United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
matter is before me on Petitioner's Motion to Vacate and
Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc.
1) and his subsequent amendment thereto
(doc. 5). Having reviewed the briefing (docs. 8,
9) and being fully advised, I recommend Petitioner's
Motion be denied.
was charged with Felon in Possession of a Firearm and
Ammunition in violation of 18 U.S.C. § 922(g)(1) and
§ 924(a)(2), in a one-count indictment that was filed on
November 6, 2013. Cr. Doc. 2. Although he initially
pled not guilty, Petitioner entered a changed plea of guilty
to the indictment pursuant to Rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure on May 7, 2014. Cr. Docs. 9,
28, 29. The plea agreement included a binding
stipulation to a term of 72 months imprisonment and a waiver
of collateral attack other than for claims of ineffective
assistance of counsel. Cr. Doc. 28, ¶¶ 9,
beginning of the May 7, 2014 change of plea proceeding,
Petitioner was placed under oath. Cr. Doc. 45 at 2.
He stated that he had no illness or condition that impeded
his ability to understand the proceedings. Id. at 4.
Petitioner stated that he was not under the influence of
drugs or alcohol and that he understood the proceedings.
Id. The attorney for the government then reviewed
the plea agreement, including its condition that Petitioner
waive collateral review of his conviction and sentence,
pursuant to 28 U.S.C. §§ 2241 and 2255, except as
to the issue of effectiveness of counsel. Id. at
6-8. Petitioner stated that he knew he was waiving those
post-trial rights and understood that the waiver would be
enforced. Id. at 8. Petitioner reiterated that he
understood every term of his plea agreement. Id. at
9. At the conclusion of the proceeding, the Court found that
Petitioner was fully competent and capable of entering an
informed plea; that he was aware of the nature of the
charges; that he understood the consequences of pleading
guilty; and that the plea of guilty was entered knowingly and
voluntarily. Id. at 14.
sentencing guideline range was determined pursuant to
U.S.S.G. § 2K2.1. As reflected in the presentence report
(PSR), Petitioner had been convicted of trafficking by
distribution of cocaine and the burglary of a dwelling house.
PSR ¶¶ 34, 53. Because the trafficking conviction
constituted a “controlled substance offense” and
the burglary of a dwelling conviction was considered a
“crime of violence” under the definition found in
U.S.S.G. § 4B1.2(a)(2),  Petitioner's base offense
level was calculated at 24 pursuant to U.S.S.G. §
2K2.1(a)(2). PSR ¶ 19. After the three-level reduction
for acceptance of responsibility, Petitioner's total
offense level was calculated at 21. With a criminal history
category of VI, Petitioner's guideline range was 77-96
months. Nonetheless, the Court accepted the parties'
stipulation to a sentence of 72 months imprisonment. Cr.
Doc. 36. Moreover, the Court ordered that the sentence
be served concurrent to a separate prison sentence arising
from the revocation of probation in Petitioner's prior
state conviction. Id.
Motion argues that his conviction for burglary of a dwelling
is no longer a crime of violence in light of United
States v. Johnson, 135 S.Ct. 2551 (2015). Doc.
5 at 3. He contends that the Johnson decision
should be applied retroactively to adjust the sentencing
guideline range for his Felon in Possession of a Firearm and
Ammunition offense to 51-63 months. Id.
Consequently, he would not have agreed to a 72-month sentence
under such circumstances, and he is thus entitled to
resentencing as a matter of due process. Id. at 3-4.
Because (i) Petitioner waived his right to bring this
collateral attack, (ii) the application of Johnson
to the guidelines should not be given retroactive effect, and
(iii) his burglary of a dwelling conviction remains a crime
of violence under U.S.S.G. § 4B1.2(a)(2) after
Johnson, I recommend denying Petitioner's
Waiver of Collateral Review
noted above, Petitioner waived his right to bring a
collateral attack, such as the instant motion, in his plea
agreement. A “waiver of collateral attack rights
brought under § 2255 is generally enforceable where the
waiver is expressly stated in the plea agreement and where
both the plea and the waiver were knowingly and voluntarily
made.” United States v. Cockerham, 237 F.3d
1179, 1183 (10th Cir. 2001). However, “the constraints
which apply to a waiver of the right to direct appeal also
apply to a waiver of collateral attack rights.”
Id. Therefore, in reviewing whether to enforce the
waiver of appellate or collateral attack rights, the Court
must determine: (1) whether the disputed appeal falls within
the scope of the waiver of appellate [or collateral attack]
rights; (2) whether the defendant knowingly and voluntarily
waived his appellate [or collateral attack] rights; and (3)
whether enforcing the waiver would result in a miscarriage of
justice. See United States v. Hahn, 359 F.3d 1315,
1325-1327 (10th Cir. 2004). Petitioner does not dispute that
his Motion falls within the collateral attack waiver in his
plea agreement. Nor does he argue that he did not knowingly
and voluntarily waive his collateral attack rights. He only
contends that enforcing the waiver would result in a
miscarriage of justice. See generally doc. 5.
Tenth Circuit Court of Appeals has defined what constitutes
“miscarriage of justice” under these
circumstances. “We hold that enforcement of [such a]
waiver does not result in a miscarriage of justice unless
enforcement would result in one of … four
situations….” Hahn, 359 F.3d at 1327.
Those situations are: “ 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.” Id.
(quoting United States v. Elliott, 264 F.3d 1171,
1173 (10th Cir. 2001)). Moreover, “to satisfy the
fourth Elliott factor-where the waiver is otherwise
unlawful-‘the error [must] seriously affect[ ] the
fairness, integrity or public reputation of judicial
proceedings[, ]' as that test was employed in United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123
L.Ed.2d 508 (1993).” Id. Petitioner does not
argue that any of the first three situations apply to his
case. See generally docs. 5, 9. Therefore, he
must establish that his waiver was “otherwise
unlawful” in that the alleged error seriously affects
the fairness, integrity or public reputation of judicial
proceedings. He fails to do so.
argument on this point is brief: “Enforcing the waiver
in the plea agreement that was entered into prior to this
unanticipated sea change in the sentencing law which would
keep in place a prison sentence above the current advisory
guidelines sentencing range for his crime, meets the test of
a miscarriage of justice.” Doc. 9 at 2;
see also doc. 7 at 4. He also highlights
that his claim is founded upon a constitutionally- based
decision by the Supreme Court. See id. Petitioner's
argument must be rejected in the face of United States v.
Porter, 405 F.3d 1136 (10th Cir. 2005).
Porter, the defendant was sentenced just prior to
the Supreme Court's decision in United States v.
Booker, 543 U.S. 220 (2005). Id. at 1140. On
appeal, he argued that he was entitled to a resentencing
under the advisory sentencing guidelines mandated by the
Booker decision. Id. at 1144. However, the
defendant had waived his right to appeal, and the government
sought to enforce that waiver. In enforcing the waiver, the
[W]e find the change Booker rendered in the
sentencing landscape does not compel us to hold Porter's
plea agreement unlawful. This outcome is obvious. To hold
otherwise would suggest that most appeal waivers in cases
pending on direct appeal at the time the Supreme Court
decided Booker are unlawful. The essence of plea
agreements, however, is that they represent a bargained-for
understanding between the government and criminal defendants
in which each side foregoes certain rights and assumes
certain risks in exchange for a degree of certainty as to the
outcome of criminal matters. One such risk is a favorable
change in the law. To allow defendants or the government to
routinely invalidate plea agreements based on subsequent
changes in the law would decrease the prospects of reaching
an agreement in the first place, an undesirable outcome given
the importance of plea bargaining to the criminal justice
Id. at 1145. First, if the sea change heralded by
Booker is insufficient to render a waiver ipso
facto unenforceable, then the impact of Johnson
is similarly insufficient. Second, Booker, as
Johnson, was a constitutionally-based opinion.
See Booker, 543 U.S. at 244 (holding that mandatory
sentencing guidelines violate the Sixth Amendment right to a
jury trial). Porter's enforcement of the
defendant's waiver makes clear that, just because a
change in the law is constitutionally-based, waivers that
foreclose arguments on the basis of that change remain
broadly, enforcing Petitioner's waiver will not result in
a miscarriage of justice. His sentence is well below the
statutory maximum of ten years. 18 U.S.C. § 924(a)(2).
In fact, even accepting the merits of his argument, his
sentence is only nine months outside of the guideline range
for which he now argues. Finally, his sentence was based upon
a Rule 11(c)(1)(C) agreement and not on the guideline
sentencing range. See United States v. Jones, 634
F.App'x 649, 650-52 (10th Cir. 2015) (noting that while
18 U.S.C. § 3582(c)(2) authorizes federal courts to
reduce a term of imprisonment “based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission, ” no jurisdiction exists under that statute
to modify a term of imprisonment set forth in a plea
agreement unless the agreement makes clear that the sentence
is based on a guideline sentencing range); see also
United States v. Ingram, 908 F.Supp.2d 1, 6-7 (D.D.C.
2012) (construing a § 2255 motion similar to
Petitioner's as being made pursuant to 18 U.S.C. §
3582(c)(2) and denying it on the basis that the
defendant's plea agreement precluded relief). He received
the sentence to which he expressly agreed, and which was not
tied to any particular guideline range. Consequently, a
subsequent change in how his guideline range may have been
calculated cannot be said to result in a miscarriage of
waived his right to collaterally attack his conviction and
sentence. His Motion falls within the scope of that waiver.
Enforcing that waiver in this case does not result in a
miscarriage of justice. Therefore, I recommend ...