United States v. Pam

• Decision Date: 15 August 2017
• Docket Number: No. 16-2171,16-2171
• Citation: 867 F.3d 1191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry PAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

867 F.3d 1191

UNITED STATES of America, Plaintiff-Appellee,

v.Larry PAM, Defendant-Appellant.

No. 16-2171

United States Court of Appeals, Tenth Circuit.

FILED August 15, 2017

Submitted on the briefs:^*

Darrell M. Allen, Albuquerque, New Mexico, for Defendant-Appellant.

James D. Tierney, Acting United States Attorney, Las Cruces, New Mexico; C. Paige Messec, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

I. INTRODUCTION

After pleading guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Larry Pam was sentenced to a fifteen-year term of imprisonment consistent with a plea agreement entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Mr. Pam's fifteen-year sentence exceeds the ten-year statutory maximum generally applicable to violations of § 922(g)(1). See 18 U.S.C. § 924(a)(2). But the district court accepted the Rule 11(c)(1)(C) plea agreement and imposed the agreed-upon sentence with the understanding that Mr. Pam is an armed career criminal under the Armed Career Criminal Act ("ACCA") and therefore is subject to a mandatory minimum sentence of fifteen years' imprisonment. Id. at § 924(e)(1).

Mr. Pam unsuccessfully challenged his conviction and sentence on direct appeal and collateral attack, but in light of the United States Supreme Court's decisions in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), we granted Mr. Pam authorization to file a second or successive motion for post-conviction relief under 28 U.S.C. § 2255. Accordingly, Mr. Pam filed a pro se § 2255 motion contending that his sentence had been unconstitutionally enhanced under the ACCA. The district court dismissed the motion, determining that the new constitutional rule announced in Johnson is inapplicable to Mr. Pam's sentence and, in the alternative, that the collateral attack waiver contained in Mr. Pam's plea agreement bars him from bringing the instant § 2255 motion.

Mr. Pam appealed the district court's decision and we granted him a Certificate of Appealability ("COA") as to whether (1) "the district court erred in holding that [Mr.] Pam was not entitled to relief under Johnson ," and (2) "the district court erred in holding that [Mr.] Pam's claims were barred by the collateral attack waiver contained in his plea agreement." Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's dismissal of Mr. Pam's § 2255 motion, but we do so on alternative grounds.¹

II. BACKGROUND

In 2011, Mr. Pam was named in a single-count indictment for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence investigation report ("PSR") calculated Mr. Pam's United States Sentencing Guidelines ("Guidelines") range of imprisonment as 188 to 235 months and indicated Mr. Pam was subject to a statutory minimum fifteen-year term of imprisonment because he qualified as an armed career criminal under the ACCA. To be an armed career criminal under the ACCA, the defendant must have "three previous convictions by any court ... for a violent felony or a serious drug offense." See 18 U.S.C. § 924(e)(1). The PSR identified Mr. Pam's three ACCA predicate offenses as two convictions for shooting at or from a motor vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), and a single conviction for aggravated assault with a deadly weapon, in violation of New Mexico Statutes Annotated § 30-3-2(A).

The district court held a plea hearing on September 20, 2011, during which Mr. Pam pled guilty and entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).² In addition to containing Mr. Pam's admission of guilt to being a felon in possession of a firearm and ammunition, the plea agreement states that while this offense carries a maximum penalty of "imprisonment for a period of not more than ten (10) years; ... [Mr. Pam] may be an armed career criminal which carries a minimum sentence of fifteen (15) years['] imprisonment." It further reflects the parties' agreement that "a sentence of 180 months['] imprisonment, or 15 years['] imprisonment, is the appropriate disposition for this case." The plea agreement also includes a section entitled "Validity of Convictions," in which Mr. Pam stipulates that he has two prior felony convictions for shooting at or from a motor vehicle, as well as a prior felony conviction for aggravated assault with a deadly weapon. Finally, the plea agreement contains a collateral attack waiver, which states:

[T]he Defendant agrees to waive any collateral attack to the Defendant's conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

At a sentencing hearing conducted four months later, the district court accepted the parties' Rule 11(c)(1)(C) plea agreement and sentenced Mr. Pam to the agreed-upon sentence of 180 months' imprisonment. The district court, in explaining its acceptance of the agreement, noted the PSR's "finding that [Mr. Pam] is an Armed Career Criminal" with "three convictions for violent felonies."

After unsuccessfully seeking post-conviction relief through an initial § 2255 motion, challenging his conviction and sentence on direct appeal, and pursuing other avenues not relevant to this appeal, Mr. Pam requested authorization to file a second or successive § 2255 motion. His request was based on the Supreme Court's decision in Johnson , which struck down the portion of the ACCA's definition of "violent felony" known as the residual clause. 135 S.Ct. at 2557. We granted Mr. Pam's request and, shortly after his second or successive § 2255 motion was filed with the United States District Court for the District of New Mexico, the district court appointed counsel to represent Mr. Pam. Despite being represented by counsel, Mr. Pam subsequently filed a pro se amended § 2255 motion, which in large measure repeated the claims and arguments presented in the first motion we authorized him to file.

The district court issued a single order dismissing both motions, reasoning that Mr. Pam is not entitled to post-conviction relief because (1) Johnson is inapplicable to Mr. Pam's sentence, which was imposed pursuant to a Rule 11(c)(1)(C) plea agreement and not under the provisions of the ACCA and (2) Mr. Pam's collateral attack waiver is enforceable and bars him from bringing a § 2255 motion based on Johnson . Through counsel, Mr. Pam filed a motion requesting the district court to vacate its dismissal of his § 2255 motion. Mr. Pam then filed a notice of appeal. Because Mr. Pam's motion to vacate remained pending before the district court, we held his appeal in abeyance until the district court issued an order denying the motion.³ Mr. Pam subsequently requested but was denied a COA from the district court to challenge the dismissal of his § 2255 motion. Mr. Pam then petitioned this court, and we granted him a COA on two issues: "(1) whether the district court erred in holding that [Mr.] Pam was not entitled to relief under Johnson ; and (2) whether the district court erred in holding that [Mr.] Pam's claims were barred by the collateral attack waiver contained in his plea agreement."

III. DISCUSSION

"In reviewing denial of a § 2255 motion for post-conviction relief where a COA has been granted, ‘we review the district court's findings of fact for clear error and its conclusions of law de novo.’ " United States v. Viera , 674 F.3d 1214, 1217 (10th Cir. 2012) (quoting United States v. Rushin , 642 F.3d 1299, 1302 (10th Cir. 2011) ). "But where, as here, the district court does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon an uncontested trial record, our review is strictly de novo." Rushin , 642 F.3d at 1302.

In examining Mr. Pam's appeal of the district court's decision, we first address the threshold issue of whether Mr. Pam may bring a Johnson -based challenge to an agreed-upon sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement. We conclude Mr. Pam may bring such a challenge because his plea agreement expressly references the ACCA as the basis for his term of imprisonment. Next, we consider whether the collateral attack waiver contained in Mr. Pam's plea agreement bars him from challenging his sentence under § 2255. Determining that it does not, we then examine whether Mr. Pam's felony convictions for shooting at or from a motor vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), constitute violent felonies under the ACCA after Johnson . Resolving this final issue in favor of the government, we conclude the district court was correct in dismissing Mr. Pam's § 2255 motion.

A. Rule 11(c)(1)(C) and Johnson

Before the district court, Mr. Pam argued that his 180-month sentence is unconstitutional because his prior convictions for shooting at or from a motor vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), as well as his conviction for aggravated assault with a deadly weapon, in violation of New Mexico Statutes Annotated § 30-3-2(A), no longer constitute violent felonies under the ACCA after Johnson . The district court did not reach the merits of Mr. Pam's arguments, but found he was not entitled to post-conviction relief because (1) his claim for relief from a Rule 11(c)(1)(C) plea agreement does not implicate Johnson and (2) the waiver provision in his plea agreement bars him from raising a Johnson -related collateral attack to his sentence.

In reaching its determination that Mr. Pam's § 2255 motion does not implicate Johnson , the district court reasoned that because Mr. Pam "was not sentenced under the provisions of the ACCA, but was instead sentenced to...