United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
1, 2019, pro se Movant Justin Krantz filed a MOTION
REQUESTING IMMEDIATE RELEASE PURSUANT TO THE RECENT RULING
FROM THE UNITED STATES SUPREME COURT WHEREIN THE COURT HAS
FOUND 18 U.S.C. § 922(g) UNCONSTITUTIONAL (CV Doc. No.
1). Movant sought release from incarceration in light of the
Supreme Court's ruling in Rehaif v. United
States, 139 S.Ct. 2191 (2019). Id. at 1. On
July 29, 2019, the Court informed Movant that his motion
would be recharacterized as a motion to vacate, set aside or
correct the sentence under 28 U.S.C. § 2255, and
therefore it needed to follow the proper form or risk
dismissal. See ORDER REGARDING RECHARACTERIZATION OF
MOTION (CV Doc. No. 2) at 1. On August 9, 2019, Movant filed
a proper § 2255 motion. See Motion (CV Doc. No.
4) (“Motion”). On November 1, 2019, Movant filed
a BRIEF IN SUPPORT OF 28 U.S.C. § 2255. (CV Doc. No. 6).
At the request of the Court, the United States filed THE
UNITED STATES' RESPONSE TO DEFENDANT'S AMENDED MOTION
TO VACATE SENTENCE AND MOTION TO ENFORCE COLLATERAL-ATTACK
WAIVER PROVISION IN PLEA AGREEMENT (CV Doc. No. 7). The Court
determines that Movant is not entitled to relief and will
dismiss the Motion as required by Rule 4(b) of the Rules
Governing Section 2255 Cases.
October 12, 2016, a federal grand jury indicted Movant on one
count of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
See INDICTMENT (CR Doc. No. 1). On April 11, 2017,
Movant entered into a PLEA AGREEMENT (CR Doc. No. 27). In the
Plea Agreement, the United States and the Movant agreed under
Federal Rule of Criminal Procedure (“Rule”)
11(c)(1)(C) to a sentence of fifty-seven (57) months.
Id. at 4. In exchange, Movant agreed to waive any
collateral attack, including 28 U.S.C. § 2255 motions,
except on the issue of ineffective assistance of counsel.
Id. at 6-7.
Court found that Movant entered the Plea Agreement freely,
voluntarily, and intelligently. See PLEA MINUTE
SHEET (CR Doc. No. 28). The Court accepted the Plea Agreement
at the sentencing hearing on July 13, 2017. See
SENTENCING MINUTE SHEET (CR Doc. No. 35). The Court then
sentenced Movant to the recommended fifty-seven-month term of
21, 2019, the United States Supreme Court decided
Rehaif, which held that to convict a defendant under
18 U.S.C. § 922(g), the government must prove
“both that the defendant knew he possessed a firearm
and that he knew he belonged to the relevant category of
persons barred from possessing a firearm.”
Rehaif, 139 S.Ct. at 2200. Movant argues that he is
entitled to relief under Rehaif because the United
States failed to prove that he knew that he belonged to a
category of people barred from possessing a firearm.
See BRIEF IN SUPPORT OF 28 U.S.C. § 2255 at
5-6. Movant additionally argues that Congress exceeded its
Commerce Clause authority in enacting 18 U.S.C. § 922(g)
and that the statute is therefore unconstitutional.
Id. at 6.
request for relief under Rehaif is a collateral
attack on his sentence. See Parke v. Raley, 506 U.S.
20, 30 (1992) (defining collateral attacks as seeking to
deprive a conviction of its “normal force and effect in
a proceeding that [has] an independent purpose other than to
overturn the prior judgments”). The Court will first
address the enforceability of the collateral attack waiver in
Movant's Plea Agreement, because an enforceable waiver
precludes review of the merits. See United States v.
Hahn, 359 F.3d 1315, 1330 n.15 (10th Cir. 2004). If the
Rehaif attack on Movant's sentence is within the
scope of Movant's Plea Agreement, then Court must enforce
Tenth Circuit employs a three-part test to determine if a
post-conviction waiver is enforceable: “(1) whether the
disputed appeal falls within the scope of the waiver of
appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether
enforcing the waiver would result in a miscarriage of justice
. . . .” Hahn, 359 F.3d at 1325. The Court
will address each part in turn.
of the Waiver
determining the scope of an appellate or post-conviction
waiver, the Court must “strictly construe  the scope
of an appellate waiver in favor of the defendant” and
evaluate the waiver “in light of the defendant's
reasonable understanding at the time of the guilty
plea.” United States v. Novosel, 481 F.3d
1288, 1291 n.1 (10th Cir. 2007). In his Rule 11(c)(1)(C) Plea
Agreement, Movant agreed to waive “any collateral
attack to the Defendant's conviction(s) . . . except on
the issue of defense counsel's ineffective
assistance.” Plea Agreement at 6-7. Because
Rehaif announced a new rule of law, Movant's
collateral attack under Rehaif does not implicate
the assistance of counsel. This challenge, therefore, is
within the waiver language of “any collateral
attack” other than ineffective assistance of counsel.
Movant does not contend, nor is there anything in the record
that would indicate, that he did not understand the scope of
the waiver at the time he entered into the Plea Agreement.
The Court concludes that the issue of eligibility for relief
under Rehaif is within the scope of the waiver of
collateral attack in Movant's Plea Agreement.
and Voluntary Waiver
order to determine the enforceability of the waiver, the
Court must consider whether the waiver was knowing and
voluntary. Hahn, 359 F.3d at 1325. Hahn
requires the examination of two factors in considering
whether a defendant knowingly and voluntarily agreed to an
appellate and post-conviction waiver. First, the court looks
to “whether the language of the plea agreement states
that the defendant entered the agreement knowingly and
voluntarily.” Id. Second, the acceptance of
the guilty plea must be the result of an adequate colloquy
between the Court and the defendant under Rule 11.
Plea Agreement states that the plea “is freely and
voluntarily made and is not the result of force, threats, or
promises . . . .” Plea Agreement at 7. The Plea
Agreement also states that Movant is knowingly waiving jury
trial and appeal rights. Id. at 2. The Plea
Agreement sets out Movant's understanding of his rights,
the maximum sentence that could be imposed absent the
agreement, and the factual basis of his plea. Id.
The language of the Plea Agreement indicates that the plea
and waiver is knowing and voluntary. The record also reflects
an adequate colloquy between Movant and the Court under the
requirements of Rule 11. See Plea Minute Sheet. The
Court questioned Movant regarding whether he had time to
consult his attorney and if he was satisfied with his
attorney's representation. Id. Based on the
colloquy, the Court found that Movant fully understood the
charges, the terms of the plea, the consequences of entry
into the plea agreement, and that the plea was freely,
voluntarily, and intelligently made. Id. A defendant
“has the burden to present evidence from the record
establishing that he did not understand the waiver.”
United States v. Edgar, 348 F.3d 867, 872-73 (10th
Cir. 2003). Movant has not provided any evidence to the
contrary. The Court can conclude that Movant entered the
agreement knowingly and voluntarily.