United States District Court, W.D. Pennsylvania
ALAN N. BLOCH, District Judge.
Petitioner James Darnell Wilson, on June 19, 2014, filed a "Motion to Correct Sentence under 28 U.S.C. § 2255" (Doc. No. 63). After the case was stayed for a time, Petitioner then filed, on September 9, 2014, a supplemental brief in support of his motion (Doc. No. 70). Upon consideration of this motion and brief, and upon further consideration of the Government's responses thereto (Doc. Nos. 76 and 79), filed on October 20, 2014, and Petitioner's reply (Doc. No. 82), filed on November 4, 2014, the Court dismisses Petitioner's motion for the reasons set forth herein.
On May 24, 2007, Petitioner pled guilty to Count One of the indictment, charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In connection with his plea, Petitioner and the Government entered into a written plea agreement containing several provisions, including a waiver of certain appellate rights as well as a provision stating that Petitioner "further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence." The agreement further states that it:
sets forth the full and complete terms and conditions of the agreement between [Petitioner] and the [Government], and there are no other agreements, promises, terms or conditions, express or implied.
Petitioner signed the agreement and confirmed at the plea hearing that he had agreed to the terms set forth in the agreement which both the Government and the Court reviewed for him. With respect to the appellate and collateral waiver portion of the agreement, the Court specifically confirmed with Petitioner that he understood that he was waiving those rights. On August 16, 2007, the Court sentenced Petitioner to a term of imprisonment of 180 months, to be followed by a term of supervised release of five years. However, this term of imprisonment was reduced to a term of 120 months on September 29, 2008. Petitioner did not appeal his conviction or sentence.
Years later, on June 19, 2014, Petitioner filed the present motion pursuant to 28 U.S.C. § 2255 arguing that the United States Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), permitted him to file the motion to vacate under Section 2255(f)(3). At the request of Petitioner, the Court stayed the proceedings while the Third Circuit Court of Appeals considered the cases of United States v. Abbott, 748 F.3d 154 (3d Cir. 2014), and United States v. Brown, 765 F.3d 185 (3d Cir. 2014). After the stay was lifted, the parties fully briefed the matter.
The manner in which the Court must address Petitioner's motion is dictated by the nature and effect of the position taken by the Government in this case. As will be discussed below, the Government chose not to raise (and in fact may or may not purport to have waived) the argument on which it would most easily prevail and, instead, decided to contest Petitioner's motion on other grounds. One of the other grounds on which the Government opposes Petitioner's motion is that Petitioner's waiver of his right to file a collateral proceeding attacking his conviction or sentence contained in the plea agreement should be enforced and bar this action. The Court agrees, finds the waiver to be enforceable, and will dismiss Petitioner's motion on this ground.
As noted, Petitioner filed his motion pursuant to Section 2255. This section permits a prisoner sentenced by a federal court to move the court that imposed the sentence to "vacate, set aside, or correct the sentence" where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). However, a criminal defendant may waive his right to file a motion under Section 2255 or to otherwise seek collateral relief. Such a waiver is valid if entered into "knowingly and voluntarily" unless it would work a "miscarriage of justice." United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001); United States v. Mabry, 536 F.3d 231, 237-38 (3d Cir. 2008). A district court has an affirmative duty to conduct an evaluation of the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice. See Mabry, 536 F.3d at 237-38.
Here, there is no claim that Petitioner's waiver was anything but knowing and voluntary, and the Court's own review of the record reveals nothing to the contrary. The real issue here is whether enforcement of the waiver would work a miscarriage of justice. As the Third Circuit has explained, in determining whether there would be a miscarriage of justice, the Court must consider factors such as the clarity of the alleged error, its gravity, its character, the impact of the error on Petitioner, the impact of correcting the error on the Government, and the extent to which Petitioner acquiesced in the result. See Khattak, 273 F.3d at 563 (citing United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). Applying those factors here, after consideration of the issues raised in the parties' various filings, as well as the Court's own evaluation of the record, demonstrates that no miscarriage of justice will occur by enforcing the collateral waiver.
Petitioner claims that he is entitled to relief under Section 2255 because, in light of the Supreme Court's decision in Descamps, he no longer qualifies for a sentencing enhancement pursuant to 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). Ordinarily, a conviction for possessing a firearm after being convicted of a felony carries a statutory maximum sentence of 10 years' imprisonment. However, if a defendant has three previous convictions for a "serious drug offense" or a "violent felony" or both, committed on occasions different from one another, the defendant instead faces a statutory mandatory minimum sentence of 15 years' imprisonment. Under a line of cases beginning with Taylor v. United States, 495 U.S. 575 (1990), in determining whether a defendant's previous convictions constitute serious drug offenses or violent felonies, a sentencing court is to apply what is known as the "categorical approach, " i.e., it is to consider the statutory elements of the prior convictions, not the particular facts underlying the convictions. See id. at 600. There is a narrow range of cases, however, in which a sentencing court may look beyond the statutory elements of a prior conviction and employ what is known as the "modified categorical approach." This allows the court to look beyond the face of the statute to specific material - including the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented - in determining which of the statute's alternative elements applied in the defendant's case. See id. at 602; Shepard v. United States, 544 U.S. 13, 17 (2005).
Petitioner's argument, essentially, is that the Supreme Court's decision in Descamps changed the way in which the categorical and modified categorical approaches apply under the ACCA. In Descamps, the Supreme Court noted that the modified categorical approach applies only when the statute underlying the prior conviction "lists multiple, alternative elements" rather than a "single, indivisible' set of elements." 133 S.Ct. at 2285, 2283. In other words, the modified categorical approach can be applied only when a statute is "divisible" and not when it is "indivisible." Petitioner asserts that the statutes underlying his prior Pennsylvania state convictions for manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance, in violation of 35 Pa. C.S. § 780-113(a)(30), and his prior convictions for terroristic threats, in violation of 18 Pa. C.S. § 2706(a), are indivisible. As such, he argues that the modified categorical approach set forth in Taylor and Shepard is inapplicable in determining whether they qualify as predicate offenses under Section 924(e). He further argues that employing the standard categorical approach to these prior convictions demonstrates that the statutes criminalize a broader range of conduct than would meet the definition of serious drug offense or violent felony and that, accordingly, they cannot be used as predicate offenses in finding him to be an armed career criminal. Therefore, he argues that his statutory imprisonment range should be no more than 10 years, rather than 15 years to life, as the Court found at his initial sentencing.
To complicate an already complicated case, although Petitioner was originally sentenced to a term of imprisonment of 180 months, which would be within the sentencing range were he an armed career criminal, but clearly illegal if he were not, his sentence was reduced to a term of imprisonment of 120 months, which would be a legal sentence if the sentencing enhancements of Section 924(e) did not apply. This important fact was not acknowledged by Petitioner until his third filing. While, as Petitioner points out, this fact does not necessarily establish that there would be no ...