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In re Navarro

United States Court of Appeals, Eleventh Circuit

July 30, 2019

IN RE: NEIL NAVARRO, Petitioner.

          Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)

          Before: ED CARNES, Chief Judge, ROSENBAUM and BLACK, Circuit Judges.

         BY THE PANEL:

         Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Neil Navarro has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." Id. § 2244(b)(3)(C); see also Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court's determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

         I. BACKGROUND

         Navarro was charged by indictment with several crimes, including conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count One); conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846 (Count Two); attempted possession with intent to distribute cocaine, in violation of §§ 841 and 846 (Count Three); and carrying a firearm in furtherance of a crime of violence and in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Five). Notably, the indictment specified Navarro's § 924(c) charge was predicated on both conspiracy to commit Hobbs Act robbery, as charged in Count One, and drug-trafficking crimes, as charged in Counts Two and Three.

         Pursuant to a written plea agreement, Navarro agreed to plead guilty to Counts One and Five. Like the indictment, the plea agreement clarified that the § 924(c) charge was predicated on both a crime of violence-conspiracy to commit Hobbs Act robbery-and drug-trafficking crimes. Specifically, the agreement stated Navarro

agrees to plead guilty to counts 1 and 5 of the indictment, which counts charge the defendant with knowingly and intentionally conspiring to obstruct, delay, and affect interstate commerce and the movement of articles and commodities in commerce by means of robbery, and knowingly using and carrying a firearm during and in relation to a crime of violence and a drug trafficking crime and possessing a firearm in furtherance of such crimes, in violation of Title 18, United States Code, Sections 1951(a) and 924(c)(1), respectively.

(emphasis added).

         The factual proffer supporting the plea agreement stated that, had Navarro proceeded to trial, the government would have established the following. A confidential informant introduced Navarro to an undercover officer (UC) who presented himself as a disgruntled narcotics courier seeking someone to rob at least 15 kilograms of cocaine stored at a stash house. Navarro and Danny Herrera, one of his codefendants, expressed interest in carrying out the robbery, telling the UC, "this is what we do." Navarro informed the UC of his plan, which involved Navarro and his "crew" presenting themselves as law enforcement officers to the guards at the stash house. Navarro assured the UC he and his crew had the guns necessary to commit the robbery. The plan was to split the cocaine they robbed from the stash house evenly among the UC and the members of the crew.

         At a subsequent meeting, Navarro and Herrera introduced the UC to a third codefendant, Adrian Gonzales, who would be the final member of the robbery team. The group discussed additional details concerning the robbery, including how they would split the stolen cocaine and how to discreetly sell it following the robbery. On the day the robbery was supposed to occur, the group followed the UC to an undercover facility where they were to await confirmation of the location of the stash house. Once inside the facility, the group had further recorded discussions with the UC regarding the details of their plan to rob the stash house before being arrested. A search of the defendants ...


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