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United States v. Pierce

United States District Court, Third Circuit

August 23, 2013

RICHARD PIERCE Criminal Action No. 08-245


Juan R. Sánchez, J.

Defendant Richard Pierce has filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The Government has filed a motion to dismiss, arguing the Court should dismiss Pierce’s § 2255 motion based on the waiver of appellate and collateral review rights in Pierce’s guilty plea agreement. Pierce has also filed a motion to amend. For the following reasons, Pierce’s motion to amend will be denied, and the Government’s motion to dismiss will be granted.


On June 5, 2008, Richard Pierce entered a counseled guilty plea, pursuant to a written guilty plea agreement, to one-count of conspiracy to distribute in excess of five kilograms of cocaine. The guilty plea agreement stated Pierce faced a mandatory minimum term of life imprisonment. Following Pierce’s guilty plea, the probation office prepared a Presentence Investigation Report (PSR), which detailed Pierce’s criminal record. Based on Pierce’s two prior felony drug convictions, the PSR concluded Pierce was subject to a mandatory minimum sentence of life imprisonment pursuant to § 841(b)(1)(A) and also classified Pierce as a career offender. The Government failed to file an information pursuant to 21 U.S.C. § 851, setting forth the prior convictions which produced the mandatory minimum of life, prior to entry of the guilty plea.[1] However, when Pierce entered his guilty plea, the Court advised him that his mandatory minimum term, absent departure, was life imprisonment.

Prior to sentencing, the Government filed a motion for a downward departure on Pierce’s behalf under 18 U.S.C. § 3553(e) and U.S.S.G § 5K1.1. At the July 23, 2010, sentencing hearing, this Court granted the Government’s motion and departed downward from both the statutory mandatory minimum of life imprisonment and the final Guidelines range of 262 to 327 months of incarceration, imposing a below-Guidelines sentence of 180 months of incarceration followed by 10 years of supervised release. At his sentencing hearing, Pierce did not contest the findings in the PSR relating to his prior convictions, his career offender status, or the Guidelines calculation. Pierce objected only to the application of the statutory mandatory minimum sentence of life imprisonment because of the Government’s failure to file a § 851 information, which the Court declined to address as a result of the Government’s departure motion. Pierce filed a timely notice of appeal, and on April 23, 2012, the Third Circuit Court of Appeals affirmed his conviction and sentence in all respects.

On July 12, 2012, Pierce filed the instant § 2255 motion, raising the following claims: (1) the Government breached the terms of his plea agreement by seeking unauthorized statutory enhancements to his sentence; (2) his sentence exceeded the statutory maximum; (3) the Court violated the separation of powers doctrine; (4) the Court expanded his appellate waiver exceptions; (5) his counsel was ineffective for allowing the unauthorized statutory enhancements; and (6) the plea agreement was unknowing and involuntary. The Government filed a motion to dismiss, arguing Pierce’s § 2255 motion is precluded by the appellate waiver.


When the Government invokes an appellate waiver to bar a defendant’s appeal, a court must consider three factors: (1) whether the waiver was knowing and voluntary, (2) whether there is an exception to the waiver which prevents its enforcement, and (3) whether enforcement of the waiver would cause a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) 1(quoting United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir. 2008)). 1If valid, a waiver of appeal should be strictly construed. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). To evaluate the waiver’s validity, the court reviews the language of the plea agreement and the colloquy between the sentencing judge and the defendant. United States v. Gwinnett, 483 F.3d 200, 204 (3d Cir. 2007).

Pierce’s plea agreement includes the following appellate waiver provision:

(9) In exchange for the undertakings made by the government in entering this plea, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant’s conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collaterally attack arises under 18 U.S.C. § 3724, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.
a. Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file a direct appeal of his sentence.
b. If the government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
(1) the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count as set ...

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