[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-12337

Non-Argument Calendar

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D.C. Docket Nos. 0:16-cv-61848-JIC,

0:07-cr-60153-JIC-2

BOBBY MARTIN, 

 Petitioner - Appellant,

versus

UNITED STATES OF AMERICA, 

 Respondent - Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(April 21, 2021)

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

MARTIN, Circuit Judge: 

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Bobby Martin was convicted after a jury trial on seven charges related to a 

conspiracy to rob a cocaine stash house. He now appeals the denial of his 28 

U.S.C. § 2255 petition, arguing that one of his convictions is invalid in light of 

United States v. Davis, 588 U.S. __, 139 S. Ct. 2319 (2019). Davis invalidated 18 

U.S.C. § 924(c)’s residual clause on the ground that it is unconstitutionally vague. 

139 S. Ct. at 2336.

While this appeal was pending, this Circuit issued a published decision in 

Granda v. United States, 990 F.3d 1272 (11th Cir. 2021), which resolved the open 

issues in Mr. Martin’s case against him. After careful consideration, and on the 

basis of Granda, we therefore affirm the denial of the § 2255 petition.

I

In 2007, a confidential information tipped off the Bureau of Alcohol, 

Tobacco, and Firearms (“ATF”) that a particular group of people, which came to 

include Mr. Martin, wanted to rob a target of cash or drugs. That informant 

worked with an undercover ATF agent to investigate this group. The undercover

ATF agent, posing as a disgruntled drug courier who wanted to steal cocaine from 

his employer, met with the group. The undercover agent proposed stealing at least 

15 kilograms of cocaine from his employer’s stash house, which was protected by 

armed guards. Mr. Martin and others agreed to the plan. Specifically, Mr. Martin 

agreed to commit the robbery, proposed a method of dividing the cocaine they 

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anticipated recovering, and said the guard protecting the cocaine might be killed if 

he offered any resistance during the robbery. When asked if the group had the 

tools to commit the robbery, Mr. Martin assured the undercover agent, “everything 

is done.” 

Mr. Martin repeatedly reaffirmed his willingness to perform the robbery. He 

said he and his crew would be ready, and again indicated that anyone guarding the 

cocaine might be killed if he resisted during the robbery: “I can eliminate 

everything. Sometimes guys like that don’t deserve to breathe.” Mr. Martin 

confirmed he had all the materials necessary to commit the robbery, including a 

silencer, and said he would bring an extra gun to plant it on the guard and “make it 

look like a drug deal gone bad.” Mr. Martin also reassured the undercover agent 

that he had experience with these jobs and had been committing robberies for a 

long time. Over the next month, Mr. Martin asked about the status of the 

impending cocaine robbery. Mr. Martin also discussed with the undercover agent 

the plan for the robbery. He explained who would be on lookout while he and 

another co-conspirator entered the stash house to steal the cocaine. He assured the 

undercover agent that all firearms needed for the robbery had been acquired. He 

also discussed plans for the proceeds he would earn from selling the stolen 

cocaine. 

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On the day of the arranged robbery, Mr. Martin and his co-conspirators met 

with the undercover agent. Everyone in the group dressed in black and wore skull 

caps and gloves to conceal their appearances. They again discussed the plan for 

the robbery. 

At that point, law enforcement moved in to arrest the defendants. The

vehicle in which Mr. Martin and his co-conspirators came to the scene contained: 

two loaded rifles (including a short-barreled rifle), binoculars, a knife, a canvas bag 

to carry cocaine, and other items for use in the robbery. Following his arrest, Mr.

Martin confessed that he was going to conduct a robbery of 15 kilograms of 

cocaine and that the firearms brought to commit the robbery had been used before. 

Mr. Martin was charged with conspiracy to obstruct, delay, and affect 

interstate commerce by means of robbery, in violation of 18 U.S.C. § 1951(a) 

(“Hobbs Act robbery”) (Count 1); conspiracy to possess with intent to distribute at 

least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a) and 846 (Count 

2); attempt to possess with intent to distribute at least five kilograms of cocaine, in 

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 3); conspiracy 

to carry a firearm during and in relation to a crime of violence and during and in 

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(o) (Count 4); 

knowingly carrying a firearm during and in relation to a crime of violence and 

during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 

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§§ 924(c)(1)(A), 924(c)(1)(B), and 2 (Count 5); possession of an unregistered 

firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871 and 18 U.S.C. § 2 (Count 

6); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. 

§ 922(g)(1) (Count 7). 

The jury found Mr. Martin guilty on all counts. The District Court 

sentenced him to 240 months’ imprisonment as to Counts 1 and 4; 260 months as 

to Counts 2 and 3; and 120 months as to Counts 6 and 7; all to run concurrently 

with each other. The court also sentenced him to 120 months’ imprisonment as to 

Count 5, to be served consecutively to the terms imposed in the other counts. This

resulted in a total term of 380 months’ imprisonment for Mr. Martin. 

In 2016, Mr. Martin filed a motion seeking leave to file a second or 

successive § 2255 motion, which this Court granted.1

 He argued his § 924(c) 

conviction should be invalidated in light of Johnson, 576 U.S. 591, 135 S. Ct. 

2551, and Welch, 136 S. Ct. 1257. He contended his § 924(c) conviction was no 

1 This Court affirmed Mr. Martin’s convictions. United States v. Chung, 329 F. App’x 

862, 865, 869 (11th Cir. 2009) (per curiam) (unpublished). In October 2009, the Supreme Court 

denied his petition for writ of certiorari. Mr. Martin then filed his initial § 2255 motion, alleging 

a variety of claims, which the District Court denied. He then filed a motion to reduce his 

sentence pursuant to 18 U.S.C. § 3582(c) and Amendment 782 to the Sentencing Guidelines, 

which the District Court granted, reducing Mr. Martin’s sentence from 380 months’ 

imprisonment to 328 months’ imprisonment. In 2016, Mr. Martin filed a motion to preserve 

claims under Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551 (2015), and Welch v. 

United States, 578 U.S. __, 136 S. Ct. 1257 (2016), in the event those decisions could apply 

retroactively to career offender provisions. The District Court dismissed the motion as an 

unauthorized second or successive § 2255 motion. 

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longer valid because conspiracy to commit Hobbs Act robbery no longer qualified 

as a crime of violence. The government argued that Mr. Martin’s claims were 

procedurally defaulted; that Johnson did not apply to § 924(c)(3)(B); and that, in 

any event, his § 924(c) conviction was based on the alternative drug trafficking 

predicates left unaffected by Johnson. 

In 2018, the District Court denied the § 2255 petition and denied a certificate 

of appealability (“COA”) based on this Court’s then-binding precedent.

2

 

In 2019, the Supreme Court decided Davis, holding that the § 924(c)(3)(B)

residual clause was unconstitutionally vague. 139 S. Ct. at 2336. In 2020, this 

Court granted Mr. Martin a COA on the following issue:

Whether Martin’s conviction for using a firearm in furtherance of a 

conspiracy to commit Hobbs Act robbery and drug-trafficking crimes in 

violation of 18 U.S.C. § 924(c) remains valid in light of Davis v. United 

States, 139 S. Ct. 2319 (2019)?

We now address this issue.

II

In reviewing a district court’s denial of a motion to vacate under 28 U.S.C. 

§ 2255, this Court reviews de novo legal conclusions and reviews factual findings 

2 Under this Court’s precedent at the time, the District Court was bound to hold that 

Johnson did not apply to § 924(c)(3)(B). Ovalles v. United States, 861 F.3d 1257 (11th Cir. 

2017), reh’g en banc granted and opinion vacated, 889 F.3d 1259 (11th Cir. 2018), and on reh’g 

en banc, 905 F.3d 1231 (11th Cir. 2018), and opinion reinstated in part, 905 F.3d 1300 (11th Cir. 

2018) (per curiam), and abrogated by Davis, 139 S. Ct. 2319.

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for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per 

curiam). 

III

Because we conclude Mr. Martin’s Davis challenge fails on the merits, we 

need not decide whether the argument is procedurally defaulted. 

The merits question before us is whether Mr. Martin’s conviction for using a 

firearm, in the furtherance of a conspiracy to commit Hobbs Act robbery and drugtrafficking crimes, in violation of 18 U.S.C. § 924(c) remains valid in light of 

Davis, 139 S. Ct. at 2336, which invalidated § 924(c)’s residual clause as 

unconstitutionally vague. Relief is only proper if we have “grave doubt” about 

whether Mr. Martin’s conviction rested on the invalid predicate. See Granda, 990 

F.3d at 1293.

We begin with the counts of his conviction. The indictment alleged that the 

predicate offenses for the § 924(c) charge in Count 5 were the Hobbs Act robbery 

offense in Count 1 and the two drug trafficking offenses in Counts 2 and 3. Both 

sides agree the Hobbs Act robbery offense (Count 1) can no longer serve as a 

predicate offense after Davis. As such, the question in Mr. Martin’s case is 

whether his § 924(c) conviction (Count 5) nevertheless remains valid because it 

rests on an alternative drug trafficking predicate (Count 2 or 3) left unaffected by 

Johnson. 

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In Granda, our Circuit answered this question yes. 990 F.3d at 1291. Mr.

Granda argued his § 924(o) conviction should be vacated in light of Davis. Id. at 

1280. But this Court determined that this argument was procedurally defaulted and 

that, regardless, it failed on the merits because any error was harmless. Id. at 

1280–81. The panel concluded there was a fundamental shortcoming “that cut[]

across both the procedural and merits inquiries.” Id. at 1280. Namely, the 

§ 924(o) predicates were “inextricably intertwined,” because they arose out of the 

same cocaine robbery scheme. Id. at 1280, 1290. Granda held that the jury could 

not have found that Mr. Granda conspired to possess a firearm in furtherance of a 

Hobbs Act conspiracy without also finding he conspired to possess a firearm in 

furtherance of the attempted Hobbs Act robbery, as well as in furtherance of 

conspiring and attempting to possess cocaine with intent to distribute and in 

furtherance of attempting a carjacking. See id. Each of these other offenses

remained a valid predicate for the § 924(o) conviction after Davis. Thus, the panel 

concluded the overlapping facts considered by the jury in deciding the alternative 

predicate offenses rendered any error in the jury instructions harmless. Id. at 

1290–91.

That reasoning applies here. Mr. Martin was convicted of conspiring and 

attempting to commit an armed robbery of a cocaine stash house, specifically a 

§ 924(c) offense (Count 5) predicated on the now-invalid conspiracy to commit

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Hobbs Act robbery (Count 1) or either one of the still-valid offenses of conspiracy

and attempted cocaine trafficking (Counts 2 and 3). Like Mr. Granda, this record 

shows that Mr. Martin’s predicate offenses are also inextricably intertwined

because they all arose out of the same cocaine robbery. A jury, on these facts, 

could not have found that Mr. Martin committed Count 5—carrying a firearm 

during and in relation to a crime of violence and a drug trafficking crime—in 

relation to Count 1—Hobbs Act robbery—without also finding that Martin 

committed Count 5 in relation to Count 2—conspiracy to possess with intent to 

distribute five kilograms or more of a mixture and substance containing cocaine—

or Count 3—attempt to possess with intent to distribute five kilograms or more of a 

mixture and substance containing cocaine. Therefore, Mr. Martin has not shown 

that the § 924(c) conviction necessarily rested on Count 1. The acts for which Mr. 

Martin was convicted of in Count 1 are inextricably intertwined with two 

predicates—Counts 2 and 3—that remain valid after Davis.

IV

Mr. Martin makes several other arguments. None persuade us.

First, he argues Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532 (1931),

and its progeny mean a “general verdict must be set aside if the jury was instructed 

that it could rely on any of two or more independent grounds, and one of those 

grounds is insufficient, because the verdict may have rested exclusively on the 

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insufficient ground.” Zant v. Stephens, 462 U.S. 862, 881, 103 S. Ct. 2733, 2745

(1983). 

But in Granda, this Court held that Stromberg error is subject to the harmless 

error standard in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993). 

990 F.3d at 1294. And under harmless error review, “reversal is warranted only

when the petitioner suffered ‘actual prejudice’ from the error.” Id.; see also

Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S. Ct. 530, 532 (2008) (per curiam)

(holding that “[a]n instructional error arising in the context of multiple theories of 

guilt” does not “vitiate[] all the jury’s findings”). 

Mr. Martin has not shown that he suffered actual prejudice from the general 

verdict. As set out above, the predicate offenses for his § 924(c) conviction are 

inextricably intertwined. Granda, 990 F.3d at 1293. This record demonstrates that

Mr. Martin was extensively involved in planning the robbery of a drug stash house 

containing at least 15 kilograms of cocaine. He repeatedly told co-conspirators he 

was willing to bring firearms to the robbery and kill anyone offering resistance 

during the robbery. Given this, Mr. Martin’s case is comparable to that in Granda. 

His still-valid drug trafficking offenses (Counts 2 and 3) are inextricably 

intertwined with the now-invalid Hobbs Act robbery (Count 1). See id. Mr. 

Martin carried a firearm during and in relation to the robbery offense that was also 

intertwined with the drug trafficking offenses. We also note the strength of the 

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evidence against Mr. Martin, including his confession to law enforcement that he 

planned to conduct a robbery of 15 kilograms of cocaine and brought firearms to 

commit the robbery. Given the facts of this case, Mr. Martin has not shown that he 

suffered actual prejudice from the general verdict for the § 924(c) conviction. 

Thus, his Stromberg-based argument fails.3

 

Next, Mr. Martin urges this panel to apply the “categorical approach” to 

presume his § 924(c) conviction rests on the now-invalid Hobbs Act robbery. The 

categorical approach is used “to determine whether a particular offense qualifies 

under crime-of-violence-type elements clauses such as those found in 

§ 924(c)(3)(A) and in the [Armed Career Criminal Act].” Granda, 990 F.3d at 

1295. Under the categorical approach, courts “examin[e] only the elements of the 

statute of conviction, not the specific conduct of a particular offender.” United 

States v. Oliver, 962 F.3d 1311, 1316 (11th Cir. 2020) (quotation marks omitted). 

Courts further “assume that the conviction rested on the ‘least of the acts 

criminalized’ by the statute, because to determine upon which of the criminalized 

acts the conviction rested would violate the categorical approach’s command not to 

analyze the facts underlying the conviction.” Granda, 990 F.3d at 1295 (quotation 

marks omitted) (quoting Oliver, 962 F.3d at 1316; Moncrieffe v. Holder, 569 U.S. 

3 In re Gomez, 830 F.3d 1225 (11th Cir. 2016) (per curiam), does not compel a different 

conclusion. In Granda, this Court distinguished Gomez and held that it did not apply to preclude 

Brecht harmless error inquiry on the merits of a claim like Mr. Granda’s. 990 F.3d at 1296.

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184, 190–91, 133 S. Ct. 1678, 1684 (2013)). But in Granda this Court also rejected 

the argument that the categorical approach prohibits courts from determining that 

the jury did not rely solely on a now-invalid Hobbs Act conviction as the predicate. 

Id. Therefore, this argument is unavailing. 

Mr. Martin’s next argument, invoking judicial factfinding, fares no better. 

He argues that concluding the jury relied on still-valid predicates would constitute 

impermissible judicial factfinding in violation of Alleyne v. United States, 570 

U.S. 99, 133 S. Ct. 2151 (2013).4 However, “a judge conducting a Brecht

harmless error analysis does not find a fact at all; instead, the judge asks as a 

matter of law whether there is grave doubt about whether an instruction on an 

invalid predicate substantially influenced what the jury already found beyond a 

reasonable doubt.” Granda, 990 F.3d at 1295. Thus, Mr. Martin’s Alleyne

argument also fails.

Mr. Martin’s arguments not otherwise addressed in this opinion are also 

unpersuasive. His § 2255 petition fails on the merits. 

AFFIRMED.

4 Alleyne applies to findings of fact that increase a mandatory minimum, which must be 

proven to a jury beyond a reasonable doubt. 570 U.S. at 114–16, 133 S. Ct. at 2162–63.

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