Roderick Crawford v. United States ( 2012 )

Case: 11-15575 Date Filed: 12/18/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15575
Non-Argument Calendar
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D.C. Docket Nos. 8:11-cv-01866-JSM-TGW; 8:07-cr-454-JSM-TGW-10
RODERICK CRAWFORD,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 18, 2012)
Before CARNES, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Roderick Crawford appeals pro se the denial of his motion to vacate his
sentence. 28 U.S.C. § 2255. In 2008, Crawford entered an agreement to plead
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guilty to conspiring to possess with intent to distribute 1,000 kilograms or more of
marijuana and 5 kilograms or more of cocaine, 21 U.S.C. §§ 841(a),
841(b)(1)(A)(ii), 841(b)(1)(A)(vii), 846, and to waive his right to appeal or
challenge collaterally his sentence, subject to four exceptions. The district court
sentenced Crawford as a career offender based in part on his conviction in a
Florida court in 2002 of battery on a law enforcement officer. See United States
Sentencing Guidelines Manual § 4B1.1. Crawford moved to vacate his sentence
after the Supreme Court issued its decision in Johnson v. United States, 559 U.S.
____, 130 S. Ct. 1265 (2010). Crawford argued that the district court
miscalculated his sentence by counting his prior conviction as a “crime of
violence.” Because Crawford’s postconviction challenge to his sentence is barred
by the appeal waiver in his plea agreement, we affirm.
As part of his plea agreement, Crawford agreed to waive his right to
challenge his sentence. In his written agreement, Crawford “expressly waive[d]
the right to appeal [his] sentence or to challenge it collaterally on any ground,
including the ground that the Court erred in determining the applicable guidelines
range pursuant to the United States Sentencing Guidelines[,]” subject to four
exceptions: (1) “the sentence exceeds the applicable guidelines range as
determined by the Court”; (2) “the sentence exceeds the statutory maximum
penalty”; (3) the sentence “violates the Constitution”; or (4) the government
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appealed Crawford’s sentence. Crawford also “agreed that [the district court]
ha[d] jurisdiction and authority to impose any sentence up to the statutory
maximum.” During his change of plea hearing before a magistrate judge,
Crawford said that he understood the waiver provision; he understood he could not
appeal or later challenge “the way the Court calculate[d] the sentencing
guidelines”; and he agreed “freely and voluntarily” to the waiver “as part of the
plea agreement.” The district court later accepted Crawford’s plea of guilty.
During his sentencing hearing in 2008, Crawford stated that he did not
object to the factual accuracy of his presentence investigation report or his
classification as a career offender, and the district court adopted the findings and
calculations in the report. And Crawford, through counsel, acknowledged that his
prior convictions in Florida for three felony drug offenses and two offenses
involving the battery of a law enforcement officer in 2002 and 2005 resulted in a
total offense level of 34, a criminal history category of VI, and a maximum
statutory penalty of life imprisonment. At the request of the government, the
district court reduced Crawford’s offense level by three points for his substantial
assistance, U.S.S.G. § 5K1.1, which reduced his offense level from 34 to 31 and
resulted in a revised guideline range between 188 and 235 months of
imprisonment. The district court considered the statutory sentencing factors, 18
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U.S.C. § 3553(a), and sentenced Crawford at the low end of the revised guideline
range. Crawford did not appeal.
In August 2011, Crawford moved to vacate his sentence and argued that he
was “actually innocent of his career offender offense in light of Johnson” and the
district court had miscalculated his sentence by counting his conviction for battery
of a law officer as a “crime of violence,” but the district court denied the motion
sua sponte. The district court ruled that the decision of the Court in Johnson did
not apply retroactively; Crawford’s motion to vacate was untimely; and Crawford
could not use the actual innocence exception to “overcome the procedural bar
caused by [his] untimely filing” because his classification as a career offender was
not a “substantive offense for which [he] stands convicted.” In the alternative, the
district court assumed that Johnson applied retroactively and ruled that Crawford
was not entitled to relief because his challenge to the “application of the
Sentencing Guidelines[] [was] a non-constitutional issue that provides no basis for
collateral relief” and he had otherwise waived his right to challenge his sentence
collaterally.
The government concedes, and we assume for purposes of this appeal, that
the decision in Johnson is retroactively applicable, which leaves only one issue for
us to decide: whether Crawford’s motion to vacate is barred by the collateral
appeal waiver in his plea agreement. Ordinarily, our review requires a two-fold
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inquiry into whether Crawford’s waiver was made knowingly and voluntarily and,
if so, whether Crawford waived the particular challenge to his sentence. See
United States v. Buchanan, 131 F.3d 1005, 1008–09 (11th Cir. 1997). But we can
proceed directly to the second inquiry because Crawford concedes that the appeal
waiver provision in his plea agreement is valid. Crawford “ask[s] [this] Court to
enforce [the] stipulation as agreed upon by all parties” in his plea agreement that
he can appeal “his illegal sentence” and the imposition of a sentence “above the
applicable guidelines range.”
Crawford’s postconviction challenge to his sentence is barred by the appeal
waiver in his plea agreement. Crawford acknowledged during his change of plea
hearing that the waiver would bar him from challenging the miscalculation of his
advisory guideline range. And Crawford cannot obtain relief under any of the
exceptions to the waiver. The district court imposed a sentence within Crawford’s
advisory guideline range “as determined by the Court”; his sentence of 188 months
of imprisonment is well below the maximum statutory penalty of life
imprisonment; and the miscalculation of his sentence does not “violate the
Constitution,” see Gilbert v. United States, 640 F.3d 1293, 1321 (11th Cir. 2011).
Furthermore, Crawford is procedurally barred from challenging the miscalculation
of his sentence for the first time in a motion to vacate, and he cannot excuse his
default based on the exception for actual innocence. See McKay v. United States,
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657 F.3d 1190, 1196–99 (11th Cir. 2011). The actual innocence exception applies
only to an issue of “‘factual innocence, not mere legal insufficiency.’” Id. at 1197(quoting Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611
(1998)).
We AFFIRM the denial of Crawford’s motion to vacate his sentence.
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