United States District Court, M.D. Pennsylvania
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE
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.
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).
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.)
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.)
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.”
Legal Standard: 28 U.S.C. § 2255 “
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).
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.
Validity of Appellate Waiver
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.
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)