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Allen v. United States

United States District Court, D. Connecticut

September 26, 2019

DERRICK ALLEN, Petitioner,
v.
UNITED STATES, Respondent.

          RULING AND ORDER

          Robert N. Chatigny United States District Judge.

         In 2011, petitioner Derrick Allen pleaded guilty to unlawful possession of a firearm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced to prison for 15 years. He moves pursuant to 28 U.S.C. § 2255 to vacate his sentence claiming that it was improperly enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”), which requires a sentence of fifteen years for a person convicted of unlawful possession of a firearm who has three prior convictions for a “violent felony” or “serious drug offense.” Id. Petitioner concedes that he has two prior convictions for a serious drug offense for purposes of the fifteen-year mandatory minimum under the ACCA, but disputes that he has a prior conviction for a violent felony. In support of his motion to vacate his sentence, he relies on Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the residual clause of the ACCA’s definition of the term “violent felony” as unconstitutionally vague. Id. at 2557. Without the residual clause to fall back on, he argues, the government is unable to prove that his sentence comports with the ACCA.

         The government does not take issue with petitioner’s assertion that his sentence was enhanced under the residual clause of the ACCA. Instead, it argues that a collateral attack waiver in the written plea agreement bars his claim. In addition, it argues that the claim is meritless because petitioner has two prior convictions that support his sentence under another part of the ACCA’s definition of a “violent felony, ” known as the “elements clause, ” which survived Johnson. See 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” as any crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another”); see Stokeling v. United States, 139 S.Ct. 544 (2019).

         I agree with both of the government’s arguments and therefore deny the motion. In doing so, however, I grant a certificate of appealability.

         I. Background

         Petitioner pleaded guilty pursuant to a written plea agreement in which he stipulated that his criminal record included four ACCA predicate offenses: two prior convictions for a serious drug offense and two prior convictions for a violent felony. In accordance with petitioner’s concession that he was subject to increased punishment under the ACCA, the plea agreement stipulated that his offense carried a mandatory minimum sentence of fifteen years.

         The plea agreement contained the following collateral attack waiver:

The defendant acknowledges that under certain circumstances he is entitled to challenge his conviction and sentence. The defendant agrees not to appeal or collaterally attack in any proceeding, including but not limited to a motion under 28 U.S.C. § 2255 and/or § 2241, the conviction or sentence imposed by the Court if that sentence does not exceed 188 months, a 5-year term of supervised release, and a $150, 000 fine, even if the Court imposes such a sentence based on an analysis different from that specified above. The Government and the defendant agree not to appeal or collaterally attack the Court’s imposition of a sentence of imprisonment concurrently or consecutively, in whole or in part, with any other sentence. The defendant acknowledges that he is knowingly and intelligently waiving these rights. Furthermore, the parties agree that any challenge to the defendant's sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) this waiver.

         At the change of plea hearing, Judge Burns canvassed petitioner regarding the plea agreement. Petitioner stated under oath that he had read the agreement, understood its contents, and was pleading guilty of his own free will. Regarding the collateral attack waiver, Judge Burns stated, “[A]s long as I don’t give you a sentence which exceeds 188 months, a 5-year term of supervised release, and a $150, 000 fine, you are giving up your right to take an appeal from my sentence or to attack it by any other legal means. Do you understand that, sir?” Petitioner responded, “Yes, ma’am.”

         On August 2, 2012, Judge Burns imposed the mandatory minimum sentence of fifteen years required by the ACCA. Petitioner did not appeal. Petitioner brought the present motion after the Supreme Court ruled that Johnson applies retroactively to cases on initial collateral review. See Welch v. United States, 136 S.Ct. 1257, 1261 (2016).

         II. Discussion

         A. Petitioner’s Collateral Attack Waiver Bars His Claim

         In response to petitioner’s motion, the government first argues that petitioner’s challenge to his sentence is barred by the collateral attack waiver in the plea agreement. The Second Circuit has held that a knowing and voluntary waiver of the right to collaterally attack a sentence bars a claim that the sentence is invalid after Johnson. See Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016). Petitioner does not contend that the waiver in his plea agreement was other than knowing and voluntary. Rather, he distinguishes Sanford on the ground that it involved a challenge to a sentence imposed under the career offender provision of the Sentencing Guidelines. He submits that considerations of fairness and equity weigh heavily in favor of reading Sanford as narrowly as possible.[1]

         I agree with the government that petitioner’s challenge to his sentence is barred by the collateral attack waiver in the plea agreement. The holding in Sanford reflects the established principle that a defendant who has knowingly and voluntarily waived the right to attack his sentence as part of a plea agreement may not attack the legality of a sentence that was imposed in conformity with the agreement. As Sanford recognizes, exceptions to the enforceability of an otherwise valid waiver are available in narrowly circumscribed circumstances, for example, “when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases.” Id. at 580 (quoting United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000)). But a change in the law does not in itself create such an exceptional circumstance. See Sanford, 841 F.3d at 580 (stating that defendant’s inability to foresee change in the law does not provide a basis for failing to enforce collateral attack waiver; possibility of favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements).

         In the absence of an extraordinary circumstance of the type referred to in Sanford, the principle underlying Sanford requires enforcement of a collateral attack waiver in a plea agreement in accordance with its terms. See Sanford, 841 F.3d at 581 (“Sanford’s collateral attack waiver therefore bars the present motion because the waiver encompasses any challenge to his sentence.”). Petitioner’s attempt to distinguish Sanford ...


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