Ryan Ross v. United States ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2880
RALPH OLIVER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:16-cv-00233-JVB — Joseph S. Van Bokkelen, Judge.
____________________
No. 17-2902
RYAN ROSS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:16-cv-00255-JVB — Joseph S. Van Bokkelen, Judge.
____________________
2 Nos. 17-2880 & 17-2902
____________________
ARGUED DECEMBER 18, 2019 — DECIDED MARCH 4, 2020
____________________
Before HAMILTON, BRENNAN, and SCUDDER, Circuit Judges.
HAMILTON, Circuit Judge. In 2011, petitioners Ralph Oli-
ver and Ryan Ross pleaded guilty to violating
18 U.S.C. § 924(c) for brandishing a firearm during a “crime
of violence”—theft from a federally licensed firearms dealer,
18 U.S.C. § 922(u). In 2016, both filed motions under
28 U.S.C. § 2255 to vacate their § 924(c) convictions. They
argued that, after United States v. Davis, 139 S. Ct. 2319(2019), a violation of § 922(u) no longer counts as a crime of
violence. The district court denied relief. We affirm. Express
collateral-attack waivers in Oliver and Ross’s plea agree-
ments are valid and bar their challenges to their convictions
and sentences.
I. Factual and Procedural Background
Oliver, Ross, and two other men committed four armed
robberies in 2010. They first robbed three cell-phone stores in
Chicago, Illinois. They then robbed a Gary, Indiana, pawn-
shop, which was also a federally licensed firearms dealer. A
gun was used in each of the four robberies. At the Indiana
pawnshop, employees resisted the robbery. They shot and
injured one of the robbers and managed to handcuff Ross.
The other three robbers fled, leaving Ross behind. After
being arrested at the scene, Ross promptly started cooperat-
ing. Oliver and Ross were each charged with theft of fire-
arms from a federally licensed dealer in violation of 18
U.S.C. § 922(u); use of a firearm during a crime of violence
Nos. 17-2880 & 17-2902 3
(specifically, the § 922(u) offense) in violation of § 924(c); and
possessing a firearm as a felon in violation of § 922(g)(1).
Ross pleaded guilty to the § 922(u) and § 924(c) charges.
In exchange for the government’s agreement to dismiss the
felon-in-possession count and to make favorable recommen-
dations at sentencing, he waived his right to appeal his
conviction or sentence. He also waived the right to bring a
collateral attack on his conviction or sentence, including
motions under 28 U.S.C. § 2255. The waiver clause said:
I expressly waive my right to appeal or to con-
test my conviction and my sentence or the
manner in which my conviction or my sen-
tence 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, in-
cluding any appeal … or any post-conviction
proceeding, including but not limited to, a pro-
ceeding under Title 28, United States Code,
Section 2255 … .
During the plea colloquy, the district court emphasized
that the waiver would leave Ross no right to challenge his
conviction or sentence as being “in violation of the Constitu-
tion” or on the basis that “the Court was without jurisdiction
to impose such sentence” or that “the sentence was in excess
of the maximum authorized by law.” The court accepted
Ross’s plea and sentenced him to a total of 180 months in
prison: 96 months for the § 922(u) offense, followed by the
minimum consecutive 84 months required for the § 924(c)
offense.
4 Nos. 17-2880 & 17-2902
The government then secured a superseding indictment
against Oliver. In addition to the original counts, the gov-
ernment charged Oliver with a Hobbs Act robbery in viola-
tion of 18 U.S.C. § 1951 and a Hobbs Act conspiracy. Oliver
pleaded guilty to the Hobbs Act conspiracy and the § 924(c)
charge. He also expressly waived his appellate and collat-
eral-attack rights in exchange for the government’s agree-
ment to dismiss the three remaining counts and to make
favorable sentencing recommendations. Oliver’s plea
agreement contained the same waiver clause as Ross’s, and
the court admonished him similarly. Oliver was sentenced to
a total of 190 months in prison: 106 months for the Hobbs
Act conspiracy, followed by the minimum consecutive
84 months required for the § 924(c) conviction.
Despite the waivers, after the Supreme Court’s decision
in Johnson v. United States, 135 S. Ct. 2551 (2015), Oliver and
Ross moved to vacate their § 924(c) convictions under
28 U.S.C. § 2255. Johnson held that the so-called “residual
clause” in the definition of a “violent felony” under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), was uncon-
stitutionally vague. Oliver and Ross argued that the similar
residual clause in § 924(c)’s definition of a “crime of vio-
lence” was also unconstitutionally vague and that a violation
of § 922(u) could not qualify as a crime of violence under the
so-called “elements clause” of that definition.
Section 922(u) makes it a crime “to steal or unlawfully
take or carry away from the person or premises of a person
who is licensed to engage in the business of importing,
manufacturing, or dealing in firearms, any firearm in the
licensee’s business inventory that has been shipped or
transported in interstate or foreign commerce.” While an
Nos. 17-2880 & 17-2902 5
armed robbery of a licensed firearm dealer would violate
§ 922(u), so would a theft in which there was no actual,
attempted, or threatened use of violence.
The district court denied the § 2255 motions. The court
did not decide whether Oliver and Ross’s collateral-attack
waivers barred their claims. Instead it determined that they
would lose anyway under Bousley v. United States, 523 U.S.
614 (1998), because they could not show their actual inno-
cence of a § 924(c) count. The court reasoned that if the
government had foreseen recent developments in the Su-
preme Court’s vagueness doctrine, “it is fair to presume the
government would not have forgone § 924(c) charges predi-
cated on Hobbs Act robberies.” The court granted a certifi-
cate of appealability.
Oliver and Ross appealed. In the meantime, the Supreme
Court applied its reasoning from Johnson to hold unconstitu-
tionally vague the residual clause in § 924(c)’s definition of a
crime of violence. United States v. Davis, 139 S. Ct. 2319(2019). After Davis, a § 924(c) conviction based on a crime of
violence is valid only under the statute’s “elements clause,”
which treats as crimes of violence only crimes that have as
an element the actual, attempted, or threatened use of force.
II. Analysis
These appeals are governed, in the end, by Oliver and
Ross’s collateral-attack waivers. We have recognized only a
“few narrow and rare” grounds for not enforcing a volun-
tary and effectively-counseled waiver of direct appeal or
collateral review. United States v. Campbell, 813 F.3d 1016,
1018 (7th Cir. 2016). For instance: if a district court relied on
a “constitutionally impermissible factor” like race or gender;
6 Nos. 17-2880 & 17-2902
if the sentence exceeded the statutory maximum; or if the
proceedings lacked a “minimum of civilized procedure.” Id.;
accord, e.g., Keller v. United States, 657 F.3d 675, 681 (7th Cir.
2011).
Oliver and Ross do not satisfy any of our recognized ba-
ses for avoiding a valid collateral-attack waiver. Instead they
seek to avoid the waivers on three grounds: (a) that they are
asserting a non-waivable “jurisdictional” challenge to the
constitutionality of the statute of conviction; (b)
that allowing their convictions to stand would result in a
“miscarriage of justice”; and (c) that their § 924(c) convic-
tions rest on a “constitutionally impermissible factor,” which
they read much more broadly than our case law does to
include any constitutional objection. We address these
arguments in turn.
A. “Jurisdictional” Challenge?
Oliver and Ross argue that after Davis, their convictions
are void because § 922(u) cannot qualify now as a predicate
crime of violence. They label this a “jurisdictional” flaw that
implicates “the very power” of the government to prosecute
them so that the challenge is not waivable, cit-
ing United States v. Phillips, 645 F.3d 859 (7th Cir. 2011). We
explained in Phillips that the defendant’s guilty plea—alone,
without any express waiver of the right to appeal or bring a
collateral attack—acted as a waiver of an as-applied vague-
ness challenge to the constitutionality of the statute of
conviction. Id. at 862. Our opinion signaled that a guilty plea
would not waive “jurisdictional” challenges but aptly cited
cases that rejected various challenges as not “jurisdictional,”
including a Ninth Circuit opinion that observed: “What
constitutes such a jurisdictional defect, however, is not
Nos. 17-2880 & 17-2902 7
entirely clear: this circuit has held that such claims are
limited to claims that the statute is facially unconstitutional;
or that the indictment failed to state a valid claim; or vindic-
tive prosecution; or possibly selective prosecution.” United
States v. Johnston, 199 F.3d 1015, 1019–20 n.3 (9th Cir. 1999).
To show what might be “jurisdictional,” Phillips and Johnston
also cited Blackledge v. Perry, 417 U.S. 21, 30–31 (1974), which
held that a defendant who had been convicted of a misde-
meanor could exercise his right to trial de novo in state court
without being retaliated against with a new felony charge.
The defendant’s plea of guilty to the felony did not bar him
from raising a federal due-process challenge to the charging
decision. Id.We need not decide here the scope of such an exception
for “jurisdictional” challenges after a guilty plea. Phillips and
the cases it cited teach at most that a guilty plea, standing
alone, will not be construed as waiving “jurisdictional”
claims. They do not address express waivers of appeal and
collateral-attack rights. The broad and explicit terms of
Oliver and Ross’s collateral-attack waivers encompass their
current challenges, whether they are labeled “jurisdictional”
or not.
Contract principles make Oliver and Ross’s agreements
enforceable even against a so-called “jurisdictional” chal-
lenge. After all, one major purpose of an express waiver is
to account in advance for unpredicted future developments
in the law. Waivers like those that Oliver and Ross agreed
to are intended to cover situations like this one. “We have
consistently rejected arguments that an [express] appeal
waiver is invalid because the defendant did not anticipate
subsequent legal developments.” United States v. McGraw,
8 Nos. 17-2880 & 17-2902
571 F.3d 624, 631 (7th Cir. 2009). Plea-bargain waivers
allocate the risk of the unknown for both sides: “By binding
oneself one assumes the risk of future changes in circum-
stances in light of which one’s bargain may prove to have
been a bad one.” United States v. Bownes, 405 F.3d 634, 636
(7th Cir. 2005).
Still, Oliver and Ross argue that their “jurisdictional”
challenge is different because the law has changed “such
that a conviction for § 924(c) predicated on § 922(u) is facial-
ly unconstitutional,” and they are thus imprisoned under a
charging theory that is now invalid. But the Supreme Court
has not declared such claims “non-waivable” by express
agreement. Neither have we. To the contrary: “We have
repeatedly said that a defendant’s freedom to waive his
appellate rights includes the ability to waive his right to
make constitutionally-based appellate arguments.” United
States v. Smith, 759 F.3d 702, 707 (7th Cir. 2014).
Finality matters in plea agreements, especially when the
parties have negotiated for it expressly. In United States v.
Worthen, 842 F.3d 552 (7th Cir. 2016), the defendant chal-
lenged a § 924(c) conviction on the dual grounds that the
residual clause is vague and that his predicate offense did
not qualify under the elements clause. We enforced his
appeal waiver and dismissed the appeal. We warned that
ignoring appeal waivers in plea agreements could yield
“perverse” consequences. Id. at 555. If a defendant can make
a seemingly beneficial plea agreement and can then “renege
on his deal and maintain an appeal, then why would the
government make these kinds of deals in the future? Why
wouldn’t the government instead just charge defendants …
with all applicable crimes and see what sticks after the
Nos. 17-2880 & 17-2902 9
appeal?” Id. at 555–56; see also Davila v. United States,
843 F.3d 729, 732–33 (7th Cir. 2016) (agreement to plead
guilty under § 924(c) waived right to bring collateral chal-
lenge based on Johnson vagueness holding). Here, at the time
of their pleas, both Oliver and Ross obtained substantial
benefits in exchange for their promises. The government
dropped other robbery and firearm charges and recom-
mended favorable departures from the Sentencing Guide-
lines.
Nonetheless, Oliver and Ross view Class v. United States,
138 S. Ct. 798 (2018), as holding that facial constitutional
challenges to a statute of conviction are simply unwai-
vable—even by an express waiver. Class is not as sweeping
as Oliver and Ross contend. Rather, Class was about how to
interpret only a plea of guilty, not the terms of a plea agree-
ment for which the parties bargained. Class held that a guilty
plea, by itself, does not implicitly waive a defendant’s right to
challenge the constitutionality of his statute of conviction.
Id. at 803–05. That holding did not encompass express
waivers of such challenges.
This limit on the holding of Class is evident from the logic
of the opinion. The Court made a point of first considering
whether Class’s argument fell within the scope of the narrow
express waivers in his plea agreement before analyzing the
effect of the plea itself. Id. at 802–03. The Court considered
whether Class had expressly waived the challenge in his
plea agreement and found that he did not. Only then did the
Court move on to the harder question of implied waiver
from the guilty plea alone. Id. at 803. Later in its opinion, the
Court again noted that Class’s argument was not encom-
passed by his express waiver. Id. at 805, 807. Thus, rather
10 Nos. 17-2880 & 17-2902
than suggesting that an express waiver cannot bar constitu-
tional arguments against the statute of conviction, the
Court’s reasoning assumed that Class’s plea agreement could
have expressly waived such an argument but had not actual-
ly done so. In this case, Oliver and Ross did expressly waive
such challenges.
There is one additional problem with Oliver and Ross’s
“jurisdictional” argument. The fact that § 924(c)’s residual
clause is unconstitutional does not mean that all § 924(c)
convictions are unlawful. There is still the elements clause.
To invalidate a § 924(c) conviction, a defendant must raise a
constitutional challenge to the residual clause and establish
that the elements clause does not cover the predicate offense.
A successful claim that a § 924(c) prosecution lay beyond the
government’s power—and, thus, in Oliver and Ross’s view,
that their waivers are unenforceable—requires a defendant
to engage with both the constitutional issue and a question
of statutory interpretation.
In Worthen we rejected that approach to invalidating a
waiver in a § 924(c) case as “entirely circular,” depending on
the merits of the disputed appeal. 842 F.3d at 555; see also
United States v. Carson, 855 F.3d 828, 831 (7th Cir. 2017)
(enforcing waiver of appeal and, quoting Worthen, rejecting
rule “that an appeal waiver is enforceable unless the appel-
lant would succeed on the merits of his appeal”). It would
not be unconstitutional for the government to prosecute a
§ 924(c) charge predicated on § 922(u) under the elements
clause. The government might well lose under a statutory
interpretation of the elements clause, but the prosecution
itself would not lie beyond the government’s power. Oliver
Nos. 17-2880 & 17-2902 11
and Ross cannot avoid their waivers of collateral attacks on
the theory that they have raised a “jurisdictional” challenge.
B. Miscarriage of Justice?
Nor will enforcing Oliver and Ross’s collateral-attack
waivers cause a “miscarriage of justice.” Oliver and Ross cite
United States v. Litos, 847 F.3d 906, 910–11 (7th Cir. 2017),
where we wrote that we “decided to ignore” an express
appellate waiver to set aside an unjust restitution order.
They urge us to extend Litos to § 2255 cases “where the
petitioner makes a colorable claim of ‘actual innocence’—a
traditional means of showing a ‘miscarriage of justice.’”
We decline the invitation. Litos concerned a unique cir-
cumstance that required an exercise of our equitable powers.
There, absent our intervention, a bank that was not a party
to the appeal waiver the government had negotiated would
have received significant restitution even though the bank’s
own recklessness had substantially contributed to the loss.
We decline to apply the narrow Litos holding against the
government here. Its only arguable “wrongdoing” here was
failing to anticipate changes in the Supreme Court’s juris-
prudence. See Carson, 855 F.3d at 830–31 (declining to extend
Litos to waiver of appellate challenge to defendant’s status
under Armed Career Criminal Act).
The robbery of the pawnshop plainly violated the Hobbs
Act, which we and other circuits have held, after Johnson,
qualifies as a “crime of violence” under § 924(c)’s elements
clause. United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017)
(collecting cases); accord, Haynes v. United States, 936 F.3d
683,690 (7th Cir. 2019). Thus, even overlooking the shootout
that occurred, the government could easily have premised
12 Nos. 17-2880 & 17-2902
the § 924(c) counts on the Hobbs Act robbery of the pawn
shop in Indiana. It is not a miscarriage of justice to refuse to
put Oliver and Ross in a better position than they would
have been in if all relevant actors had foreseen Davis.
C. Unconstitutional Factor?
Finally, Oliver and Ross argue that their waivers should
not be enforced because their convictions rest on a “constitu-
tionally impermissible factor,” by which they mean the
residual clause of the definition of a crime of violence in
§ 924(c). Language in our opinions does say a blanket appel-
late waiver cannot bar a defendant from arguing that he was
sentenced based on a constitutionally impermissible factor.
E.g., United States v. Hicks, 129 F.3d 376, 377 (7th Cir. 1997).
That language does not extend to all arguable constitutional
claims. We have not expanded this exception beyond “iden-
tity-based factor[s] such as race or gender.” See Cross v.
United States, 892 F.3d 288, 298–99 (7th Cir. 2018) (clarifying
that this exception is limited to identity-based factors unless
plea agreement itself ambiguously uses “impermissible
factor” phrase, thus inviting courts to construe the language
broadly against the drafter). This limitation makes sense.
Even broad express waivers are not meant to permit judges
to base a sentence on race or gender while escaping scrutiny.
In today’s America, that would be an implausible reading of
any such agreement’s scope. But normal constitutional
challenges to a statute of conviction fall comfortably within
the permissible scope of valid waivers like the ones here.
* * *
Oliver and Ross expressly waived their right to appeal or
collaterally attack their convictions or sentences, or the
Nos. 17-2880 & 17-2902 13
manner in which they were determined or imposed, before
“any Court on any ground.” Because the waivers preclude
these collateral attacks, we need not consider whether Oliver
and Ross procedurally defaulted their claims or whether
they could circumvent that default. The judgments of the
district court denying relief from the appellants’ convictions
and sentences are
AFFIRMED.