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United States v. United States

United States District Court, D. New Mexico

December 6, 2016




         This matter is before me on Petitioner's Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1)[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.

         I. Background

         Petitioner 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, 18.

         At the 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.

         Petitioner's 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), [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.

         Petitioner's 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 Motion.

         II. Waiver of Collateral Review

         As 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.

         The 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: “[1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] 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.[3] 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.

         Petitioner's 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.[4] See id. Petitioner's argument must be rejected in the face of United States v. Porter, 405 F.3d 1136 (10th Cir. 2005).

         In 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 court explained:

[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 system.

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 enforceable.

         More 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 justice.

         Petitioner 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 ...

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