USA v. Diggs, No. 20-10583 (5th Cir. 2023)
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Appellants are serving, respectively, a 1,111-month sentence and a 738-month sentence for multiple robberies and violations of 18 U.S.C. Section 924(c). Appellants brought successive 28 U.S.C. Section 2255 motions, alleging United States v. Davis, 139 S. Ct. 2319 (2019), rendered their Section 924(c) convictions invalid. The district court dismissed their motions for lack of jurisdiction.
The Fifth Circuit affirmed. The court explained that Appellants contend that even under the ‘more likely than not’ standard, their claims survive and should proceed to the merits. But they failed to prove it is more likely than not that the jury convicted them of Section 924(c) offenses based on predicate conspiracy offenses. Appellants next note each Section 924(c) count states that Appellants “did knowingly use and carry a firearm during and in relation to the commission of a crime of violence, namely: a robbery, which obstructed, delayed, and affected commerce, a violation of Title 18, United States Code, Section 1951, as alleged” in the immediately preceding, multiplicitous Hobbs Act counts. The court found that the verdict form could have been more clearly expressed. However, the court explained that on considering the trial record as a whole, including the oral jury instructions, the trial evidence, and the minimally useful post-conviction record, the jury convicted Appellants of actual robbery, not mere conspiracy. Accordingly, the court found that Appellants have not carried their burden to prove that it is more likely than not the jury convicted them of Section 924(c) offenses based on conspiracy to commit Hobbs Act robbery.
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