Cross v. United States of America

Filing 17

ORDER signed by Judge J.P. Stadtmueller on 5/30/2017: GRANTING 16 Petitioner's Motion for Leave to File Overlong Brief; DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255; DISMISSING action with prejudice; and GRANTING a Certificate of Appealability. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DE’ANGELO CROSS,
Petitioner,

v.

Case No. 15-CV-1338-JPS
Criminal Case No. 00-CR-36-RTR

UNITED STATES OF AMERICA,
Respondent.

ORDER

On November 9, 2015, Petitioner De’Angelo Cross (“Cross”) filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. (Docket #1). When this matter was reassigned to this branch of
the Court in August 2016, the Court determined that it should be stayed
pending resolution of several relevant appeals before the Seventh Circuit
relating to the effect of Johnson v. United States, 135 S. Ct. 2551 (2015), on
the petition. (Docket #9). Also at that time, another pertinent case, Beckles
v. United States, No. 15-8544, was pending in the Supreme Court. (Docket
#10 at 1).
Beckles was decided on March 6, 2017. Beckles v. United States, 137 S.
Ct. 886 (2017). After that decision was issued, the parties sought to lift the
stay in this case and brief how the disposition in Beckles affects Cross’
motion. That briefing completed, the Court now turns to considering the
merits of Cross’ motion. For the reasons stated below, the Court finds that
both Beckles and Cross’ collateral attack waiver in his plea agreement
preclude his claims and, as a result, his motion must be denied.

1.

BACKGROUND
In the underlying criminal case, Cross was convicted of four counts

of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (2), and one
count of use of a firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c)(1). He was sentenced as a career offender under the
U.S. Sentencing Guidelines, which elevated his sentencing range from
130–162 months to 188–235 months. The Court imposed a sentence of 220
months of incarceration.
The Guidelines provide that those who qualify as “career
offenders” must be given certain offense level and criminal history
category increases. U.S.S.G. § 4B1.1(b). A defendant is a career offender if
(1) he was at least eighteen years old at the time he committed the instant
offense of conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions for either a crime of
violence or a controlled substance offense. Id. § 4B1.1(a). At the time Cross
was sentenced, the term “crime of violence” as used in the Guidelines was
defined as “any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—(1) has as an element
the use, attempted use, or threatened use of physical force against the
person of another, or (2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” Id. § 4B1.2(a) (emphasis

Page 2 of 18

added). The italicized portion of this definition is known as the “residual”
clause.1
At the time of Cross’ sentencing in 2000, adherence to the
Guidelines was mandatory. The Supreme Court in United States v. Booker,
543 U.S. 220, 233 (2005), found that this practice was unconstitutional.
Since Booker, the Guidelines must be considered in fashioning sentences
but can be departed from under appropriate circumstances. Peugh v.
United States, 133 S. Ct. 2072, 2083 (2013).
In 2015, the Supreme Court invalidated the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Johnson, 135 S.
Ct. at 2560. The ACCA defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that “(i) has
as an element the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)
(emphasis added). Notably, the emphasized portion of this definition is
identical to the analogous clause in the career-offender Guideline, U.S.S.G.
§ 4B1.2(a)(2), and it is also referred to as the “residual” clause. The Johnson

Pursuant to Amendment 798 to the Guidelines, effective August 1, 2016,
the Sentencing Commission deleted the residual clause contained in U.S.S.G. §
4B1.2(a)’s definition of a “crime of violence” and replaced it with language that
simply enumerates specific offenses that can be considered crimes of violence.
Amendment 798 was not made retroactive, see U.S.S.G. § 1B1.10(d) (listing
amendments to be applied retroactively pursuant to 18 U.S.C. § 3582(c)(2)), and it
is therefore not applicable to Cross, U.S.S.G. § 1B1.11 (“The court shall use the
Guidelines Manual in effect on the date that the defendant is sentenced.”); Belton
v. United States, 71 F. App’x 582, 583 (7th Cir. 2003) (noting that Section 1B1.10 of
the Guidelines defines which amendments may be applied retroactively).
1

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Court found that the ACCA’s residual clause is unconstitutionally vague,
in violation of the Due Process Clause of the Fifth Amendment. Johnson,
135 S. Ct. at 2560.
In 2015, Cross filed the instant motion. According to him, because
Johnson found that the ACCA’s residual clause is unconstitutionally
vague, the same result should obtain for the identically worded residual
clause in the Guidelines. See United States v. Edwards, 836 F.3d 831, 835 n.2
(7th Cir. 2016) (observing that cases analyzing “violent felony” under the
ACCA and “crime of violence” under the Guidelines are interchangeable).
Initially, the government agreed with him, but argued that Cross was not
entitled to relief because he had waived his right to appellate relief in his
plea agreement and because Johnson is not retroactively applicable to the
Guidelines. See (Docket #6). Counsel then entered on Cross’ behalf and
argued against the government’s positions. See (Docket #7).
After Cross’ motion was fully briefed, the Court stayed the case
pending resolution of several pertinent appeals, as noted above. Most
salient here is the decision in Beckles, which held that the residual clause
found in the career-offender Guideline, unlike the ACCA, is not
susceptible to vagueness challenges. Beckles, 137 S. Ct. at 897. Key to the
Court’s analysis was the fact that the ACCA represented a legislative
pronouncement fixing the permissible range of sentences for qualifying
conduct. Id. at 892. By contrast, the post-Booker, advisory Guidelines
“merely guide the exercise of a court’s discretion in choosing an
appropriate sentence within the statutory range.” Id. Because judicial
discretion is part and parcel of the Guidelines, the constitutional concerns
that animated the Johnson Court—providing notice to defendants of what
conduct will subject them to enhanced penalties under the ACCA and
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preventing arbitrary application of the ACCA’s standards—are not
implicated by the Guidelines. Id.
In her concurrence, Justice Sotomayor contended that the
Guidelines should be open to vagueness challenges because of their
centrality in the sentencing process. Id. at 900 (Sotomayor, J., concurring in
the judgment). More important to this case, however, is her suggestion
that “[t]he Court’s adherence to the formalistic distinction between
mandatory and advisory rules at least leaves open the question whether
defendants sentenced to terms of imprisonment before our decision in
[Booker]—that is, during the period in which the Guidelines did ‘fix the
permissible range of sentences’—may mount vagueness attacks on their
sentences.” Id. at 903 n.4 (internal citations omitted). Justice Sotomayor
expressed no firm view on the merit of any such challenge. Id. (“That
question is not presented by this case and I, like the majority, take no
position on its appropriate resolution.”).
2.

DISCUSSION
2.1

The Mandatory Guidelines are Not Susceptible to
Vagueness Challenges

It is in that very analytical gap the Court now finds itself. Cross
argues that the mandatory Guidelines under which he was sentenced are
invalid, based on the mandatory-advisory contrast set up in Beckles and
the reasoning he borrows from the now-abrogated United States v.
Hurlburt, 835 F.3d 715, 719–25 (7th Cir. 2016) (en banc), in which the
Seventh Circuit held that the advisory Guidelines were void for
vagueness. (Docket #12 at 3–4). In Cross’ view, the mandatory Guidelines
“‘were the practical equivalent of a statute,’” and therefore can be subject
to vagueness challenges. Id. at 5 (quoting Hawkins v. United States, 706 F.3d
Page 5 of 18

820, 822 (7th Cir. 2003)). Indeed, as Cross points out, the government
argued in Beckles itself that the mandatory Guidelines were problematic
because they too strongly cabined the sentencing court’s discretion. Id.
The government responds that since Beckles did not decide whether
the mandatory Guidelines are open to vagueness challenges, the Court
must look to pre-existing authority from the Seventh Circuit. (Docket #13
at 7). Those cases held that neither the advisory nor the mandatory
Guidelines were subject to such challenges. United States v. Tichenor, 683
F.3d 358 (7th Cir. 2012); United States v. Brierton, 165 F.3d 1133 (7th Cir.
1999). Additionally, the government downplays its purported concession
in Beckles that the mandatory Guidelines are vague, noting that it should
not be held to have conceded legal points on which it was simply
mistaken. (Docket #13 at 7 n.4); Krieger v. United States, 842 F.3d 490, 499
(7th Cir. 2016) (a court is not bound to accept a government concession
when the point at issue is a question of law).
The government also believes that by leaving the mandatoryGuidelines question open, the Court did not place the writing on the wall
for its eventual downfall. Id. at 8–9. Instead, the same reasons that support
upholding advisory Guidelines against vagueness challenges apply
equally to mandatory ones. Id. According to the government, the key
feature in Johnson was that a statute—great and immovable—fixed the
sentences for criminal offenses falling within the ACCA. Id. In the
government’s view, even the mandatory Guidelines did not fix penalties
in the way that a statute can, because judges are not legislating minimum
and maximum penalties from the bench when they undertake sentencing.
Id. at 9–10. In other words, whatever a mandatory Guidelines calculation
might say about a sentencing range for a particular defendant, it is not the
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same thing as the maximum punishment allowed by law, which is
provided in the relevant statute. Id. at 10. In fact, a judge pre-Booker could
depart from mandatory Guidelines and impose a higher or lower sentence
(still within the range set by statute) in exceptional cases. Id.
Cross replies that Hurlburt overruled Tichenor and Brierton, the
Seventh Circuit cases on which the government relies. (Docket #15 at 10–
11). As a result, although Beckles abrogated Hurlburt’s ultimate holding
with respect to the advisory Guidelines, Cross believes this Court should
apply that reasoning to the mandatory Guidelines rather than reject
Hurlburt wholesale. Id. Similarly, Cross points to Booker to show that
although the mandatory Guidelines technically embraced judicial
discretion in limited forms, “departures are not available in every case,
and in fact are unavailable in most.” Booker, 543 U.S. at 234. The sharply
curtailed nature of sentencing discretion pre-Booker, according to Cross,
eviscerates the notion that mandatory Guidelines are analogous to
advisory Guidelines in this respect.
The Court commends the parties’ focused and well-reasoned
presentations of the relevant authorities. Ultimately, however, this case
does not turn on whether this Court agrees with Cross’ or the
government’s approach. That issue must be left to the Seventh Circuit to
revisit in light of the tumult in the applicable precedents. For this Court’s
purposes, it is enough to find that because Hurlburt has been abrogated on
the very issues upon which it abrogated Tichenor and Brierton, those prior
cases have been revived. New life having been breathed into them,
Tichenor and Brierton compel the conclusion that Cross’ vagueness
challenge is without merit.

Page 7 of 18

In Brierton, the Court of Appeals squarely rejected a due-process
vagueness challenge to the mandatory Guidelines. Brierton, 165 F.3d at
1138–39. The Seventh Circuit observed that the Guidelines are not created
to give notice of proscribed conduct to citizens at large but are instead
“’directives to judges for their guidance in sentencing convicted
criminals.’” Id. (quoting United States v. Wivell, 893 F.2d 156, 160 (8th Cir.
1990)). Because they constrain only the discretion of the sentencing judge,
the court concluded, “the Guidelines are not susceptible to attack under
the vagueness doctrine.” Id.; accord United States v. Idowu, 520 F.3d 790,
795–96 (7th Cir. 2009).
In Tichenor, the Seventh Circuit extended Brierton to fend off a
vagueness attack on the post-Booker, advisory Guidelines. Tichenor, 683
F.3d at 364. Of particular note here, the court in Tichenor was not swayed
by the defendant’s attempt to analogize the Guidelines to statutes, holding
that although the Guidelines influence the sentencing court, “[t]he
sentencing judge’s authority to exercise discretion distinguishes the
Guidelines from criminal statutes in a significant and undeniable
manner.” Id. at 365. Moreover, the Court of Appeals, reviewing in Tichenor
the career-offender Guideline, found that “Brierton and Idowu did not rest
on the specific provisions at issue,” so the fact that they assessed other
Guidelines provisions was of no moment. Id. at 366. In the court’s view,
there was nothing in the career offender guideline that was “’more
problematic’ than the guidelines challenged in our prior cases.” Id.
Then came Hurlburt, in which the Seventh Circuit held that Tichenor
must be overruled. Hurlburt, 835 F.3d at 725. The court noted that Tichenor
rested on two interrelated premises, both of which had been undermined
by intervening Supreme Court decisions. Id. at 722. First, Johnson
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eviscerated Tichenor’s premise that the vagueness doctrine cannot apply to
the Guidelines because they only provide directives to judges in
sentencing rather than defining illegal conduct. Id. Second, in Peugh, 133 S.
Ct. at 2077–78, the Court held that the advisory Guidelines are subject to
the limitations imposed by the Ex Post Facto Clause. Thus, in Peugh, the
district court had to apply the Guidelines in effect when the defendant
committed his crime, not the harsher Guidelines in effect when he was
sentenced. Id. In Hurlburt, the Seventh Circuit found that Peugh
undermined Tichenor’s conclusion that the vagueness doctrine does not
affect the Guidelines because they are merely advisory. Hurlburt, 835 F.3d
at 724.
Cross’ suggestion that Hurlburt’s overruling of Tichenor survived
Beckles certainly carries some persuasive force. As to Tichenor’s first
premise, Beckles appears to have affirmed the view expressed in Johnson
that both laws that define criminal offenses and those that fix permissible
sentences can be void for vagueness. Beckles, 137 S. Ct. at 892. Assuming
this is true, Beckles affirms the Seventh Circuit’s view in Hurlburt on this
point.
Tichenor’s second premise—that the Guidelines are not statute-like
enough to be attacked as vague—is likewise debatable. Booker had harsh
words for the mandatory Guidelines, saying that “we have consistently
held that the Guidelines have the force and effect of laws.” Booker, 543 U.S.
at 234. The Court explained that
[a]t first glance, one might believe that the ability of a district
judge to depart from the Guidelines means that she is bound
only by the statutory maximum. Were this the case, there
would be no Apprendi problem. Importantly, however,
departures are not available in every case, and in fact are
Page 9 of 18

unavailable in most. In most cases, as a matter of law, the
Commission will have adequately taken all relevant factors
into account, and no departure will be legally permissible. In
those instances, the judge is bound to impose a sentence
within the Guidelines range.
Id. This view was echoed in Peugh, where the majority opined that even
post-Booker, the Guidelines anchor the federal sentencing scheme and
“remain a meaningful benchmark through the process of appellate
review.” Peugh, 133 S. Ct. at 2083. Indeed, even the advisory Guidelines
require a justification for the sentencing court’s departure therefrom. Id.;
see also Hawkins, 706 F.3d at 822 (departures from mandatory Guidelines
“were permitted on specified grounds, but in that respect the guidelines
were no different from statutes, which often specify exceptions”).
But Beckles seemed to walk back this view and return to the
fundamental notion expressed in Brierton and Tichenor that merely
cabining a sentencing judge’s discretion does not give rise to vagueness
concerns. The Court relied heavily on the notion that the advisory
Guidelines “merely guide the district court’s discretion,” and a “system of
guided discretion” is not amenable to a vagueness challenge. Beckles, 137
S. Ct. at 894. Further, the Court distinguished Peugh, stating that while the
unique features of the Guidelines rendered them immune from vagueness
scrutiny, cases like Peugh provide that other constitutional challenges are
permissible because those inquiries are “‘analytically distinct.’” Id. at 895
(quoting Peugh, 133 S. Ct. at 2088). Thus, this premise of Tichenor and
Brierton appears to have survived—and even been reinforced by—Beckles.
Against this backdrop, the Court is obliged to conclude that it is
bound not by Hurlburt but by the intervening authority of Beckles. If the
Seventh Circuit can tread a middle way through the analytical minefield
Page 10 of 18

left in the wake of these cases, it is welcome to do so. This Court cannot
undertake that task, since it is first and foremost bound to follow the law
given to it by higher courts. Because the Court cannot conclude with
certainty that Hurlburt’s abrogation of Tichenor remains notwithstanding
Beckles, the Court is constrained to follow Beckles, Tichenor, and Brierton,
which point ineluctably to the conclusion that even mandatory Guidelines
are not amenable to vagueness challenge. Colby v. J.C. Penney Co., 811 F.2d
1119, 1123 (7th Cir. 1987) (in order to depart from appellate precedent, the
district court must be “powerfully convinced” that the higher court would
overrule its previous decision “at the first available opportunity”); Olson v.
Paine, Weber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir. 1986) (lower
courts shall not go against binding precedent unless a subsequent decision
makes it “almost certain” that the higher court would reverse its previous
position “if given a chance to do so”); see also Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of [the
Supreme Court] has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to [the Supreme]
Court the prerogative of overruling its own decisions.”).1

The Court notes that several district courts around the country have
already issued decisions on this issue, though none within this Circuit. For
instance, in United States v. Tunstall, Case No. 3:00-cr-050, 2017 WL 1881458, at *6
(S.D. Ohio May 9, 2017), the district court found that the mandatory Guidelines
are sufficiently statute-like to implicate the due-process vagueness concerns not
applicable to the advisory Guidelines. By contrast, in Cottman v. United States,
Case No. 8:16–cv–1575–T–24TBM, 2017 WL 1683661, at *2 (M.D. Fla. May 3,
2017), the court found that, much like this case, existing Eleventh Circuit
precedent dictated that the mandatory and advisory Guidelines are equally
insulted from vagueness attacks. See also In re Griffin, 823 F.3d 1350, 1354 (11th
Cir. 2016); United States v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015).
1

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2.2

Cross Waived His Right to Collaterally Attack His
Sentence

The Court’s conclusion on the merits of Cross’ challenge is
sufficient to dispose of his motion. However, the Court will close with a
brief analysis of an independent ground for denying the motion: Cross’
plea-agreement waiver of his right to bring collateral attacks. His plea
agreement contains the following provision:
Based on the government’s concessions in this agreement,
the defendant knowingly and voluntarily waives his right to
appeal his sentence in this case and further waives his right
to challenge his conviction or sentence in any postconviction proceeding, including but not limited to a motion
pursuant to 28 U.S.C. § 2255. This waiver does not extend to
an appeal or post-conviction motion based on (1) any
punishment in excess of the statutory maximum, (2) the
sentencing court’s reliance on any constitutionally
impermissible factor, and (3) ineffective assistance of
counsel.
(Docket #7-1 ¶ 29A). Waivers like this one are generally enforceable with
limited exceptions. Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016);
Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). The exceptions
courts recognize largely track those listed in Cross’ appeal waiver. They
include: (1) an involuntary plea; (2) a sentence in excess of the statutory
maximum; (3) the sentencing court’s reliance on any constitutionally
impermissible factor; and (4) ineffective assistance of counsel. Solano, 812
F.3d at 577; Jones v. United States, 167 F.3d 1142, 1144–45 (7th Cir. 1999).
None of these exceptions apply here. First, Cross does not argue
that he received ineffective assistance of counsel, nor was his sentence
greater than that authorized by the applicable statutes (or indeed, the
applicable Guidelines). Second, Cross is mistaken to contend that the
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career-offender provision of the pre-Booker, mandatory Guidelines
represents a “constitutionally impermissible factor” applied during his
sentencing. (Docket #7 at 8). Even assuming Cross is right that the careeroffender provision of the mandatory Guidelines is unconstitutional, this
exception does not cover that kind of sentencing “factor.” Instead, it is
limited to immutable factors such as the defendant’s race or gender. See
Solano, 812 F.3d at 577; United States v. Trujillo-Castillon, 692 F.3d 575, 579
(7th Cir. 2012) (holding that a court may not consider characteristics such
as a defendant’s “race, sex, national origin, creed, religion, and socioeconomic status”).
The Seventh Circuit has declined to extend this exception to cover
application of impermissible or unconstitutional Guidelines provisions.
See United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997) (A
“waiver of a right to appeal is subject to exceptions,” but “an improper
application of the guidelines” is not one of them); United States v. Kratz,
179 F.3d 1039, 1041 (7th Cir. 1999) (“[I]f the district court considers an
impermissible factor (such as race) or the sentence exceeds the statutory
maximum, appellate rights can survive a waiver. However, a mistake by
the trial court in the application of the Sentencing Guidelines will not of
itself resurrect the right to appeal.”) (internal citations omitted); United
States v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005) (refusing to recognize
Booker as supporting a claim that the defendant’s sentence was imposed in
excess of the statutory maximum); United States v. Garcia, Case No. 3:13CR-52 JD, 2016 WL 3999997, at *5 (N.D. Ind. July 25, 2016) (“[T]he Seventh
Circuit has held that even Guidelines challenges of constitutional origin
[are] barred by waivers.”). Despite Cross’ clever suggestion that his plea
agreement’s use of the phrase “constitutionally impermissible factor” is
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somehow broader—as a matter of contract interpretation—than the scope
of that phrase as used for decades in Circuit authority, see (Docket #7 at 9–
10), the Court will not extend this well-settled exception beyond the
bounds the Court of Appeals has set. This is especially appropriate in the
absence of evidence that Cross’ and the government’s mutual
understanding at the time of the plea reflected this novel interpretation,
which would have been inconsistent with existing Seventh Circuit
precedent. As a result, this exception affords Cross no relief.
Finally, Cross’ waiver was not involuntary, despite the fact of the
judge’s failure to discuss it during his plea colloquy. It is worth noting at
the outset that he did not challenge the voluntariness of his plea—
including the collateral-review waiver—on appeal, as is generally
required to preserve the argument for collateral attack. Torzala v. United
States, 545 F.3d 517, 522 (7th Cir. 2008). But even forgiving the procedural
default for the sake of argument, Cross’ arguments about a purported
Rule 11 violation during his plea colloquy do not entitle him to relief.
Cross is correct that the magistrate did not expressly question him
about the appellate and collateral attack waiver in his plea agreement
during the Rule 11(b) colloquy in his case. See (Docket #7-2) (transcript of
change-of-plea hearing); see also Fed. R. Crim. P. 11(b)(1)(N). He is also
correct in noting that the Seventh Circuit has held that an appellate waiver
in a plea agreement, if not separately discussed at the Rule 11(b) colloquy,
might not be enforceable on direct appeal. United States v. Smith, 618 F.3d
657, 664–65 (7th Cir. 2010). However, in one of Cross’ principal cited cases,
United States v. Sura, 511 F.3d 654, 659–60 (7th Cir. 2007), the Court of
Appeals distinguished the sorts of Rule 11 violations that count in a direct
appeal versus a collateral attack. Specifically, the court concluded that a
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“technical[l] violation” of the Rule was insufficient to undermine the
enforceability of a waiver when that challenge was made in a collateral
attack. Id. at 660 (citing United States v. Timmreck, 441 U.S. 780, 785 (1979)).
This is particularly true where the habeas petitioner does not demonstrate
prejudice from the failure to mention the waiver during the colloquy—for
instance, by arguing that he was actually unaware of the waiver’s
existence or that he would not have pled guilty had he understood the
waiver. Id.; cf. Smith, 618 F.3d at 665 (“Not every deviation from Rule
11(b)'s requirements renders an appellate waiver unenforceable.”).
Here, Cross fails to appreciate the more difficult road he faces as a
habeas petitioner challenging the voluntariness of his waiver on Rule 11
defects. Whatever may have sufficed to overcome his direct appeal waiver
during his direct appeal (had he taken one), he has not made the required
showing necessary to overcome his collateral attack waiver. See Timmreck,
441 U.S. at 784 (a claim for a technical violation of Rule 11 “could have
been raised on direct appeal,” but “there is no basis here for allowing
collateral attack to do service for an appeal”) (internal citations and
quotations omitted); Lewis v. United States, Civil No. 10–580–GPM, 2011
WL 2420375, at *5 (S.D. Ill. June 11, 2011). First, as Sura and Timmreck
make clear, a mere failure to mention a specific plea term like a waiver at
the change-of-plea colloquy is technical in nature. Further, Cross makes no
suggestion that he was actually prejudiced by the waiver; he does not
claim to have been unaware of the waiver or that it would have changed

Page 15 of 18

his plea decision had he known of it.2 In fact, Cross seems to want to
invalidate the waiver but not his plea, thereby arguing himself out of the
very exception he wants to apply here.3
Finally, the Court notes that notwithstanding Cross’ belief that he
has gotten a raw deal from the government—including baldly claiming
that the government made no “concessions” as it had promised to do in
the plea agreement, see (Docket #7 at 7)—this is not remediable on
collateral review. The Seventh Circuit has explained that a defendant can
protect himself against sentencing errors, such as those occasioned by the
Guidelines, by entering a plea pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C). Kratz, 179 F.3d 1039. “Otherwise,” instructs the
Court of Appeals, “we will hold a defendant to his bargain—the good as
well as the bad—unless he can show that his case was marred by one of
the fundamental errors that we have said might resurrect the appeal
right.” Id. No such fundamental error occurred in this case, and thus Cross
cannot escape his collateral review waiver. See id. at 1043 (“[T]he district
court’s error, if there was one, implicated the Guidelines, not the

Neither does he contend that his counsel was ineffective in negotiating
the plea, including the waiver provision, or that he was coerced into entering the
plea—circumstances recognized in Jones, 167 F.3d at 1145, as warranting
exception to a collateral attack waiver. See also Hurlow v. United States, 726 F.3d
958, 965 (7th Cir 2013).
2

As explained above, Cross’ challenge is narrow, focusing only the court’s
failure to apprise him of his collateral attack waiver during the plea colloquy.
Because Cross expresses no desire to overturn the plea in its entirety, and
because he offers no argument in favor of such a finding, the Court sees no
reason to undertake the totality-of-the-circumstances analysis normally required
to discern whether a plea was knowing and voluntary. See Sura, 511 F.3d at 659;
United States v. Coleman, 806 F.3d 941, 944–45 (7th Cir. 2015).
3

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Constitution,” and any such error “is not enough to validate [the]
waiver.”); United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005)
(broadly-worded appeal waivers “are effective even if the law changes in
favor of the defendant after sentencing”). Put simply, even a good
constitutional argument—as his Beckles argument may turn out to be—can
be waived. See United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000)
(rejecting the argument that any constitutional argument must always be
considered an exception to a collateral-attack waiver).4
3.

CONCLUSION
The Court is bound to follow controlling Supreme Court and

Seventh Circuit precedent in this case, and that authority dictates that
vagueness challenges may not be raised against the pre-Booker, mandatory
Guidelines. Furthermore, with respect to Cross’ own case, a valid
collateral attack waiver forecloses any such challenge, even were it
meritorious. As a result, the Court must deny Cross’ motion.
However, because at least the Beckles question is close enough to be
the subject of vigorous debate, the Court will grant Cross a certificate of

The Court declines to reach the parties’ final area of disagreement
concerning whether Johnson’s holding regarding the ACCA can be retroactively
applied to the Guidelines. See (Docket #6 at 6–25); (Docket #7 at 11–23). Two
independent grounds for disposition are enough. That said, the Court observes
that several recent decisions from other district courts have concluded that
extending Johnson to the mandatory Guidelines would constitute a new rule that
must first be recognized in the Supreme Court. See United States v. Russo,
8:03CR413, 2017 WL 1533380, at *2–4 (D. Neb. Apr. 27, 2017); Hodges v. United
States, CASE NO. C16-1521JLR, 2017 WL 1652967, at *2 (W.D. Wash. May 2,
2017); see also Griffin, 823 F.3d at 1355 (observing that Johnson’s holding with
respect to the ACCA could not be automatically retroactively applied to cases
involving Guidelines challenges). Whether this Court would also reach that
conclusion under the applicable Seventh Circuit precedent is better left for a
more appropriate case.
4

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appealability in this case. See Rule 11(a) of the Rules Governing Section
2255 Cases; Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (to obtain a
certificate of appealability, the movant must make a “substantial showing
of the denial of a constitutional right” by establishing that “reasonable
jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further”).
Accordingly,
IT IS ORDERED that Petitioner’s motion for leave to file an
overlong brief (Docket #16) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner’s motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Docket #1) be
and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be
and the same is hereby GRANTED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of May, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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