v.
Felix Collazo
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2557
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UNITED STATES OF AMERICA
v.
FELIX ALBERTO COLLAZO,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-09-cr-00064-002)
District Judge: Hon. A. Richard Caputo
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Submitted Under Third Circuit LAR 34.1(a)
June 19, 2020
Before: JORDAN, MATEY and ROTH, Circuit Judges.
(Filed May 19, 2021)
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OPINION
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This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.
JORDAN, Circuit Judge.
Defendant Felix Collazo moved for post-conviction relief to amend his sentence. He was convicted under 18 U.S.C. § 924(c), which criminalizes the carrying of a firearm during the commission of a crime of violence, the crime of violence being the predicate offense for the § 924(c) conviction. The District Court denied Collazo’s motion. Following that denial, the Supreme Court held that § 924(c)(3)(B) is unconstitutional, which eliminated one of the two bases for determining whether a crime could serve as a predicate offense. We issued Collazo a certificate of appealability and will now affirm the District Court’s decision declining to amend his sentence. As we explain herein, his sentence remains valid because, under the remaining basis for establishing a predicate offense for a § 924(c) conviction, he indeed committed a crime of violence.
I. BACKGROUND
Collazo and his co-conspirators pulled Mark McManus from his car at gunpoint, took his wallet, ordered him to provide his bank account pin number, and drove him to various ATM machines throughout the city of Harrisburg, Pennsylvania withdrawing money from his bank account. They then locked McManus in the trunk of his own car, and, after Collazo supposedly left the group, his co-conspirators abandoned the car in a remote part of the city in freezing temperatures. McManus managed to escape by kicking through the back seat of the car. The crimes against McManus were likely part of a gang initiation. The same gang had also perpetrated an earlier robbery that Collazo was not a part of.
[*2]A grand jury returned a five-count indictment against Collazo with additional counts against his co-conspirators for conspiracy, carjacking, Hobbs Act robbery, and violating § 924(c). Collazo pleaded guilty to Count I, conspiracy, and Count V, the § 924(c) offense. The § 924(c) charge referenced both the Hobbs Act and carjacking statutes, 18 U.S.C. §§ 1951 and 2119, indicating them as predicate offenses.[1]
At Collazo’s change of plea hearing, the District Court discussed Collazo’s crimes and confirmed that he wanted to plead guilty. Collazo then acknowledged the veracity of the specific facts underlying his plea:
COURT: Now I’m going to ask [government counsel] to describe the facts in summary fashion that would satisfy these elements.
GOVERNMENT COUNSEL: Thank you, Your Honor. If required to go to trial the government would present the following evidence, that on January 17th, 2009 the defendant [Collazo] and Dion Johnson robbed an individual, Mark McManus, as he parked his car in the city of Harrisburg. At gunpoint they forced him back into his car, … forced him to provide his ATM card and the identification number for that automated teller machine card, and drove Mr. McManus through the city of Harrisburg.
[*3]Ultimately they put Mr. McManus in the trunk of his vehicle and used the ATM card and obtained cash from Mr. McManus’s bank account. This bank account existed in interstate commerce, and by taking these funds by force the defendant affected interstate commerce. In the course of committing this robbery the defendant possessed a firearm in furtherance of committing this robbery.
COURT: Are those things true?
COLLAZO: Yes. (App. at 34-35.) Collazo had explained, in response to the Court’s inquiry about the conspiracy charge, that “[w]e just got together, we were there, and we just did it.” (App. at 34.)
The U.S. Probation Office recommended an upward departure from what would ordinarily be the sentencing guidelines range, because Collazo’s conduct put the victim in danger because of the freezing temperature and was therefore “extreme” under U.S.S.G. § 5K2.8. Collazo objected to that recommendation on the ground that he left the final crime scene before the victim was abandoned in the trunk of the car in dangerously cold weather. At sentencing, the Court concluded that Collazo had accepted responsibility but that the Probation Office was correct in saying the extremity of the crime warranted an upward departure. The Court thus imposed a 149-month sentence, consisting of 65 months for conspiracy, consecutive with 84 months for the § 924(c) offense.
Six years later, the Supreme Court issued Johnson v. United States, 576 U.S. 591 (2015), holding the “residual” clause in the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”) to be unconstitutionally vague. Id. at 606. Section 924(c) includes an identically worded residual clause. See 18 U.S.C. § 924(c)(3)(B).
[*4]Based on Johnson, Collazo filed a Motion to Correct Sentence under 18 U.S.C. § 2255, “argu[ing] that the materially identical definition of ‘crime of violence’ in the ‘residual clause’ of Section 924(c)(3)(B) is also unconstitutionally vague and that his offense could not qualify as a ‘crime of violence’ under the alternative ‘elements clause[.]’”2 (Opening Br. at 7.) In short, he argued there was no predicate offense to support his § 924(c) conviction.
The District Court denied his motion, relying on our now abrogated decision in United States v. Robinson, 844 F.3d 137, 141 (3d Cir. 2016), to conclude that the facts admitted by Collazo supported viewing the McManus robbery as a predicate offense. The Supreme Court later held, in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), that the residual clause in § 924(c)(3)(B) was unconstitutionally vague. Collazo appealed the District Court’s denial of his motion, and we granted a certificate of appealability.
[*5]II. DISCUSSION3
As an initial matter, the government contends that we “cannot entertain” Collazo’s appeal because his § 2255 motion was procedurally defaulted for lack of timeliness. (Answering Br. at 18.) We disagree, and therefore will address the merits of the appeal. A motion to correct sentence is timely if filed one year from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The government argues that no such new right was recognized by the Supreme Court because “[t]he concept that vague criminal statutes can be found to be unconstitutional is not novel[,]” and Collazo should have raised an argument against the constitutionality of § 924(c) “in the initial litigation … even though it would have likely been unsuccessful at that time.” (Answering Br. at 19.)
That argument is far too dismissive of the Supreme Court’s rulings in both Johnson and Davis, and the end point of the government’s logic is that no void-for- vagueness ruling by the Supreme Court could ever give rise to a newly recognized right under § 2255. See United States v. Green, 898 F.3d 315, 321 (3d Cir. 2018) (“The Supreme Court in Johnson recognized a right to not be sentenced under a statute that ‘fixed—in an impermissibly vague way—a higher range of sentences for certain defendants.’”) (quoting Beckles v. United States, 137 S. Ct. 886, 892 (2017) (original emphasis omitted)).4 Collazo’s motion was timely because it was filed within a year of United States v. Johnson, in which the Supreme Court announced a new, retroactive, substantive rule. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (announcing that Johnson was substantive and should be applied retroactively). Moreover, the motion is supported by United States v. Davis, which came later and also announces a new rule for purposes of § 2255 timeliness, the rule specifically being that “§ 924(c)(3)(B) is unconstitutionally vague.” In re Matthews, 934 F.3d 296, 301 (3d Cir. 2019) (quoting Davis, 139 S. Ct. at 2336).
[*6]We next turn to Collazo’s key argument on the merits, that the “predicate offense for [his] Section 924(c) conviction was not clearly identified in the record,” and therefore, that we should conclude he did not commit Hobbs Act robbery. (Reply Br. at 2.) He says his plea agreement is ambiguous because Count V, the § 924(c) offense, broadly references the Hobbs Act, which includes both robbery and conspiracy. According to Collazo, that ambiguity should be construed against the government, meaning interpreted to only reference conspiracy. He further contends that the ambiguity “was not resolved with the [plea] colloquy.” (Reply Br. at 3.)
[*7]We discern no ambiguity at all. The government has demonstrated, through the indictment, plea agreement, and plea colloquy, that Collazo committed Hobbs Act robbery.[5] It is well settled that, “[i]n a prosecution under [§ 924(c)], the Government must prove that the defendant committed a qualifying predicate offense … but it is not necessary that the defendant be separately charged with or convicted of such an offense.” United States v. Lake, 150 F.3d 269, 274-75 (3d Cir. 1998) (internal citation omitted). In the context of a § 924(c) guilty plea, our sister circuits have looked to the factual proffer, plea hearing, and other evidence in the record to determine if a qualifying predicate offense was committed.[6] District courts in our circuit have followed the same approach.[7] Here, the indictment, plea agreement, and plea colloquy all make clear that Collazo committed Hobbs Act robbery and that the robbery was a predicate for his § 924(c) conviction. When we consider the indictment, we can readily see that Collazo was charged with Hobbs Act robbery and that his § 924(c) charge broadly referenced the Hobbs Act, without limiting itself to conspiracy. We can also look to the plea colloquy, during which the government stated the specific facts it would have proved at trial, all of which combine to meet the elements of Hobbs Act robbery.[8]
[*8][*9]III. CONCLUSION
For the forgoing reasons, we will affirm the District Court’s order denying Collazo’s § 2255 motion to amend his sentence.
[*10]