Ross v. United States of America
OPINION AND ORDER The Court denies the motion for relief under § 2255 and grants a certificate of appealability. ***Civil Case Terminated. Signed by Judge Joseph S Van Bokkelen on 8/31/17. (Copy mailed to pro se party)(kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA
Case No.: 2:10-CR-178
AARON COOPER, and
OPINION AND ORDER
Defendants Ross, Cooper, and Oliver move for relief pursuant to 28 U.S.C. § 2255. They
challenge their convictions and sentences for violating 18 U.S.C. § 924(c). They argue that after
imposition of their sentences, the law changed such that a violation of 18 U.S.C. § 922(u)—theft
from a federally licensed firearm dealer, the predicate offense used here—can no longer serve as
a “crime of violence” for purposes of § 924(c).
Defendants Ross,i Cooper,ii and Oliveriii admitted committing an armed crime spree.
On August 20, 2010, Mr. Oliver and Mr. Ross robbed a Cricket cell phone store in
Chicago. One of the Defendants displayed a handgun during this robbery. The Defendants stole
about $830 from this store.
One week later, Mr. Ross, Mr. Oliver, and Mr. Cooper robbed a Get Connected cell
phone store in Chicago. One of the Defendants displayed an automatic firearm during this
robbery. They stole cash, clothing, and cell phones amounting to about $11,710.
Five days later, the three Defendants (and Mr. Williams, another Co-Defendant, who has
not petitioned for relief under § 2255) robbed a Hotline Wireless cell phone store in Chicago.
One Defendant pointed a gun at a clerk. They stole cash and cell phones amounting to about
Two days later, on September 3, 2010, the four Defendants robbed Jack’s Loan Office in
Gary, Indiana. Mr. Cooper pointed a firearm at the head of an employee. Mr. Ross pointed a BB
gun at another employee.
This time the victims resisted.
One of the employees shot and hit Mr. Cooper. Another employee grabbed Ross’s gun
and handcuffed him. Defendants Cooper, Oliver, and Williams fled with stolen guns,
ammunition, cash, and a gun-shot wound, and without their Co-Defendant Ross.
Defendants Ross and Cooper
An indictment charged Mr. Ross, Mr. Cooper, and Mr. Oliver with theft of firearms from
a federally licensed firearm dealer, in violation of 18 U.S.C. § 922(u), and using a firearm during
and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and § 2.
The indictment specified the § 922(u) charge as the predicate “crime of violence” for the
§ 924(c) charge.
Mr. Cooper and Mr. Ross entered plea agreements. Both Defendants agreed to plead
guilty to both the § 922(u) and the § 924(c) charges.
In the plea agreements, Mr. Cooper and Mr. Ross also agreed to waive their rights to
appeal or contest their convictions or sentences. The plain language of the waiver is broad:
Defendants agreed to waive “any ground.” (Cooper’s Plea Agreement, DE 53 at 4; Ross’s Plea
Agreement, DE 68 at 4.) The plain language is also specific: it cites 28 U.S.C. § 2255 as waived,
the exact section Defendants now seek to invoke. (Id.)
The Court sentenced Mr. Cooper to a term of 27 months for theft of firearms from a
federally licensed firearm dealer (in violation of § 922(u)) plus a consecutive term of 84 months
for use of a firearm during and in relation to a federal crime of violence (in violation of §
924(c)), for a total term of 111 months imprisonment.
The Court sentenced Mr. Ross to a term of 96 months for theft of firearms from a
federally licensed firearm dealer plus a consecutive term of 84 months for use of a firearm during
and in relation to a federal crime of violence, for a total term of 180 months imprisonment. The
Court dismissed Count 3 of the indictment against Mr. Ross on the government’s motion.
A superseding indictment charged Mr. Oliver with theft of firearms from a federally
licensed firearm dealer in violation of 18 U.S.C. § 922(u), with Hobbs Act robbery in violation
of 18 U.S.C. § 1951 and § 2, and with use of a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c) and § 2. The superseding indictment referenced §
922(u) as the predicate offense for the § 924(c) charge.
Mr. Oliver entered into a plea agreement. He agreed to plead guilty to the § 1951 and the
§ 924(c) charges, with the same express admissions of guilt made by his Co-Defendants.
(Oliver’s Plea Agreement, DE 134 at 3.) The government agreed to move for dismissal of three
other counts against Mr. Oliver.
Mr. Oliver also agreed to waive his rights to appeal or contest his conviction or sentence.
His waiver matches those of his Co-Defendants.
The Court sentenced Mr. Oliver to a term of 106 months for conspiracy to interfere with
commerce by threats or violence (in violation of § 1951) plus a consecutive term of 84 months
for use of a firearm during and in relation to a federal crime of violence (in violation of §
924(c)), for a total term of 190 months imprisonment. The Court dismissed Counts 1, 2, and 4 of
the superseding indictment on the government’s motion.
Mr. Ross’s first motion for relief under § 2255
Mr. Ross first moved for relief under 28 U.S.C. § 2255 on October 18, 2012. The Court
denied relief on the basis of Mr. Ross’s waiver in his plea agreement of the right to pursue relief
under § 2255, and noted that Mr. Ross’s motion failed on its merits anyway.
Change in law
Years after the Court sentenced Defendants, the Supreme Court changed the law. In
Johnson, the Supreme Court held that imposing an increased sentence under the residual clause
of the Armed Career Criminal Act—the second half of 18 U.S.C. § 924(e)(2)(B)(ii)—violates the
Constitution’s guarantee of due process. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015).
The instant case involves a similar clause.
So Mr. Ross asked the Seventh Circuit for permission to file a successive § 2255 motion.1
The Seventh Circuit granted permission, without diving into a deep investigation of the merits of
In its briefing before the Seventh Circuit, the government noted the potential issue of
procedural default. But the government did not raise that issue here.
or defenses against Mr. Ross’s arguments. Rather, the Seventh Circuit specifically permitted the
government to raise its various contentions before this Court.
Defendants Ross, Cooper, and Oliver then moved this Court for relief under § 2255.
These three motions are similar to each other. Defendants ask the Court to vacate their
convictions and sentences for violating 18 U.S.C. § 924(c). Defendants argue that the crime of
violence predicating the § 924(c) convictions was theft from a federally licensed firearm dealer
in violation of 18 U.S.C. § 922(u). But, Defendants argue, § 922(u) cannot constitutionally
support a conviction for § 924(c) because § 922(u) is not a “crime of violence” under either
prong of § 924(c)’s definition of that phrase.
Violation of § 922(u) does not satisfy § 924(c)(3)(A)—the “elements” or “force”
clause—under the categorical approach because a Defendant could commit theft from a federally
licensed firearm dealer without using or attempting or threatening physical force. The
And, Defendants argue, violation of § 922(u) does not satisfy § 924(c)(3)(B)—the
“residual” clause—because that clause is unconstitutional for essentially the same reasons the
second half of § 924(e)(2)(B)(ii) is unconstitutional. The Seventh Circuit clarified this issue
while Defendants’ § 2255 motions were pending. In Cardena, the Seventh Circuit held that §
924(c)(3)(B) is unconstitutionally vague. United States v. Cardena, 842 F.3d 959, 996 (7th Cir.
A closely related issue currently pends before the Supreme Court. See Lynch v. Dimaya, 137
S.Ct. 31 (2016) (granting a writ of certiorari regarding the Ninth Circuit’s decision that the
residual clause at 18 U.S.C. § 16(b) is unconstitutionally vague).
Section 2255(a) of Title 28 provides a federal prisoner a process for challenging his
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a).
Relief under § 2255 is appropriate only for “an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results in a complete
miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004).
Relief under § 2255 is extraordinary because it seeks to reopen the criminal process for a
person who already had an opportunity of full process. Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007).
A defendant “may validly waive both his right to a direct appeal and his right to collateral
review under § 2255 as a part of his plea agreement.” Keller v. United States, 657 F.3d 675, 681
(7th Cir. 2011). “It is well-settled that waivers of direct and collateral review in plea agreements
are generally enforceable.” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013).
The standard exceptions recognized by the Seventh Circuit to such a waiver are where:
the plea agreement was involuntary;
the district court relied on a constitutionally impermissible factor, such as race;
the sentence exceeded the statutory maximum;
the defendant claims ineffective assistance of counsel in connection with the
negotiation of the plea agreement; or
there is a lack of some minimum of civilized procedure.
Keller, 657 F.3d at 681; United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (regarding
the fifth exception).
Plea agreements are contracts, subject to contract law tempered by constitutional
limitations. United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). Within the parameters of
the Constitution as enumerated by the standard exceptions just listed, both the defendant and the
government are free to make deals that might turn out in hindsight to be bad. Both are free to
barter for favorable terms in exchange for an assumption of the risk that the law might change in
unexpected ways. Id.
This Court need not reach the merits of Defendants’ claims if the counseled, voluntary
plea agreements waive the claims. Unless an exception applies, a “voluntary and knowing waiver
of an appeal is valid and must be enforced.” Dowell v. United States, 694 F.3d 898, 902 (7th Cir.
Here, all three Defendants agreed to this provision in their plea agreements:
I understand that the law gives a convicted person the right to appeal the
conviction and the sentence imposed; I also understand that no one can
predict the precise sentence that will be imposed, and that the Court has
jurisdiction and authority to impose any sentence within the statutory
maximum set for my offense as set forth in this plea agreement; with this
understanding and in consideration of the government’s entry into this plea
agreement, I expressly waive my right to appeal or to contest my conviction
and my sentence or the manner in which my conviction or my sentence was
determined or imposed, to any Court on any ground, including any claim
of ineffective assistance of counsel unless the claimed ineffective assistance
of counsel relates directly to this waiver or its negotiation, including any
appeal under Title 18, United States Code, Section 3742 or any postconviction proceeding, including but not limited to, a proceeding under
Title 28, United States Code, Section 2255;
(Cooper’s Plea Agreement, DE 53 at 4; Ross’s Plea Agreement, DE 68 at 4; and Oliver’s Plea
Agreement, DE 134 at 4, emphasis added.) As noted, these waivers are at once broad and
specific: Defendants waive the right to contest on any ground, and Defendants specifically waive
the right to pursue relief under § 2255.
The waiver provision mentions only one exception. Defendants may appeal or contest on
the ground of ineffective assistance of counsel relating directly to this waiver or its negotiation.
Defendants do not assert that ground here.
Defendants could have insisted on including a broader escape hatch in the waiver
provision. Courts within this Circuit have mentioned the possibility of broader escape hatches for
years. See Bownes, 405 F.3d at 636 (“Since there is abundant case law that appeal waivers
worded as broadly as this one are effective even if the law changes in favor of the defendant after
sentencing . . . the absence of an explicit escape clause is compelling evidence that no escape is
If Defendants had insisted on a broader escape hatch, the government presumably would
have insisted on other changes to the terms of the plea agreement in exchange. In any event, the
waiver provision Defendants accepted does not include an escape hatch applicable here.
No standard exceptions to waiver apply
None of the standard exceptions recognized by the Seventh Circuit apply here either.
The plea agreements were not involuntary
First, the plea agreements were not involuntary.
Defendants acknowledged in the plea agreements that they entered these agreements
knowingly and voluntarily: “I believe and feel that my lawyer has done all that anyone could do
to counsel and assist me, and that I now understand the proceedings in this case against me. I
declare that I offer my plea of guilty freely and voluntarily and of my own accord . . . . (Cooper’s
Plea Agreement, DE 53 at 6; Ross’s Plea Agreement, DE 68 at 6; and Oliver’s Plea Agreement,
DE 134 at 5, paragraph numbering omitted.) But one might call reliance on that language a sort
During their colloquies with the Court at their plea hearings, the Defendants
acknowledged that their plea agreements were knowing and voluntary. (See, e.g., Transcript of
Oliver’s Plea Hearing, DE 224 at 19–20.)
Defendants argue that neither they nor the government could have knowingly agreed to
the waiver because no party knew or could have anticipated Johnson would change the law.
But change is one of few constants.
American law constantly changes. That’s a reason to include escape hatches. When a
party enters into a contract, he often assumes the risk that the contract will prevent him from
taking advantage of future changes that might have produced better results for him. The Seventh
Circuit rejected Defendants’ present arguments. See Bownes, 405 F.3d 634. This Court is not
persuaded by Defendants’ attempt to distinguish Bownes.
The Court did not rely on a “constitutionally impermissible factor”
Second, the Court did not rely on a constitutionally impermissible factor, such as race or
gender. Defendants do not claim the Court did. Rather, Defendants argue that Johnson and
Cardena changed the law such that § 924(c)’s residual clause is unconstitutional; so reliance on
§ 922(u) as a predicate offense to support a § 924(c) conviction constitutes reliance on a
constitutionally impermissible factor; because § 922(u) does not satisfy § 924(c)’s elements
clause under the categorical approach because the use, attempted use, or threatened use of
physical force is not required for commission of an offense under § 922(u); and because § 922(u)
cannot satisfy 924(c)’s residual clause because that clause is unconstitutionally vague. In short,
Defendants argue that conviction of § 924(c) predicated on § 922(u) necessarily involves
reliance on an unconstitutional factor.
But the Seventh Circuit simply doesn’t mean anything like that when it references
“constitutionally impermissible factors” in this context. Rather, the Seventh Circuit means by
this phrase such factors as race and gender. Indeed, the Seventh Circuit routinely includes the
parenthetical modifier “(such as race)” when it mentions the possibility of surviving a waiver if
the trial court relied on a constitutionally impermissible factor. See Jones v. United States, 167
F.3d 1142, 1144 (7th Cir. 1999) (“We have recognized that the right to appeal survives where the
agreement is involuntary, or the trial court relied on a constitutionally impermissible factor (such
as race) . . . .”).
In fact, all four cases Defendants cite for the proposition that a waiver is unenforceable if
the district court relied on a “constitutionally impermissible factor” include the parenthetical
explanation that this phrase means factors like race, and one case adds gender as another
example. Keller, 657 F.3d at 681 (“(such as race)”); Jones, 167 F.3d at 1144 (“(such as race)”);
United States v. Hicks, 129 F.3d 376, 377 (7th Cir. 1997) (A waiver will not be enforced “if the
district judge relied on impermissible facts in sentencing (for example, the defendant’s race or
gender) . . . .”); United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997) (A waiver
“will not be enforced if a sentencing judge relied on impermissible facts (such as a defendant’s
race) . . . .”).
As a sister district recently put it, a “constitutionally impermissible factor” in this context
“is limited to immutable factors such as the defendant’s race or gender.” Cross v. United States,
No. 15-CV-1338, 2017 WL 2345592, at *6 (E.D. Wisc. May 30, 2017).
Defendants argue there is no reason to think a waiver withstands a due process violation
but not an equal protection violation, but cite nothing for this proposition. There are at least three
problems with this argument.
First, one might say it begs the question of whether there is a due process violation here,
and raises a circular reasoning problem a la United States v. Worthen, 842 F.3d 552, 555 (7th
Second, there are reasons to think due process and equal protection receive different
consideration in this context: a) the case law specifying equal protection issues, and not due
process issues, as examples of “constitutionally impermissible factors”; and b) the case law
enforcing waivers despite changes in the law.
Third, if the phrase “constitutionally impermissible factor” in the context of overcoming
a waiver were as broad as Defendants want it to be, then waivers arguably wouldn’t amount to
The sentences did not exceed the statutory maximums
Third, the sentences did not exceed the statutory maximums, and Defendants do not
claim this exception.
No ineffective assistance of counsel
Fourth, the Defendants do not claim ineffective assistance of counsel in connection with
the negotiation of the plea agreements.
No lack of a minimum of civilized procedure
Fifth, Defendants do not claim a lack of a minimum of civilized procedure. In Josefik, the
Seventh Circuit observed: “there are limits to waiver; if the parties stipulated to trial by 12
orangutans the defendant’s conviction would be invalid notwithstanding his consent, because
some minimum of civilized procedure is required by community feeling regardless of what the
defendant wants or is willing to accept.” Josefik, 753 F.2d at 588. Defendants do not claim that
their waivers amounted to anything like agreements to empanel orangutans on the jury.
Arguments for other exceptions
Miscarriage of justice
Defendants propose an exception to their waivers not recognized by the Seventh Circuit:
miscarriage of justice. Defendants argue that enforcing their waivers would work a miscarriage
of justice because the crime of conviction—§ 924(c) predicated on § 922(u)—does not exist. But
in the Seventh Circuit, the proposed exception does not exist either.
The problem for Defendants here is that the Seventh Circuit does not recognize a
miscarriage-of-justice exception to such waivers.3 Defendants discuss cases from other Circuits,
and two Seventh Circuit cases favorably citing cases from other Circuits regarding such an
exception, without relying on or following these extra-Circuit cases. Another case decided by the
Seventh Circuit just eleven days before Defendants replied appears to look favorably on other
Circuits disregarding waivers to avoid miscarriages of justice. United States v. Litos, 847 F.3d
906, 910 (2017). This Court, however, declines to institute a miscarriage-of-justice exception to
waivers when the Seventh Circuit has not expressly done so, especially here where enforcement
of the waivers would not work a miscarriage of justice in the end, as demonstrated below.
Defendants also argue that their § 2255 motions raise a facial vagueness challenge, which
is inherently jurisdictional and therefore not waivable.
See United States v. Garcia, No. 3:13-CR-52-JD, 2016 WL 3999997, at *4 (N.D. Ind. July 25,
2016) (“The Seventh Circuit has strictly circumscribed the exceptions that can be invoked to
appeal waivers, and has never recognized a generalized miscarriage-of-justice exception.”)
The mere fact that the law changed after Defendants pleaded guilty and the Court
sentenced them does not necessarily mean the waivers are unenforceable. In Brady, a defendant
charged with kidnapping, and facing a possible death sentence, pleaded guilty. Brady v. United
States, 397 U.S. 742 (1970). Years later the Supreme Court held that a relevant statutory
provision regarding the death penalty was unconstitutional. But this change in the law did not
help Mr. Brady because the possibility that the parties made an erroneous assessment of the
available sentences did not invalidate his plea. A voluntary guilty plea “intelligently made in the
light of the then applicable law does not become vulnerable because later judicial decisions
indicate that the plea rested on a faulty premise.” Id. at 757.
But Defendants here claim something more. They claim not merely that the law changed,
but that it changed such that a conviction for § 924(c) predicated on § 922(u) is facially
unconstitutional. They do not merely claim entitlement to relief because Johnson and Cardena
would have changed their plea-bargaining calculus. They do not merely claim entitlement to
relief because § 924(c) predicated on § 922(u) as applied to their particular circumstances is
unconstitutional. Rather, they claim § 924(c) predicated on § 922(u) is unconstitutional in every
Defendants rely on the Supreme Court’s decision in Blackledge v. Perry, 417 U.S. 21
(1974). While serving a prison sentence, Mr. Perry had an altercation with another inmate. He
was charged with misdemeanor assault with a deadly weapon. A judge convicted Mr. Perry of
this misdemeanor following a bench trial, and sentenced him to six months imprisonment
consecutive to the term he was already serving. He appealed, which under North Carolina law
triggered his absolute right to a de novo trial in a different court.
After the appeal but before the second trial, however, the prosecutor obtained an
indictment from a grand jury charging Mr. Perry with a felony on the basis of the same conduct.
Mr. Perry pleaded guilty, and was sentenced to five to seven years imprisonment consecutive to
the term he was already serving.
Mr. Perry applied for a writ of habeas corpus. The Supreme Court (over a strong dissent
by Justice Rehnquist) held that the State violated the due process clause when it responded to
Mr. Perry’s invocation of his statutory right to appeal by bringing a more serious charge against
him. Blackledge, 417 U.S. at 28–29.
But a question remained. Did Mr. Perry’s guilty plea to the felony charge preclude him
from raising constitutional claims in the federal habeas corpus proceeding? The Supreme Court
said it did not:
Having chosen originally to proceed on the misdemeanor charge in the
District Court, the State of North Carolina was, under the facts of this case,
simply precluded by the Due Process Clause from calling upon the
respondent to answer to the more serious charge in the Superior Court.
Unlike the defendant in Tollett, Perry is not complaining of antecedent
constitutional violations or of a deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. Rather, the right that he asserts
and that we today accept is the right not to be haled into court at all upon
the felony charge. The very initiation of the proceedings against him in the
Superior Court thus operated to deny him due process of law.
The practical result dictated by the Due Process Clause in this case is that
North Carolina simply could not permissibly require Perry to answer to the
felony charge. That being so, it follows that his guilty plea did not foreclose
him from attacking his conviction in the Superior Court proceedings
through a federal writ of habeas corpus.
Id. at 30–31 (quotation marks and citations omitted). In sum, the Supreme Court held that a
guilty plea4 did not preclude habeas relief when the defendant had the right not to be haled into
court at all on the challenged charge.
But Blackledge is distinguishable for several reasons.
First, Blackledge did not involve a situation in which a court haled a defendant before it
to face charges based on a statute accepted as constitutional at the time but then later, after
defendant’s conviction, the law changed such that the statute was held to be unconstitutional.
Rather, Blackledge involved a situation in which a practice pursued by a prosecutor and
culminating in a conviction was itself held to be unconstitutional. In other words, if the law
changed in Blackledge, it did not change in the same way it changed here. When the prosecutor
there brought a harsher charge against Mr. Perry for exercising his right to appeal, that
immediately fell within the realm of vindictiveness (even if the prosecutor did not personally act
in bad faith). But when the prosecutor here brought § 924(c) charges predicated on § 922(u), no
one could have said Defendants had a right not to be haled into Court to face these charges. Any
sort of retroactivity flowing from Cardena is not the sort of retroactivity that necessarily
eviscerates waivers in plea agreements.
Second, Blackledge did not foreclose the possibility of an explicit waiver of attack rights
in a plea agreement being valid. Blackledge did not mention the issue. Here, on the other hand,
Defendants agreed to such explicit waivers. Blackledge doesn’t on its terms stand for the
proposition that a Defendant cannot waive § 2255 by an express waiver in a plea agreement in
the present situation, although Blackledge does implicitly suggest that proposition.
No party develops any arguments about any potential distinction between waiver by a guilty
plea and waiver by express language in a plea agreement.
Defendants also rely on United States v. Phillips, 645 F.3d 859 (7th Cir. 2011). Mr.
Phillips pleaded guilty to removing and disposing of asbestos insulation in violation of 42 U.S.C.
§ 7413(c)(1). On appeal, he challenged that statute as unconstitutionally vague as applied to the
facts of his case. The Court observed that a defendant who pleads guilty generally waives his
right to appeal all non-jurisdictional issues. In this context, the Court noted, “jurisdictional”
refers to a court’s authority to hale the defendant into court; it does not refer to subject matter
jurisdiction. Phillips, 645 F.3d at 862 (citing Blackledge, 417 U.S. at 30). The Court explored the
distinction between facial attacks and as-applied attacks:
While a facial attack on a statute’s constitutionality is jurisdiction, an asapplied vagueness challenge is not. A facially vague statute presents a
jurisdictional issue because it is by definition vague in every application,
preventing a court from entering a judgment under the statute in any case
and stripping the government of its ability to obtain a conviction against any
defendant. Unlike a facial challenge, an as-applied challenge does not
dispute the court’s power to hear cases under the statute; rather, it questions
the court’s limited ability to enter a conviction in the case before it.
Phillips, 645 F.3d at 863 (citations omitted). The Court held that Mr. Phillips waived his asapplied vagueness challenge by pleading guilty. Id. at 863.
The Court’s discussion of the waive-ability of facial vagueness challenges is arguably
dicta, as it was sufficient for the Court to hold that as-applied vagueness challenges are waivable.
Moreover, that appeal did not call upon the Court to address any potential distinction between
waivers by guilty pleas and express waivers by plea agreements, nor did it call upon the Court to
address any potential distinction between waivers of appeal rights and waivers of § 2255 rights.
Defendants also cite Donovan, another case in which the Seventh Circuit followed the
Blackledge-Menna exception: “Although a guilty plea ordinarily waives constitutional
challenges, the Supreme Court has recognized a narrow exception when a defendant claims ‘the
right not to be haled into court at all upon the felony charges’—the so-called Blackledge-Menna
exception.” United States v. Donovan, 410 Fed.Appx. 979, 981 (7th Cir. 2011).
Another case arguably supporting Defendants’ arguments against waiver is United States
v. Bell, 70 F.3d 495 (7th Cir. 1995). Mr. Bell was charged with possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced. Then the
Supreme Court declared in Lopez that a related subsection of the statute in question exceeded
commerce clause authority. The question before the Seventh Circuit was whether Mr. Bell
waived his right to challenge the constitutionality of § 922(g)(1) by entering a guilty plea without
preserving the issue. The Court observed that ordinarily a guilty plea waives constitutional
violations not logically inconsistent with establishment of factual guilt and which do not stand in
the way of conviction if factual guilt is established. Bell, 70 F.3d at 496. But there is an
In situations in which the government is precluded from haling a defendant
into court on a charge, federal law requires that a conviction on that charge
be set aside even if the conviction was entered pursuant to a counseled plea
Id. at 496 (quotation marks omitted).
The Court allowed Mr. Bell past the waiver defense, using language tantalizingly
We will, in the circumstances of this case, consider Mr. Bell’s claim. If the
statute under which he was prosecuted were now found to be
unconstitutional after it seemed unquestionably to be constitutional for such
a long period of time, it would hardly be just to allow his conviction to
stand. Furthermore, if there were no constitutional statute to be charged
under, there could not be a valid establishment of factual guilt. Mr. Bell
would have possessed the gun, but possessing it would not violate federal
law. For these reasons, Mr. Bell’s guilty plea will not preclude our review
of the issue he wants to air.
Id. at 497 (quotation marks omitted). It turned out, though, that Mr. Bell lost on the merits. See
also United States v. Adame-Hernandez, 763 F.3d 818, 828 (7th Cir. 2014) (“a guilty plea does
not waive a challenge to an error if, as a result of that error, a court has no power to enter the
conviction”) (internal quotation marks omitted).
But other decisions by the Seventh Circuit arguably conflict with, or at least narrow the
holdings of, these cases.
In its 2016 decision in Worthen, the Seventh Circuit affirmed the validity of a waiver.
United States v. Worthen, 842 F.3d 552 (7th Cir. 2016). Mr. Worthen shot and killed a man
during a robbery. A grand jury indicted him on four charges. He entered into a plea agreement in
which he agreed to waive his appeal rights. He pleaded guilty to Hobbs Act robbery (18 U.S.C. §
1951) and causing death while using or carrying a firearm during a crime of violence (18 U.S.C.
§§ 924(j) and 2). The district court sentenced him to 10 years for the Hobbs Act robbery and 50
years for the crime of violence for a total of 60 years imprisonment. Mr. Worthen appealed,
arguing that Hobbs Act robbery was not a “crime of violence” for § 924(j) purposes.
The Court began its analysis by noting that appeal waivers are generally enforceable. Id.
at 554. One of the few narrow exceptions to this rule is that a defendant may always contest a
sentence exceeding the statutory maximum. Id. at 554. Mr. Worthen argued that his § 924(j)
conviction was invalid, so the sentence of 60 years exceeded the statutory maximum for the only
viable conviction, § 1951. So, he argued, he satisfied that exception to waivers.
But the Court distinguished the case he relied on: United States v. Gibson, 356 F.3d 761
(7th Cir. 2004). In Gibson, the conclusion that defendant’s sentence exceeded the statutory
maximum required nothing more than comparing the sentence statutorily allowed to the sentence
actually imposed. That conclusion did not require the Court first to determine that the underlying
conviction was valid. Mr. Worthen, on the other hand, argued that the validity of his waiver
depended on the validity of his conviction. The Court demonstrated the untenable circular nature
of that argument:
To be clear, the crux of Worthen’s argument is that the validity of his appeal
waiver depends on the validity of his conviction. That argument is entirely
circular. Indeed, to determine whether Worthen’s crime-of-violence
conviction is invalid, we would have to take the appeal in the first place.
Then, only if we agree with Worthen and conclude that his conviction is in
fact invalid would we find that Worthen’s sentence exceeds the statutory
maximum, which in turn would mean that Worthen did not waive his appeal
rights. So the rule would be that an appeal waiver is enforceable unless the
appellant would success on the merits of his appeal. That cannot be the law.
Worthen, 842 F.3d at 555.
One distinction between Worthen and the instant case is that the Defendants here
claim a jurisdictional defect. But this claim of a jurisdictional defect arguably leads the
Court through the same sort of circle Worthen held problematic. The Court would have to
consider and determine the merits of Defendants’ arguments to determine whether there
is a jurisdictional defect Defendants can’t waive. But that might be inevitable and
Defendants make a strong point when they argue that here, unlike in Worthen, the
relevant determination does not require the Court to engage in a lengthy, circular process
because Johnson and Cardena have spoken. But it is not clear in light of Worthen and
Bousley that it is necessarily easier or more direct here (in a relevant way) to determine
that these convictions involving firearms fail for lack of a constitutional predicate
offense, and that this failure is a non-waivable jurisdictional defect, than it would have
been for the Worthen Court to determine that the conviction there involving a firearm
failed for lack of a predicate offense, such that the ultimate sentence exceeded the
Indeed, some of the perverse consequences the Seventh Circuit warned would
flow from acceptance of Mr. Worthen’s arguments seem equally threatening here. The
Worthen Court noted that many defendants benefit from waiving their appeal rights. Mr.
Worthen himself benefitted by exchanging his appeal rights for the government’s
agreements to drop some charges and to decline to seek the death penalty. Likewise, the
three Defendants here (at least arguably) benefited by their plea agreements, which
included the waivers.
The Worthen Court warned that if a defendant could then renege on his deal and
maintain an appeal the government wouldn’t have an incentive to make these deals in the
future. Rather, the government might just charge defendants with all applicable crimes
“and see what sticks after the appeal . . . .” Worthen, 842 F.3d at 556. Disregard of the
waivers here seems to present similar problems.
Less than a month after Worthen, the Seventh Circuit enforced guilty-plea preclusion of a
Johnson collateral attack. Davila v. United States, 843 F.3d 729, 732–34 (7th Cir. 2016). Davila
also poses potential problems for Defendants. Mr. Davila pleaded guilty to conspiracy to commit
For an example of a district court applying Worthen to a case challenging a § 924(c) conviction
in light of Johnson, see United States v. Copeland, No. 1:13-CR-40-TLS, 2016 WL 7188610, at
*3 (N.D. Ind. Dec. 12, 2016) (“The Defendant also claims that his conviction under § 924(c)
violates due process because the clause is unconstitutionally vague in light of Johnson. If what
the Defendant is arguing is that the validity of his waiver depends on the validity of his § 924(c)
conviction, that argument has been rejected [by the Seventh Circuit in Worthen] as ‘entirely
Hobbs Act robbery (in violation of 18 U.S.C. § 1951) and to possession of a firearm in
connection with both the planned robbery and drug trafficking (in violation of 18 U.S.C. §
924(c)(1)(A)). After sentencing, Johnson and Cardena changed the law, as previously discussed.
But this change did not help Mr. Davila for the simple reason that after Johnson and Cardena,
drug trafficking remains a constitutional predicate for a § 924(c) conviction.
But the Seventh Circuit recognized a deeper problem with Mr. Davila’s § 2255 collateral
attack against his § 924(c) conviction. He pleaded guilty, and did not fight the charge or contend
that the residual clause was invalid. “He gave up those and other possible arguments as part of a
plea bargain, which conferred benefits including the dismissal of two other serious charges . . . .”
Davila, 843 F.3d at 732.
Following Broce, the Davila Court explored the applicability of the exception to the
general rule that a counseled and voluntary guilty plea forecloses collateral attack if “on the face
of the record the court had no power to enter the conviction or impose the sentence.” Id. at 732
(quoting United States v. Broce, 488 U.S. 563, 569 (1989)). The Davila Court characterized this
as an inquiry into subject matter jurisdiction, even though other cases characterize a similar
inquiry regarding the authority of the court to hale the defendant before it to answer the charge as
an inquiry into jurisdiction but not subject matter jurisdiction.6
Compare Davila, 843 F.3d at 732 (internal citation omitted, emphasis added):
That leaves the question whether the court had “power to enter the
conviction”—in other words, subject-matter jurisdiction. A later passage
in Broce contemplates the possibility that a plea might be invalid if the very
act of initiating a criminal prosecution violated the Constitution . . . but
Davila does not contend that there was any problem with this prosecution’s
initiation. He argues only that he is entitled to the benefit of the later
decision in Johnson. The district court had subject-matter jurisdiction under
18 U.S.C. § 3231. This leads Davila to contend that, whenever a
The Davila Court observed that Broce contemplated the possibility that a plea might be
invalid if the very act of initiating a criminal prosecution violated the Constitution, but noted that
Mr. Davila did not argue there was a problem with the prosecution’s initiation. Davila, 843 F.3d
at 732. Rather, he argued only that he was entitled to the benefit of the later decision in Johnson.
But Johnson did not undermine the subject matter jurisdiction under 18 U.S.C. § 3231 of the
district court that sentenced Mr. Davila. Id. at 732. Indeed, the Supreme Court in Johnson and
the Seventh Circuit in Cardena did not order the prosecutions dismissed for lack of subject
matter jurisdiction. The Davila Court therefore held that Mr. Davila’s guilty plea foreclosed a
collateral attack based on Johnson or any other development not concerning subject matter
jurisdiction or implying the institution of the charge violated the Constitution. Davila, 843 at
Davila therefore seems to support the proposition that a Johnson or Cardena challenge to
a § 924(c) conviction is not a challenge to subject matter jurisdiction or to the constitutionality of
constitutional problem crops up in a case that had been resolved by a guilty
plea, the district court retroactively loses jurisdiction despite § 3231. That
position runs headlong into Broce, for the Court there held that a guilty plea
prevents collateral relief even on the assumption that the conviction violated
the Double Jeopardy Clause of the Fifth Amendment.
with Adame-Hernandez, 763 F.3d at 828 (internal citations and quotation marks omitted,
The narrow exception to the general waiver rule has been limited to
jurisdictional issues. A jurisdictional issue refers not to subject matter
jurisdiction, but rather to a court’s statutory or constitutional authority to
hale the defendant into court. In other words, a guilty plea does not waive a
challenge to an error if, as a result of that error, a court has no power to enter
the institution of the charge. Johnson and Cardena do not retroactively strip district courts of
subject matter jurisdiction. Rather, a Johnson or Cardena challenge is waivable.7
In the recent case of Wheeler, the defendant called upon the Seventh Circuit to reconsider
Davila. United States v. Wheeler, 857 F.3d 742 (7th Cir. 2017). Mr. Wheeler pleaded guilty to an
attempt to obstruct interstate commerce by robbery in violation of the Hobbs Act, and to using a
gun during that crime of violence. His plea agreement contained a waiver. On appeal, however,
Mr. Wheeler argued that he could not be guilty of the firearms charge because attempted robbery
is not a “crime of violence” under the residual clause because that clause is unconstitutionally
vague (as Cardena holds) and because attempted robbery does not satisfy the elements clause
because an attempt to rob does not have use of physical force as an element. Wheeler, 857 F.3d
But the Court held Mr. Wheeler waived his arguments by pleading guilty, and by
acknowledging in his plea agreement that he surrendered any argument that could have been
raised in a pretrial motion. The Court cited Davila for the proposition that “a person who pleads
guilty to a § 924(c) charge cannot use Johnson and Cardena to reopen the subject and ask a court
of appeals to upset the conviction.” Wheeler, 857 F.3d at 744.
The Court saw no need to revisit Davila, or to wait for the Supreme Court’s decision in
Class, which presents the question of whether an unconditional guilty plea waives a defendant’s
right to contest the constitutionality of the statute of conviction. See Class v. United States, 137
S.Ct. 1065 (2017) (granting a petition for writ of certiorari).
Of course, there is the potential distinction that Johnson undermines a particular breed of
sentencing enhancements, whereas Cardena undermines a particular breed of stand-alone crimes.
Yet the instant case might turn out to be in relevant respects more similar to Class than to
Wheeler, for like the three Defendants here, Mr. Class argues he had a constitutional right not to
be indicted, but Mr. Wheeler merely raises an issue of statutory interpretation. Wheeler, 857 F.3d
In addition to Class, several other potentially similar cases involving waivers are on
appeal. See, e.g., Cross, 2017 WL 2345592, appeal filed June 21, 2017 (No. 17-2282); Howard
v. United States, No. 3:16-CV-338-RLM, 2016 WL 7034137 (N.D. Ind. Dec. 1, 2016), appeal
filed Jan. 12, 2017 (No. 17-1078).
The Court thinks this is Defendants’ best argument regarding waiver. But ultimately
resolution of the waiver issue is not necessary here because Defendants lose on the merits
Regardless of the waiver issue, Defendants are not entitled to relief under § 2255 because
Hobbs Act robbery remains a “crime of violence” under § 924(c)’s elements clause. United
States v. Anglin, 846 F.3d 954, 964–65 (7th Cir. 2017), petition for cert. filed (U.S. May 31,
2017) (No. 16-9411).
Both sides agree that violation of § 922(u) is not a “crime of violence” under the elements
clause of § 924(c)’s definition of “crime of violence.”8
Both sides cite a 2010 Fifth Circuit case—United States v. Schmidt, 623 F.3d 257, 261 (5th Cir.
2010), cert. denied Schmidt v. United States, 131 S.Ct. 2858 (2011)—for this proposition
because the Seventh Circuit has not squarely addressed this issue.
Both sides also correctly agree that the Seventh Circuit ruled that § 924(c)’s residual
clause is unconstitutional. Cardena, 842 F.3d at 995–96.
Both sides also essentially seem to agree, correctly, that under current Seventh Circuit
law the government could not charge the Defendants with violating § 924(c) predicated in any
way on violating § 922(u).
But that does not end the matter.
Defendants agree that in Bousley, the Supreme Court held that when a change in law
undermines a conviction, the defendant must demonstrate he is factually innocent of any and all
forms of the statute that were abandoned by the government as part of plea negotiations, in order
to obtain relief under § 2255.9 Actually, Bousley is broader. It does not limit the required actualinnocence showing to other forms of the statute in question.
The Bousley Court recognized that to establish actual innocence, a petitioner must
demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror
would have convicted him. Bousley v. United States, 523 U.S. 614, 623 (1998). Moreover, “[i]n
cases where the Government has forgone more serious charges in the course of plea bargaining,
petitioner’s showing of actual innocence must also extend to those charges.” Id. at 624.
The Seventh Circuit explained in Lewis that the rationale for this rule is to avoid
windfalls to Defendants:
The idea behind this rule is that had the government foreseen Bailey [a
change in the law] it would not have dropped the charge and so the
petitioner, who we know wanted to plead guilty, would probably have
pleaded guilty to that charge instead, and if it was a more serious charge (or
we add, no less serious a charge) he would probably have incurred a lawful
Defendants do not advance an argument that the Bousley inquiry only applies when a defendant
seeks to avoid procedural default.
punishment no less severe than the one imposed on him under the count to
which he pleaded guilty, the count that he was later determined to be
innocent of by virtue of the Court’s interpretation of section 924(c) in
Bailey. Of course, it could not be said with certainty that his punishment
would have been the same. A defendant may want to plead guilty whether
there are two counts in the indictment or one, but if he learns that one is
invalid he may hold out for a better deal on the other, since, for example, he
doesn’t have to worry about consecutive sentences. This is a possibility,
surely, but to allow the defendant to use it to get off scot free would be to
confer a windfall on him, as the government would not have dropped a good
count in plea negotiations had it known that the remaining count was
invalid, and if the dropped charge was indeed a good count, the defendant
would not have escaped punishment had it not been dropped, punishment at
least comparable to that imposed on the bad count.
Lewis v. Peterson, 329 F.3d 934, 936 (7th Cir. 2003). Thus, the Bousley actual-innocence
showing extends to more-serious and as-serious charges.
Here, had the government foreseen Johnson and Cardena, it is fair to presume the
government would not have forgone § 924(c) charges predicated on Hobbs Act robberies. The
Defendants do not dispute the essential details of their crime spree. In particular, they admit they
committed multiple armed robberies. As the government notes, it stated at the sentencing
hearings that it could have based the § 924(c) charges on the Hobbs Act robbery of Jack’s Loan
Office or prosecutors in the Northern District of Illinois could have brought Hobbs Act robbery
charges stemming from any of the armed robberies of cell phone stores in Chicago. (Transcript
of Cooper’s Sentencing, DE 226 at 25–27; Transcript of Ross’s Sentencing, DE 243 at 28–30;
and Transcript of Oliver’s Sentencing, DE 225 at 24–25.) For example, at Mr. Ross’s sentencing
hearing, the government observed: “Each one of these [four] armed robberies could’ve been its
own 924(c) count” and “just not charging him at all with the three Chicago robberies was a
tremendous benefit to him.” (Transcript of Ross’s Sentencing, DE 243 at 27, 28.)
But the government forewent these charges.
No side disputes that a conviction for § 924(c) predicated on Hobbs Act robberies is just
as serious as a conviction for § 924(c) predicated on theft from a federally licensed firearm
dealer. Indeed, the punishments for the § 924(c) convictions could have been identical.
Justice requires Defendants to demonstrate their actual innocence of these other potential
§ 924(c) charges before gaining § 2255 relief based on the rejection of § 924(c) charges
predicated on § 922(u). Defendants can’t complain mere fortune dictated that Courts decided
Johnson and Cardena after Defendants’ convictions and sentencings rather than before if mere
fortune dictated that prosecutors charged Defendants with § 924(c) predicated on § 922(u) rather
than on § 1951.
But Defendants cannot demonstrate their actual innocence of these other potential §
924(c) charges. Hobbs Act robbery was and remains a “crime of violence” under § 924(c)’s
elements clause. Anglin, 846 F.3d at 964–65. And Defendants each admitted to facts sufficient to
support a conviction for violating § 924(c) predicated on Hobbs Act robbery.
Hobbs Act robbery requires the government to prove a defendant committed robbery that
interferes with commerce or the movement of any article or commodity in commerce. 18 U.S.C.
§ 1951; United States v. Villegas, 655 F.3d 662, 668 (7th Cir. 2011). The statute defines
“robbery” as “the unlawful taking or obtaining of personal property from the person or in the
presence of another, against his will, by means of actual or threatened force, or violence, or fear
of injury, immediate or future, to his person or property . . . .” 18 U.S.C. § 1951(b)(1).
Defendants admitted facts sufficient to support multiple convictions for § 924(c)
predicated on § 1951.
For example, the facts in the presentence investigation reports (to which the Defendants
did not object in relevant part after revisions, and which the Court adopted) demonstrate
Defendants committed at least one Hobbs Act robbery at Jack’s Loan Office.
In addition, at their change-of-plea hearings, Defendants admitted facts establishing
Hobbs Act robberies. Mr. Oliver, for example, admitted robbing Cricket with Mr. Ross and a
firearm; admitted robbing Get Connected with Mr. Ross, Mr. Cooper, and a firearm; admitted
robbing Hotline Wireless with Mr. Ross, Mr. Cooper, and a firearm; and admitted robbing Jack’s
Loan Office with Mr. Ross, Mr. Cooper, and a firearm. (Transcript of Oliver’s Plea Hearing, DE
224 at 28–41.)
Regarding Jack’s Loan Office in particular, Mr. Cooper admitted Defendants entered
Jack’s Loan Office planning to rob it, one of the Defendants brandished a firearm placing the
employees in fear so they would hand over firearms, and Defendants completed the robbery. Mr.
Ross admitted essentially the same incriminating facts. Mr. Oliver admitted Defendants planned
to commit a series of robberies of businesses engaging in interstate commerce, including Jack’s
Loan Office, and he admitted one of the Co-Defendants brandished a firearm at Jack’s Loan
Office. Mr. Oliver flatly admitted violating § 924(c) predicated on a Hobbs Act robbery.
The Court affords sworn statements made by Defendants during their change-of-plea
hearings a presumption of verity. United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002).
Indeed, Defendants do not now seek to recant these statements. Defendants’ statements
demonstrate that each Defendant committed multiple § 924(c) violations predicated on Hobbs
Act robbery. As the government notes, the simple fact is that Defendants are not innocent of
using a gun during and in relation to a crime of violence. And as the government said several
times, the Defendants could easily have been charged with multiple Hobbs Act robberies and
multiple 924(c)s predicated on those robberies. (See, e.g., Transcript of Cooper’s Sentencing, DE
226 at 27.)
Granting Defendants relief under § 2255 would amount to a windfall here because the
government could have charged them with violating § 924(c) predicated on § 1951 had anyone
known the Courts would eviscerate § 924(c)’s residual clause and thereby eliminate the
possibility of a conviction for violating § 924(c) predicated on § 924(u), since § 924(u) does not
satisfy § 924(c)’s elements clause under the categorical approach.
Therefore, since Defendants admitted committing Hobbs Act robberies, which were and
remain valid predicate offenses for purposes of § 924(c)’s elements clause, Defendants cannot
demonstrate their actual innocence and cannot demonstrate entitlement to relief under § 2255.
The Court concludes that a hearing is not warranted.
The Court denies all requests for additional briefing.
The Court denies the motions for relief under § 2255 (DE 212; DE 214; and DE 215).
Rule 11(a) of the Rules Governing Section 2255 Proceedings requires a district court to
issue or deny a certificate of appealability when entering a final order adverse to the movant. To
obtain a certificate, the movant must make a “substantial showing of the denial of a
constitutional right” by establishing that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). Given the changing legal landscape in this area, the Court grants a
certificate of appealability to each of the three Defendants.
SO ORDERED on August 31, 2017.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
Regarding Mr. Ross:
Ross’s Plea Agreement, DE 68 at 3: “I will plead guilty to Count 1 of the Indictment charging
me with Theft of Firearms from a Federally Licensed Firearm Dealer, in violation of 18 U.S.C. §
922(u), because I am, in fact, guilty of the offense charged in Count 1 . . . I will plead guilty to
Count 2 of the Indictment charging me with use of a firearm during the commission of a Federal
crime of violence, in violation of 18 U.S.C. § 924(c), because I am, in fact, guilty of the offense
charged in Count 2 . . . I understand that because the firearm was brandished the minimum
mandatory term of imprisonment that will be imposed upon me for my conviction of the offense
in Count 2 of the Indictment is seven (7) years in prison consecutive to any other term of
imprisonment to which I may be sentenced on the other counts.”
Ross’s PSR, DE 123 at 4–9: “On September 3, 2010, Jack’s Loan Office . . . was robbed at
gunpoint by Ryan Ross, Aaron Cooper, Lawrence Williams and Ralph Oliver . . . In an interview
with agents, Ross stated that he participated in three robberies of telephone stores in Chicago,
Illinois prior to the instant offense.”
Addendum to Ross’s PSR, DE 124: The PSR at DE 123 includes revisions requested by Mr.
Ross, and no objections remain.
Sentencing Recommendation for Ross, DE 125 at 2: “The defendant advised that prior to the
instant offense, he participated in three robberies of businesses that sell mobile phones . . . .”
Excerpt Transcript of Ross’s Plea Hearing, DE 135.
Transcript of Ross’s Sentencing, DE 243 at 26–42.
Id. at 42: Court: “Mr. Ross didn’t just rob Jack Loan’s Office, he has admitted to three additional
armed robberies in Chicago. Mr. Ross has put human life at grave risk four times.”)
Regarding Mr. Cooper:
Cooper’s Plea Agreement, DE 53 at 3: Identical to the language from Mr. Ross’s plea
agreement quoted in endnote i, above.
Excerpt Transcript of Cooper’s Plea Hearing, DE 136.
Transcript of Cooper’s Sentencing, DE 226 at 18–36.
Id. at 26–27: Government: “So based on his cooperation, I elected not to put him in the
superseding indictment and not to make him eat, for lack of a better word, those Chicago
robberies . . . I could’ve put him and his co-defendants into the superseding indictment since they
both confessed and they both pointed the fingers at the other ones . . . they could easily be
charged with four Hobbs Act robberies and four 924(c)s . . . .”
Id. at 28–29: Defense counsel: “But even if you give 111 months, if you divide that by 4, he’s
getting 27 month per robbery.”
Id. at 36: Court: “Mr. Cooper has admitted he participated in two other robberies for which he
has not been charged.”
Regarding Mr. Oliver:
Oliver’s Plea Agreement, DE 134 at 3: “I will plead guilty to Count 5 of the Superseding
Indictment charging me with Conspiracy to Interfere with Commerce by Threats or Violence, in
violation of 18 U.S.C. § 1951, because I am, in fact, guilty of the offense charged in Count 5 . . .
I will also plead guilty to Count 3 of the Superseding Indictment charging me with use of a
firearm during the commission of a Federal crime of violence, in violation of 18 U.S.C. § 924(c),
because I am, in fact, guilty of the offense charged in Count 3 . . . I understand that because the
firearm was brandished the minimum mandatory term of imprisonment that will be imposed
upon me for my conviction of the offense in Count 3 of the Superseding Indictment is seven (7)
years in prison consecutive to any other term of imprisonment to which I may be sentenced on
the other counts.”
Oliver’s PSR, DE 184 at 5–8.
Addendum to Oliver’s PSR, DE 185: The PSR at DE 184 includes revisions requested by Mr.
Oliver, and no objections remain.
Transcript of Oliver’s Plea Hearing, DE 224 at 27–41.
Transcript of Oliver’s Sentencing Hearing, DE 225 at 13–33.
Id. at 33: Court: “Mr. Oliver’s offense conduct is obviously extremely serious. The fact that it
comprises four separate robberies over a span of two weeks shows that he had plenty of time to
think about what he was doing. He revealed a disturbing disregard for human life and the law.”
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