Robertson v. USA

Filing 1

OPINION AND ORDER: The Motion to Vacate and Correct Sentence under 28 U.S.C. §2255 is DENIED. Signed by Judge Robert L Miller, Jr on 10/6/16. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ADAM ROBERTSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 3:16-cv-399
(Arising from 3:11-cr-143 RLM)

OPINION AND ORDER
Defendant Adam Robertson pleaded guilty to possession of marijuana with
intent to distribute, 21 U.S.C. § 841(a)(1), and maintaining a marijuana
distribution house, 21 U.S.C. § 856(a)(1). This matter is before the court on Mr.
Robertson’s motion to vacate and correct his sentence under 28 U.S.C. § 2255.
For the reasons that follow, the court denies Mr. Robertson’s motion.

I. BACKGROUND
Mr. Robertson pleaded guilty to the following events. On four separate
occasions, informants purchased marijuana from Mr. Robertson. While
executing a search warrant of Mr. Robertson’s house, police and ATF officers
found Mr. Robertson there, as well as three pounds of marijuana, two loaded
handguns, two surveillance cameras, drug packaging, and ammunition. While
police were interviewing Mr. Robertson, he admitted to dealing marijuana with
others and maintaining the house as a “weed house.”
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Mr. Robertson had two prior felony convictions: dealing cocaine and
resisting law enforcement with a vehicle. The first was considered a “controlled
substance offense” and the second a “crime of violence” under the Federal
Sentencing Guidelines. USSG §§ 2K2.1(a)(2), 4B1.2. These two prior convictions
subjected Mr. Robertson to the enhanced sentencing of a “career offender,”
moving him from a base offense level of 14 to 32 and a criminal history category
of IV to VI. The recommended sentence range without the enhancement was 41
to 51 months and, with the enhancement, was 168 to 210 months. The court
sentenced Mr. Robertson to 120 months for possession with intent to distribute
marijuana and 168 months for maintaining a marijuana distribution house, to
be served concurrently.
As part of his plea agreement, Mr. Robertson agreed to the following
waiver:
I understand that the offense to which I am pleading guilty falls
under the Sentencing Guidelines promulgated by the United States
Sentencing Commission under Title 28, United States Code, Section
994. I am aware that my sentence will be determined in accordance
with the statutory maximums listed above, the United States
Sentencing Guidelines, and this plea agreement. I agree that the
Court has jurisdiction and authority to impose any sentence within
the statutory maximum set for my offense(s) as set forth in this plea
agreement.
With that understanding, I expressly waive my right to appeal my
conviction, my sentence and any restitution order to any Court on any
ground, including any claim of ineffective assistance of counsel. I also
agree not to contest my conviction, my sentence, any restitution order
imposed, or the manner in which my conviction, the sentence or the
restitution order was determined or imposed on any ground including
any alleged ineffective assistance of counsel in any appeal under Title
18, United States Code, Section 3742 or in any post-conviction
proceeding, including but not limited to, a proceeding under Title 28,
United States Code, Section 2255;
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Pet. to Enter a Guilty Plea, ¶ 9(d) (emphasis added).
Magistrate Judge Christopher Nuechterlein conducted the change of plea
hearing. He specifically drew Mr. Robertson’s attention to the appeal waiver. He
read the italicized portion of the previous text to Mr. Robertson and explained:
I said if you went to trial and if you were found guilty at trial you
could appeal with the assistance of counsel. But what you’re doing
and what I just read, this very provision, is you are giving up that
right to appeal. So as it says, you will not be able to contest or appeal
your conviction or your sentence or the way it was determined or
imposed under any ground.
The magistrate judge then asked Mr. Robertson if he understood, to which Mr.
Robertson responded, “Yes, sir.” The magistrate judge then said, “Okay. That’s
important because that’s what you are giving up.” Change of Plea Hearing Tr.
[Doc. No. 137], 13-14.
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; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another [known as the “residual clause”];
18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson held that the residual clause
is unconstitutionally vague under the Due Process Clause, U.S. CONST. amend.
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V. Johnson announced a substantive rule retroactively applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
Mr. Robertson 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 the term “crime of violence.” Mr. Robertson wants the court
to retroactively apply Johnson’s reasoning to the Guidelines provisions used to
enhance his sentence.1 Once the residual clause defining “crime of violence” in
the Guidelines is thrown out, Mr. Robertson’s prior conviction of resisting law
enforcement with a vehicle wouldn’t qualify as a “crime of violence” so the
sentence enhancement could not be applied. Mr. Robertson filed a petition under
28 U.S.C. § 2255 asking that his sentence be vacated and 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,
the court had no jurisdiction to impose such sentence, the sentence exceeded
the maximum authorized by law, or the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). Generally, issues not argued and decided
on direct appeal can’t be raised in a § 2255 petition unless the petitioner can

1 Indeed, while Mr. Robertson awaited this order, the court of appeals held that the parallel
residual clause of the Guidelines violates the Due Process Clause because it is “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, No. 15-1686, 2016 WL 4506717, at *3
(7th Cir. Aug. 29, 2016) (quoting Johnson, 135 S. Ct. at 2556).

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show good cause and actual prejudice for the procedural default. Galbraith v.
United States, 313 F.3d 1001, 1006 (7th Cir. 2002). A claim of ineffective
assistance of counsel not raised on direct appeal can, however, still be raised in
a § 2255 petition. Massaro v. United States, 538 U.S. 500, 504 (2003). Mr.
Robertson 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). § 2255(f)(3).
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. Robertson’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. Robertson’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. Robertson’s appeal waiver was knowing and voluntary. He stated
during the change of plea hearing that he read and understood that he was giving
up his right to appeal or otherwise 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 says that by
pleading guilty, Mr. Robertson waives his right to collaterally attack his sentence
with a § 2255 petition “on any ground.” 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
“deprivation of some minimum of civilized procedure (such as if the parties

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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 discussed previously, the waiver was
voluntary. Mr. Robertson was sentenced based on his crime and his criminal
history, not a constitutionally impermissible factor. The sentence was within the
statutory maximum. Mr. Robertson was represented at the time he pleaded
guilty and doesn’t challenge his attorney’s performance. Last, nothing suggests
that Mr. Robertson signed onto an uncivilized procedure. That is enough to close
the door on Mr. Robertson’s collateral attack.
Mr. Robertson 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 problem with this argument is that the “constitutionally impermissible
factor” exception would only come into play if it was unconstitutional for the
court to consider Mr. Robertson’s prior conviction for criminal recklessness at
all. The fact of the prior conviction is a perfectly permissible consideration, even
if Mr. Robertson 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.
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Building the manner in which the court characterizes a fact that is
perfectly constitutional for consideration into the “constitutionally impermissible
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)). Mistake in designating a defendant as convicted of a “crime
of violence” isn’t sufficient ground to ignore a knowing and voluntary waiver.
Mr. Robertson also argues that his claims fit 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 Bownes, 405 F.3d at 636 (“By 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
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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.”).
Mr. Robertson cites to United States v. Valle-Villa, 485 F. App’x 142 (7th
Cir. 2012), an unpublished order, for the proposition that the court of appeals is
willing to apply a “miscarriage of justice” exception because it cites to United
States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) for the Tenth Circuit’s
“miscarriage of justice” exception. However, the “miscarriage” exception as
defined in Hahn includes similar exceptions to those described previously:
reliance on an impermissible factor such as race, ineffective assistance of
counsel in connection with negotiation of the waiver, where the sentence exceeds
the statutory maximum, and “where the waiver is otherwise unlawful.” Hahn,
359 F.3d at 1327. For the last exception, Hahn explains that “the error [must]
seriously affect[ ] the fairness, integrity or public reputation of judicial
proceedings.” Id. Citation to Hahn in no way implies that our court of appeals
has adopted a broader “miscarriage” exception that goes beyond the narrow
exceptions already described. Similarly, the court of appeals only cited to United
States v. Teeter, 257 F.3d 14, 25 n.9 (1st Cir. 2001) for the narrow proposition
that a waiver can be set aside when it’s the product of “ineffective assistance of
counsel.” Hurlow v. United States, 726 F.3d 958, 967 (7th Cir. 2013).
Last, Mr. Robertson argues that there was no “meeting of the minds” in
the negotiation of the waiver because neither party could have anticipated that
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the Supreme Court would strike down the residual clause in Johnson. Bownes
rejects this argument: “By 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.” Bownes, 405 F.3d at 636. Acceptance of a contract isn’t undone
simply because the parties didn’t anticipate how it might result in a loss.2
The court is sympathetic to Mr. Robertson’s position. There is harm to an
unlawful sentencing guideline. See Narvaez v. United States, 674 F.3d 621 (7th
Cir. 2011) (“The imposition [of an unlawful career offender status under the
Guidelines] created a legal presumption that [the defendant] was to be treated
differently from other offenders because he belonged in a special category
reserved for the violent and incorrigible.”); United States v. Hurlburt, No. 143611, 2016 WL 4506717, at *6 (7th Cir. Aug. 29, 2016) (explaining how these
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, 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. Robertson’s attack even with a “miscarriage of justice” exception. See United

2 Mr. Robertson cites Judge Boggs’ Sixth Circuit opinion, which could be interpreted to allow a
defendant to maneuver around the waiver on this issue. 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 challenge to the designation under Johnson 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”). It’s not clear that the rationale of this decision applies
to appeal waivers and, even if it did, Bownes still binds this court.

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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. Robertson adopted the waiver knowingly and
voluntarily as understood by our precedent. No exceptions apply. Mr. Robertson
is bound by the waiver and this court won’t reach the merits of his argument.
IV. Conclusion
Based on the foregoing, the court DENIES Mr. Robertson’s § 2255 motion
to vacate and correct his sentence [Doc. No. 130].
SO ORDERED.
ENTERED: October 6, 2016
/s/ Robert L. Miller, Jr.
Judge
United States District Court

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