United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
Robertson pleaded guilty to possession of marijuana with
intent to distribute, 21 U.S.C. § 841(a)(1), and
maintaining a marijuana distribution house, 21 U.S.C. §
856(a)(1). At sentencing, the court increased his base
offense level based on its determination that his prior
felony conviction for resisting law enforcement with a
vehicle is a “crime of violence.” U.S.S.G.
§§ 2K2.1(a)(2), 4B1.2(a). Mr. Robertson challenged
the sentence in a motion to vacate under 28 U.S.C. §
2255 based on the Supreme Court's holding in Johnson
v. United States, 135 S.Ct. 2551 (2015) that parallel
language in the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B), is unconstitutionally vague. The court held
that the waiver in Mr. Robertson's plea agreement barred
his motion. He now requests a certificate of appealability
under 28 U.S.C. § 2253(c)(2).
of a certificate of appealability requires the court to find
that Mr. Robertson has made “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). He has done so.
Robertson's collateral attack failed under circuit
precedent. He didn't show that the appeal waiver was
uninformed or involuntary, that a collateral attack was
outside of its scope, that sentencing relied on a
constitutionally impermissible factor, that his sentence
exceeded the statutory maximum, or that his counsel provided
ineffective assistance in negotiating the plea agreement.
See Keller v. United States, 657 F.3d 675, 681 (7th
Cir. 2011) (listing exceptions to an otherwise-valid appeal
waiver). In United States v. Worthen, No. 15-3521
(7th Cir. Nov. 28, 2016), our court of appeals showed that it
was willing to enforce an appeal waiver even in
Johnson-based challenges to the constitutionality of
jurists might disagree. Even though United States v.
Bownes, 405 F.3d 634 (7th Cir. 2005) enforced the appeal
waiver of a defendant given a within-guideline sentence
before United States v. Booker, 543 U.S. 220 (2005),
Bownes doesn't address whether a waiver is
enforced if the guidelines that anchor the sentence are
themselves invalid. Outside developments in the law might
encourage the appeals court to revise its interpretation of
whether a defendant can ever waive rights unknown at the time
of the waiver. See United States v.
McBride, 826 F.3d 293, 294-295 (6th Cir. 2016) (holding
that defendant agreeing to career offender designation
didn't waive a Johnson-based challenge because
“a defendant can abandon only known rights,
” so he “could not have intentionally
relinquished a claim based on Johnson, which was
decided after his sentencing”). Mr. Robertson points to
district court decisions discarding appeal waivers within
circuits that recognize exceptions for a “miscarriage
of justice, ” see, e.g., United States v.
Swerdon, No. 3:16cv313, 2016 WL 4988065 (M.D. Pa. Sept.
19, 2016), or constitutional challenge, see, e.g.,
United States v. Hoopes, No. 3:11-cr-425-HZ, 2016 WL
3638114 (D. Or. July 5, 2016).
on the foregoing, the court GRANTS Mr. Robertson's motion
for a certificate of appealability [Doc. No. 153] and issues
a certificate of appealability with respect to the issue of
whether a waiver of collateral attack in the plea agreement
bars a challenge under Johnson v. United States, 135
S.Ct. 2551 (2015).
 The court disagrees with Mr.
Robertson's interpretation that Bownes allows
flexible exceptions for later-determined due process
violations because, as Mr. Robertson says, the listed
exceptions are “all firmly rooted in the due process
clause.” Bownes explains that broad waivers
“are effective even if the law changes in favor of the
defendant after sentencing, ” Bownes, 405 F.3d
at 636; see Keller, 657 F.3d at 681 (explaining that
waivers are upheld unless one of the “limited
exceptions” applies), and isn't based on the theory
that appeal waivers can be circumvented for due process
violations but not for other kinds of constitutional
violations. The kind of exception that Bownes
rejected was for a sentence imposed under the regime of
binding sentencing guidelines that the Supreme Court rejected
in Booker. The Court rejected this approach not just
because it violated the Sixth Amendment but because due