Green v. U.S.A, Case No. 8:08-cr-348-T-17TGB
| Decision Date | 28 January 2011 |
| Docket Number | Case No. 8:08-cr-348-T-17TGB,8:10-cv-1416-T-17TGB |
| Parties | RAMON C. GREEN, v. UNITED STATES OF AMERICA. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Defendant Ramon C. Green's motion to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255. (Doc. cv-1; cr-35). A review of the record demonstrates that, for the following reasons, the motion to vacate must be denied.
On March 16, 2009, Green pled guilty, pursuant to a written plea agreement, to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count One of the Indictment). Docs. cr-28 (minute entry); cr-23 (plea agreement; cr-37 (transcript). At the time of Green's indictment, the United States believed Green was an Armed Career Criminal (ACCA) under 18 U.S.C. § 924(e), based upon, among other things, a conviction for felony fleeing and eluding. By the time Green pled guilty, however, the Eleventh Circuit Court of Appeals had determined that the particular offense of fleeing and eluding that Green was convicted of was not a crime of violence. See United States v. Harrison, 558 F.3d 1280, 1290-96 (11th Cir. 2009) (). As a result, at the change of plea hearing, all parties agreed that Green was not subject to the penalties of the ACCA. Doc. 37 at 3-5 (transcript). On April 6, 2009, Green's guilty plea was accepted and he was adjudicated guilty. Doc. cr-31 (minute entry).
Pursuant to the terms of his plea agreement, Green expressly waived his right to appeal his sentence:
... or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).
A presentence investigation report (PSR) was prepared prior to Green's June 5, 2009, sentencing date. The PSR calculated Green's base offense level under USSG §2K2.1(a)(2) as 24 based on Green's two prior convictions for crimes of violence. At Green's sentencing proceeding on June 5, 2009, he did not object to the use of his two prior convictions: 1) robbery in the first degree, case no. CRC 99-15804CFANO-A; and 2)resisting an officer with violence and battery of a law enforcement officer, case no. CRC 04-10979CFANO-K, to increase his base offense level under USSG §2K2.1(a)(2) to level 24. Since there were no objections to the facts or application of the guidelines as presented in Green's PSR, the Court adopted those statements and guideline applications as its findings of fact. Doc. cr-38 at 4 (transcript). This Court then sentenced Green to 77 months' incarceration, to be followed by a 24-month term of supervised release. Docs. cr-32 (minute entry); cr-33 (Judgment, signed on June 8, 2009), and cr-38. In accordance with the terms of his plea agreement, Green did not file a direct appeal.
On June 22, 2010, Green filed the instant Section 2255 motion challenging his sentence in light of the Supreme Court's decision in Johnson v. United States, 130 S. Ct. 1265 (2010). Specifically, Green alleges that the Court lacked jurisdiction to enhance his sentence under USSG §2K2.1 (Ground One); he is actually innocent of the enhanced sentence (Ground Two); because of this enhancement, his rights to due process were violated (Ground Three); his enhanced sentence must be vacated to prevent a miscarriage of justice (Ground Four); and his counsel was ineffective "in entering an appeal waiver that would not cover any claim argued in Grounds One through Four, and waiver was unknowingly and involuntarily entered" (Ground Five). Doc. cv-1 (attachment).
In his 2255 motion, Green raises claims challenging his sentence in light of the Supreme Court's decision in Johnson v. United States, 130 S. Ct. 1265 (2010). This Court is required to dismiss a section 2255 motion, without requiring the United States to file an answer, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief[.]" See Rules Governing Section 2255 Proceedings, 4(b). Moreover, if it is clear from the plea agreement and the Rule 11 colloquy that the petitioner knowingly and voluntarily waived his right to collaterally attack his sentence, "that waiver should be enforced without requiring the government to brief the merits of the section 2255 motion." United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (addressing appeal waiver).
The right to collaterally challenge a sentence is statutory and can be waived if done so knowingly and voluntarily. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005). For this Court to enforce such a waiver, the Government need only demonstrate either (1) that the district court specifically questioned the defendant concerning the waiver during the Fed. R. Crim. P. 11 colloquy; or (2) that it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). In this case, both prongs of this test have been satisfied.
A defendant's waiver of the right to appeal "directly or collaterally" encompasses his right to challenge his sentence in a section 2255 proceeding. See Williams, 396 F.3d at 1342; United States v. White, 307 F.3d 336, 341-44 (5th Cir. 2002); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001); Davila v. United States, 258 F.3d 448, 451-52 (6th Cir. 2001); United States v. Cockerham, 237 F.3d 1179, 1183-87 (10th Cir. 2001); Mason v. United States, 211 F.3d 1065, 1069-70 (7th Cir. 2000). The waiver is enforceable against claims of ineffective assistance of counsel at sentencing, because "a contrary result would permit a defendant to circumvent the terms of the sentence-appeal waiver simply by recasting a challenge to his sentence as a claim of ineffective assistance, thus rendering the waiver meaningless." Williams, 396 F.3d at 1342; See also Cockerham, 237 F.3d at 1182 (); Mason, 211 F.3d at 1069 (same).
In particular, if the complaint underlying the ineffective assistance claim was waived by a defendant's plea agreement, then the ineffective assistance claim was also waived. See Williams, 396 F.3d at 1342 (); United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (). For the reasons explained below, the record plainly demonstrates that Green waived his right to collaterally challenge his sentence.
In this case, Green expressly waived his right to appeal his sentence directly or to challenge it collaterally, given the exceptions identified above. First, as noted in the Facts section above, Green's plea agreement included waiver language. Green initialed the bottom of the page of his plea agreement signaling he read and understood the waiver. Docs. cr-23; and cr-37 at 11-12. In addition, at his change of plea hearing, the Court conducted the following colloquy with Green to make certain Green understood the terms of the appeal waiver:
COURT: Under Paragraph 5 you can only appeal if the sentence exceeds the guideline range as determined by the Court under the guidelines, or the sentence exceeds the statutory maximum penalty of 10 years in prison, or the sentence violates the 8th Amendment to the Constitution, which prohibits excessive fines and cruel and unusual punishment. Those are the only thingsyou can appeal about your sentence.
Do you understand that?
Do you understand that?
Doc. cr-37 at 34-35. In concluding the Rule 11 colloquy, the Court found there to be a factual basis to support Green's plea, and that his plea was entered "freely, voluntarily, and knowingly with the advice of a lawyer with whom" Green said he was satisfied. Doc....
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