King v. United States

• Decision Date: 28 July 2022
• Docket Number: 20-14100
• Citation: 41 F.4th 1363
• Parties: Deandre Markee KING, a.k.a. Santonio Spratlin, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

41 F.4th 1363

Deandre Markee KING, a.k.a. Santonio Spratlin, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 20-14100

United States Court of Appeals, Eleventh Circuit.

Filed: July 28, 2022

W. Matthew Dodge, Federal Defender Program, Inc., Stephanie A. Kearns, Kendal Silas, ATLANTA, GA, for Petitioner - Appellant.

Gabriel Adam Mendel, Jane Elizabeth McBath, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, ATLANTA, GA, for Respondent - Appellee.

Before Grant, Luck, and Anderson, Circuit Judges.

Grant, Circuit Judge:

A criminal defendant who wishes to plead guilty can waive the right to challenge his conviction and sentence in exchange for a better plea deal. With limited exceptions, a valid waiver of the right to collateral appeal bars habeas claims brought under 28 U.S.C. § 2255. This case requires us to decide whether that principle applies when a defendant seeks to challenge his sentence based on the Supreme Court's recent decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). In short, does a valid waiver of collateral attack foreclose habeas relief based on a new retroactive constitutional rule?

We hold that it does. None of the narrow exceptions that permit a court to look past an appeal waiver apply here. Because the defendant waived his right to bring a habeas challenge, we affirm the district court's order below.¹

I.

In 2012, Deandre King and three associates robbed a Dunwoody, Georgia bank at gunpoint, escaping with $71,668. With help from the bank's surveillance cameras and the suspects’ cell phone data, FBI agents tracked down the perpetrators. King and the others were arrested near another bank four months after the robbery; the car they were traveling in contained guns, masks, and gloves.

The government first charged King with three separate crimes. But in exchange for King's agreement to plead guilty, it substituted a lesser set of charges: one count of conspiracy to commit bank robbery under 18 U.S.C. § 371 and one count of using, carrying, or possessing a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). The government specified that the "crime of violence" underlying the § 924(c) charge was conspiracy to commit Hobbs Act robbery. King's plea agreement included a "waiver of appeal" giving up "the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to 28 U.S.C. § 2255 )."² The district court imposed a 135-month sentence, 51 months for the conspiracy offense and 84 months for the § 924(c) offense.

As agreed, King did not directly appeal his conviction or sentence after signing the waiver. But later developments in constitutional law inspired him to mount a collateral challenge. In 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Though King's case was unrelated to ACCA, he filed a pro se § 2255 motion to vacate his sentence. The district court denied the motion, pointing out that ACCA "played no role" in determining King's sentence—and that, in any case, King's appeal waiver barred any collateral challenge.

Four years later, in United States v. Davis , the Supreme Court applied its reasoning from Johnson to hold that the residual clause of § 924(c) was also unconstitutional. 139 S. Ct. at 2336. That opinion hit closer to home, because the government's use of conspiracy as an underlying "crime of violence" to King's § 924(c) conviction had relied on that statute's residual clause. This Court soon held that Davis ’s new constitutional rule was retroactive to cases on collateral review. See In re Hammoud , 931 F.3d 1032, 1039 (11th Cir. 2019). When King requested permission to file a second § 2255 motion challenging his conviction and sentence, we granted it because King had made a prima facie showing that he was entitled to relief under Davis . Soon after, we joined several other circuits in holding that "conspiracy to commit Hobbs Act robbery does not qualify as a ‘crime of violence’ " for § 924(c) purposes after Davis . Brown v. United States , 942 F.3d 1069, 1075–76 (11th Cir. 2019) (quoting 18 U.S.C. § 924(c)(3)(A) ).

The district court denied King's second motion. First and foremost, the court explained that King's appeal waiver prevented him from challenging his sentence. King argued that he qualified for an exception to the appeal waiver, analogizing his case to one in which a district court imposed a sentence above the statutory maximum. See United States v. Johnson , 541 F.3d 1064, 1068 (11th Cir. 2008). But the court rejected that comparison as qualitatively different. It also concluded that because King had not challenged his sentence on direct appeal, his claim was procedurally barred. King now appeals.

II.

We review the validity and scope of an appeal waiver de novo. See United States v. Bushert , 997 F.2d 1343, 1352 (11th Cir. 1993).

III.

As a rule, "sentence appeal waivers, made knowingly and voluntarily, are enforceable." Bushert , 997 F.2d at 1345. King agreed not to challenge his conviction or sentence "on any ground" outside an agreed-upon 84-month maximum for his firearms conviction and as long as the district court stayed within the Sentencing Guidelines range. Even so, King now asserts that the Supreme Court's decision in Davis is a "winning lottery ticket" that "renders [his] § 924(c) conviction and sentence unlawful." But neither the law nor the odds are on his side.

"A plea agreement is, in essence, a contract between the Government and a criminal defendant." United States v. Howle , 166 F.3d 1166, 1168 (11th Cir. 1999). Like any contract, a plea agreement must be construed according to the intent and reasonable expectation of the parties. United States v. Rubbo , 396 F.3d 1330, 1334 (11th Cir. 2005). That interpretive practice is longstanding and well understood—by both prosecutors and defendants.

If courts step back from the contract-based approach for appeal waivers, it will upset significant reliance interests—again, for both prosecutors and defendants. First, prosecutors. A court's refusal to enforce a waiver as written would "deprive the government of the benefit that it has bargained for and obtained in the plea agreement." United States v. Boyd , 975 F.3d 1185, 1191 (11th Cir. 2020) (quotation omitted). As for defendants, ignoring appeal waivers would offer a second chance for some (at least to start), but that move would backfire in the end—if a defendant cannot offer an airtight appeal waiver, a plea bargain will be much harder to strike. See Howle , 166 F.3d at 1169. Certainty, in short, benefits both prosecutor and defendant.

To maintain that certainty, we permit appeal waivers to apply "not only to frivolous claims, but also to difficult and debatable legal issues." United States v. DiFalco , 837 F.3d 1207, 1215 (11th Cir. 2016). A defendant who signs an appeal waiver gives up even "the right to appeal blatant error," because the waiver would be "nearly meaningless if it included only those appeals that border on the frivolous." Howle , 166 F.3d at 1169. The same principle applies here. So even when a new constitutional rule might provide a strong basis for collateral attack, we enforce an appeal waiver according to its terms.

Of course, like most rules, this one has exceptions. In United States v. Bushert , we explained that even "judicially enforced, knowing and voluntary sentence appeal waivers" do not bar a "collateral § 2255 action concerning certain subjects." 997 F.2d at 1350 n.17. But those subjects are few and sharply defined. The most obvious is a jurisdictional defect; an appeal waiver cannot confer jurisdiction on a court where none exists. See DiFalco , 837 F.3d at 1215. We have also carved out narrow substantive exceptions. We will review a sentence "based on a constitutionally impermissible factor such as race." Bushert , 997 F.2d at 1350 n.18 (quotation omitted). And in one case, we suggested that perhaps "extreme circumstances"—like a "public flogging" sentence—might justify overlooking an appeal waiver as well. Howle , 166 F.3d at 1169 n.5. One last exception remains. We also allow review of "a sentence imposed in excess of the maximum penalty provided by statute." Bushert , 997 F.2d at 1350 n.18 (quotation omitted).

These exceptions are crucial to King's attempted appeal because his plea agreement, on its face, bars his challenge. King does not dispute the plain terms of his plea agreement: though he admitted to forcing bank employees to turn over tens of thousands of dollars—at gunpoint—the government dropped an armed bank robbery charge and a conspiracy charge brought under 18 U.S.C. § 1951. It kept only a charge of using, carrying, or possessing a firearm during a crime of violence under § 924(c), and substituted in a less serious conspiracy charge. See 18 U.S.C. § 371. In exchange, King pleaded guilty to this lesser set of charges and agreed to waive the right to appeal his conviction and sentence.

This deal had obvious benefits for King. His original charges carried steep sentences—a 25-year statutory maximum for armed bank robbery and a 20-year maximum for conspiracy under § 1951, not to mention a possible sentence of life in prison for the § 924(c) firearms charge. See 18 U.S.C. §§ 2113(a), 2113(d), 1951(a) ; Alleyne v. United States , 570 U.S. 99, 112, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Yet the guilty plea left him with a sentence of only 135 months—less than 12 years. The bank robbery charge was dropped entirely, and the new conspiracy charge had a statutory maximum of five years instead of twenty. See 18 U.S.C. §§ 371, 1951. As for the § 924(c) firearms charge, the government agreed to limit King's sentence to 84 months,...