In Re: Emilio Gomez
830 F.3d 1225
| 11th Cir. | 2016Background
- Emilio Gomez was convicted on multiple counts including two drug‑trafficking conspiracies, conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and a § 924(c) count for possessing a firearm "in relation to a crime of violence or drug trafficking crime."
- Count 5 (§ 924(c)) listed multiple alternative predicates (the two drug counts, the Hobbs Act conspiracy, and attempted Hobbs Act robbery) in a single, non‑specific count.
- Gomez filed for permission to bring a second or successive 28 U.S.C. § 2255 motion relying on Johnson v. United States (voiding the ACCA residual clause as unconstitutionally vague) to challenge § 924(c)(3)(B)’s similar residual clause.
- The Eleventh Circuit previously recognized the issue as unsettled in In re Pinder but allowed disposition by the district court in the first instance.
- The court found Gomez made a prima facie showing because (1) the duplicitous § 924(c) count leaves unclear which predicate the jury relied on (raising unanimity and Alleyne problems for mandatory‑minimum increases), and (2) attempted Hobbs Act robbery may not categorically qualify as a § 924(c) elements‑clause crime, implicating the residual clause and Johnson.
- The court granted the application, directing the district court to decide de novo whether Gomez’s § 2255 meets the requirements for a successive petition and to resolve timeliness and merits issues in the first instance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson's voiding of a residual clause permits a successive § 2255 against a § 924(c) conviction based on § 924(c)(3)(B) | Gomez: Johnson invalidates § 924(c)(3)(B) (similar residual clause), so he may challenge his § 924(c) sentence | Government: Earlier precedent and statutory text may distinguish § 924(c) residual clause from ACCA; district court should decide | Granted permission to file; district court to decide in first instance whether Johnson applies |
| Whether a § 924(c) count that lists multiple alternative predicates is duplicitous and precludes a proper jury finding for mandatory‑minimum increases | Gomez: The indictment’s listing of multiple predicates prevents knowing which predicate supported conviction; violates unanimity and Alleyne requirements for elements that increase the mandatory minimum | Government: (Implicit) The verdict and sentencing records could identify the predicate or otherwise sustain conviction | Court: Indictment is duplicitous and creates a prima facie problem; district court must assess whether Alleyne/unanimity problems affect sentence validity |
| Whether attempted Hobbs Act robbery categorically constitutes a "crime of violence" under § 924(c)’s elements clause | Gomez: Attempted Hobbs Act robbery may not always require use or threat of force, so it may not categorically qualify, bringing § 924(c) residual clause and Johnson into play | Government: (Implicit) Hobbs Act offenses often involve force; attempted offense may nevertheless qualify | Court: Open question in this circuit; possible non‑categorical match makes Gomez’s showing sufficient to proceed to district court |
| Whether timeliness (statute of limitations) bars Gomez’s Johnson‑based § 2255 | Gomez: Sought permission despite possible limitations expiration | Government: Timeliness is relevant to merits/threshold; not to permission to file | Court: Timeliness is for the district court to decide; it does not preclude granting permission to file a successive petition |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (invalidating ACCA residual clause as unconstitutionally vague)
- In re Pinder, 824 F.3d 977 (11th Cir. 2016) (recognized unsettled status of § 924(c)(3)(B) post‑Johnson and left merits to district court)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts increasing mandatory minimum are elements that must be submitted to jury)
- Schlei v. United States, 122 F.3d 944 (11th Cir. 1997) (duplicitous indictment doctrine and its dangers)
- United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013) (categorical‑approach analysis for whether an offense is a crime of violence)
- Jordan v. Secretary, Department of Corrections, 485 F.3d 1351 (11th Cir. 2007) (district court reviews successive‑petition permission issues de novo)
- In re Moss, 703 F.3d 1301 (11th Cir. 2013) (district court’s determinations on successive petitions and merits are reviewable on appeal)