Howard v. USA
Filing
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OPINION AND ORDER denying (DE 205 in 3:01cr100) Motion to Vacate (2255) as to Marcus Howard (3). The Court issues a certificate of appealability with respect to whether a collateral attack waiver bars a challenge under Johnson v. United States, 135 S. Ct. 2551 (2015). Signed by Judge Robert L Miller, Jr on 12/1/2016. (rmc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARCUS HOWARD
a/k/a TERRELL BROWN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Cause No. 3:16-cv-338
(Arising from 3:01-cr-100)
OPINION AND ORDER
Terrell Brown pleaded guilty to possession with intent to distribute crack
cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to 360 months’ imprisonment.
This matter is before the court on Mr. Brown’s motion to vacate and correct his
sentence under 28 U.S.C. § 2255. For the reasons that follow, the court denies
Mr. Brown’s motion.
I. BACKGROUND
Mr. Brown pleaded guilty to conspiring to distribute more than fifty grams
of cocaine base. He had two prior felony convictions, one for possession of a
dangerous substance, and one for the Wisconsin crime of second degree reckless
homicide, Wis. Stat. § 940.06(1) (1992) (committed by “recklessly caus[ing] the
death of another human being”). The first was considered a “controlled
substance offense” and the second a “crime of violence” under the Federal
Sentencing Guidelines. U.S.S.G. §§ 4B1.2. On its own, Mr. Brown’s crime
qualified for a base offense level of 34. U.S.S.G. § 2D1.1(c)(3). But because of the
prior convictions, the court found him to be a “career offender,” raising his base
offense level to 37. U.S.S.G. § 4B1.1. Instead of a recommended sentence
between 262 and 327 months, Mr. Brown’s became 360 months to life. This
court sentenced Mr. Brown to 360 months.
As part of his plea agreement, Mr. Brown agreed to the following waiver:
I am aware that my sentence will be determined in accordance with
the United States Sentencing Guidelines. I am also aware that a
sentence imposed under the Guidelines does not provide for parole.
I agree that the court has jurisdiction and authority to impose any
sentence within the statutory maximum for my offense(s) as set forth
in paragraph 9(c) of this plea agreement. With that understanding,
I expressly waive my right to appeal my sentence on any ground,
including any appeal right conferred by Title 18, United States Code
Section 3742. I also agree not to contest my sentence or the manner
in which it was determined in any post-conviction proceeding,
including, but not limited to, a proceeding under Title 28, United
States Code, Section 2255[.]
Am. Pet. to Enter a Change of Plea, ¶ 9(e) (emphasis added).
On June 26, 2015, the Supreme Court decided Johnson v. United States,
135 S. Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act,
which imposes a fifteen-year mandatory minimum sentence for a defendant who
committed three prior “violent felonies.” The statute defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one
year . . . that –
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another [known as the “elements
clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known
as the “enumerated offenses clause”], or otherwise involves conduct
that presents a serious potential risk of physical injury to another
[known as the “residual clause”];
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U.S.C.
§
924(e)(2)(B).
Johnson
held
that
the
residual
clause
is
unconstitutionally vague under the Due Process Clause, U.S. CONST. amend. V.
Johnson announced a substantive rule retroactively applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
Mr. Brown wasn’t sentenced under the residual clause of the definition of
“violent felony” in the ACCA, but under identical language in § 4B1.2 of the
guidelines defining “crime of violence.” Mr. Brown argues that reckless homicide
isn’t a “crime of violence” under § 4B1.2 because it isn’t a “crime of violence”
under the elements clause, § 4B1.2(a)(1), or the enumerated offenses clause, §
4B1.2(a)(2), and the residual clause, § 4B1.2(a)(2), is unconstitutional under
Johnson.1 As a result, he shouldn’t have been subject to § 4B1.1’s career
offender enhancement. Mr. Brown filed a petition under 28 U.S.C. § 2255 asking
that his sentence be vacated and that he be resentenced without the career
offender enhancement.
II. STANDARD OF REVIEW
A person convicted of a federal crime can challenge his sentence on
grounds that the sentence violates the Constitution or laws of the United States.
28 U.S.C. § 2255(a). Generally, issues not argued and decided on direct appeal
Indeed, while Mr. Brown awaited this order, the court of appeals held that the residual clause
of § 4B1.2(a)(2) violates the Due Process Clause because it’s “so vague that it fails to give ordinary
people fair notice of the conduct it punishes, or so standardless that it invites arbitrary
enforcement.” United States v. Hurlburt, 835 F.3d 715, 720 (7th Cir. 2016) (quoting Johnson,
135 S. Ct. at 2556).
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can’t be raised in a § 2255 petition unless the petitioner can show good cause
and actual prejudice for the procedural default. Galbraith v. United States, 313
F.3d 1001, 1006 (7th Cir. 2002). Mr. Brown filed his motion to correct his
sentence within one year of when “the right asserted was initially recognized by
the Supreme Court” in United States v. Johnson, 135 S. Ct. 2551 (2015) and
“made retroactively applicable to cases on collateral review” in Welch v. United
States, 136 S. Ct. 1257 (2016). This is a successive petition for Mr. Brown, which
the court of appeals certified under 28 U.S.C. § 2255(h).
An evidentiary hearing isn’t required if “the motion and files and records
of the case conclusively show that the petitioner is entitled to no relief.” 28 U.S.C.
§ 2255. After reviewing Mr. Brown’s petition and the record of this case, the court
concludes that the factual and legal issues raised can be resolved on the record,
so no hearing is necessary. See Menzer v. United States, 200 F.3d 1000, 1006
(7th Cir. 2000) (hearing not required where the record conclusively demonstrates
that a petitioner is entitled to no relief on § 2255 motion).
III. DISCUSSION
The court can’t reach the merits of Mr. Brown’s petition because the appeal
waiver prevents him from raising them.
“We will enforce an appeal waiver in a plea agreement if the terms of the
waiver are clear and unambiguous and the defendant knowingly and voluntarily
entered into the agreement.” United States v. Worden, 646 F.3d 499, 502 (7th
Cir. 2011). “To bar collateral review, the plea agreement must clearly state that
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the defendant waives his right to collaterally attack his conviction or sentence in
addition to waiving his right to a direct appeal.” Keller v. United States, 657 F.3d
675, 681 (7th Cir. 2011) (italics omitted). “[A] defendant’s freedom to waive his
appellate rights includes the ability to waive his right to make constitutionallybased appellate arguments” and “preclude appellate review even of errors that
are plain in retrospect.” United States v. Smith, 759 F.3d 702, 707 (7th Cir.
2014).
Mr. Brown’s appeal waiver was knowing and voluntary. He stated during
the change of plea hearing that he understood he was giving up any opportunity
to challenge his sentence. These sworn statements at the change of plea hearing
are presumed truthful. Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir.
2000). The waiver explicitly says that by pleading guilty, Mr. Brown waives his
right to contest his sentence “in any post-conviction proceeding, including, but
not limited to, a proceeding under Title 28, United States Code, Section 2255.”
The waiver was knowing and voluntary and the current claim falls within its
scope, so the waiver “must be enforced.” Nunez v. United States, 546 F.3d 450,
453 (7th Cir. 2008).
There are limited exceptions to this rule. A court will disregard the waiver
if “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,” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011), or Mr.
Brown was “depriv[ed] of some minimum of civilized procedure (such as if the
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parties stipulated to trial by twelve orangutans),” United States v. Adkins, 743
F.3d 176, 192-193 (7th Cir. 2014).
None of these exceptions apply. As already discussed, the waiver was
voluntary. Mr. Brown was sentenced based on his crime and his criminal history,
not a constitutionally impermissible factor. The sentence was within the
statutory maximum. Mr. Brown was represented at the time he pleaded guilty
and doesn’t challenge his attorney’s performance. Last, nothing suggests that
Mr. Brown signed onto an uncivilized procedure. That is enough to close the door
on Mr. Brown’s collateral attack.
Mr. Brown argues that the court relied on a constitutionally impermissible
factor in sentencing: the consideration of his prior felony as a “crime of violence.”
In the same way a judge can’t look to the race of the defendant as a factor in
sentencing, he says, under Johnson a judge can’t look to whether the defendant
committed a “crime of violence” under the residual clause. The former violates
the defendant’s right to equal protection and the latter violates due process.
The “constitutionally impermissible factor” exception would only come into
play here if it was unconstitutional for the court to consider Mr. Brown’s prior
conviction for robbery at all. The fact of the prior conviction is a perfectly
permissible consideration, even if Mr. Brown is correct that its label as a “crime
of violence” is unconstitutional. The fact of the defendant’s race, in contrast, is
never a permissible consideration.
Building the manner in which the court characterizes a fact that is
perfectly constitutional for consideration into the “constitutionally impermissible
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factor” exception would undercut most § 2255 waivers. See United States v.
Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000) (“Because almost every argument
in a criminal case may be restated in generic constitutional form . . . , a
‘constitutional-argument exception’ would vitiate most waivers of appeal and all
waivers of collateral attack.”); United States v. Bownes, 405 F.3d 634 (7th Cir.
2005) (holding that appeal waiver prevented constitutional argument for
resentencing when initial sentencing occurred prior to United States v. Booker,
543 U.S. 220 (2005)). The court of appeals has enforced an appeal waiver against
a Johnson-based challenge not to the petitioner’s sentence under the guidelines,
but to the constitutionality of the conviction itself. See United States v. Worthen,
No. 15-3521 (7th Cir. Nov. 28, 2016). Mistake in designating a defendant as
convicted of a “crime of violence” isn’t sufficient ground to ignore a knowing and
voluntary waiver.
Mr. Brown also argues that his claim fits into another exception rendering
appeal waivers unenforceable: if enforcement works a “miscarriage of justice.”
See, e.g., United States v. Grimes, 739 F.3d 125, 128-129 (3d Cir. 2014). Our
court of appeals limits waiver exceptions to those just described, see United
States v. Smith, 759 F.3d 702, 706 (7th Cir. 2014) (holding that the prior
exceptions are “the only sorts of grounds which we have indicated may be
sufficient to overcome a broad appellate waiver such as the one knowingly and
voluntarily agreed to”), and has rejected attempts to circumvent waivers on
grounds that developments in the law render a portion of the sentencing court’s
rationale unconstitutional, see United States v. Bownes, 405 F.3d at 636 (“By
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binding oneself one assumes the risk of future changes in circumstances in light
of which one’s bargain may prove to have been a bad one.”); United States v.
McGraw, 571 F.3d 624, 631 (7th Cir. 2009) (“By entering into an appeal waiver
that did not include an escape hatch of the kind we contemplated in Bownes,
McGraw relinquished his right to challenge his sentence based on intervening
Supreme Court decisions.”).
Even if the court of appeals adopted a general “miscarriage of justice”
exception, it isn’t clear the exception would release Mr. Brown from his waiver.
United States v. Blackwell, 651 F. App’x 8, 10 (2d Cir. 2016) (“Because
Blackwell’s sentence conformed to his plea agreement, he received the benefit of
that agreement and he has waived any challenge to his sentence on the basis of
Johnson.”); United States v. Ford, 641 F. App’x 650 (8th Cir. Apr. 1, 2016)
(enforcing appeal waiver to claims that “the district court misapplied the careeroffender provisions of the Guidelines, in light of Johnson”). That Narvaez v.
United States, 674 F.3d 621, 629 (7th Cir. 2011) recognizes that an error
branding someone as a career offender “constitutes a miscarriage of justice”
doesn’t mean that it creates a “miscarriage of justice” exception to appeal waivers
or that this case would fall into one.
There is great harm to an unlawful sentencing guideline. See United States
v. Hurlburt, 835 F.3d 715, 727 (7th Cir. 2016) (explaining how the guidelines
“anchor” a judge’s sentencing evaluation). Other courts might allow an implicit
escape hatch from the waiver where the crime the defendant was convicted of or
the sentencing guideline is unlawful. See United States v. Teeter, 257 F.3d 14,
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25-26 (1st Cir. 2001) (holding that waivers are presumptively valid but subject
to exception where broader “miscarriage of justice” occurs); United States v.
Grimes, 739 F.3d 125, 130 (3d Cir. 2014) (same). Others wouldn’t allow Mr.
Brown’s attack even with a “miscarriage of justice” exception. See United States
v. Johnson, 410 F.3d 137, 151-153 (4th Cir. 2005) (recognizing miscarriage
exception but finding no exception where law changes in defendant’s favor);
United States v. Andis, 333 F.3d 886, 892 (8th Cir. 2003) (holding that any
sentence within statutory limit isn’t miscarriage and citing Bownes); United
States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004). In any event, an implicit
escape hatch isn’t the law here. United States v. McGraw, 571 F.3d 624, 631
(7th Cir. 2009); United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005).
The government and Mr. Brown adopted the waiver knowingly and
voluntarily as understood by our precedent. No exceptions apply. Mr. Brown is
bound by the waiver and this court won’t reach the merits of his argument.
IV. CERTIFICATE OF APPEALABILITY
Issuance of a certificate of appealability requires the court to find that Mr.
Brown has made “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). He has done so and a certificate of appealability is issued.
Reasonable jurists might disagree with this court’s conclusion. 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
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is enforced if the guidelines that anchor the sentence are themselves invalid.
Outside developments in the law might 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 Johnson-based challenge 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”). Other district court decisions
discard appeal waivers within circuits that recognize exceptions for “miscarriage
of justice,” see, e.g., United States v. Swerdon, No. 3:16cv313, 2016 WL 4988065
(M.D. Pa. Sept. 19, 2016), or constitutional challenge, see, e.g., United States v.
Hoopes, No. 3:11-cr-425-HZ, 2016 WL 3638114 (D. Or. July 5, 2016).
V. CONCLUSION
Based on the foregoing, the court DENIES Mr. Brown’s § 2255 motion to
vacate and correct his sentence [Doc. No. 205] and issues a certificate of
appealability with respect to whether a collateral attack waiver bars a challenge
under Johnson v. United States, 135 S. Ct. 2551 (2015).
SO ORDERED.
ENTERED: December 1, 2016
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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