Etheridge v. United States of America

Filing 2

ORDER Denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Leonard D Etheridge. Signed by Honorable Timothy D. DeGiusti on 4/17/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff/Respondent.
v.
LEONARD D. ETHERIDGE,
Defendant/Movant.

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No(s). CIV-16-712-D
CR-10-371-D

ORDER
Before the Court is Defendant’s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 1]. Relying on the Supreme Court’s
decision in Johnson v. United States, __U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569
(2015), Defendant contends he unlawfully received a mandatory sentence pursuant
to the residual clause of the Armed Career Criminal Act (ACCA or the Act), which
was declared unconstitutional in Johnson. Defendant also contends that Johnson and
Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) require
the Court to revisit his career offender sentence imposed under U.S. Sentencing
Guidelines § 4B1.1.1 He requests that his sentence be commuted to 120 months.
The United States moves to dismiss the action on the grounds that Defendant
waived his right to collaterally attack his sentence under his plea agreement. For the

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In Welch, the Court held Johnson announced a substantive rule that has retroactive
effect in cases on collateral review.

reasons stated below, having found that Defendant knowingly and voluntarily
waived his right to collaterally attack his sentence under § 2255, the Court grants the
government’s motion and finds Defendant’s action should be dismissed.
Furthermore, the Court finds Defendant’s second proposition of error is foreclosed
by the Supreme Court’s recent decision in Beckles v. United States, __ U.S. __, 137
S.Ct. 886, 2017 WL 855781 (Mar. 6, 2017).2
BACKGROUND
Defendant was charged by Indictment with bank robbery with a dangerous
weapon (Count 1), using a firearm during a crime of violence (Count 2), and being
a felon in possession of a firearm (Count 3). Based on his Presentence Investigation
Report (PSIR) [Doc. No. 102], Defendant was determined to be a career offender
under United States Sentencing Guideline § 4B1.1 given his prior convictions for
robbery with firearms. PSIR at 10-12. On February 28, 2011, Defendant pled guilty
to Counts 1 and 2 pursuant to a written plea agreement [Doc. No. 66], in which he
acknowledged that he knowingly and voluntarily waived his right to, inter alia,
appeal or collaterally challenge his guilty plea, sentence and any other aspect of his

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The government, as an alternative ground, requested that the Court abate these
proceedings pending the Supreme Court’s resolution of whether Johnson applied
retroactively to the sentencing guidelines. However, on March 6, 2017, the Supreme
Court rendered its decision in Beckles in which it held that the advisory sentencing
guidelines are not subject to a vagueness challenge under the Due Process Clause
and that § 4B1.2(a)’s residual clause is not void for vagueness. Id. at 896.
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conviction. On October 24, 2011, Defendant was sentenced to 360 months’
imprisonment (276 months as to Count 1 and 84 months as to Count 2), all terms to
run consecutively.3 Defendant did not pursue a direct appeal of his sentence. Instead,
on June 24, 2016, he filed the present motion to vacate pursuant to 28 U.S.C. § 2255
based on Johnson.
DISCUSSION
Under 28 U.S.C. § 2255, a court must vacate, set aside, or correct a sentence
if the sentence was “imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.” Id. Defendant, however, appears to be barred from bringing
this § 2255 motion by virtue of the fact that his plea agreement contains a waiver of
his right to bring a collateral attack on his sentence. So long as the plea agreement
stands, the waiver of the right to appeal or pursue collateral relief must generally be
enforced. United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004) (“Given the
importance of plea bargaining to the criminal justice system, we generally enforce
plea agreements and their concomitant waivers of appellate rights.”) (citation
omitted); United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998) (“A
defendant’s knowing and voluntary waiver of the statutory right to appeal his

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Defendant’s guideline range was 360 months to life. See PSIR, ¶ 90.
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sentence is generally enforceable.”). Under Hahn, the validity of the appeal waiver
depends on (1) whether the appeal falls within the scope of the waiver of appellate
rights; (2) whether Defendant knowingly and voluntarily waived his appellate rights;
and (3) whether enforcing the waiver would result in a miscarriage of justice. Hahn,
359 F.3d at 1325.
Here, the plea agreement contained a clear waiver of the right to bring a
collateral attack on Defendant’s sentence. It states:
Waiver of Right to Appeal and Bring Collateral Challenge
8.

Defendant understands that the Court will consider those factors
in Title 18, United States Code, Section 3553(a) in determining
his sentence. Defendant also understands that the Court has
jurisdiction and authority to impose any sentence within the
statutory maximum for the offense(s) to which he is pleading
guilty. Defendant further understands that Title 28, United States
Code, Section 1291, and Title 18, United States Code, Section
3742, give him the right to appeal the judgment and sentence
imposed by the Court. Acknowledging all this, defendant in
exchange for the promises and concessions made by the United
States in this plea agreement, knowingly and voluntarily waives
his right to:
a.

Appeal or collaterally challenge his guilty plea, sentence
and restitution imposed, and any other aspect of his
conviction, including but not limited to any rulings on
pretrial suppression motions or any other pretrial
dispositions of motions and issues;

b.

Appeal, collaterally challenge, or move to modify under
18 U.S.C. § 3582(c)(2) or some other ground, his sentence
as imposed by the Court and the manner in which the
sentence is determined, provided the sentence is within or
below the advisory guideline range determined by the
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Court to apply to this case. Defendant acknowledges that
this waiver remains in full effect and is enforceable, even
if the Court rejects one or more of the positions of the
United States or defendant set forth in paragraph 7.
c.

It is provided that defendant specifically does not waive
the right to appeal a sentence above the advisory
sentencing guideline range determined by the Court to
apply to this case.

Plea Agreement at 6 [Doc. No. 66].
Defendant signed the agreement, acknowledging that he understood its terms.
Defendant does not allege that he did not understand the waiver, but that the
government broke its agreement to recommend a twenty-one to twenty-seven year
sentence. Defendant, however, acknowledged in his agreement that he understood
the Court had authority to impose any sentence within the statutory maximum for
the offenses to which he pled guilty.
Lastly, the Court finds that enforcing the agreement would not result in a
miscarriage of justice. Before the Court accepted the plea agreement, it assured itself
that Defendant had not been coerced or misled in any way into entering into the
agreement. A miscarriage of justice occurs only (1) where the court relied on an
impermissible factor such as race, (2) where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, (3) where
the sentence exceeds the statutory maximum, or (4) where the waiver is otherwise
unlawful. Hahn, 359 F.3d at 1327 (citations omitted). Upon review of the record, the
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Court finds none of the aforementioned factors present here. The waiver in
Defendant’s plea agreement is unambiguous, and the record clearly reflects it was
made knowingly and voluntarily. The sentence imposed was at the bottom of the
guideline range. Accordingly, the Court finds Defendant is foreclosed from any
collateral attack on his conviction.4
In addition, the Court finds Defendant is not entitled to relief in light of the
Supreme Court’s recent decision in Beckles v. United States, __ U.S. __, 137 S.Ct.
886, 2017 WL 855781 (Mar. 6, 2017) in which it rejected a void-for-vagueness
challenge to the residual clause in the Guidelines and held that “the Guidelines are
not subject to vagueness challenges under the Due Process Clause.” 137 S.Ct. at 892.
“Unlike the ACCA,” the Court reasoned, “the advisory Guidelines do not fix the
permissible range of sentences. To the contrary, they merely guide the exercise of a
court’s discretion in choosing an appropriate sentence within the statutory range.”
Id. In light of Beckles, Defendant’s contention that Johnson and Welch require the
Court to revisit his career offender sentence imposed under § 4B1.1 is without merit
and accordingly, denied.

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This Court is not the first court to, in light of Johnson, deny relief on the basis of
waiver of collateral review. See, e.g., Tucker v. Snyder-Norris, No. 0:15-53, 2015
WL 5826825 at *3 (E.D. Ky. Oct. 1, 2015) (holding that express waiver provisions
of defendant’s plea agreement precluded him from collaterally attacking his sentence
based on the unconstitutional vagueness of the residual clause as announced in
Johnson); Johnson v. United States, No. 15-2214, 2015 WL 7274022, at *2 (C.D.
Ill. Nov. 16, 2015).
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CONCLUSION
Defendant’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 [Doc. No. 1] is DENIED as set forth herein. A judgment shall be
issued forthwith.
IT IS SO ORDERED this 17th day of April, 2017.

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