Flint v. USA
ORDER denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Tena Campbell on 1/18/17 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
BRIAN JOHNATHAN FLINT,
ORDER DENYING MOTION TO
Case No. 1:16-CV-00073-TC
Crim. Case No. 1:11-CR-00020-TC
UNITED STATES OF AMERICA,
Judge Tena Campbell
Brian Johnathan Flint pleaded guilty to possessing a stolen firearm and to
possessing a controlled substance. In his plea agreement, Mr. Flint agreed to a
sentence of 120 months and he waived his right to collaterally challenge his
sentence. Now, in spite of his waiver, Mr. Flint seeks to collaterally challenge his
sentence by arguing that the Supreme Court’s decision in Johnson v. United
States rendered his sentence unconstitutional.
See 135 S. Ct. 2551 (2015).
Because the court holds that Mr. Flint’s collateral-challenge waiver is
enforceable, the court DENIES his motion.
In 2012 Mr. Flint entered into a plea agreement with the government under
Federal Rule of Criminal Procedure 11(c)(1)(C). Mr. Flint pleaded guilty to
possessing a stolen firearm in violation of 18 U.S.C. § 922(j) and to possessing a
controlled substance in violation of 21 U.S.C. § 844(a).
As part of his
11(c)(1)(C) plea agreement, the parties agreed to a sentence of 120 months and
Mr. Flint agreed to waive his right to collaterally challenge his sentence:
[Mr. Flint agrees t]o knowingly, voluntarily, and expressly waive
his right to challenge his sentence, and the manner in which the
sentence is determined, in any collateral review motion, writ or
other procedure, including but not limited to a motion brought
under 28 U.S.C. § 2255.
(Statement in Advance of Plea, Crim. Doc., ECF 58, § 12(A)(3)(a-d)).
Mr. Flint’s plea agreement contained a stipulated factual basis which
included Mr. Flint’s admission to several prior felony convictions. In presenting
this agreement to the court, Mr. Flint agreed that he knowingly and voluntarily
waived his right to collaterally challenge his sentence.
There was no presentence report but the court accepted the 11(c)(1)(C)
agreement and sentenced Mr. Flint to 120 months in custody. A month after Mr.
Flint’s sentencing the U.S. Probation Office for the U.S. Bureau of Prisons
prepared and submitted to the court a Supplemental Report (the Report)
regarding Mr. Flint’s criminal history. The Report, which was not reviewed by
the court before sentencing Mr. Flint, classified one of Mr. Flint’s previous
felony convictions as a “crime of violence” under the residual clause of United
States Sentencing Guidelines. USSG § 4B1.2. With this crime of violence, the
Report recommended 77 to 96 months in custody.
In 2015 the Supreme Court ruled in Johnson v. United States that the
Armed Career Criminal Act’s (ACCA) definition of a “crime of violence” was
unconstitutionally vague because of the inclusion of its residual clause. 135 S.
Ct. 2551, 2563 (2015). Later, the Tenth Circuit in United States v. Madrid held
that the identical residual clause in the Sentencing Guidelines—the clause relied
on in the Report to classify one of Mr. Flint’s felony convictions as a crime of
violence—also qualified as unconstitutionally vague under Johnson. See 805
F.3d 1204, 1211 (10th Cir. 2015).
Mr. Flint brings this motion, contending that his sentence is
unconstitutional in light of the rulings in Johnson and Madrid. Admitting that he
waived his right to collaterally challenge his sentence, Mr. Flint argues that the
waiver should not be enforced because (1) he did not agree to the waiver
knowingly and voluntarily as “the right under Johnson had not been recognized at
the time [he] agreed” to it and (2) Johnson rendered his sentencing
unconstitutional and, consequently, the waiver is unlawful. (See Reply in Supp.
of Pet’r’s § 2255 Mot., Civ. Doc., ECF 12, 3–4.)
The Government responds that Mr. Flint’s collateral-challenge waiver is
enforceable. According to the Government, Mr. Flint knowingly and voluntarily
waived his right to collaterally challenge his sentence, as evidenced by the plea
agreement itself and the plea colloquy. The Government also asserts that though
Johnson created a change in the law, it does not render Mr. Flint’s waiver
Mr. Flint Knowingly and Voluntarily Waived His Right to
Collaterally Challenge His Sentence.
In United States v. Cockerham, the Tenth Circuit held that “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.” See 237 F.3d 1179, 1183 (10th
Cir. 2001). When determining whether a collateral-challenge waiver is entered
knowingly and voluntarily, a court must first examine “whether the language of
the plea agreement states that the defendant entered the agreement knowingly and
voluntarily.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).
Second, the court must “look for an adequate Federal Rule of Criminal Procedure
11 colloquy.” Id.
Here, Mr. Flint does not contend that the language of the plea agreement
fails to state that he entered the agreement knowingly and voluntarily. Nor does
Mr. Flint assert that the court failed to conduct an adequate Federal Rule of
Criminal Procedure 11 colloquy. Rather, Mr. Flint argues that he did not agree to
be sentenced unconstitutionally.
But in making this argument, Mr. Flint
“[i]mproperly focus[es] on the prospective result of the sentencing proceeding
rather than the right relinquished.” Id. at 1326. The point is Mr. Flint agreed to
relinquish his right to collaterally challenge his sentence. As the Tenth Circuit
noted in a markedly similar post-Johnson case, the fact that a petitioner’s
“relinquishment of this right results in the lost opportunity to raise a constitutional
challenge under Johnson reflects the natural operation, not the invalidity, of the
waiver.” United States v. Frazier-LeFear, 2016 WL 7240134, at *4 (10th Cir.
Dec. 15, 2016). Mr. Flint knew he was waiving his right to collaterally challenge
his sentence. He did so voluntarily. That he did not foresee the opportunity to
raise a Johnson-based challenge is immaterial to this analysis.
Mr. Flint’s Waiver Is Not Otherwise Unlawful.
For a collateral-challenge waiver to be enforceable, it must not create a
“miscarriage of justice.” Hahn, 359 F.3d at 1327. In Hahn the Tenth Circuit
described the waivers that would constitute a “miscarriage of justice”:
Appellate waivers are subject to certain exceptions, including 
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. (internal quotation marks omitted). A miscarriage of justice arises only when
“enforcement would result in one of the four situations enumerated.” Id. But the
error making the waiver unlawful must “seriously affect the fairness, integrity or
public reputation of judicial proceedings.” Id. at 1329.
Regarding the fourth exception, many defendants have attempted to “sever
the ‘otherwise unlawful’ language . . . from its association with ‘the waiver’ by
asserting legal error involving other aspects of the proceedings (typically the
determination of sentence) as a basis for finding a miscarriage of justice.”
Frazier-LeFear, 2016 WL 7240134, at *2. The Tenth Circuit has consistently
rejected these arguments, clarifying that the fourth exception “looks to whether
the waiver is otherwise unlawful, not to whether another aspect of the proceeding
may have involved legal error.” United States v. Smith, 500 F.3d 1206, 1214
(10th Cir. 2007) (citation and internal quotation marks omitted); see also 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
The Tenth Circuit explained that “[t]o 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
In addition, “the fact that [an] alleged error arises out of a change in the law
subsequent to [a] defendant’s plea does not alter the above analysis.” FrazierLeFear, 2016 WL 7240134 at *6.
The essence of plea agreements . . . is that they represent a
bargained-for understanding between the government and criminal
defendants in which each side foregoes [sic] 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).
Here, Mr. Flint does not argue that the first three Hahn exceptions apply.
Instead, Mr. Flint asserts that the collateral-challenge waiver is “otherwise
unlawful” because the recommended sentencing was unconstitutional under
Johnson. The court first notes that Mr. Flint’s argument is problematic because
the court did not base his sentence on the Report and its recommended sentence.
In fact, the court did not receive the Report until after his sentencing. But even if
the court had based Mr. Flint’s sentence on the guideline range recommended in
the Report, or even if the pressure of the guidelines range influenced his
negotiations, this would not make the waiver itself otherwise unlawful. The
Tenth Circuit has repeatedly emphasized that to create a miscarriage of justice the
waiver itself must be unlawful, not some other aspect of the proceeding or the
sentence. See Smith, 500 F.3d at 1213 (citation and internal quotation marks
omitted); Sandoval, 477 F.3d at 1208.
Mr. Flint focuses on error in his
sentencing and fails to establish that his collateral-challenge waiver itself is
unlawful. Consequently, Mr. Flint fails to establish a miscarriage of justice.
The Tenth Circuit’s recent ruling in United States v. Frazier-LeFear
supports this conclusion. 2016 WL 7240134. There, the Tenth Circuit was faced
with a remarkably similar case: the petitioner had entered into an 11(c)(1)(C) plea
agreement waiving her right to collateral and appellate review but argued that her
waiver was unenforceable because Johnson rendered her sentence unlawful. Id.
at *1–2. The Tenth Circuit rejected this argument. Id. at *4. It held that Ms.
Frazier-LeFear’s challenge to the Johnson-based sentencing enhancement “is a
challenge to the lawfulness of her sentence, not to the lawfulness of her waiver.
As such, . . . it does not provide a basis for holding enforcement of the waiver to
be a miscarriage of justice.” Id. The Tenth Circuit noted that if the standard were
to turn solely on the lawfulness of the sentence, rather than the waiver itself,
claims “of sentencing error—the very sort of claim intended to be waived—
would routinely trigger the exception and nullify the waiver.” Id. Such a result
runs “contrary to the fundamental thrust of [the Tenth Circuit’s] waiver
Though Frazier-LeFear is unpublished and, consequently, not precedential,
the court agrees with its reasoning. Collateral-challenge waivers are enforceable
for claims of error that do not render the waiver itself unlawful, even if the
alleged error arises out of a subsequent change in law.
Mr. Flint entered into his collateral-challenge waiver knowingly and
voluntarily. And although the Supreme Court changed the law in Johnson, such a
change in the law did not render Mr. Flint’s waiver itself unlawful.
Consequently, the court enforces Mr. Flint’s collateral-challenge waiver and
DENIES his Motion to Correct Sentence under 28 U.S.C. § 2255.
DATED this 18th day of January, 2017.
BY THE COURT:
U.S. District Court Judge
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