Owens v. USA
OPINION AND ORDER: The court DENIES Mr. Owens's motion to vacate and correct his sentence (Doc. No. 51 in 3:15-cr-61) and issues no certificate of appealability. Signed by Judge Robert L Miller, Jr on 12/2/2016. (cc: Owens)(rmc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SCOTT ANTHONY OWENS,
UNITED STATES OF AMERICA,
Cause No. 3:16-cv-631
(Arising from 3:15-cr-61)
OPINION AND ORDER
Scott Owens pleaded guilty to being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1), and was sentenced to 46 months’ imprisonment. This matter
is before the court on Mr. Owens’s motion to vacate and correct his sentence
under 28 U.S.C. § 2255. For the reasons that follow, the court denies Mr.
Mr. Owens pleaded guilty to being a felon in possession of a firearm. 18
U.S.C. § 922(g)(1). He had one prior felony conviction, domestic battery, that’s
relevant to this claim. The court considered his prior felony conviction as a “crime
of violence” under the Federal Sentencing Guidelines. U.S.S.G. § 4B1.2. With
one prior conviction for a felony “crime of violence” and because he possessed a
firearm capable of accepting a large capacity magazine, the court assigned Mr.
Owens a base offense level of 22. U.S.S.G. § 2K2.1(a)(3). With a three-level
reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, his final adjusted
offense level was 19. Without the prior “crime of violence,” Mr. Owens’s final
adjusted offense level would have been 17. U.S.S.G. §§ 2K2.1(a)(4), 3E1.1. The
guidelines recommended a sentence of 46 to 57 months instead of a sentence
from 37 to 46 months without the prior “crime of violence.” See U.S.S.G. § 5A.
The court sentenced Mr. Owens to 46 months.
As part of his plea agreement, Mr. Owens agreed to the following:
I expressly waive my right to appeal or to contest my conviction and
all components of my sentence or the manner in which my
conviction or my sentence was determined or imposed, to any Court
on any ground other than a claim of ineffective assistance of
counsel, including any appeal under Title 18, United States Code,
Section 3742 or any post-conviction proceeding, including but not
limited to, a proceeding under Title 28, United States Code, Section
Pet. to Enter a Guilty Plea, ¶ 9(d) (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
(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”];
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. Owens wasn’t sentenced under the definition of “violent felony” in the
ACCA, but under identical language in the guidelines defining “crime of violence.”
Mr. Owens argues that after Johnson, domestic battery isn’t a “crime of violence”
under the guidelines, so his sentence shouldn’t have been enhanced.
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
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. Owens filed his motion to correct his
sentence within one year of when his judgment became final. 28 U.S.C. § 2255.
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. The factual and legal issues raised can be resolved on the record, so no
hearing is necessary.
The court can’t reach the merits of Mr. Owens’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
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.
Mr. Owens’s appeal waiver was knowing and voluntary. The waiver
explicitly says that by pleading guilty, he 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.
Owens was “depriv[ed] of some minimum of civilized procedure (such as if the
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. Mr. Owens was sentenced based on his
crime and his criminal history, not a constitutionally impermissible factor. The
sentence was within the statutory maximum. Mr. Owens was represented at the
time he pleaded guilty and doesn’t challenge his attorney’s performance. Last,
nothing suggests that Mr. Owens signed onto an uncivilized procedure. That is
enough to close the door on his challenge. See United States v. Worthen, No. 153521 (7th Cir. Nov. 28, 2016) (enforcing waiver in Johnson-based claim). Mr.
Owens is bound by the waiver and this court won’t reach the merits of his
Last, Mr. Owens hasn’t substantially shown he was denied a constitutional
right, and so the court issues no certificate of appealability. 28 U.S.C. §
2253(c)(2). Should a court reach the merits of his argument, he hasn’t shown
that felony domestic battery could arguably fall outside the definition of “crime
of violence.” A “crime of violence” exists if the crime “has as an element the use,
attempted use, or threatened use of physical force.” U.S.S.G. § 4B1.2(a)(1).
Johnson doesn’t impact this portion of the definition.
Based on the foregoing, the court DENIES Mr. Owens’s motion to vacate
and correct his sentence [Doc. No. 51] and issues no certificate of appealability.
ENTERED: December 2, 2016
/s/ Robert L. Miller, Jr.
United States District Court
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