Bureau v. USA

Filing 11

/// ORDER denying 1 Motion to Vacate Sentence - 2255. The Court declines to issue a certificate of appealability. So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Daniel G. Bureau,
Petitioner
v.

Case No. 13-cv-42-SM
Opinion No. 2014 DNH 211

United States of America,
Respondent
O R D E R
Petitioner, Daniel Bureau, pled guilty to conspiracy to
distribute and possession with the intent to distribute cocaine.
His pleas were offered in accordance with a plea agreement under
Fed. R. Crim. P. 11(c)(1)(C), in which the petitioner stipulated
that he should be held accountable under the Sentencing
Guidelines for distributing at least 400 but less than 500 grams
of cocaine; that he played the role of a manager or supervisor in
connection with the distribution; that he recklessly created a
substantial risk of bodily injury to another person during the
course of fleeing from law enforcement; and that he should be
sentenced to a one hundred and eight (108) month term of
imprisonment.

That agreed-upon sentence fell within the properly

calculated guideline sentencing range (“GSR”) of 100-125 months.
He was sentenced to 108 months of imprisonment consistently with
his Rule 11(c)(1)(C) plea agreement.

Bureau now seeks sentence relief under the provisions of
28 U.S.C. § 2255, on grounds that a prior state court sentence
that was used to enhance his federal sentence (the guideline
range) was subsequently “vacated” by the state court, thereby
entitling him to a review and potential reduction of his federal
sentence.

See Johnson v. United States, 544 U.S. 295 (2005);

United States v. Pettiford, 101 F.3d 199 (1st Cir. 1996).

The underlying facts are undisputed.

Based on his plea of

guilty, petitioner was previously convicted in state court of
making false reports to law enforcement officers in violation of
N.H. Rev. Stat. Ann. ch. 641:4.

Petitioner was sentenced to

twelve (12) months of incarceration with 10 months suspended, the
remaining two (2) months to be served concurrently with an
unrelated state prison sentence he was then serving.

But, says

Petitioner, he understood the state plea agreement’s terms as
calling for a sentence of twelve (12) months imprisonment in the
House of Corrections, all suspended.

Following his federal sentencing, petitioner sought relief
from the state court, claiming that the state sentence should be
reformed to reflect his understanding of the plea agreement’s
terms.

The state prosecutor reviewed the matter and assented to

the relief requested.

Accordingly, the state court modified the

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sentence retroactively — to reflect a sentence to twelve months
imprisonment all of which was suspended.

Neither the underlying

state criminal conviction nor the sentence was actually
“vacated.”

While that sentence modification might seem entirely without
practical effect — the two months not originally suspended were
actually served concurrently long ago — there is a measurable
consequence related to petitioner’s federal sentence.

The

government concedes that the state sentence modification would
have the effect of reducing petitioner’s federal criminal history
point total by 2, which in turn would reduce his Criminal History
Category by one level, which would result in a revised GSR of 84105 months.

The government accepts, properly, that the petition is
timely under Johnson.

But, it opposes any sentence relief on

grounds that petitioner, as part of his plea bargain, knowingly
and voluntarily waived his right to collaterally attack his
federal sentence, pointing to the terms of his written plea
agreement, which specifically provides as follows:
B.

Collateral Review

The defendant understands that he may have the
right to challenge his guilty plea and/or sentence on
collateral review, e.g., a motion under 28 U.S.C.
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§ 2255 or § 2241. By entering into this Plea
Agreement, the defendant knowingly and voluntarily
waives his right to collaterally challenge:
* * *
2.

The defendant’s sentence imposed by the Court
if within the terms agreed upon and
stipulated to in this Plea Agreement.

Petitioner’s motion for collateral relief pursuant to 28
U.S.C. § 2255 plainly falls within the literal scope of that
waiver, which is described in clear and definite terms.
Petitioner was also questioned specifically about his
understanding of the waiver provision by the court during the
plea colloquy, and petitioner acknowledged that he understood
that, with some notable exceptions not applicable here, he was
waiving and giving up his right to later challenge the agreed
upon sentence.

Accordingly, the waiver of collateral review by

petitioner was entered knowingly and voluntarily and it is
enforceable, unless enforcing it would cause a miscarriage of
justice.

See United States v. Chambers, 710 F.3d 23, 30 (1st

Cir. 2013).

Petitioner does not directly address the government’s
invocation of his waiver.

He offers nothing to suggest, and

nothing in the record suggests that enforcing the waiver would
somehow result in a miscarriage of justice.

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An argument might be made, categorically, that a petitioner
cannot knowingly and voluntarily waive a right to challenge his
sentence in the future based upon future remedial action within
the discretion of a state court with respect to a state
conviction — something entirely uncertain at the time of his
federal sentencing.

See e.g. Keller v. United States, 547 F.3d

675, 682 n.4 (7th Cir. 2011).

But even if such a categorical

rule were applicable, here the outcome would be unchanged,
because affording sentence relief in this case is inappropriate —
not only because petitioner knowingly and voluntarily stipulated
to an appropriate sentence, and waived his right to seek
collateral relief as part of his plea bargain — but also because
even if that waiver is not enforceable, the court would not
afford sentence relief on the merits.

That is, even assuming the waiver is ineffective with
respect to Johnson claims, that necessarily arise from postconviction action by state courts, still, the nature of the state
court’s sentence modification underlying petitioner’s claim was
so minor and had such a modest ameliorating effect on the
applicable guideline sentencing range (reducing it by one level)
that a reduction in petitioner’s sentence would not be granted.
After all, petitioner’s record was serious, the sentence imposed
was both reasonable given the crimes of conviction, and it was

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specifically agreed to by the petitioner as part of the bargain
struck with the government during plea negotiations.

The state

court’s retroactive suspension of two months of confinement that
had already been served concurrently with an unrelated sentence
may have resulted in a one level guideline range reduction, but
that reduction does not call into question either the
reasonableness or the propriety of the sentence to which
petitioner stipulated.

The guidelines are of course advisory,

and had the lower range been calculated at the time of sentencing
the court still would have approved the stipulated sentence in
the Rule 11(c)(1)(C) agreement.

Conclusion
Petitioner’s motion for relief under § 2255 (document no. 1)
is denied on grounds that he knowingly and voluntarily waived his
right to collaterally challenge his sentence and, alternatively,
on grounds that even if petitioner’s waiver is not enforceable,
and the motion resolved on the merits, upon reopening and
reviewing that sentence the court would not reduce petitioner’s
agreed upon sentence.

The very minor modification of the state

sentence giving rise to petitioner’s Johnson claim does not
undermine the reasonableness of and stipulated nature of the
sentence imposed under the circumstances of this case,
notwithstanding that the effect of that minor modification would

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be a one level reduction in the applicable advisory guideline
sentencing range calculation.

The court declines to issue a certificate of appealability,
but petitioner may seek a certificate from the Court of Appeals
under Federal Rule of Appellate Procedure 22.

See Rule 11,

Federal Rules Governing Section 2255 Proceedings.

The Clerk of

Court shall enter judgment in accordance with this order and
close the case.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 30, 2014
cc:

Daniel G. Bureau, pro se
Seth R. Aframe, AUSA

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