April 26, 2017
from the United States District Court for the Southern
District of Illinois. No. 15-CR-30149-NJR-01 - Nancy J.
Wood, Chief Judge, and Ripple and Sykes, Circuit Judges.
Carson robbed a convenience store by pulling a gun on the
cashier. The police caught him in short order, and he pleaded
guilty to Hobbs Act robbery and other charges. The district
court sentenced Carson as an armed career criminal,
classifying as violent felonies prior convictions for robbery
and armed robbery. Carson now appeals, arguing that under
Johnson v. United States, 559 U.S. 133 (2010), none
of those crimes is a violent felony. Because the appeal
waiver in Carson's plea agreement precludes this
argument, we dismiss the appeal.
robbed a Walgreens store in 2015. He waited in line until the
cashier opened the register to make change for the woman in
front of him. He pulled a loaded, semiautomatic pistol out of
his pants and held it in his right hand while reaching across
the counter and grabbing cash from the register. Carson fled
by bicycle, but witnesses told police his direction of travel
and he was quickly caught. Carson was charged with Hobbs Act
robbery, 18 U.S.C. § 1951(a); brandishing a firearm in
furtherance of a crime of violence, id. §
924(c); and possessing a firearm as a felon, id.
pleaded guilty to all charges and waived his right to appeal
with limited exceptions in exchange for the government's
agreement to recommend a 3-level reduction for acceptance of
responsibility and a prison sentence of 272 months. That
sentence represented the low end of the range calculated by
the parties based on a shared assumption that Carson would be
sentenced as an armed career criminal. See 18 U.S.C.
§ 924(e); U.S.S.G. § 4B1.4. The appeal waiver
[I]n exchange for the recommendations and concessions made by
the Government in this Plea Agreement, Defendant
knowingly and voluntarily waives the right to contest any
aspect of the conviction and sentence, including the
manner in which the sentence was determined or imposed, that
could be contested under Title 18 or Title 28, or under any
other provision of federal law, except that if the sentence
imposed is in excess of the Sentencing Guidelines as
determined by the Court (or any applicable statutory minimum,
whichever is greater), Defendant reserves the right to appeal
the substantive reasonableness of the term of imprisonment.
Defendant's waiver of the right to appeal or bring
collateral challenges shall not apply to:
1) claims of ineffective assistance of counsel;
2) any subsequent change in the interpretation of the law by
the United States Supreme Court or the United States Court of
Appeals for the Seventh Circuit that is declared retroactive
by those Courts and that renders Defendant actually innocent
of the charges covered herein; and 3) appeals based upon
Sentencing Guideline amendments that are made retroactive by
the United States Sentencing Commission ....
the plea colloquy, the judge stated three times that as an
armed career criminal, Carson faced a statutory minimum of 15
years' imprisonment on the charge of possessing a firearm
as a felon. See § 924(e). The judge also
ensured that Carson understood the rights he was waiving,
including his right to appeal.
presentence investigation report recommended that Carson be
sentenced as an armed career criminal (a defendant with three
prior convictions for serious drug offenses or violent
felonies). 18 U.S.C. § 924(e)(1). The statute defines a
violent felony as any crime punishable by more than a year in
prison that "(i) has as an element the use, attempted
use, or threatened use of physical force against the person
of another; or (ii) is burglary, arson, or extortion, [or]
involves use of explosives." Id. §
924(e)(2)(B). The presentence report then identified four
predicate convictions subjecting Carson to the enhancement:
robbery in February 1990 and March 1991, both in Illinois;
robbery in March 1992 in Missouri; and armed robbery in
November 2005 in Illinois. Though Carson objected to other
parts of the presentence report, he did not object to his
designation as an armed career criminal. Rather, he had
already stipulated in the plea agreement that the statutory
minimum for the § 922(g)(1) charge is 15 years and that
his criminal history category is VI, which would not be true
if he is not an armed career criminal.
judge sentenced Carson as an armed career criminal, which
changed the statutory penalties he faced on the §
922(g)(1) charge from a maximum of 120 months'
imprisonment to a minimum of 180 months' imprisonment.
See § 924(e). And under the Sentencing
Guidelines, the designation also raised the recommended
imprisonment range for that charge (which was grouped with
the Hobbs Act robbery charge) from 57-71 months to 188-235
months. See U.S.S.G. §§ 2K2.1(a)(4)(A);
4B1.4(b)(3)(A), (c)(2). The judge imposed concurrent
188-month terms for the § 922(g)(1) and Hobbs Act counts
plus a consecutive term of 84 ...