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United States v. White

United States District Court, M.D. Pennsylvania

June 7, 2018

UNITED STATES OF AMERICA,
v.
DEMARIO ANTUAN WHITE, Defendant.

          ORDER MEMORANDUM

          A. RICHARD CAPUTO UNITED STATES DISTRICT JUDGE

         Presently before this Court is Defendant Demario Antuan White's Motion to Correct Sentence (Doc. 132) under 28 U.S.C. § 2255. This Motion will be denied because the Defendant knowingly and intelligently waived his right to collaterally attack his sentence and the denial of the Motion does not result in a miscarriage of justice.

         I. Background

         On August 25, 2009, a Grand Jury charged Defendant Demario Antuan White (“Defendant”) in a five-Count Indictment. (Doc. 1.) Years later, on January 6, 2011, the Defendant pled guilty to Count Three of the Indictment, which charged him with a violation of 18 U.S.C. § 924(c). (Doc. 90.) Specifically, this Count charged the Defendant with “knowingly us[ing], carr[ying], brandish[ing], and discharg[ing] a firearm . . . during and in retaliation to, and in furtherance of a crime of violence.” (Id.) The predicate “crime of violence” was attempted kidnaping in violation of 18 U.S.C. § 1201(d).

         Defendant's guilty plea was pursuant to a written plea agreement. (Doc. 77.) The parties had agreed to a sentence of ten years imprisonment. (Doc. 77, at ¶ 10(A).) Additionally, this agreement contained an appellate waiver, which included a specific waiver of rights to challenge his conviction or sentence through a motion under 28 U.S.C. § 2255. (Doc. 77, at ¶ 21.)

         On July 28, 2011, after reviewing the written plea agreement, the recommendations contained in the pre-sentence report, and the relevant statutory guidance, I sentenced the Defendant to 120 months-or ten years-imprisonment for Count Three of the Indictment. (Doc. 107.) Notably, this was a guideline sentence consistent with the plea agreement. At that time, the Government dismissed the remaining counts in the Indictment. (Id.)

         In light of recent developments in the law, Defendant has filed a Motion to Correct Sentence pursuant to 28 U.S.C. § 2255. Principally, the Defendant argues that following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his conviction and sentence under 18 U.S.C. § 924(c) violates due process and should be vacated because attempted kidnaping is no longer considered a “crime of violence.”

         II. Discussion

         A. Legal Standard: 28 U.S.C. § 2255

         Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Section 2255 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).

         The district court is given discretion in determining whether to hold an evidentiary hearing on a prisoner's motion under § 2255. See Gov't of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the Court must decide whether the petitioner's claims, if proven, would entitle petitioner to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Gov't of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d. Cir. 1994). Accordingly, a district court may summarily dismiss a motion brought under § 2255 without a hearing where the “motion, files, and records, ‘show conclusively that the movant is not entitled to relief.'” United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); see also Forte, 865 F.2d at 62.

         B. Validity of Appellate Waiver

         The Government argues that the appellate waiver contained in the Defendant's plea agreement should be enforced, and as a result, the instant motion should be denied. The Defendant contends that the appellate waive is inapplicable because its enforcement would result in a miscarriage of justice. I agree with the Government and will enforce the waiver.

         The Third Circuit has established a two-part test to determine the validity of an appellate waiver. See United States v. Khattack, 273 F.3d 557, 558 (3d Cir. 2001). First, a court must determine whether the waiver was entered into “knowingly and voluntarily.” Id. at 562. Second, a court must assess whether enforcement of the waiver “works a miscarriage of justice.” Id. “[W]aivers of appeal, if entered into knowingly and voluntarily, are valid unless they work a miscarriage of justice.” Id. at 563; see also United States v. Fazio, 795 F.3d 421, 425-26 (3d Cir. 2015) ...


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