[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14589

Non-Argument Calendar

____________________

VICTOR MAURINO, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket Nos. 1:19-cv-23161-CMA,

1:09-cr-20143-CMA-1

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____________________

Before JILL PRYOR, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

Victor Reinaldo Abreu Maurino, a counseled federal prisoner, appeals the order of the district court denying his 28 U.S.C. 

§ 2255 motion to vacate. The government, in turn, moves for summary affirmance and to stay the briefing schedule. 

I. 

Maurino filed the present counseled motion to vacate under 

28 U.S.C. § 2255 in 2019, challenging the validity of his conviction 

for one count of possession of a firearm in furtherance of a crime 

of violence and drug trafficking crime. 18 U.S.C. § 924(c).

According to court filings, Maurino and several coconspirators met with a confidential source and an undercover officer to 

discuss a plan to steal multiple kilograms of cocaine from a stash 

house owned by a fictional Colombian drug lord. Maurino asked 

for guns from the officer, who did not provide them. On the day 

of the attempted robbery, Maurino and his codefendants entered 

the vehicle of a confidential informant from the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives and drove to the warehouse. 

He brought guns, ski masks, gloves, and plastic flex cuffs. He and 

the others were arrested on their arrival.

In June 2009, a federal grand jury charged Maurino in a superseding indictment with, in relevant part, conspiracy to possess 

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with intent to distribute cocaine, 21 U.S.C. § 846 (“Count 4”); attempted possession with attempt to distribute cocaine, 21 U.S.C. § 

846 (“Count 5”); conspiracy to commit Hobbs Act robbery, 

18 U.S.C. § 1951(a) (“Count 6”); attempted Hobbs Act robbery, 

18 U.S.C. § 1951(a) (“Count 7”); and possession of a firearm in furtherance of a crime of violence and drug trafficking crime, 

18 U.S.C. § 924(c) (“Count 8”). Notably, the superseding indictment listed Counts 4 to 7 as the predicate offenses for Count 8. 

After Maurino pled not guilty, the case proceeded to trial. 

Following trial, a jury entered a general verdict against Maurino,

finding him guilty of Counts 4 to 8. The district court ultimately 

sentenced Maurino to a total of 238 months’ imprisonment—178

months for Counts 4 to 7, to be served concurrently, and 60 months 

for Count 8, set to run consecutive to the other terms. Maurino 

appealed but did not challenge his § 924(c) conviction (Count 8) for 

vagueness or invalid penalties. We affirmed his convictions in 

2010. See United States v. Maurino, 379 F. App’x 861, 862–63 (11th 

Cir. 2010) (unpublished). 

After the Supreme Court decided United States v. Davis, 139 

S. Ct. 2319 (2019), we granted Maurino leave to file a successive 

§ 2255 motion1 raising a Davis-based claim. In his successive motion, Maurino argued that he was actually innocent of Count 8 

1 Maurino filed his original 28 U.S.C. § 2255 motion in 2011, which the district 

court denied with prejudice. He would later file a second motion, with our 

permission, that the district court denied in 2017. 

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because Davis rendered one of his predicates for his § 924(c) motion invalid, which invalided his conviction. He also asserted that 

Counts 6 and 7—conspiracy to commit and attempted Hobbs Act 

robbery—both were invalid predicates and the operative predicates. This, he contended, combined with the vagueness of the 

general verdict meant that the district court had to consider his 

§ 924(c) conviction invalid.

The district court denied Maurino’s motion, finding that he 

lacked a reasonable basis for attacking the residual clause until the 

Supreme Court decided Johnson v. United States, 576 U.S. 

591 (2015), and extended that decision to Davis, meaning he overcame the procedural bar. Substantively, it found that the jury was 

instructed it could convict him of Count 8 on multiple predicates, 

including invalid ones. However, it found that any reliance on an 

invalid predicate was harmless because the predicates in his case 

were inextricably intertwined, and there was no reasonable probability the jury relied solely on the invalid predicates.

Despite the preceding, the district court issued a certificate 

of appealability as to: “(1) whether [it had] erred in applying the 

reasonable probability harmless-error review standard to an error 

arising from a jury that was instructed on multiple possible predicate crimes—one of which is invalid—and a general verdict that 

does not specify the predicate(s) on which the jury relied; and (2) 

whether [it had] erred in determining the error was harmless.” 

This timely appeal follows.

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II. 

On appeal, Marino, who is still counseled, argues that the 

district court erred by using a harmless error standard in denying 

his motion. Rather, he argues that the proper standard is the conviction must be reversed if it is impossible to determine which 

ground the verdict rests on. He asserts that because his conviction 

for Count 8 was supported by the two invalid predicates of Counts 

6 and 7, any error was not harmless. Maurino also asserts that the 

district court’s inextricably intertwined reasoning is untenable because it improperly interpreted § 924(c) to allow for multiple predicates to attach to each count of the conviction, meaning that challenges to that conviction would require purely speculative inquiries into jury deliberations. 

Rather than responding, the government moves for summary affirmance and to stay the briefing schedule. It contends, in 

part, that Maurino’s invalid Hobbs Act robbery predicates (Counts 

6 and 7) were inextricably intertwined with his still-valid drug trafficking offenses (Counts 4 and 5), meaning any errors in the general 

verdict were harmless.2 

2 The government also argues that Maurino procedurally defaulted his Davisbased claim because he failed to raise it on direct appeal. The government 

further argues that he cannot overcome that default, as his claims existed before his direct appeal became final in 2010 and he could not show a substantial 

likelihood that the jury used the invalid predicates as the only predicate for his 

§ 924(c) conviction. In light of our present disposition, we find it unnecessary 

for us to address these points.

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Summary disposition is appropriate, in part, where “the position of one of the parties is clearly right as a matter of law so that 

there can be no substantial question as to the outcome of the case.” 

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 

1969). A motion for summary affirmance shall postpone the due 

date for the filing of any remaining brief until we rule on such motion. 11th Cir. R. 31-1(c).

When reviewing a district court’s denial of a § 2255 motion, 

we review questions of law de novo and factual findings for clear 

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

We review questions of harmlessness de novo. Granda v. United 

States, 990 F.3d 1272, 1293 (11th Cir. 2021), cert. denied, 142 S. Ct. 

1233 (2022). 

Under 28 U.S.C. § 2255(a), a federal court may grant postconviction relief to a federal prisoner under certain circumstances, 

such as when there has been a constitutional error. Relief still may 

not be warranted, however, if such an error was “harmless.” 

Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). An error is harmless on collateral review if it did not have a substantial or injurious 

effect or influence on the jury’s verdict. Id. at 637. 

 Section 924(c), the basis for Maurino’s conviction on Count 

8, provides:

Except to the extent that a greater minimum sentence 

is otherwise provided by this subsection or by any 

other provision of law, any person who, during and 

in relation to any crime of violence or drug trafficking 

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crime . . . for which the person may be prosecuted in 

a court of the United States, uses or carries a firearm, 

or who, in furtherance of any such crime, possesses a 

firearm, shall, in addition to the punishment provided 

for such crime of violence—

(i) be sentenced to a term of imprisonment of not less 

than 5 years . . . .

§ 924(c)(1)(A) (emphasis added).

Under § 924(c)(3), a crime of violence is an offense that is a 

felony and (A) “has an element the use, attempted use, or threatened use of physical force against the person or property of another,” or (B) “that by its nature, involves a substantial risk that 

physical force against the person or property of another may be 

used in the course of committing the offense.” § 924(c)(3)(A)–(B) 

(emphasis added). We have referred to § 924(c)(3)(A) as the “elements clause” and to § 924(c)(3)(B) as the “residual clause.” Brown 

v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019). And, under 

§ 924(c)(2), a drug trafficking crime means any felony punishable 

under the Controlled Substances Act, 21 U.S.C. § 801.

In Davis, the Supreme Court held that the residual clause 

was unconstitutionally vague. 139 S. Ct. at 2336. Subsequently, 

we held that Hobbs Act conspiracy did not qualify as a “crime of 

violence” under the elements clause, because none of the elements 

of Hobbs Act conspiracy “necessitate[] the existence of a threat or 

attempt to use force.” Brown, 942 F.3d at 1075. However, we have

also held that substantive Hobbs Act robbery is a “crime of 

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violence” under the elements clause. In re Fleur, 824 F.3d 1337, 

1340–41 (11th Cir. 2016).

Recently, in Unites States v. Taylor, 142 S. Ct. 2015 (2022), 

the Supreme Court held that attempted Hobbs Act robbery did not 

qualify as a “crime of violence” under the elements clause because 

“no element of attempted Hobbs Act robbery requires proof that 

the defendant used, attempted to use, or threatened to use force.” 

Id. at 2021.

If valid and invalid predicate offenses are inextricably intertwined, any error resulting from instructing the jury on a constitutionally invalid predicate is harmless. Granda, 990 F.3d at 1292. On 

collateral review, the harmless error standard mandates that relief 

is proper only if the court has grave doubts about whether a trial 

error of federal law had substantial and injurious effect or influence 

in determining the jury’s verdict. Id. “There must be more than a 

reasonable possibility that the error was harmful.” Id. (quoting Davis v. Ayala, 576 U.S. 257, 267–68 (2015)). The reviewing court 

should ask directly whether the error substantially influenced the 

jury’s decision, and if it cannot say with fair assurance that the judgment was not substantially swayed by the error, it must conclude 

that the error was not harmless. Id. at 1292–93. Thus, it is appropriate to look at the record to determine whether the invalid predicate actually led to the conviction, or instead whether a jury found 

the defendant guilty under a valid theory. Id. at 1294.

III. 

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Here, we grant summary affirmance as to the district court’s 

resolution of Maurino’s Count 8 challenge on the merits. Specifically, we conclude that the district court did not err in rejecting 

Maurino’s Count 8 challenge alternatively on the merits because it 

found that the four predicate offenses—two of which were 

valid—were inextricably intertwined. The conspiracy and attempt 

to possess with intent to distribute cocaine offenses (Counts 4 and 

5) were part of the conspiracy and attempt to commit Hobbs Act 

robbery. Maurino’s two drug trafficking offenses were still valid 

predicates, so any such error resulting from the jury being instructed in the Hobbs Act robbery predicates would be harmless. 

Granda, 990 F.3d at 1292–94. Thus, we grant the government’s 

motion for summary affirmance on this ground.

Accordingly, we GRANT the government’s motion for 

summary affirmance and DENY its motion to stay the briefing 

schedule. Groendyke Transp., 406 F.2d at 1162.

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