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United States v. Thompson

United States District Court, W.D. Pennsylvania

March 8, 2017

FRANKLIN THOMPSON, Defendant. Criminal No. 07-303-02


          Joy Flowers Conti Chief United States District Judge

         I. Introduction

         Franklin Thompson (“Defendant” or “Thompson”), through the federal public defender, filed a § 2255 motion (ECF No. 1142) and an amended § 2255 motion (ECF No. 1156) (the “amended motion”) to challenge his sentence retroactively in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that the residual clause of the Armed Career Criminal Act is unconstitutionally vague). The motions have been fully briefed and are ripe for disposition. The motion and amended motion raise the same issues and seek the same relief. Although not expressly stated therein, the amended motion supersedes the original motion and renders it moot. The court has considered the legal arguments articulated by defendant in both motions.

         Defendant voluntarily and intelligently entered into a Rule 11(c)(1)(B) plea agreement with the government which recognized that he was a career offender and contained a stipulated sentence and a waiver of his right to collaterally attack that sentence. Numerous precedential decisions have held that a defendant's inability to benefit from future changes in the law does not constitute a “miscarriage of justice” that would invalidate the binding nature of his plea agreement. The court is constrained to comply with this authority.

         Subsequent legal developments do not undermine Thompson's waiver of his right to collaterally attack his sentence. In any event, it is now clear that Thompson would not be entitled to relief under Johnson in any event, because on March 6, 2017, the Supreme Court held that Johnson does not authorize challenges to career offender status under the Sentencing Guidelines. Beckles v. United States, No. 15-8544, 2017 WL 855781 (March 6, 2017). The amended motion must be denied.

         II. Factual and Procedural Background

         Thompson and numerous co-defendants were charged in a second superseding indictment at Criminal Number 07-303 with conspiracy to distribute 5.0 kilograms or more of cocaine (count 1) and conspiracy to launder the proceeds (count 3). A pre-plea investigation report was prepared which classified Thompson as a career offender. Thompson filed a motion (ECF No. 710) challenging this classification on the theory that one of his prior convictions was “stale” because it was committed before the fifteen-year time limit in U.S.S.G. § 4A1.2(e). The government filed a response (ECF No. 717), contending that Thompson's conviction was not “stale” because his probation was revoked and he was sent back to prison within the fifteen-year time period. The court held a hearing on October 21, 2010 and concluded that Thompson was correctly classified as a career offender. (ECF No. 723).

         On February 15, 2011, defendant pleaded guilty to counts 1 and 3, pursuant to a written plea agreement. ECF No. 1167-2. Before accepting the guilty plea, the court engaged in a lengthy colloquy with defendant and the government to ensure that the plea was knowing and voluntary. See Transcript, ECF Nos. 936, 970.

         Several provisions of the plea agreement are relevant to the amended motion: (1) paragraph A(6) contains a “collateral waiver, ” in which Thompson waived the right to file a § 2255 motion attacking his conviction or sentence; (2) paragraph C(4) provides that defendant and the government “agree that a departure and variance from the otherwise applicable Career Offender guideline found at Section 4B1.1(b)(A) of the Sentencing Guidelines is warranted”; (3) paragraphs C(4-9) contain stipulations regarding the revised guideline calculation that was negotiated and agreed upon by the parties - to wit, defendant would have a total offense level of 31 and a criminal history category of III, resulting in a guideline range of 135-168 months; and (4) paragraphs C(10-11) reflect that the parties agreed that the appropriate term of imprisonment was 151 months, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B). This term was the mid-point of a guideline range determined by the drug quantity and non-career offender status. The result was a downward variance of 111 months from the career offender guideline range. The parties noted that the court was not bound by their agreed-upon sentence.

         On June 21, 2011, Thompson was sentenced. During the sentencing hearing, counsel for both defendant and the government emphasized the uniqueness of the situation and the extensive negotiations which had resulted in the plea agreement and agreed-upon sentence. See Transcript ECF No. 937. The court noted that count 1 carried a mandatory minimum sentence of 120 months and determined that Thompson was correctly classified as a career offender with a guideline range of 262-327 months, but accepted the plea agreement and sentence after concluding that a substantial downward departure and variance to the agreed-upon term of 151 months of imprisonment was appropriate. Id.

         Thompson filed a direct appeal.[1] On July 29, 2013, the court of appeals affirmed his conviction. In part, the court of appeals observed in a nonprecedential opinion that “under the plea agreement, the parties agreed, to Thompson's benefit, that a departure from the career offender classification guideline was warranted.” ECF No. 1044-1 at 3.

         In June 2015, Thompson filed a motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2), based upon the decrease in drug offense levels in Amendment 782. The court denied the motion. Thompson filed a motion for reconsideration. The court denied the motion for reconsideration, explaining in part that Thompson did not qualify for the Amendment 782 reduction because his original guideline range was based upon the career offender guideline, not the drug guideline. ECF No. 1114. The court of appeals affirmed this decision in a precedential opinion. United States v. Thompson, 825 F.3d 198 (3d Cir. 2016); (also filed at ECF No. 1149-1). The court of appeals noted that it was convinced that if Amendment 782 had been in effect at the time Thompson was sentenced, the parties and court would have incorporated that lower level into his agreed-upon sentence. Nevertheless, the court reasoned that Sentencing Guideline Amendment 759[2] operated to deny Thompson the benefit of the discretionary reduction under Amendment 782, a reduction to which he had never been entitled. Id. Although Thompson's sentence was ultimately based on a departure and variance to the drug guideline range, his “applicable guideline range” at the time of sentencing was the career offender guideline.

         III. Legal Analysis

         The government asserts, as a threshold matter, that the “collateral waiver” provision of the plea agreement is valid and enforceable. The government contends that Thompson knowingly and voluntarily waived his right to file a § 2255 motion, this waiver should be enforced, and his amended motion should be summarily denied without consideration of the merits. The government also argues that Johnson does not apply because Thompson's sentence was not based upon the career offender guideline, but instead was a negotiated, agreed-upon sentence pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B). The government argues that Thompson “invited” any alleged error by entering into the plea agreement and is now taking positions contrary to those he took in his Amendment 782 motion. In addition, the government contends that Thompson's California convictions do not implicate the “residual clause” at all, but remain predicate offenses under the enumerated or force clauses of § 4B1.1.

         In the amended § 2255 motion, Thompson argues that under Johnson, his prior convictions no longer qualify as “crimes of violence, ” and he should not be classified as a career offender under the Sentencing Guidelines. Thompson asks this court to vacate his sentence and resentence him without the career offender enhancement and with the Amendment 782 reduction. Thompson contends that Johnson has been given retroactive effect and applies to the parallel “residual clause” in the Sentencing Guidelines. Thompson contends that it is unlawful to designate him as a career offender under U.S.S.G. § 4B1.1 based upon California convictions for assault with a deadly weapon and battery.

         The court need not address all these arguments because the validity of a collateral waiver provision is a “threshold issue.” United States v. Mabry (“Mabry I”), 536 F.3d 231, 237 (3d Cir. 2008). The validity of a collateral waiver provision must be addressed before reaching the merits of the underlying claim. Id. at 241-42 (rejecting a line of decisions that considered ineffective assistance of counsel claims without first deciding whether defendants had waived the right to file such collateral attacks). On this threshold issue, the court concludes that Thompson's “collateral waiver” provision in the plea agreement is enforceable and his § 2255 motion must be denied.[3]

         Defendant contends that the collateral waiver provision does not preclude the instant petition because it would work a “miscarriage of justice.” He reasons that: (1) his designation as a career offender prevented him from qualifying for a two-level decrease in his offense level based upon Amendment 782; (2) his current sentence exceeds the high end of the non-career offender guideline range, as calculated under Amendment 782, by sixteen months; (3) he could not have relinquished his rights under Johnson because that decision did not exist at the time of his plea and sentence; and (4) his California convictions do not qualify as predicate offenses under current law under any of the career offender clauses (enumerated, force or residual). In sum, he contends that his sentence is now unreasonable and the collateral waiver provision should be invalidated. Thompson argues that he did not “invite” error, as the government alleges; instead, he staunchly advocated for a sentence below the career offender range.

         The Court of Appeals for the Third Circuit has clearly held that “[w]aivers of appeals, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001) (rejecting the argument that waiver of appeal provisions are void as contrary to public policy). In Mabry I, the court held that waivers of the right to collaterally attack sentences are equally valid, if done knowingly and voluntarily and do not work a miscarriage of justice. 536 F.3d at 237-38 . In determining the validity of a collateral waiver provision, the initial question is whether the waiver was knowing and voluntary. Id. at 237. The second consideration is whether enforcement of the waiver would result in a miscarriage of justice. Id. at 242-44.

         A. Knowing and Voluntary Waiver

         The record clearly reflects that Thompson's entry into a plea agreement with a collateral waiver provision was both knowing and voluntary. Thompson does not challenge this prong of the analysis. During the plea hearing, the court carefully questioned Thompson at sidebar regarding his knowledge of the terms of his plea agreement. ECF No. 970 (under seal). The record reflects that experienced defense counsel engaged in lengthy negotiations with the prosecutor. The plea agreement contains hand-written insertions with the initials of defense counsel and the prosecutor. The plea hearing was recessed for several hours so that Thompson could review the final terms of the agreement that had been hammered out. It is clear that Thompson received effective assistance during the plea bargaining process. Thompson represented to the court that he understood the terms of the plea agreement, he was not threatened and he understood he was giving up significant rights by entering into the plea agreement. ECF No. 970 at 7-8, 17. The court concluded he knowingly and voluntarily entered into the plea agreement and stipulated sentence. ECF No. 936 at 35.

         The court specifically questioned Thompson regarding his intent to waive his right to file a collateral attack on the guilty plea and sentence pursuant to § 2255.[4] The court exercised care to ensure that Thompson understood his rights, and specifically his right to collaterally attack his sentence. Thompson affirmed that he understood his rights and agreed to waive them. As reflected in the transcript of the proceedings, the court was satisfied and convinced that Thompson knowingly and voluntarily agreed to plead guilty, to be sentenced as set forth in the written plea agreement, and to waive any collateral attack on that sentence. ECF Nos. 936, 970.

         The only issue with respect to Thompson's knowing and voluntary entry into the plea agreement would be the impact of future developments in the law. In Brady v. United States, 397 U.S. 742 (1970), the defendant (“Brady”) was charged with kidnapping and faced the possibility of the death penalty if the case went to trial before a jury. He entered a guilty plea, with the assistance of competent counsel, and was sentenced to fifty years' imprisonment, later reduced to thirty years. Nine years later, the Supreme Court held that the statute under which Brady had been convicted was unconstitutional because it “made the risk of death the price of a jury trial.” Id. at 746. Brady filed a § 2255 motion, contending that his plea agreement was not voluntary because it had been coerced by fear of the death penalty. The Supreme Court refused to vacate Brady's plea, commenting that entry of a guilty plea “is a grave and solemn act” which reflects “defendant's consent that judgment of conviction may be entered without a trial.” Id. at 748. The Court explained that even if Brady would not have pled guilty except to avoid the risk of death, that penalty was merely the “but for” cause of his plea and did not necessarily prove that his plea was coerced and involuntary. Id. ...

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