Eleventh Circuit Court of Appeals - Published Opinions

Thursday, July 25, 2019

In re Cannon: Authorizing Successive 2255 Motion Under Davis for 924(o) Conviction but not 924(c) Convictions

In In re Cannon, No. 19-12533 (July 25, 2019) (Tjoflat, Hull, Julie Carnes) (per curiam), the Court authorized a successive 2255 motion under Davis for a 924(o) conspiracy conviction but not for 924(c) convictions.

For the 924(c) convictions, the Court denied authorization because they were based on drug trafficking, substantive Hobbs Act, and carjacking, all of which remain qualifying predicates after Davis. 

For the 924(o) conviction, the Court observed that the offense was based on multiple distinct predicate offenses, most of which remained qualifying predicates, but one of which was Hobbs Act conspiracy, which was still an open question in this Circuit.  Because the jury returned a general verdict, and the crimes seemed inextricably intertwined based on its limited review of the record, the Court found it unclear which crimes served as the predicate for the 924(o) offense.  Therefore, it found that the applicant had made a prima facie showing.  The Court cited In re Gomez for support.  However, the Court cautioned that the movant bore the burden under Beeman to show that the jury likely based its verdict solely on the Hobbs Act conspiracy, not the other qualifying predicates--and the Court found there was some indication that it did not.  The Court also suggested that, where a 924(o) verdict rests on a drug trafficking predicate, there may not be any concern about a possibly defect in a related crime of violence predicate.