United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
August 30, 2016, the Court denied the Government's Motion
to Enforce Collateral Attack Waiver, or Alternatively, Motion
to Abate Proceedings. (Doc. No. 188). On December 22, 2016,
the United States filed a Motion to Reconsider Order denying
Motion to Enforce Collateral Attack Waiver. (Doc. No. 193).
Defendant responded in opposition to the Motion (Doc. No.
196). Having considered the parties' submissions, and the
Tenth Circuit authority upon which the United States relies,
the Court hereby GRANTS the Plaintiff's motion and
DISMISSES the Petition filed by Defendant herein.
noted in the Court's August 30, 2016 Order, Defendant
pled guilty to a count of money laundering in violation of 18
U.S.C. § 1956 and a count of possession with intent to
distribute methamphetamine in violation of 18 U.S.C. §
841(a)(1). He was sentenced to 188 months incarceration,
premised in part on prior state court convictions under
U.S.S.G. § 4B1.1, which resulted in the attachment of
career offender status, which he now contends was improper
under Johnson v. United States, 135 S.Ct. 2551
(2015). The plea agreement contained the following language:
[D]efendant in exchange for the promises and concessions made
by the United States in this plea agreement, knowingly and
voluntarily waives his right to:
a. Appeal or collaterally challenge his guilty plea and any
other aspect of his conviction, including but not limited to
any rulings on pretrial suppression motions or any other
pretrial dispositions of motions and issues; b. Appeal,
collaterally challenge, or move to modify under 18 U.S.C.
§ 3582(c)(2) or some other ground, his sentence as
imposed by the Court and the manner in which the sentence is
determined, provided the sentence is within or below the
advisory guideline range determined by the Court to apply to
this case. Defendant acknowledges that this waiver remains in
full effect and is enforceable, even if the Court rejects one
or more of the positions of the United States or defendant
set forth in paragraph 7.
c. It is provided that (i) defendant specifically does not
waive the right to appeal a sentence above the advisory
sentencing guideline range determined by the Court to apply
to this case.
Doc. No. 70. Defendant and his counsel signed the agreement,
which also included an acknowledgement that Defendant had
discussed the agreement with counsel, and that he understood
and accepted its terms. The Court previously concluded that
Defendant's claim under Johnson falls within the
scope of the waiver. However, citing United States v.
Daugherty, 2016 WL 4442801 (N.D.Okla. August. 22, 2016),
the Court concluded that enforcement of the waiver against a
meritorious claim under Johnson would constitute a
miscarriage of justice. As a result, the Court denied the
Government's Motion to Enforce. The Court agreed,
however, that the merits of the case should be stayed pending
the outcome of a decision by the Supreme Court in Beckles
v. United States, S.Ct. No. 15-8544, cert.
granted, 579 U.S. -, 136 S.Ct. 2510, 2016 WL 1029080
(June 27, 2016), wherein the Supreme Court is expected to
address whether Johnson applies to career offender
status under the United States Sentencing Guidelines as well
as to the Armed Career Criminal Act. The Court turns to the
Government's Motion to Reconsider, which was filed after
the Tenth Circuit's decision in United States of
America v. Frazier-LeFear, --- Fed.Appx. ---, 2016 WL
7240134 (10th Cir. Dec. 15, 2016).
waiver such as the one at issue herein to be enforceable, it
must satisfy three criteria: (1) defendant's challenge
must fall within its scope; (2) the waiver must have been
knowing and voluntary; and (3) enforcement of the waiver must
not result in a fundamental miscarriage of justice.
United States v. Hahn, 359 F.3d 1314, 1325-27
(10th Cir. 2004)(en banc)(per curiam). The
Court's August 30, 2016 Order relied on the third element
in concluding that enforcement of the waiver would result in
a miscarriage of justice, a decision impacted by the December
2016 decision in Frazier-LeFear.
Frazier-LeFear, the Tenth Circuit abrogated the
decision of the Northern District in Daugherty.
Id. at *4.
The order granting COA notes that another district court in
this circuit had held that enforcement of a
collateral-challenge waiver with respect to an identical
Johnson-based sentencing challenge would result in a
miscarriage of justice. See United States v.
Daugherty, NO. 07-CR-87-TCK, 2016 WL 4442801 (N.D.Okla.
August. 22, 2016). Daughterty proceeded directly to
the Olano standard for identifying error qualifying
as a miscarriage of justice, without first confirming that
the error related to the waiver itself. The district court
emphasized that in applying Johnson's holding
about the vagueness of the ACCA to the similarly worded
career-offender guideline in Madrid, we had stated
that the resultant error was remediable on plain-error
review, i.e., it “seriously affects the fairness,
integrity, or public reputation of judicial
proceedings.” Daugherty, 2016 WL 4442801, at
*7 (quoting Madrid, 805 F.3d at 1211). On that
basis, the district court held enforcement of
collateral-review waivers to bar Johnson-based
sentencing attacks entails a miscarriage of justice within
the meaning of the fourth exception specified in
Hahn. See also Jaramillo v. United States,
Nos. 1:16-CV-87 TS & 1:05-CR-136 TS, 2016 WL 5947265 (D.
Utah Oct. 13, 2016) (following Daugherty).
The analytical mistake in Daugherty is evident from
our discussion of circuit precedent. Our case law explaining
Hahn's fourth miscarriage-of-justice exception makes it
clear that it is the waiver, not some other aspect of the
proceeding, that must be unlawful to undermine the waiver.
Ms. Frazier- LeFear's Johnson-based challenge to
the career-offender enhancement is a challenge to the
lawfulness of her sentence, not to the lawfulness of her
waiver. As such, however it may be characterized for purposes
of the Olano plain-error standard, under our
precedent it does not provide a basis for holding enforcement
of the waiver to be a miscarriage of justice.
Id. at 4. The court concluded its decision in a
manner that essentially mandates that this Court reconsider
its prior decision.
Our precedent directs that appeal/collateral review waivers
are enforceable (1) with respect to claims of error that do
not render the waiver itself unlawful, even if the alleged
error (2) arises out of a subsequent change in law and (3) is
of a constitutional dimension. Unless and until this court
disavows one of these basic premises, waivers of the sort at
issue in this case must be enforced when timely raised by the
Id. at *5. Although Defendant asserts this
unpublished decision is not binding precedent, the Court
nevertheless concludes that in light of the abrogation of
Daughtery and the citation to prior published Tenth
Circuit authority in support of its position ...