Rife v. USA

Filing 7

OPINION AND ORDER: This court GRANTS issuance of a certificate of appealability to Mr. Rife with respect to the issue of whether a waiver of appeal in the plea agreement bars a challenge under Johnson v. United States, 135 S. Ct. 2551 (2015). Signed by Judge Robert L Miller, Jr on 9/29/2016. (cc: USCA)(rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JASON RIFE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 3:16-cv-285 RLM
(Arising out of 3:12-cr-17 RLM)

OPINION AND ORDER
Jason Rife pled guilty to possessing with intent to distribute a mixture or
substance which contained heroin, in violation of 21 U.S.C. § 841(a)(1). At
sentencing, both parties agreed that Mr. Rife was a career offender under the
Federal Sentencing Guidelines because he had four prior felony convictions for
“crimes of violence.” USSG § 4B1.2. The relevant prior offenses were resisting
law enforcement, battery resulting in serious bodily injury, battery of a minor,
and domestic battery. Mr. Rife challenged his career offender status in a motion
to vacate under 28 U.S.C. § 2255 based on the Supreme Court’s holding in
Johnson v. United States, 135 S. Ct. 2551 (2015) that parallel language in the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague.
The court held that the appeal waiver in Mr. Rife’s plea agreement barred his
motion. This court now addresses whether a certificate of appealability ought to
be issued under 28 U.S.C. § 2253(c)(2).

Issuance of a certificate of appealability requires the court to find that Mr.
Rife has made “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). He has done so.
Mr. Rife’s collateral attack failed under existing Seventh Circuit precedent.
He didn’t show that the appeal waiver was uninformed or involuntary, that a
collateral attack was outside of its scope, that sentencing relied on a
constitutionally impermissible factor, that his sentence exceeded the statutory
maximum, or that his counsel provided ineffective assistance in negotiating the
plea agreement. See Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011)
(listing exceptions to otherwise valid appeal waiver).
This is an area in which reasonable jurists might disagree. Even though
United States v. Bownes, 405 F.3d 634 (7th Cir. 2005) enforced the appeal waiver
of a defendant given a within-guideline sentence before United States v. Booker,
543 U.S. 220 (2005), Bownes doesn’t address whether a waiver is enforced if the
guidelines at the root of a sentence are themselves invalid. Outside developments
in the law may also encourage the appeals court to revise its interpretation of
whether a defendant can ever waive rights unknown at the time of the waiver.
See United States v. McBride, 826 F.3d 293, 294-295 (6th Cir. 2016) (holding
that defendant agreeing to career offender designation didn’t waive a Johnsonbased challenge to the designation because “a defendant can abandon only
known rights,” so he “could not have intentionally relinquished a claim based on
Johnson, which was decided after his sentencing”).
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Based on the foregoing, this court GRANTS issuance of a certificate of
appealability to Mr. Rife with respect to the issue of whether a waiver of appeal
in the plea agreement bars a challenge under Johnson v. United States, 135 S.
Ct. 2551 (2015).
SO ORDERED.
ENTERED:

September 29, 2016
/s/ Robert L. Miller, Jr.
Judge
United States District Court

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