United States v. Watson

• Decision Date: 07 May 2020
• Docket Number: Also 1:19-cv-341,Case No. 1:15-cr-113
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. LISTON WATSON, Defendant.
• Court: U.S. District Court — Southern District of Ohio

UNITED STATES OF AMERICA, Plaintiff, v. LISTON WATSON, Defendant.

Case No. 1:15-cr-113

Also 1:19-cv-341

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

May 7, 2020

District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is an action on a Motion to Vacate a criminal conviction under 28 U.S.C. § 2255, brought by Defendant with the assistance of counsel, Bryan K. Perkins and Michael K. Allen (ECF No. 78). In the Motion as filed, Watson pleadsed the following claims for relief:

Ground One: Petitioner did not enter his plea voluntarily and did not make his constitutional waivers knowingly and intelligently; as such his plea and sentence are void.

Supporting Facts: Petitioner did not make a fully informed and intelligent waiver of his constitutional rights when he entered a guilty plea. He did not have the all necessary information before him at the time he entered his guilty plea. He had been misinformed on the maximum possible sentence he was facing. He was under duress when faced with the government threatening to withdraw his plea offer once the court made a decision on his pending motion to suppress. Petitioner was denied a continuance so he could have more time to consider the government's plea, but that was denied and he was forced to make a snap decision regarding accepting the proposed plea agreement. Petitioner attempted to withdraw his guilty plea but was denied. (See attached Memorandum in Support).

Ground Two: The trial court violated the plea agreement between Petitioner and the Government without permitting Petitioner to withdraw his guilty plea.

Supporting Facts: Petitioner entered into a plea agreement with the government pursuant to Fed. R. Crim. Pro. 11 (c)(1)(C). The district court violated the terms of this agreement when it sentenced him to 1-day on Counts 1 and 5, when according to the terms of the plea agreement, Petitioner was not supposed to receive any sentence on these counts. Because the district court deviated from the terms of the plea agreement, it should have permitted Petitioner to withdraw his guilty plea. (See Memorandum in Support)

Ground Three: The trial court erred by not permitting Petitioner to withdraw his guilty plea prior to his sentencing when Petitioner set forth good cause for withdrawing his guilty plea.

Supporting Facts: Petitioner should have been permitted to withdraw his guilty plea. He was under duress when he entered his guilty plea, he did not have effective assistance of counsel, he did not have all the necessary information regarding his case, he was misinformed about the maximum possible penalties in the charges he pled guilty to, he wanted to pursue his motion to suppress, and the district court deviated from the terms of the plea agreement. (See Memorandum in Support)

Ground Four: A sentence in excess of the maximum sentence authorized by law is unlawful, violates due process, and is subject to collateral attack.

Supporting Facts: Because Petitioner entered into a plea agreement pursuant to Fed. R. Crim. Pro. 11(c)(1)(C), the terms of that agreement set forth the maximum possible sentence. In order to deviate from the terms of that agreement, the district court was required to give Petitioner the opportunity to withdraw his guilty plea prior to sentencing in violation of the agreed terms. In this case,the district court denied Petitioner's request to withdraw his plea, and then sentenced him in excess of the agreed upon terms. (See Memorandum in Support)

Ground Five: The court had no jurisdiction or other legal authority to impose a sentence on Counts 1 and 5, rendering the sentences void.

Ground Six: Petitioner was denied effective assistance of counsel at the plea hearing, sentencing hearing, and during his direct appeal, in violation of the Sixth Amendment.

Ground Seven: Petitioner's guilty plea and sentence must be vacated due to structural error.

(ECF No. 78 and 78-1. Grounds Five, Six and Seven are pleaded without a separate statement of supporting facts.

Before the United States filed an answer, Watson filed what he labeled as a Supplemental Memorandum in support of his Motion to Vacate but which is an effect adds a new eighth ground for relief, to wit, that Watson's conviction under 18 U.S.C. § 924(c) is unconstitutional on the basis of United States v. Davis, 139 S. Ct. 2319 (2019), which holds that 18 U.S.C. § 924(c)(3)(B)'s definition of a crime of violence is unconstitutionally vague.

Litigation History

Watson was arrested on a Complaint and later indicted on five counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), each with an associated count of using, carrying, and brandishing a firearm in violation of 18 U.S.C. § 924(c)(Indictment, ECF No. 14). The Federal Public Defender was appointed to represent Watson and the case was assigned upon indictment to United States District Judge Sandra S. Beckwith (ECF No. 6; docket notation ofNovember 4, 2015). On April 11, 2016, Watson filed a motion to suppress (ECF No. 23). That motion was set for hearing on April 25, 2016, but on that date the parties entered into a Plea Agreement (ECF No. 31). Two months later, after disclosure of the initial presentence investigation report, Watson filed a pro se motion to withdraw his guilty plea (ECF No. 34). That motion was denied (ECF No. 53) and on December 12, 2016, Judge Beckwith sentenced Watson (Minute Entry, ECF No. 58; Judgment, ECF No. 59). Watson appealed to the Sixth Circuit which affirmed the conviction and sentence. United States v. Watson, Case No. 16-4715, 716 Fed. Appx. 499 (6^th Cir. Nov. 28, 2017), cert denied, 138 S. Ct. 2015 (May 14, 2018). Watson filed his Motion to Vacate under 28 U.S.C. § 2255 on May 6, 2019 (ECF No. 78). On July 5, 2019, Watson supplemented his Motion as noted above by adding a claim under Davis. The United States filed its answer on August 1, 2019 (ECF No. 86). The case came on for evidentiary hearing on March 6, 2020,¹ and the testimony has been transcribed (Transcript, ECF No. 110). The parties have filed post-hearing briefs (ECF Nos. 111, 112), rendering the Motion to Vacate ripe for decision.

Analysis

The Motion to Vacate includes eight grounds for relief as quoted above. However, the post-hearing briefing of both parties is not structured around those grounds for relief. Watson has never amended his Motion (except for adding the claim under Davis). However, his post-hearing brief (labeled "Supplemental Memorandum," ECF No. 111) is entirely structured around his claim that his plea agreement was breached and what remedy the Court should provide. (See Table ofContents, ECF No. 111, PageID 576-77). As he candidly admitted at the end of the evidentiary hearing, this is because he believes if he is re-sentenced, he will be entitled to benefit from the amendment to 18 U.S.C. § 924(c)(1)(C) made by the First Step Act². As the Government points out in its Response, the First Step Act is not retroactive (ECF No. 112, PageID 624).

The Magistrate Judge believes the Court must decided the grounds for relief as they are pleaded. Therefore this Report is structured around those claims.

Ground One: Involuntary Guilty Plea

In his First Ground for Relief, Watson contended that his guilty plea was involuntary because he was misadvised about the possible maximum sentences and he was not given a requested continuance to consider whether to accept the offered bargain.

Watson has effectively abandoned his First Ground for Relief because he has explicitly said he does not now wish to withdraw his guilty plea (ECF No. 111, PageID 601, referring to Defendant's statement to that effect during the evidentiary hearing). Therefore no further analysis is required of Ground One which is deemed withdrawn.

Ground Two: Breach of the Plea Agreement

Watson argues that Judge Beckwith, acting on the Government's recommendation, violated the plea agreement by imposing a sentence of 360 months on the firearms charges and one day for the bank robbery charges.

The written Plea Agreement provides that Watson will plead guilty to Counts One and Five of the Indictment charging him with Bank Robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and Counts Two and Six charging him with Possession of a Firearm in Furtherance of a Crime, in violation of 18 U.S.C. § 924(c)(ECF No. 31, PageID 98). By the Plea Agreement, Count Two was to be amended to eliminate the brandishing enhancement and the mandatory minimum penalty thereby set at five years consecutive to any other sentence. Id. at ¶ 3. Count Six was noted to carry a mandatory minimum penalty of twenty-five years, also consecutive to any other sentence. Id.

The parties further agreed pursuant under Fed.R.Crim.P. 11(c)(1)(C), 18 U.S.S.C. § 3553, and the Sentencing Guidelines that an appropriate sentence was 360 months, the combined mandatory minimum for Counts Two and Six. Id. at¶ 4, PageID 99. If the Court accepted "this plea agreement a term of imprisonment of (360) months will be imposed." Id. A plea colloquy was held the same day the Plea Agreement was signed (Transcript, ECF No. 49). There has been no suggestion by Defendant that the colloquy did not comply with Fed.R.Crim.P. 11, that it did not accurately reflect the Plea Agreement,³ or that it does not contain admission of sufficient facts to ground the four convictions.

Watson was sentenced December 12, 2016 (Minute Entry, ECF No. 58). As reflected in the Judgment entered that day, he was sentenced to "Three hundred and sixty months (360) andone day. Broken down as follows: Counts 1 and 5, one day each to be served concurrently, with credit for time served; Count 2, sixty (60) months consecutive to Counts 1 and 5; Count 6, 300 months to be served consecutively to all other Counts." (ECF No. 59, PageID 234). The written Judgment accurately reflects the sentence orally pronounced in open court where both Judge Beckwith and the Assistant United States Attorney agreed...