United States District Court, D. New Mexico
December 2, 2016
UNITED STATES OF AMERICA, Plaintiff/Respondent,
BENJAMIN SOSA, Defendant/Movant.
PROPOSED FINDINGS OF FACT AND RECOMMENDED
Fashing CA United States Magistrate Judge.
MATTER comes before the Court on Benjamin Sosa's Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc.
The Honorable Robert C. Brack referred this case to me to
recommend to the Court an ultimate disposition of the case.
Doc. 33. Having reviewed the submissions of the parties and
the relevant law, I recommend that the Court deny Sosa's
Background Facts and Procedural Posture
19, 2014, Sosa pled guilty to a two-count indictment.
See Docs. 23, 24. Count 1 of the indictment charged
Sosa with being a felon in possession of a firearm and
ammunition, and count 2 charged him with being a felon in
possession of ammunition, both in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). In his plea agreement,
Sosa agreed to waive his right to collaterally attack any
sentence the district court imposed, pursuant to 28 U.S.C.
§ 2255, “except on the issue of [his]
counsel's ineffective assistance in negotiating or
entering this plea or this waiver.” Doc. 23 at 6-7.
probation officer who prepared Sosa's presentence report
(“PSR”) determined that Sosa's base offense
level was 24 under USSG § 2K2.1(a)(2) because Sosa had
committed the offense after having sustained two felony
convictions for a crime of violence. PSR ¶ 15. Sosa
received a three-level reduction in his offense level under
USSG § 3E1.1 for acceptance of responsibility. PSR
¶¶ 22, 23. His total offense level was 21, and his
criminal history category was IV, which resulted in an
advisory guideline sentencing range of 57 to 71 months in
prison. Id. ¶¶ 24, 35, 53.
sentencing, because neither party objected to the PSR, the
Court adopted the PSR without change and found that
Sosa's guideline range was as reflected in the report.
Doc. 45 (9/23/2014 sentencing transcript) at 2. Sosa
requested a sentence of 57 months in prison. Id. at
3. The government requested a sentence of 64 months, based on
Sosa's two prior felony convictions. Id. at 6.
The Court imposed the sentence requested by the government
because Sosa had “repeatedly committed . . . these
offenses.” Id. at 7, 10. The Court ordered
that the sentence of 64 months for each count be served
concurrently, and also concurrent to the state sentence that
Sosa then was serving. Id. at 8. The Court noted
that Sosa had waived his right to appeal in his plea
agreement. Id. at 9.
Court entered the judgment reflecting this sentence on
September 29, 2014. Doc. 29. On June 23, 2016, Sosa filed his
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255
and the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). Doc. 31.
Sosa's Claims and the Government's
argues that the Court violated his constitutional right to
due process when it sentenced him under the residual clause
of USSG § 4B1.2, as incorporated into USSG § 2K2.1.
Doc. 31 at 1. More specifically, he argues that because the
Supreme Court invalidated the residual clause of the Armed
Career Criminal Act (ACCA)-the part that increased a
defendant's statutory maximum sentence if the defendant
previously had been convicted of three violent felonies,
which included offenses that “otherwise involve
conduct that presents a serious potential risk of physical
injury to another, ” 18 U.S.C. § 924(e)(2)(B)(ii),
and because the sentencing guideline provision under which he
was sentenced has an identical residual clause, see
USSG §§ 2K2.1(a)(2) & comment. (n.1),
4B1.2(a)(2), his sentence is unconstitutional. See
Doc. 31 at 2-3. He also argues that the two prior convictions
that the Court found to be crimes of violence-the New Mexico
crimes of aggravated assault and armed robbery-do not qualify
as crimes of violence without reference to the now-invalid
residual clause. See Id . at 4-20.
response, the government argues that the Court should not
reach the merits of Sosa's argument because Sosa waived
his right to collaterally attack his sentence. See
Doc. 38 at 2-6. If, however, the Court reaches the merits,
the government argues that both of Sosa's prior felony
convictions still qualify as crimes of violence because they
have, as an element, “the use, attempted use, or
threatened use of physical force against the person of
another, ” USSG § 4B1.2. See Doc. 38 at
party addresses the issues that currently are pending before
the Supreme Court in Beckles v. United States, 616
F.App'x 415 (11th Cir. 2015), cert. granted, 136
S.Ct. 2510 (2016), although the government originally sought
to stay this case pending the Supreme Court's decision.
See Doc. 34. The issues before the Supreme Court
include: (1) Whether Johnson applies retroactively
to collateral cases challenging federal sentences enhanced
under the residual clause in USSG § 4B1.2(a)(2); (2)
Whether Johnson's constitutional holding applies
to the residual clause in USSG § 4B1.2(a)(2), thereby
rendering challenges to sentences enhanced under it
cognizable on collateral review; and (3) Whether mere
possession of a sawed-off shotgun, an offense listed as a
“crime of violence” only in the commentary to
USSG § 4B1.2, remains a “crime of violence”
after Johnson? Beckles was argued orally
before the Supreme Court on November 28, 2016. Sup. Ct. Dock.
Timeliness of Sosa's Motion
28 U.S.C. § 2255(a), a prisoner in federal custody may
move the court that sentenced him or her to vacate, set aside
or correct a sentence “imposed in violation of the
Constitution or laws of the United States.” The
prisoner must file his or her motion within one year of the
latest of four events. See 28 U.S.C. § 2255(f).
Because Sosa's conviction became final over a year before
he filed his petition, he relies on the only other applicable
provision, which requires the prisoner to file the motion
within one year of “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.” See Doc. 31 at 3; 28 U.S.C. §
2255(f)(3). Sosa argues that the Supreme Court's decision
in Johnson is the case that made his sentence
unconstitutional, and that because he filed his motion within
one year of that decision, his petition is timely.
See Doc. 31 at 3.
undeniably filed his motion within one year of June 26, 2015,
which was the date the Supreme Court decided
Johnson. Compare Johnson, 135 S.Ct. at
2551, with Doc. 31 (filed June 23, 2014). Whether
the right he asserts is one that was recognized in
Johnson and will be made applicable to cases on
collateral review likely will be decided by the Court in
Beckles. However, because I find that Sosa
effectively waived his right to collaterally attack his
sentence in his plea agreement, I recommend that the Court
deny his motion. Because of this waiver, I find it
unnecessary to address the merits of his claim or the issues
that the Supreme Court likely will decide in
Sosa Waived his Right to Collaterally Attack his Sentence
Under 28 U.S.C. § 2255.
defendant's waiver of the right to collateral attack his
or her sentence in a plea agreement is generally enforceable.
United States v. Cockerham, 237 F.3d 1179, 1181-83
(10th Cir. 2001). When a defendant waives the right to
collaterally attack his or her sentence in a plea agreement
but later files a motion pursuant to 28 U.S.C. § 2255,
the Court must determine (1) whether the collateral attack
falls within the scope of the waiver; (2) whether the
defendant knowingly and voluntarily waived his or her right
to collateral review; and (3) whether enforcing the waiver
would result in a miscarriage of justice. United State v.
Viera, 674 F.3d 1214, 1217 (10th Cir. 2012) (citing
United States v. Hahn, 359 F.3d 1315, 1325 (10th
Cir. 2004) (en banc) (per curiam) (reviewing waiver of
appellate rights)); see also Cockerham, 237 F.3d at
1183 (“the constraints which apply to a waiver of the
right to direct appeal also apply to a waiver of collateral
Within the Scope of the Waiver
case, there can be no dispute that Sosa's claim falls
squarely within the scope of the waiver. The plea agreement
states, “the defendant agrees to waive any collateral
attack to this conviction and the sentence imposed, including
any fine, pursuant to 28 U.S.C. §§ 2241, 2255, or
any other extraordinary writ, except on the issue of
counsel's ineffective assistance in negotiating or
entering this plea or this waiver.” Doc. 23 at 6-7.
Sosa's claim is a collateral attack on the sentence
imposed, brought pursuant to 28 U.S.C. § 2255, and has
nothing to do with an allegation that his counsel was
ineffective in negotiating the plea or the waiver. See
generally Doc. 31. His claim therefore falls within the
scope of the waiver.
Knowing and Voluntary
also can be little dispute that Sosa knowingly and
voluntarily waived his right to collateral review. The plea
agreement clearly stated the nature of the waiver. Doc. 23 at
6-7. Further, Sosa “agree[d] and represent[ed] that
this plea of guilty is freely and voluntarily made . . .
.” Id. at 7. He also represented:
This agreement has been read to me in the language I
understand best, and I have carefully discussed every part of
it with my attorney. I understand the terms of this
agreement, and I voluntarily agree to those terms. My
attorney has advised me of my rights, of possible defenses,
of the sentencing factors set forth in 18 U.S.C. §
3553(a), of the relevant sentencing guidelines provisions,
and of the consequences of entering into this agreement. No
promises or inducements have been given to me other than
those contained in this agreement. No one has threatened or
forced me in any way to enter into this agreement. Finally, I
am satisfied with the representation of my attorney in this
Id. at 9. Sosa's attorney also represented that
he had “carefully discussed every part of this
agreement with [his] client, ” and that to his
knowledge, Sosa's “decision to enter into this
agreement is an informed and voluntary one.”
change of plea hearing, Sosa testified that he was
“able to understand, read and write English.”
Doc. 38-1 at 8. He confirmed that he was not “under the
influence of any alcohol, drugs or medicine, ” and that
he felt fine. Id. at 9. He represented that he had
had enough time with his attorney to discuss his case, and
that his attorney had answered all of his questions to his
satisfaction. Id. Sosa also represented that he was
“pleased and satisfied” with his attorney's
advice and representation. Id. Sosa stated that he
understood that the maximum penalty he faced on each count
was ten years, and that he potentially faced a total sentence
of 20 years if the sentences were imposed consecutively.
Id. at 11-12. He confirmed that no one had made any
promises to him to get him to plead guilty, other than the
promises made in his plea agreement. Id. at 12. He
also represented that no one had forced him to plead guilty,
and that he was pleading guilty of his own free will.
Id. He stated that he understood that he could
receive a harsher sentence than he or his attorney
anticipated. Id. at 13. He also stated that his plea
agreement had been read to him before he signed it, that he
had discussed it with his attorney before he signed it, and
that his attorney had answered all of his questions to his
satisfaction. Id. He also stated that he signed his
plea agreement voluntarily, and that he “fully and
completely underst[oo]d each and every provision of [his]
plea agreement.” Id. at 13-14. His attorney
specifically referred to the appellate waiver, and noted that
Sosa had waived his right to appeal [and collaterally
attack] his conviction and sentence “except
on the issue of ineffective assistance of counsel.”
Id. at 15. Sosa stated that he understood this
provision and had no questions. Id. at 17. Sosa then
pled guilty to both counts of the indictment. Id. at
20. The judge accepted Sosa's plea, finding that Sosa was
“fully competent and capable of entering an informed
p1ea, ” was “aware of the nature of the charge
he's facing and all of the consequences of his plea,
” and that his guilty plea was “a knowing and
voluntary plea supported by an independent basis in fact
containing each of the essential elements of each of these
offenses.” Id. Based on this evidence, I find
that Sosa knowingly and voluntarily waived his right to
collaterally attack his sentence.
Miscarriage of Justice
does not address the government's contention that his
motion falls squarely within the scope of the waiver, or that
he knowingly and voluntarily waived his right to collateral
review. See Doc. 42 at 1-4. He focuses entirely on
the third prong, arguing that enforcing the waiver would
result in a miscarriage of justice. See Id . He
argues that because the Tenth Circuit held in United
States v. Madrid, 805 F.3d 1204, 1212 (10th Cir. 2015)
that the district court's imposition of an enhanced
sentence under the unconstitutionally vague residual clause
of USSG § 4B1.2(a)(2) undermined the fundamental
fairness of the defendant's sentencing hearing, enforcing
the collateral review waiver in this case would constitute a
miscarriage of justice. See Doc. 42 at 2-4.
Sosa's argument is without merit.
context, “a miscarriage of justice through enforcement
of a waiver occurs only in one of four situations:
‘ where the district court relied on an
impermissible factor such as race,  where ineffective
assistance of counsel in connection with the negotiation of
the waiver renders the waiver invalid,  where the sentence
exceeds the statutory maximum, or  where the waiver is
otherwise unlawful.'” Viera, 674 F.3d at
1219 (quoting Hahn, 359 F.3d at 1327) (emphasis
added); see also United States v. Sandoval, 477 F.3d
1204, 1208 (10th Cir. 2007) (“Miscarriage of
justice . . . has a narrow meaning” in the context
of an appellate waiver.). Sosa bears the burden of
establishing that one of these four situations exists.
makes no suggestion, nor is there any evidence, that any of
the first three situations are implicated here. See
Doc. 42 at 1-4. The district court did not rely on any
impermissible factor in sentencing Sosa. See Doc.
45. Sosa does not claim that his counsel was ineffective in
negotiating the waiver. See Doc. 31. The district
court imposed a sentence of 64 months in prison on each
count, to run concurrently, which is well within the
statutory maximum of ten years in prison. Sosa argues,
however, that the waiver is “unlawful” because
under Madrid, sentencing a defendant under an
unconstitutional provision of the Guidelines implicates
fundamental fairness and constitutes reversible plain error.
See Doc. 42 at 2-4. Sosa's argument, however,
misapprehends the nature of plain error review and the
difference between forfeiture and waiver.
is the failure to timely assert a right, or the failure to
timely object to the violation of a right. See United
States v. Olano, 507 U.S. 725, 733 (1993); United
States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th
Cir. 2007). Waiver, on the other hand, is the
“intentional relinquishment or abandonment of a known
right.” Olano, 507 U.S. at 733 (internal
quotation marks omitted). Forfeiture occurs through neglect,
whereas waiver is accomplished by intent. See
Carrasco-Salazar, 494 F.3d at 1272. In other words,
unlike the defendant in Madrid, who had
forfeited his right to object to his sentence by
failing to assert that the residual clause in §
4B1.2(a)(2) was void for vagueness, see 805 F.3d at
1211, Sosa intentionally relinquished his right to
collaterally attack his sentence, regardless of the merits of
any claim he may have.
As the Tenth Circuit has explained,
Our inquiry is not whether the sentence is unlawful, but
whether the waiver itself is unlawful because of some
procedural error or because no waiver is possible. . . . An
appeal waiver is not “unlawful” merely because
the claimed error would, in the absence of waiver, be
appealable. To so hold would make a waiver an empty gesture.
Sandoval, 477 F.3d at 1208 (internal citations
omitted). “The whole point of a waiver . . . is the
relinquishment of claims regardless of their
merit.” United States v. Nguyen, 235 F.3d
1179, 1184 (9th Cir. 2000) (emphasis in original).
does not satisfy his burden of establishing that the waiver
in this case was unlawful or improper in any way. He only
argues that under Johnson and Madrid, he
was sentenced using an unconstitutionally vague sentencing
guideline. But this Court must determine the validity
of the waiver without reference to the merits of his
underlying claim. Sosa points to no authority suggesting that
the waiver of his right to collaterally attack his sentence-a
sentence well within the statutory maximum sentence-is itself
unlawful. Indeed, the Tenth Circuit has recognized that such
waivers are lawful and enforceable. See Cockerham,
237 F.3d at 1181-83. Enforcing the waiver in this case would
not constitute a miscarriage of justice because the waiver
itself is not unlawful.
cites one district court opinion that adopted the argument he
makes here.See Doc. 42 at 3 (citing
United States v. Daugherty, 2016 WL 4442801 (N.D.
Okla. Aug. 22, 2016) (unpublished)). I do not find
Daugherty persuasive as the court there did not
distinguish between the plain error standard of review used
in Madrid, which was based on forfeiture, and the
intentional relinquishment of a known right, which is what we
have here. See Daugherty, 2016 WL 4442801, at *7
(“For the same reasons stated in Madrid, the
Court finds that the Court's Johnson-based
sentencing error not only affected Defendant's
substantial rights but also affected the fundamental fairness
of his sentencing proceedings.”); see also Vehikite
v. United States, 2016 WL 5955885, at *4 (D. Utah Oct.
13, 2016) (unpublished) (“Based on this reasoning in
Madrid, the Court concludes that enforcing the
waiver in Petitioner's plea agreement would result in a
miscarriage of justice.”); Jaramillo v. United
States, 2016 WL 5947265, at *3 (D. Utah Oct. 13, 2016)
(unpublished) (same). I instead find the analysis in
United States v. Rabieh, 2016 WL 5921091 (W.D. Okla.
Oct. 11, 2016) (unpublished) persuasive. There, the district
court rejected the notion that Madrid required the
court to determine that defendant's waiver of a
collateral attacks based on Johnson was unlawful,
and that enforcing the waiver would be a miscarriage of
justice. Id. at *1-*2. It correctly held that
because the defendant “offered no argument or authority
demonstrating that his waiver was unlawful or improper . . .,
he cannot show a miscarriage of justice as required by
Hahn.” Id . at *2. The same is true in this
knowingly and voluntarily waived his right to bring the claim
he asserts in his Motion to Correct Sentence Pursuant to 28
U.S.C. § 2255 in his plea agreement. He has not
demonstrated that this waiver was unlawful or improper in any
way. Thus, enforcing the waiver would not constitute a
miscarriage of justice. I therefore recommend that the Court
DENY Sosa's motion because the terms of Sosa's plea
agreement bar his claim.
PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended
Disposition, they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party
wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no
appellate review will be allowed.
 Citations to “Doc.” are to
the document number in the criminal case, case number CR
14-00511 RB, unless otherwise noted.
 Sosa was sentenced using the 2013
version of the Sentencing Guidelines. See PSR ¶
14. All references to the Guidelines are to the 2013 version
unless otherwise noted.
 Sosa's attorney did not state the
words “collaterally attack, ” but his reference
to the exception relating to ineffective assistance of
counsel makes clear that he was referring to the waiver of
the right to appeal and the right to collaterally attack the
sentence, both of which are part of the same provision of the
plea agreement. See Doc. 23 at 6-7.
 It is important to note that it is not
obvious (or uncontested) that the district court sentenced
Sosa under the residual clause of USSG § 4B1.2(a)(2)
that the Tenth Circuit held was unconstitutional in
Madrid. The PSR did not specify how the probation
officer determined that Sosa's prior offenses qualified
as crimes of violence. See PSR ¶ 15. Because
neither party objected to this characterization, the district
court also did not determine whether the prior offenses only
qualified under the residual clause, or whether they also
qualified as crimes of violence under USSG §
4B1.2(a)(1). See Doc. 45 at 2. The government argues
in its response to Sosa's motion that both of Sosa's
prior offenses qualify as crimes of violence under §
4B1.2(a)(1). But because the validity of the collateral
attack waiver in Sosa's plea agreement is not dependent
of the merits of Sosa's underlying claim, I do not
address this issue.
 Sosa also cites two opinions from
other Circuits. See Doc. 42 at 3-4. Because the law
in the Tenth Circuit is clear and binding on this Court, it
is unnecessary to distinguish these out-of-circuit opinions
from this case.