Sanders v. United States of America
MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack ADOPTING 14 REPORT AND RECOMMENDATIONS; OVERRULING 15 Response in Opposition to Motion, AND DISMISSING 7 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Jennifer Sanders. (yc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Magistrate Judge Laura Fashing’s Proposed
Findings of Fact and Recommended Disposition (Doc. 270 1) (PF&RD) and movant Jennifer
Sanders’ Objections and Response to Magistrate Judge Report (Doc. 274). Having reviewed the
record in this case, the Court overrules Sanders’ objections and adopts the magistrate judge’s
recommendation to deny Sanders’ motion.
Standard of Review
When a party files timely written objections to the magistrate judge’s recommendation,
the district court generally will conduct a de novo review and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(C); see also FED. R. CIV. P. 72(b)(3). To preserve an issue for de novo review, “a party’s
objections to the magistrate judge’s report and recommendation must be both timely and
specific.” United States v. One Parcel of Real Prop., With Buildings, Appurtenances,
Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Okla., 73 F.3d 1057, 1060 (10th
Citations to “Doc.” are to the document number in the criminal case, case number 13-CR03696-RB, unless otherwise noted.
The magistrate judge recommended that the Court deny Sanders’ motion because Sanders
knowingly and voluntarily waived her right to collaterally attack her sentence in her plea
agreement. (See Doc. 270 at 10–11.) Applying the factors set forth in United States v. Hahn,
359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per curiam), the magistrate judge found that
Sanders’ motion fell within the scope of the waiver, that Sanders knowingly and voluntarily
waived her right to collaterally attack her sentence, and that enforcing the waiver would not
result in a miscarriage of justice. (See Doc. 270 at 4–11.)
Sanders objects to the magistrate judge’s PF&RD on three grounds. (See Doc. 274.)
First, she argues that the magistrate judge erred in finding that she knowingly and voluntarily
waived her right to collaterally attack her sentence because she entered into the agreement with
the understanding that the government would file a 5K1 motion, which, she says, the government
failed to do. (Id. at 1.) Second, she asserts that because her attorney failed to file a notice of
appeal as instructed, she is entitled to an evidentiary hearing on this issue. (See id. at 1–2.)
Third, she argues that the Court improperly relied on prior drug possession convictions and a
counterfeit drug conviction to find that she qualified as a career offender, and that she is entitled
to an evidentiary hearing on this basis as well. (See id. at 2–3.) None of Sanders’ arguments
Sanders’ first claim is factually inaccurate. She says she was coerced into signing the
plea agreement because the government promised that if she testified, it would file a motion for
downward departure. (Id. at 1.) Although Sanders oversimplifies the government’s obligations,
(see Doc. 256 at 11), she wrongly states that the government did not file a motion for downward
departure after she testified. In fact, the government filed a motion for downward departure
based on her substantial assistance. (See Doc. 257 at 4 (“the government has asked for a five2
level departure down to 151 months”), 18 (“The government, having moved the court for
downward departure for substantial assistance to authorities, pursuant to 5K1.1 of the Guidelines
and 18 U.S.C. § 3553(e), and the court, having considered all relevant information in the matter,
now finds that, in the interest of justice, the government’s motion will be granted.”).) Sanders’
claim that the government failed to file a 5K1.1 motion is simply wrong. The government did
not coerce Sanders into pleading guilty by making false promises.
Sanders’ second argument is that the magistrate judge ignored her claim that her attorney
failed to file a direct appeal despite her instruction to do so. (Doc. 274 at 1.) She argues that the
magistrate judge incorrectly focused only on the waiver provision in her plea agreement. (Id.)
In addition, she claims that she is entitled to an evidentiary hearing on this claim. (See id. at 2.)
However, the Tenth Circuit has specifically held that the failure to file an appeal as instructed
falls within the scope of a collateral attack waiver similar to the one at issue here. United States
v. Viera, 674 F.3d 1214, 1217–20 (10th Cir. 2012). In her plea agreement, Sanders specifically
waived her right to collaterally attack her conviction and sentence “pursuant to 28 U.S.C. §§
2241, 2255, or any other extraordinary writ, except on the issue of counsel’s ineffective
assistance in negotiating or entering this plea or this waiver.” (Doc. 100 at 8.) Her current claim
is that her counsel was ineffective for failing to file a notice of appeal, which has nothing to do
with “negotiating or entering this plea or this waiver.” She provides no basis for the Court to
conclude that her failure-to-file-an-appeal-as-instructed claim does not fall within the scope of
her waiver. Sanders has waived her right to collaterally attack her sentence and conviction based
on her counsel’s ineffective assistance in failing to file an appeal as instructed.
Sanders’ third argument is a reassertion of arguments she submitted to the magistrate
judge—that her counsel was ineffective because he failed to argue that she did not qualify as a
career offender based on her prior convictions. (Compare Doc. 274 at 2–3 with Doc. 250 at 7,
25–26.) Sanders seems to be arguing that because her sentence may have been based on an
incorrect application of the Guidelines, she is entitled to a hearing. (See Doc. 274 at 2–3.) This
is a misapprehension of her waiver of the right to collaterally attack her conviction and sentence.
As the Tenth Circuit has explained,
The essence of plea agreements . . . is that they represent a bargained-for
understanding between the government and criminal defendants in which each
side foregoes certain rights and assumes certain risks in exchange for a degree of
certainty as to the outcome of criminal matters. One such risk is a favorable
change in the law. To allow defendants or the government to routinely invalidate
plea agreements based on subsequent changes in the law would decrease the
prospects of reaching an agreement in the first place, an undesirable outcome
given the importance of plea bargaining to the criminal justice system.
United States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005) (citation omitted)
(enforcing an appellate waiver even though defendant’s 110-month sentence was based
on a mandatory application of the Guidelines that subsequently was held unconstitutional
in United States v. Booker, 543 U.S. 220 (2005)). The Court must look to whether the
waiver itself is unlawful—not whether the sentence imposed was unlawful—to determine
whether a collateral attack waiver is enforceable. United States v. Sandoval, 477 F.3d
1204, 1208 (10th Cir. 2007) (citing Porter, 405 F.3d at 1144). Thus, that the Court may
have misapplied the career offender provision is irrelevant to the magistrate judge’s
conclusion that Sanders knowingly and voluntarily waived her right to collaterally attack
her conviction and sentence.
Finally, because the files and records of this case conclusively show that Sanders
is not entitled to relief, she is not entitled to an evidentiary hearing on her motion. See
United States v. Gallegos, 459 F. App’x 714, 716 (10th Cir. 2012).
For the forgoing reasons, the Court overrules Sanders’ objections (Doc. 274) (Doc.
IT IS THEREFORE ORDERED that the Proposed Findings of Fact and Recommended
Disposition (Doc. 270) (Doc. 14/16cv0831) is ADOPTED by the Court.
IT IS FURTHER ORDERED that this case is DISMISSED, and that a final judgment
be entered concurrently with this order.
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
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