Remington v. United States , 872 F.3d 72 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2462
JAMES REMINGTON,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Michael Tumposky, with whom Hedges & Tumposky, LLP was on
brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
September 27, 2017
BARRON, Circuit Judge. This appeal concerns a
collateral challenge that James Remington brings under 28 U.S.C.
§ 2255 regarding his underlying criminal case, in which he received
consecutive prison sentences for his two federal convictions.
Remington brings this § 2255 motion1 notwithstanding that he had
pleaded guilty to the underlying crimes pursuant to a plea
agreement in which he waived his right to bring certain collateral
challenges to either his convictions or his sentences for them.
Without reference to that waiver, the District Court
denied the motion, and Remington argues to us that the District
Court erred in doing so. We conclude that the waiver in the plea
agreement, coupled with Remington's failure to argue in his briefs
that it is self-evidently inapplicable, bars Remington from filing
the motion. Accordingly, we vacate the judgment denying the motion
on the ground that the motion must be dismissed.
I.
In 1998, pursuant to a plea agreement, James Remington
pleaded guilty in the District of Massachusetts to one count of
bank robbery in violation of 18 U.S.C. § 2113(a) and to one count
of using a firearm during a "crime of violence" in violation of 18
U.S.C. § 924(c)(1). The bank robbery conviction was the predicate
1 The District Court characterized Remington's filing as a
"petition," but we refer to it as a "motion" -- as Remington did
in the filing itself -- just as § 2255 itself does.
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conviction for a "crime of violence" underlying the § 924(c)
conviction.
Under the plea agreement, the parties agreed to
recommend that Remington be considered a career offender within
the meaning of the United States Sentencing Guidelines
("U.S.S.G.") § 4B1.1(C) for purposes of sentencing him for the
bank robbery conviction. Under the sentencing guidelines, an adult
defendant with two prior felony convictions for a "crime of
violence" qualifies as a career offender upon a third such
conviction. U.S.S.G. § 4B1.1. And, in consequence of that
designation, a defendant is subject to an enhanced sentencing
range. See id.
The plea agreement then stated that under the
sentencing guidelines Remington's base offense level was 32. But
the plea agreement explained that the parties agreed, subject to
certain conditions, to recommend a three-level downward adjustment
for Remington's acceptance of responsibility for the bank robbery.
See id. § 3E1.1.
Ultimately, based on these determinations under the
sentencing guidelines, the plea agreement recommended a prison
sentence for the bank robbery conviction of 151 months of
imprisonment. The plea agreement also recommended as the sentence
for the § 924(c) conviction a consecutive term of imprisonment of
60 months, which is the mandatory minimum sentence for that
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offense. See § 924(c)(1)(A)(i). In addition, the plea agreement
contained a provision in which Remington waived certain of his
rights to appeal from or to challenge collaterally his convictions
and sentences.
At sentencing, the District Court adopted the parties'
recommendation, consistent with the plea agreement, that Remington
be considered a career offender under the sentencing guidelines.
In determining that Remington was a career offender, the District
Court relied on a presentence investigation report finding that
Remington had two predicate Massachusetts felony convictions for
a crime of violence: a 1989 conviction for armed robbery and a
1990 conviction for assault and battery with a deadly weapon. The
District Court denied, however, the recommended downward
adjustment for acceptance of responsibility conditionally set
forth in the plea agreement because, the District Court explained,
Remington had briefly escaped from custody in the intervening
period since he had entered into the plea agreement.
Having made these decisions, the District Court
determined that Remington's guidelines sentencing range for the
bank robbery conviction was 210 to 262 months based on having
assigned him a total offense level of 32 and a criminal history
category of VI. This range was mandatory because Remington was
sentenced before the Supreme Court decided United States v. Booker,
543 U.S. 220 (2005), which held that the sentencing guidelines are
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advisory rather than mandatory. Id. at 245-46. The District Court
then sentenced Remington to 240 months of imprisonment for his
bank robbery conviction, which is the statutory maximum under
§ 2113(a), and to a mandatory consecutive term of 60 months of
imprisonment for his conviction for violating § 924(c).
More than seventeen years into serving his sentence,
Remington filed this collateral challenge pursuant to 28 U.S.C.
§ 2255 in the United States District Court for the District of
Massachusetts. Remington's motion under § 2255 seeks to vacate
his conviction under § 924(c) for use of a firearm during the
commission of a crime of violence and to vacate his sentence for
his conviction for bank robbery in violation of § 2113(a).
The motion relies for both challenges on Johnson v.
United States, 125 S. Ct. 2551 (2015), and Welch v. United States,
136 S. Ct. 1257 (2016). In Johnson, the Supreme Court held that
what is known as the residual clause in the Armed Career Criminal
Act's ("ACCA") definition of a "violent felony" is
unconstitutionally vague and thus that the federal Constitution's
guarantee of due process prohibits a defendant's sentence from
being enhanced under the ACCA on the basis of a determination that
a prior offense qualifies as a "violent felony" under the ACCA's
residual clause. 125 S. Ct. at 2556-63.2 Welch then held that
2 The ACCA's residual clause provides that a "violent felony"
includes any felony that "involves conduct that presents a serious
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Johnson's vagueness holding applies retroactively. 136 S. Ct. at
1268.
Remington contends that, in light of Johnson and Welch,
he is entitled both to resentencing for his bank robbery conviction
under § 2113(a) and to have his § 924(c) conviction (and thus the
accompanying sentence for it) overturned. First, he argues that,
in light of Johnson, the residual clause that is part of the
career-offender sentencing guideline's definition of a "crime of
violence" is unconstitutionally vague, given that the guideline
was mandatory rather than advisory at the time of his sentencing,
because the wording of the guideline's residual clause is identical
to the wording of the residual clause in the ACCA that Johnson
struck down as unconstitutionally vague. Remington then proceeds
to argue that his prior Massachusetts convictions for armed robbery
and assault and battery with a deadly weapon do not otherwise fall
within the career-offender guideline's definition of a "crime of
violence."3 Thus, in his view, he must be resentenced, as he does
not have the number of predicate convictions for a "crime of
potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B).
3
At the time of Remington's sentencing, the sentencing
guidelines defined a "crime of violence" to include, under the
definition's residual clause, any felony that "involves conduct
that presents a serious potential risk of physical injury to
another." U.S.S.G. § 4B1.2(a)(2) (Nov. 1, 1998).
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violence" that are required in order for the career-offender
guideline to which he was subject at sentencing to apply.
Second, Remington argues that, in light of Johnson, the
residual clause in § 924(c)'s definition of a "crime of violence"
is unconstitutionally vague, given that this provision's residual
clause is worded so similarly to the residual clause in the ACCA
that Johnson invalidated. Remington then goes on to contend that
his federal bank robbery conviction cannot serve as the predicate
"crime of violence" under § 924(c) because that conviction is not
for an offense that otherwise falls within § 924(c)'s definition
of a "crime of violence."4 And, thus, he argues, that conviction
-- and its accompanying sentence -- cannot stand.
In response to Remington's § 2255 motion, the government
moved to stay the proceedings pending the Supreme Court's decision
in Beckles v. United States, 136 S. Ct. 2510 (2016). At the time,
the Supreme Court had granted a writ of certiorari in Beckles to
review whether Johnson's constitutional vagueness holding applies
to the residual clause in the career-offender sentencing
guideline's definition of a "crime of violence." See Beckles v.
United States, 137 S. Ct. 886, 891-92 (2017).
4 The residual clause in § 924(c)'s definition of a "crime of
violence" refers to any felony "that by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense."
18 U.S.C. § 924(c)(3)(B).
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Without responding to the government's motion or
requesting an answer from the government to Remington's § 2255
motion, however, the District Court denied Remington's motion. In
doing so, the District Court ruled that, regardless of whether
Johnson's holding applies to the residual clause in the definition
of a "crime of violence" in the sentencing guidelines, each of
Remington's prior convictions qualifies as one for an offense that
is a "crime of violence" under what is known as the force clause
in the definition of a "crime of violence" in the career-offender
guideline.5
Following this ruling, Remington sought a certificate of
appealability, which the District Court issued. This timely appeal
followed. We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a).
II.
As a threshold matter, the government contends that in
the plea agreement, Remington waived his right to bring this
collateral challenge. We thus begin our analysis by considering
that potentially show-stopping contention.
The plea agreement provides that Remington waives his
rights to challenge either on appeal or collaterally his
5 The force clause refers to any felony that "has as an element
the use, attempted use, or threatened use of physical force against
the person of another." U.S.S.G. § 4B1.2(a)(1). The District
Court did not separately reference the residual clause in
§ 924(c)'s definition of a "crime of violence" in addressing
Remington's conviction under § 924(c).
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convictions or guilty plea, the District Court's adoption of the
parties' position that he is a career offender, or any sentence
imposed by the District Court that did not exceed the one
recommended by the parties. However, the waiver provision includes
a carve-out that preserves Remington's right to bring "appeals or
challenges based on new legal principles in First Circuit or
Supreme Court cases decided after [December 29, 1998] which are
held by the First Circuit or Supreme Court to have retroactive
effect." Thus, it is possible that the waiver does not encompass
the actual collateral challenge that Remington brings and thus
that he has not waived his right to bring the motion that was
denied below. And, if that is the case, then, contrary to the
government's contention, we would be required to address the merits
of Remington's Johnson-based challenges set forth in his motion.
The problem for Remington, though, begins with the fact
that his opening brief nowhere mentions the plea agreement's waiver
provision, let alone the exception that it sets forth. Moreover,
Remington fails to address the potential bar to his right to file
this motion set forth in the waiver provision even though we have
held that
[a] defendant who waives his right to appeal
and thereafter attempts to avoid the effect of
the waiver must confront the waiver head-on.
Where . . . the defendant simply ignores the
waiver and seeks to argue the appeal as if no
waiver ever had been executed, he forfeits any
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right to contend either that the waiver should
not be enforced or that it does not apply.
United States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007); see
also United States v. Bey, 825 F.3d 75, 82-83 (1st Cir. 2016).
Because we see no reason why the same rule that we announced in
Miliano should not apply to a motion for relief under § 2255, we
agree with the government that Remington gave up the opportunity
to argue that the waiver provision does not foreclose this
collateral challenge.
Remington does address the waiver issue in his reply.
But he does so solely on the ground that, even though the
government had "ample opportunity" in the District Court to raise
the waiver that it now asks us to enforce, the government chose to
respond to the motion below only by asking for the District Court
to issue a stay pending Beckles.
This argument would fail to persuade, however, even if
Remington could get past the fact that he makes this argument for
the first time only in his reply brief. See Álamo-Hornedo v. Puig,
745 F.3d 578, 582 (1st Cir. 2014). Under Rule 5(a) of the Rules
Governing Section 2255 Cases, "[t]he respondent is not required to
answer the petition unless a judge so orders." Thus, the
government did not lose its right to object to Remington's § 2255
motion for the simple reason that the District Court never ordered
the government to answer Remington's motion. Nor are the § 2255
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cases on which Remington relies to the contrary. In each of those
cases, see Sotirion v. United States, 617 F.3d 27, 32 (1st Cir.
2010); Barreto-Barreto v. United States, 551 F.3d 95, 98 (1st Cir.
2008), the district court had ordered the government to answer the
defendant's § 2255 motion. See Sotirion v. United States, No.
3:08-cv-30019-MAP (D. Mass. Jan. 17, 2008); Barreto-Barreto v.
United States, No. 3:06-cv-01836-PG (D.P.R. Sept. 7, 2006).
To be sure, at oral argument Remington did claim, for
the first time, that it is apparent on the face of the plea
agreement's waiver provision that his § 2255 motion falls within
the carve-out that the provision sets forth. Specifically,
Remington contended at oral argument that the plain terms of the
waiver's carve-out allow this collateral challenge because his
§ 2255 motion is predicated on Johnson, in which the Supreme Court
recognized a "new legal principle[]" that the Court later held in
Welch to have "retroactive effect." He thus argued that he should
be excused from the usual rule that defendants must address such
waivers "head-on" in their opening appellate briefs because, in
his view, the waiver provision in his plea agreement so plainly
fails to encompass this collateral challenge.
But, the government disputes that the waiver provision
is so generous as to encompass the type of collateral challenge
that it contends Remington is bringing. And, in light of
Remington's failure to press the proper construction of the waiver
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provision's carve-out in his opening brief -- or, for that matter,
even in his reply brief -- we decline his invitation to now wade
into this dispute over how best to construe the waiver's scope in
relation to the collateral challenge that he seeks to make. See
United States v. Pizarro-Berríos, 448 F.3d 1, 5-6 (1st Cir. 2006)
("We have consistently held that, except in extraordinary
circumstances, arguments not raised in a party's initial brief and
instead raised for the first time at oral argument are considered
waived.").
We are aware, of course, that we do have limited
discretion to disregard a waiver such as this one if doing so would
be "necessary to avoid a clear and gross injustice." Miliano, 480
F.3d at 608. But, we have described the possibility of "clear and
gross injustice" in these circumstances as "hen's-teeth rare,"
id., and Remington has not suggested to us that this is one of
those rare cases. Thus, we see no basis for concluding that we
must disregard the waiver provision in order "to avoid a clear and
gross injustice."
III.
For the foregoing reasons, the order denying the motion
is vacated, and the case is remanded for further proceedings
consistent with this opinion.
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