United States v. Ismael Camacho

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-10943 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISMAEL CAMACHO,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:96-cr-00443-JEM-6 ____________________

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No. 21-11753 Non-Argument Calendar ____________________

ISMAEL CAMACHO, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-24658-JEM ____________________

Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Ismael Camacho was convicted in 1998 for his part in a string of brutal kidnappings. The jury convicted him on ten Counts and he was sentenced to just under 85 years in prison.

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On the heels of a 2019 Supreme Court decision, Camacho filed a successive 28 U.S.C. § 2255 motion in which he sought to vacate three of his ten convictions. The district court granted the motion in part and denied it in part, vacating two of the convictions but upholding the third. Camacho was resentenced, and the dis- trict court imposed a reduced term of just under 45 years in prison. He then filed two appeals, which we consolidated. First, he chal- lenges the district court’s partial denial of his 28 U.S.C. § 2255(a) motion. Second, he argues that the district court erred when it failed to apply Section 403 of the First Step Act at resentencing. We affirm. I We begin with Camacho’s 28 U.S.C. § 2255 motion, in which he contends that his conviction for the use of a firearm dur- ing a crime of violence is unconstitutional. See 18 U.S.C. § 924(c). We disagree. 1 Section 924(c) imposes stiff penalties for anyone who uses a firearm in connection with a “crime of violence.” It defines a “crime of violence” as either: (1) a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or (2) a felony “that by its na- ture, involves a substantial risk that physical force against the

1 “In a Section 2255 proceeding, we review legal issues de novo and factual findings under a clear error standard.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (quotation omitted).

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person or property of another may be used in the course of com- mitting the offense.” 18 U.S.C. § 924(c)(3). But the Supreme Court recently held that the latter of those two definitions—the so- called “residual” clause—is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2324 (2019). That is the basis of Camacho’s § 2255 motion. The conviction that Camacho challenges contained two predicate crimes (i.e., two crimes of violence)—Hobbs Act extor- tion (Count 9) and carjacking (Count 10). Camacho argues that his conviction is unconstitutional, and should thus be vacated, because Davis’s vagueness holding renders Hobbs Act extortion no longer a crime of violence. And because the jury returned a general ver- dict, Camacho argues, it is impossible to determine whether the jury’s verdict was founded on a valid basis. But because Camacho did not argue in the district court or on direct appeal that his conviction was invalid due to vagueness, he has procedurally defaulted that claim. See United States v. Diaz, 248 F.3d 1065, 1083 (11th Cir. 2001) (summarizing Camacho’s ar- guments on appeal); see also Granda v. United States, 990 F.3d 1272, 1285–86 (11th Cir. 2021). “[A] defendant generally must ad- vance an available challenge to a criminal conviction on direct ap- peal or else the defendant is barred from raising that claim in a ha- beas proceeding.” Fordham v. United States, 706 F.3d 1345, 1349 (11th Cir. 2013). Accordingly, he “cannot succeed on collateral re- view unless he can either (1) show cause to excuse the default and

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actual prejudice from the claimed error, or (2) show that he is ac- tually innocent.” Granda, 990 F.3d at 1286. To be sure, Davis “announced [a] new constitutional rule[].” Id. It is therefore conceivable that Camacho’s vagueness claim was not “available” to him when he was convicted, excusing his default. See Howard v. United States, 374 F.3d 1068, 1072 (11th Cir. 2004) (explaining that a claim’s “novelty” can “meet the cause require- ment” to excuse a procedural default). But novelty will excuse a default only when “a constitutional claim is so novel that its legal basis is not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). And we’ve previously held—notwithstanding Davis’s “new” rule—that “the tools existed to challenge . . . [§ 924(c)’s] re- sidual clause” on vagueness grounds even before Davis was de- cided. Granda, 990 F.3d at 1288. Consequently, Camacho cannot “show cause to excuse the default.” Id. at 1286. Neither can Camacho satisfy the “actual innocence” excep- tion, which “is exceedingly narrow in scope as it concerns a peti- tioner’s ‘actual’ innocence rather than his ‘legal’ innocence.” Lynn v. United States, 365 F.3d 1225, 1235 n.18 (11th Cir. 2004) (per cu- riam) (quotation omitted). Simply put, there is no evidence to in- dicate that Camacho is actually innocent, nor does he argue as much.2

2Even if Camacho had not procedurally defaulted his claim, we would none- theless affirm because any error was harmless. See Granda, 990 F.3d at 1292. Camacho concedes that the carjacking offense is a valid “crime of violence.”

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• • * * Camacho has procedurally defaulted his § 2255 claim. Ac- cordingly, we affirm the district court’s denial. II Next, Camacho argues that Section 403 of the First Step Act—which was passed in 2018 and, if applicable, would reduce the mandatory minimum sentence for his § 924(c) convictions— should apply.3 Whether the First Step Act applies to a defendant whose initial sentence was imposed and became final before the Act’s enactment, but whose prior sentence is vacated after enact- ment, is an open question in this Circuit. But because any error was harmless, we need not address it. 4 A sentencing error is harmless if it does not “affect the dis- trict court’s selection of the sentence imposed.” Williams v. United

And the carjacked vehicle was taken in the course of the attempted Hobbs Act extortion. Thus, “[t]he inextricability of the alternative predicate crimes com- pels the conclusion that . . . instructing the jury on a constitutionally invalid predicate as one . . . alternative predicate[] . . . was harmless” error. Id. 3 “We review questions of statutory interpretation de novo.” United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009). 4 Camacho moved to stay appellate proceedings in this case pending the reso- lution of United States v. Beneby, No. 19-13387, and we carried Camacho’s motion with the case. The Beneby panel heard oral argument on February 10, 2021 and will resolve a nearly identical question. But because we need not reach the question, we need not wait on Beneby to resolve it. Accordingly, we deny Camacho’s stay motion.

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States, 503 U.S. 193, 203 (1992). Here, the district court stated that “even if” the First Step Act “did apply,” it would have imposed the same sentence. The district court first noted—even if the First Step Act applied—that it was within its discretion to impose up to life in prison. In light of that discretion, and because of “the seriousness of the offenses”—which, the court observed, were “particularly egregious and depraved”—the court plainly stated that a lower statutory minimum would not have affected the sentence it im- posed. Thus, whether the First Step Act applies or not, “the district court has already told us that it would impose exactly the same sen- tence.” United States v. Keene, 470 F.3d 1347, 1350 (11th Cir. 2006). Accordingly, any error was harmless. Id. * * * We AFFIRM the district court’s denial of Camacho’s § 2255 motion. We likewise AFFIRM the sentence that the court im- posed. We DENY Camacho’s motion to stay appellate proceed- ings.