 924(c)(3)(A).

The Hobbs Act robbery statute criminalizes:

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 the person or property of

. . . anyone in his company at the time of the . . .

obtaining.

18 U.S.C. § 1951(a), (b)(1).

In In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016), we

concluded that a completed Hobbs Act robbery offense “clearly”

qualifies as a crime of violence under § 924(c)’s elements clause,

noting that it “has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another.” Id. at 1340–41 (quoting § 924(c)(3)(A)). 4

Subsequently, in United States v. St. Hubert, 909 F.3d 335

(11th Cir. 2018), abrogated on other grounds by Taylor, 596 U.S. 845,

4 To the extent that Natson argues that Saint Fleur should not apply to his case

because it was issued in the context of an application for permission to file a

second or successive motion to vacate sentence, this argument is squarely

foreclosed by our precedent. See In re Lambrix, 776 F.3d 789, 794 (11th Cir.

2015) (“To be clear, 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.”).

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we reaffirmed Saint Fleur, holding that Hobbs Act robbery is a

crime of violence because “[a] conviction for Hobbs Act robbery

by definition requires ‘actual or threatened force, or violence, or

fear of injury, immediate or future, to person or property.’” Id. at

348 (alteration adopted) (quoting § 1951(b)(1)). In so holding, we

reasoned that there was no “plausible scenario” in which the Hobbs

Act applied to a robbery “that did not involve, at a minimum, a

threat to use physical force,” or a situation “in which a Hobbs Act

robber could take property from the victim against his will and by

putting the victim in fear of injury (to his person or property)

without at least threatening to use physical force capable of causing

such injury.” Id.

Although Natson argues that Saint Fleur and its progeny

were wrongly decided in the first instance and have been

undermined to the point of abrogation by Taylor, we have held that

“Taylor did not disturb our holding that completed Hobbs Act

robbery is a crime of violence” for the purposes of § 924(c). Wiley,

78 F.4th at 1365; see also United States v. Kaley, 579 F.3d 1246, 1255

(11th Cir. 2009) (explaining that to disturb our existing precedent,

a “Supreme Court decision must be clearly on point” and “actually

abrogate or directly conflict with, as opposed to merely weaken,

the holding of the prior panel”). Under the prior-panel-precedent

rule, we are bound by Wiley, Saint Fleur, and the otherwise valid

portions of St. Hubert, “unless and until it is overruled or

undermined to the point of abrogation by the Supreme Court or

this [C]ourt sitting en banc.” United States v. Dudley, 5 F.4th 1249,

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1265 (11th Cir. 2021), cert. denied, 142 S. Ct. 1376 (2022) (quotations

omitted). Accordingly, Natson is not entitled to relief on this claim.

B. Whether Count 3 is a nullity for lack of jurisdiction

due to the jury instruction

Natson argues that the district court lacked jurisdiction over

Count 3 because our pattern jury instruction for Hobbs Act

robbery is categorically overbroad as it allowed the jury to convict

him based on mere fear of financial loss, which would remove the

Hobbs Act robbery predicate from § 924(c)’s “crime of violence”

definition. He maintains that “the [c]ourt does not have

jurisdiction to issue judgment as to the categorically overbroad

offenses because such offenses are not ‘offenses against the laws of

the United States’ pursuant to 18 U.S.C. § 3231.”

“We review de novo a district court’s subject matter

jurisdiction even when it is raised for the first time on appeal.”

United States v. Gruezo, 66 F.4th 1284, 1290 (11th Cir.), cert. denied,

144 S. Ct. 178 (2023).

“Subject-matter jurisdiction defines the court’s authority to

hear a given type of case.” Alikhani v. United States, 200 F.3d 732,

734 (11th Cir. 2000); see also United States v. Cotton, 535 U.S. 625, 630

(2002) (“[S]ubject-matter jurisdiction . . . involves a court’s power

to hear a case. . . .”). “Congress bestows that authority on lower

courts by statute.” Alikhani, 200 F.3d at 734. For federal crimes,

Congress has bestowed federal district courts with “original

jurisdiction . . . of all offenses against the laws of the United States.”

18 U.S.C. § 3231. We have held that “[s]o long as the indictment

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charges the defendant with violating a federal statute . . . it alleges

an offense against the laws of the United States, and, thereby,

invokes the district court’s subject matter jurisdiction.” United

States v. Wilson, 979 F.3d 889, 902 (11th Cir. 2020) (quotations

omitted); United States v. Brown, 752 F.3d 1344, 1354 (11th Cir. 2014)

(same).

Natson does not take issue with court’s subject matter

jurisdiction based on the § 924(c) offense alleged in the indictment.

Nor could he do so because the United States filed an indictment

charging Natson with a violation of 18 U.S.C. § 924(c), which no

one disputes is an offense against the laws of the United States.

Rather, Natson argues that the allegedly overbroad jury instruction

essentially stripped the district court of subject matter jurisdiction

that it otherwise possessed. However, he cites no binding

authority5—and we have located none—holding that an erroneous

jury instruction can deprive the district court of its authority and

power to adjudicate a particular type of case under 18 U.S.C.

5 In support of his position, Natson relies primarily on a two-page unpublished

district court order in United States v. Louis, No. 21-CR-20252, 2023 WL

2240544, at *1–2 (S.D. Fla. Feb. 27, 2023), granting a post-trial motion to arrest

judgment and dismissing numerous § 924(c) counts, under Federal Rule of

Criminal Procedure 34 for lack of jurisdiction. The district court concluded,

without sufficient explanation, that the Hobbs Act robbery pattern jury

instruction O70.3 is categorically overbroad and summarily concluded that

“such overbroad offenses are not offenses against the laws of the United

States.” (quotations omitted). However, as Natson concedes, Louis is not

binding on this Court. Furthermore, the Louis court’s determination is

entirely conclusory and finds no support in the law.

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§ 3231. See United States v. Leonard, 4 F.4th 1134, 1142 (11th Cir.

2021) (“[A] jurisdictional defect occurs only where a federal court

lacks power to adjudicate at all.” (quotations omitted)). To the

extent that Natson argues that because the Hobbs Act robbery jury

instruction was allegedly overbroad, it could not satisfy the “crime

of violence” element of § 924(c), that would mean only that one of

the elements of the § 924(c) charge was not met—not that the

district court would have been stripped of its jurisdiction. See

United States v. Grimon, 923 F.3d 1302, 1306 (11th Cir. 2019) (holding

that “the government’s alleged failure to sufficiently establish an

[element] does not deprive the district court of its subject matter

jurisdiction under § 3231.”). In short, although Natson casts his

jury instruction challenge as one that goes to the district court’s

subject matter jurisdiction, it does not.6

Accordingly, he is not entitled to relief on this claim.

6 Natson’s challenge, at best, amounts to a garden-variety jury instruction

challenge, which we review for plain error because he failed to preserve the

issue at trial. United States v. Duldulao, 87 F.4th 1239, 1257 (11th Cir. 2023). To

establish plain error, the defendant must show that (1) there was error; (2) the

error was plain; (3) the error “affect[ed] [his] substantial rights”; and (4) “the

error seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.” Id. (quotations omitted). Natson cannot show that the alleged

error was plain because neither this Court nor the Supreme Court has held

that the pattern jury instruction at issue is overly broad. See United States v.

Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (“[W]here neither the Supreme

Court nor this Court has ever resolved an issue . . . there can be no plain error

in regard to that issue.”).

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III. Conclusion

For the above reasons, we affirm Natson’s sentence.

AFFIRMED.