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United States v. Ross

United States District Court, N.D. Indiana, Hammond Division

August 31, 2017

UNITED STATES OF AMERICA
v.
RYAN ROSS, AARON COOPER, and RALPH OLIVER

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE

         Defendants Ross, Cooper, and Oliver move for relief pursuant to 28 U.S.C. § 2255. They challenge their convictions and sentences for violating 18 U.S.C. § 924(c). They argue that after imposition of their sentences, the law changed such that a violation of 18 U.S.C. § 922(u)-theft from a federally licensed firearm dealer, the predicate offense used here-can no longer serve as a “crime of violence” for purposes of § 924(c).

         A. Background

         (1) Crime spree

         Defendants Ross, i Cooper, ii and Oliveriii admitted committing an armed crime spree.

         On August 20, 2010, Mr. Oliver and Mr. Ross robbed a Cricket cell phone store in Chicago. One of the Defendants displayed a handgun during this robbery. The Defendants stole about $830 from this store.

         One week later, Mr. Ross, Mr. Oliver, and Mr. Cooper robbed a Get Connected cell phone store in Chicago. One of the Defendants displayed an automatic firearm during this robbery. They stole cash, clothing, and cell phones amounting to about $11, 710.

         Five days later, the three Defendants (and Mr. Williams, another Co-Defendant, who has not petitioned for relief under § 2255) robbed a Hotline Wireless cell phone store in Chicago. One Defendant pointed a gun at a clerk. They stole cash and cell phones amounting to about $1, 500.

         Two days later, on September 3, 2010, the four Defendants robbed Jack's Loan Office in Gary, Indiana. Mr. Cooper pointed a firearm at the head of an employee. Mr. Ross pointed a BB gun at another employee.

         This time the victims resisted.

         One of the employees shot and hit Mr. Cooper. Another employee grabbed Ross's gun and handcuffed him. Defendants Cooper, Oliver, and Williams fled with stolen guns, ammunition, cash, and a gun-shot wound, and without their Co-Defendant Ross.

         (2) Defendants Ross and Cooper

         An indictment charged Mr. Ross, Mr. Cooper, and Mr. Oliver with theft of firearms from a federally licensed firearm dealer, in violation of 18 U.S.C. § 922(u), and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and § 2.

         The indictment specified the § 922(u) charge as the predicate “crime of violence” for the § 924(c) charge.

         Mr. Cooper and Mr. Ross entered plea agreements. Both Defendants agreed to plead guilty to both the § 922(u) and the § 924(c) charges.

         In the plea agreements, Mr. Cooper and Mr. Ross also agreed to waive their rights to appeal or contest their convictions or sentences. The plain language of the waiver is broad: Defendants agreed to waive “any ground.” (Cooper's Plea Agreement, DE 53 at 4; Ross's Plea Agreement, DE 68 at 4.) The plain language is also specific: it cites 28 U.S.C. § 2255 as waived, the exact section Defendants now seek to invoke. (Id.)

         The Court sentenced Mr. Cooper to a term of 27 months for theft of firearms from a federally licensed firearm dealer (in violation of § 922(u)) plus a consecutive term of 84 months for use of a firearm during and in relation to a federal crime of violence (in violation of § 924(c)), for a total term of 111 months imprisonment.

         The Court sentenced Mr. Ross to a term of 96 months for theft of firearms from a federally licensed firearm dealer plus a consecutive term of 84 months for use of a firearm during and in relation to a federal crime of violence, for a total term of 180 months imprisonment. The Court dismissed Count 3 of the indictment against Mr. Ross on the government's motion.

         (3) Defendant Oliver

         A superseding indictment charged Mr. Oliver with theft of firearms from a federally licensed firearm dealer in violation of 18 U.S.C. § 922(u), with Hobbs Act robbery in violation of 18 U.S.C. § 1951 and § 2, and with use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) and § 2. The superseding indictment referenced § 922(u) as the predicate offense for the § 924(c) charge.

         Mr. Oliver entered into a plea agreement. He agreed to plead guilty to the § 1951 and the § 924(c) charges, with the same express admissions of guilt made by his Co-Defendants. (Oliver's Plea Agreement, DE 134 at 3.) The government agreed to move for dismissal of three other counts against Mr. Oliver.

         Mr. Oliver also agreed to waive his rights to appeal or contest his conviction or sentence. His waiver matches those of his Co-Defendants.

         The Court sentenced Mr. Oliver to a term of 106 months for conspiracy to interfere with commerce by threats or violence (in violation of § 1951) plus a consecutive term of 84 months for use of a firearm during and in relation to a federal crime of violence (in violation of § 924(c)), for a total term of 190 months imprisonment. The Court dismissed Counts 1, 2, and 4 of the superseding indictment on the government's motion.

         (4) Mr. Ross's first motion for relief under § 2255

         Mr. Ross first moved for relief under 28 U.S.C. § 2255 on October 18, 2012. The Court denied relief on the basis of Mr. Ross's waiver in his plea agreement of the right to pursue relief under § 2255, and noted that Mr. Ross's motion failed on its merits anyway.

         (5) Change in law

         Years after the Court sentenced Defendants, the Supreme Court changed the law. In Johnson, the Supreme Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act-the second half of 18 U.S.C. § 924(e)(2)(B)(ii)-violates the Constitution's guarantee of due process. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). The instant case involves a similar clause.

         So Mr. Ross asked the Seventh Circuit for permission to file a successive § 2255 motion.[1]The Seventh Circuit granted permission, without diving into a deep investigation of the merits of or defenses against Mr. Ross's arguments. Rather, the Seventh Circuit specifically permitted the government to raise its various contentions before this Court.

         Defendants Ross, Cooper, and Oliver then moved this Court for relief under § 2255. These three motions are similar to each other. Defendants ask the Court to vacate their convictions and sentences for violating 18 U.S.C. § 924(c). Defendants argue that the crime of violence predicating the § 924(c) convictions was theft from a federally licensed firearm dealer in violation of 18 U.S.C. § 922(u). But, Defendants argue, § 922(u) cannot constitutionally support a conviction for § 924(c) because § 922(u) is not a “crime of violence” under either prong of § 924(c)'s definition of that phrase.

         Violation of § 922(u) does not satisfy § 924(c)(3)(A)-the “elements” or “force” clause-under the categorical approach because a Defendant could commit theft from a federally licensed firearm dealer without using or attempting or threatening physical force. The government agrees.

         And, Defendants argue, violation of § 922(u) does not satisfy § 924(c)(3)(B)-the “residual” clause-because that clause is unconstitutional for essentially the same reasons the second half of § 924(e)(2)(B)(ii) is unconstitutional. The Seventh Circuit clarified this issue while Defendants' § 2255 motions were pending. In Cardena, the Seventh Circuit held that § 924(c)(3)(B) is unconstitutionally vague. United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016).[2]

         B. Law

         Section 2255(a) of Title 28 provides a federal prisoner a process for challenging his sentence:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         Relief under § 2255 is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004).

         Relief under § 2255 is extraordinary because it seeks to reopen the criminal process for a person who already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).

         A defendant “may validly waive both his right to a direct appeal and his right to collateral review under § 2255 as a part of his plea agreement.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). “It is well-settled that waivers of direct and collateral review in plea agreements are generally enforceable.” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013).

         The standard exceptions recognized by the Seventh Circuit to such a waiver are where:

1. the plea agreement was involuntary;
2. the district court relied on a constitutionally impermissible factor, such as race;
3. the sentence exceeded the statutory maximum;
4. the defendant claims ineffective assistance of counsel in connection with the negotiation of the plea agreement; or
5. there is a lack of some minimum of civilized procedure.

Keller, 657 F.3d at 681; United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (regarding the fifth exception).

         Plea agreements are contracts, subject to contract law tempered by constitutional limitations. United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). Within the parameters of the Constitution as enumerated by the standard exceptions just listed, both the defendant and the government are free to make deals that might turn out in hindsight to be bad. Both are free to barter for favorable terms in exchange for an assumption of the risk that the law might change in unexpected ways. Id.

         C. Discussion

         (1) Waiver

         This Court need not reach the merits of Defendants' claims if the counseled, voluntary plea agreements waive the claims. Unless an exception applies, a “voluntary and knowing waiver of an appeal is valid and must be enforced.” Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012).

         Here, all three Defendants agreed to this provision in their plea agreements:

I understand that the law gives a convicted person the right to appeal the conviction and the sentence imposed; I also understand that no one can predict the precise sentence that will be imposed, and that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offense as set forth in this plea agreement; with this understanding and in consideration of the government's entry into this plea agreement, I expressly waive my right to appeal or to contest my conviction and my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal under Title 18, United States Code, Section 3742 or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255;

(Cooper's Plea Agreement, DE 53 at 4; Ross's Plea Agreement, DE 68 at 4; and Oliver's Plea Agreement, DE 134 at 4, emphasis added.) As noted, these waivers are at once broad and specific: Defendants waive the right to contest on any ground, and Defendants specifically waive the right to pursue relief under § 2255.

         The waiver provision mentions only one exception. Defendants may appeal or contest on the ground of ineffective assistance of counsel relating directly to this waiver or its negotiation. Defendants do not assert that ground here.

         Defendants could have insisted on including a broader escape hatch in the waiver provision. Courts within this Circuit have mentioned the possibility of broader escape hatches for years. See Bownes, 405 F.3d at 636 (“Since there is abundant case law that appeal waivers worded as broadly as this one are effective even if the law changes in favor of the defendant after sentencing . . . the absence of an explicit escape clause is compelling evidence that no escape is allowed.”).

         If Defendants had insisted on a broader escape hatch, the government presumably would have insisted on other changes to the terms of the plea agreement in exchange. In any event, the waiver provision Defendants accepted does not include an escape hatch applicable here.

         (2) No standard exceptions to waiver apply

         None of the standard exceptions recognized by the Seventh Circuit apply here either.

         (a) The plea agreements ...


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