U.S. v. Linder

• Decision Date: 12 January 2009
• Docket Number: No. 07-6137.,07-6137.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason Landis LINDER, a/k/a Black, a/k/a Rodney Peterson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

552 F.3d 391

UNITED STATES of America, Plaintiff-Appellee, v. Jason Landis LINDER, a/k/a Black, a/k/a Rodney Peterson, Defendant-Appellant.

No. 07-6137.

United States Court of Appeals, Fourth Circuit.

Argued: December 3, 2008.

Decided: January 12, 2009.

ARGUED: Victor Andrew Rortvedt, Justin Sanjeeve Antonipillai, Arnold & Porter, L.L.P., Washington, D.C., for Appellant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney, Alexandria, Virginia; Darryl J. Mitchell, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.

Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge TRAXLER and Judge KING joined.

OPINION

WILLIAMS, Chief Judge:

In a written plea agreement with the Government, Jason Landis Linder knowingly and voluntarily waived his right to a direct appeal of his conviction and sentence for conspiracy to distribute and possess with the intent to distribute heroin. On direct appeal, we enforced this waiver and rejected Linder's challenge to his sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Now, in this 28 U.S.C.A. § 2255 (West 2006 & Supp.2008) proceeding, Linder once again seeks to escape the terms of his plea agreement, asking us to remand his case for resentencing. We decline to do so. Linder simply may not avoid the consequences of his knowing and voluntary appeal waiver and our prior judgment by re-raising his Booker claim on collateral review.

I.

On May 25, 2004, Linder knowingly and voluntarily pleaded guilty pursuant to a written plea agreement to one count of conspiracy to distribute and possess with the intent to distribute one kilogram or more of heroin in violation of 21 U.S.C.A. §§ 846, 841(a)(1) and (b)(1)(A) (West 1999 & Supp.2008). The plea agreement provided in relevant part:

4. Waiver of Appeal and Review

The defendant also understands that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Nonetheless, the defendant knowingly waives the right to appeal the conviction and any sentence within the maximum provided in the statute of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatsoever, in exchange for the concessions made by the United States in this plea agreement.¹

(J.A. at 53 (emphasis added).) At Linder's plea hearing, the district court conducted a proper Rule 11 colloquy, during which Linder stated that he had signed the plea agreement, initialed the bottom of each page, read each paragraph, discussed the agreement with counsel, and fully understood the agreement. Linder also specifically acknowledged that he understood that he was waiving his right to appeal any sentence within the statutory maximum. The district court accepted Linder's plea, finding "that [Linder] is fully competent and capable of entering an informed plea, that he understands the nature of the charges and the consequences of his plea, [and] that the plea of guilty is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense." (J.A. at 50.)

Following Linder's guilty plea but prior to his sentencing, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), holding that the Sixth Amendment right to a jury trial applies, in state criminal proceedings, to any fact that increases the penalty for a crime beyond the prescribed statutory maximum. Id. at 303-05, 124 S.Ct. 2531. We subsequently issued a published order in United States v. Hammoud, 378 F.3d 426 (4th Cir.2004), vacated, 543 U.S. 1097, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005), instructing district courts to "continue sentencing defendants in accordance with the guidelines, as was the practice before Blakely," and recommending that, "[i]n the interest of judicial economy," district courts "also announce, at the time of sentencing, a sentence pursuant to 18 U.S.C. § 3553(a) [ ], treating the guidelines as advisory only." Id.

Thereafter, a probation officer prepared a Presentence Investigation Report ("PSR") for Linder. In the PSR, the probation officer attributed 4,888.736 grams of heroin and 9.6 grams of cocaine base to Linder through relevant conduct, see U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 1B1.3 (2003), and, based on these amounts, determined that Linder's base offense level was 34 pursuant to U.S.S.G. § 2D1.1(c)(3) (2003). The probation officer determined that Linder was subject to both a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) (2003) for his leadership role in the offense and a three-level reduction pursuant to U.S.S.G. § 3E1.1 (2003) for his acceptance of responsibility.

Linder objected to the probation officer's determination of drug weights in the PSR as well as the description of his role in the conspiracy. Linder also asserted that the holding in Blakely should apply to his sentencing proceedings, arguing that the Sixth Amendment right to a jury trial attaches to findings that enhance a defendant's sentence under the Federal Sentencing Guidelines. Thus, Linder contended that, based on a drug weight of 1,500 grams of heroin—the amount the Government thought it could prove at the time the plea was entered, his base offense level should be 32 (rather than 34). On October 1, 2004, the district court denied Linder's motion to strike and dismiss the sentencing guidelines enhancements from the PSR, citing Hammoud for the proposition that "Blakely does not apply to the United States Sentencing Guidelines." (J.A. at 93.)

At sentencing on October 4, the district court found by a preponderance of the evidence that the drug weights involved exceeded four kilograms of heroin and set the base offense level at 34. The district court increased the offense level by 4, finding by a preponderance of the evidence that Linder acted in a leadership or organizer role in a conspiracy that involved five or more participants, and reduced the offense level by 3 for Linder's acceptance of responsibility, so that Linder's total offense level was 35. Based on this offense level and Linder's Criminal History Category of V, the district court sentenced him under the then-mandatory guidelines to 262 months imprisonment. Following our guidance in Hammoud, the district court also found that "[i]n the event the Court was not confined by the sentencing guidelines in this case, the Court would impose a sentence of 120 months." (J.A. at 159.)

Noting that the sentence imposed was within the statutory maximum and that Linder had previously waived his right to appeal any sentence within the statutory maximum, the district court asked Linder if he still wanted to abide by his waiver of his right to appeal. Linder responded, "Yes, sir." (J.A. at 157.) The district court entered the judgment on October 13, 2004.

Despite the waiver of his right to appeal, Linder noticed a timely appeal on October 14, 2004, challenging his sentences based on Blakely. While his direct appeal was still pending before us, the Supreme Court decided Booker on January 12, 2005, holding that "the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines," Booker, 543 U.S. at 226-27, 125 S.Ct. 738, and that "two provisions of the Sentencing Reform Act of 1984(SRA) that have the effect of making the Guidelines mandatory must be invalidated," id. at 227, 125 S.Ct. 738. The Supreme Court applied the holdings "to all cases on direct review." Id. at 268, 125 S.Ct. 738.

Ultimately, the Government invoked the appeal waiver in Linder's plea agreement, and we dismissed Linder's appeal on April 5, 2006, concluding that Linder waived his right to appeal and that the waiver included any challenges under Blakely or Booker. United States v. Linder, 174 Fed. Appx. 174, 175 (4th Cir.2006) (per curiam) (unpublished). The Supreme Court denied certiorari on October 2, 2006. Linder v. United States, 549 U.S. 938, 127 S.Ct. 328, 166 L.Ed.2d 245 (2006).

In addition to his petition for a writ of certiorari before the Supreme Court, on July 13, 2006, Linder, acting pro se, filed a Memorandum in Aid of Sentencing ("Petition for Relief") in the district court, requesting that the district court, in light of Booker, "vacate the sentence of 262 months and impose the Court['s] alternate sentence of 120 months." (J.A. at 185.) The district court informed Linder that it "intend[ed] to construe [Linder]'s motion under 28 U.S.C. § 2255 (Supp. IV 1998), as a Motion to Vacate, Set Aside and/or Correct Sentence," and ordered Linder to file a response within 30 days to the court's intention to construe the motion in this manner. (J.A. at 191.)

On August 18, 2006, Linder, through counsel, filed a Motion to Impose Alternative Sentence, which the district court incorporated into Linder's Petition for Relief under § 2255. On October 12, 2006, the district court denied the Petition for Relief, reasoning as follows:

[T]he Fourth Circuit has squarely held that the rule in Booker is not to be applied retroactively to prisoners whose convictions became final before Booker was decided. Petitioner's judgment was filed on October 13, 2004. Booker was decided on January 12, 2005. Petitioner's appeal to the Fourth Circuit was dismissed and his motion to remand denied because Petitioner waived his right to appeal in the plea agreement. Therefore, Petitioner's conviction was final before Booker, and Booker does not apply in the instant case.

(J.A. at 209-10 (internal citations omitted).)

Linder, pro se, filed a Motion to Alter or Amend Judgment, arguing that his conviction was not final on the date the Supreme Court decided Booker and that,...