Mount v. United States of America
MEMORANDUM OPINION AND ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) is DISMISSED with prejudice and Certificate of Appealability is Denied by Senior District Judge James A. Parker. (bap)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
JAY PATRICK MOUNT,
No. CV 16-657 JAP/KBM
CR 13-964 JAP
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Petitioner Jay Patrick Mount (Petitioner) has moved to correct his sentence, arguing that
he is not a career offender because his prior robbery convictions do not qualify as crimes of
violence in light of Johnson v. United States, 135 S. Ct. 2551 (2015). See MR. MOUNT’S
MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 1)
(Motion). The United States opposes the Motion, contending that Petitioner waived his right to
collateral review. See UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION TO
CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (Doc. No. 6) (Response). Petitioner argues
that his waiver is unenforceable. See MR. MOUNT’S REPLY TO THE UNITED STATES’
RESPONSE TO HIS MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
(Doc. No. 7) (Reply). But because Petitioner has not alleged any error that would render his
waiver unlawful, the Court will enforce the waiver and dismiss the Motion.
In February of 2014, Petitioner entered into a plea agreement under Fed. R. Crim. P.
11(c)(1)(C) and pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). United States
v. Mount, No. CR 13-0964 JAP (D.N.M. May 16, 2014), Doc. No. 45 ¶ 4. The penalty for bank
robbery is a maximum of twenty years’ imprisonment. 18 U.S.C. § 2113(a). The plea agreement
acknowledged that Petitioner was a career offender, subject to an enhanced offense level and
criminal history category. Mount, No. CR 13-0964 JAP, Doc. No. 45 ¶ 10; U.S.S.G. § 4B1.1. As
a career offender, the advisory Sentencing Guidelines range applicable to Petitioner was 151–
188 months. Mount, No. CR 13-0964 JAP, Doc. No. 45 ¶ 10. Instead, the plea agreement
specified a below-Guidelines sentence of 120 months. Id. As a condition of his plea, Petitioner
agreed to waive his right to collaterally attack his conviction under 28 U.S.C. § 2255 except as to
claims of ineffective assistance of counsel. Id. at ¶ 14.
Nevertheless, Petitioner now seeks to raise just such a challenge. See Mot. at 1. Petitioner
contends that he is not a career offender because his prior robbery convictions do not require an
element of force so are not crimes of violence after Johnson. Id. at 4, 11. He asks the Court to
find that his waiver of collateral review does not bar this claim and to vacate his sentence. Id. at
4–5. The United States asserts that Petitioner’s waiver is valid and enforceable, so that the
Motion should be dismissed. Resp. at 5.
“A waiver of collateral attack rights brought under § 2255 is generally enforceable where
the waiver is expressly stated in the plea agreement and where both the plea and the waiver were
knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.
2001). An exception is made if enforcement of the waiver would result in a miscarriage of
justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). But a miscarriage of justice
occurs only “ where the district court relied on an impermissible factor such as race,  where
ineffective assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid,  where the sentence exceeds the statutory maximum, or  where the waiver
is otherwise unlawful.” Id. at 1327. “This list is exclusive: enforcement of an appellate waiver
does not result in a miscarriage of justice unless enforcement would result in one of the four
situations enumerated above.” United States v. Polly, 630 F.3d 991, 1001 (10th Cir. 2011)
(internal quotation marks omitted). Additionally, error does not make a waiver “otherwise
unlawful” unless it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Hahn, 359 F.3d at 1327 (brackets and internal quotation marks omitted).
It is undisputed that Petitioner’s plea agreement contained an explicit waiver of his right
to bring a collateral challenge under § 2255 on any issue other than ineffective assistance of
counsel in negotiating or entering the plea or the waiver. Mount, No. CR 13-0964 JAP, Doc. No.
45 ¶ 14; Resp. at 2; Reply at 1–2. Petitioner’s plea agreement reflects that he acknowledged his
appellate rights and knowingly waived them, and that his plea was voluntarily made. Mount, No.
CR 13-0964 JAP, Doc. No. 45 ¶¶ 14, 17. Petitioner does not argue that his claim falls outside the
scope of his waiver or that the waiver was not knowing and voluntary, but instead maintains that
enforcement of his waiver would result in a miscarriage of justice because his erroneous sentence
was fundamentally unfair. Mot. at 4–5; Reply at 2–5.
Petitioner cites to United States v. Madrid, 805 F.3d 1204, 1212 (10th Cir. 2015), in
which the Tenth Circuit concluded that the imposition of a sentence under the residual clause
undermined the fundamental fairness of the proceedings. In United States v. Daugherty, 2016
WL 4442801, *6–*7 (N.D. Okla. 2016) (unpublished), the district court relied on Madrid to
conclude that the enforcement of a waiver to prevent a challenge to such a sentence would result
in a miscarriage of justice because the error being raised affected the fundamental fairness of the
But the Tenth Circuit Court of Appeals has made it clear that the error rendering a waiver
“otherwise unlawful” must relate to the waiver itself, not to another aspect of the proceedings.
See Polly, 630 F.3d at 1001–02; United States v. Shockey, 538 F.3d 1355, 1357 (10th Cir. 2008);
United States v. Smith, 500 F.3d 1206, 1212–13 (10th Cir. 2007); United States v. Sandoval, 477
F.3d 1204, 1208 (10th Cir. 2007) (“Our inquiry [under the fourth exception] is not whether the
sentence is unlawful, but whether the waiver itself is unlawful because of some procedural error
or because no waiver is possible.”). “To allow alleged errors in computing a defendant’s
sentence to render a waiver unlawful would nullify the waiver based on the very sort of claim it
was intended to waive.” Smith, 500 F.3d at 1213.
That an error is based on a constitutional claim or an intervening change in the law does
not change this analysis. United States v. Frazier-LeFear, ___ F. App’x ___, 2016 WL 7240134,
*3 (10th Cir. Dec. 15, 2016) (waiver provision in Fed. R. Crim. P. 11(c)(1)(C) plea agreement is
enforceable to compel dismissal of a Johnson-based challenge to a sentence as a career
offender). Because Petitioner has not alleged any error that relates to his waiver itself, the Court
concludes that the waiver is enforceable and that Petitioner’s claim under § 2255 is barred.
The Court further determines, under rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, that Petitioner has failed to make a substantial
showing that he has been denied a constitutional right as required by 28 U.S.C. § 2253(c)(2).
Accordingly, the Court will deny a certificate of appealability.
IT IS THEREFORE ORDERED that MR. MOUNT’S MOTION TO CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 1) is DISMISSED with prejudice; a
certificate of appealability is DENIED; and Final Judgment will be entered.
SENIOR UNITED STATES DISTRICT JUDGE
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