United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
PATTI
B. SARIS CHIEF UNITED STATES DISTRICT JUDGE.
Pro se
defendant Shawn Craig has moved under 28 U.S.C. § 2255
to vacate his 84-month sentence based on four errors in
calculating his guideline sentencing range. The Government
points out that Craig's plea agreement under Federal Rule
of Criminal Procedure 11(c)(1)(C) contains a waiver of his
right to challenge his sentence on appeal or collaterally.
Before addressing Craig's arguments on the merits, the
Court must determine whether the appellate waiver is
enforceable and whether it bars the four challenges to his
sentence.
The
First Circuit's well-established Teeter test for
determining the enforceability of an appellate waiver
requires a court to ask “(1) whether the waiver's
scope was clearly delineated; (2) whether the district court
specifically inquired about the waiver of appellate rights;
and (3) whether denial of those rights would constitute a
miscarriage of justice.” United States v. Del
Valle-Cruz, 785 F.3d 48, 54 (1st Cir. 2015) (citing
United States v. Teeter, 257 F.3d 14, 24-25 (1st
Cir. 2001)). An appeal or collateral attack is barred if it
falls within the scope of a valid waiver. United States
v. González-Colón, 582 F.3d 124, 127 (1st
Cir. 2009).
The
first two prongs of the Teeter test ensure that
“the defendant freely and intelligently agreed to waive
[his] right to appeal.” Del Valle-Cruz, 785
F.3d at 54 (alteration in original) (quoting Teeter,
257 F.3d at 24). Here, there is no doubt that Craig freely
and intelligently agreed to the waiver. The plea agreement
states in clear terms that Craig “waive[d] any rights
[he] may have to challenge [his] sentence . . . on direct
appeal or in any future proceeding (collateral or otherwise),
such as pursuant to 28 U.S.C. § 2255.” Dkt. No. 54
¶ 7(b). This waiver plainly bars all future challenges
to his sentence and specifically mentions challenges under
§ 2255. See United States v. Chambers, 710 F.3d
23, 30 (1st Cir. 2013) (“[T]he waiver must be stated
clearly and its scope must be definite.”).
The
Court asked Craig four different times during his plea
colloquy whether he understood that he was giving up his
right to challenge his sentence, including once specifically
about collateral attacks, and he responded affirmatively each
time. See Dkt. No. 85 at 9:25-10:14, 12:11-15. This
questioning was more than sufficient to ensure Craig's
“understanding of the waiver and [his] acquiescence in
the relinquishment of rights that it betokens.”
United States v. Ciampi, 419 F.3d 20, 25 (1st Cir.
2005) (quoting Teeter, 257 F.3d at 24 n.7). Nothing
in the rest of the plea colloquy suggests Craig was misled or
confused about his waiver. See id. at 26.
Because
Craig freely and intelligently agreed to the appellate
waiver, it is enforceable unless it would result in a
miscarriage of justice. Sotirion v. United States,
617 F.3d 27, 33 (1st Cir. 2010). “[T]he
miscarriage-of-justice exception is to be applied
‘sparingly and without undue generosity'” and
only in egregious cases. United States v.
Cabrera-Rivera, 893 F.3d 14, 24 (1st Cir. 2018) (quoting
Sotirion, 617 F.3d at 36). The defendant must point
to more than a “garden-variety error, ”
id. (quoting United States v. Santiago, 769
F.3d 1, 8 (1st Cir. 2014)), and must demonstrate “a
strong showing of innocence, unfairness, or the like, ”
United States v. Gil-Quezada, 445 F.3d 33, 37 (1st
Cir. 2006). In determining whether enforcing a waiver would
constitute a miscarriage of justice, courts consider
“the clarity of the alleged error, its character and
gravity, its impact on the defendant, any possible prejudice
to the government, and the extent to which the defendant
acquiesced in the result.” Cabrera-Rivera, 893
F.3d at 24 (quoting Gil-Quezada, 445 F.3d at 37).
Craig
brings four challenges to his Sentencing Guidelines
calculations: 1) because the Massachusetts Supreme Judicial
Court vacated four of his Class D drug possession convictions
as a result of the “Annie Dookhan scandal, ” they
should not count as part of his criminal history; 2) even
though his other Massachusetts drug convictions have not been
vacated, they are “tainted” by the Annie Dookhan
scandal and should also not count; 3) two convictions counted
separately in calculating his criminal history were actually
the same case; and 4) his two convictions for assault and
battery with a dangerous weapon are not crimes of violence.
Because the waiver in his plea agreement covers all
challenges to his sentence on a § 2255 motion, it bars
Craig's motion completely, unless he shows it would
result in a miscarriage of justice.
Craig
cannot meet this high burden because he received a
substantial benefit in his plea agreement in exchange for his
appellate waiver. The government agreed to dismiss the count
charging him as a felon-in-possession in violation of 18
U.S.C. § 922(g)(1), which, given his extensive and
serious criminal record, may have triggered a mandatory
minimum sentence of 180 months under the Armed Career
Criminal Act, 18 U.S.C. § 924(e). Instead, Craig agreed
to an 84-month sentence, which was well below even the
110-month floor of his guideline sentencing range. Thus,
“far from working a miscarriage of justice,
[Craig's] plea agreement conferred significant benefits
on him.” United States v. Morales-Arroyo, 854
F.3d 118, 121 (1st Cir. 2017) (quoting Sotirion, 617
F.3d at 38); see also United States v. Caramadre,
807 F.3d 359, 379 (1st Cir. 2015) (declining to find a
miscarriage of justice where the plea agreement capped the
defendant's sentence considerably below the top of his
guideline sentencing range).
Even
ignoring the significant benefits Craig gained in exchange
for his appellate waiver, the Court concludes that his
inability to raise these challenges does not result in a
miscarriage of justice. Craig's third challenge, that one
of his criminal convictions was double counted, appears
meritless, as both case numbers are listed under the same
conviction and only counted once in his Presentence Report.
See United States v. Marte-de la Cruz, 876 F.3d 370,
374 (1st Cir. 2017) (finding no miscarriage of justice where
it appeared the defendant's challenge was without merit).
Meanwhile,
his first and fourth challenges, even if meritorious, would
not change his guideline sentencing range. See,
e.g., González-Colón, 582 F.3d at
128-29. Craig received a base offense level of 24 because he
had at least two prior felony convictions for crimes of
violence or controlled substance offenses. See
U.S.S.G. § 2K2.1(a)(2). Even without the four vacated
convictions and the convictions for assault and battery with
a dangerous weapon, Craig has two prior felony convictions
for possession with intent to distribute, which is a
controlled substance offense. See U.S.S.G. §
4B1.2(b). He also has at least one conviction for assault
with a dangerous weapon under Massachusetts law, which
qualifies as a crime of violence. See United States v.
Fields, 823 F.3d 20, 34-35 (1st Cir.
2016).[1]
That
leaves Craig's second challenge that all of his drug
convictions are “tainted” by the Annie Dookhan
scandal. Although eliminating these convictions would alter
the calculations under the guidelines, they would not change
his criminal history category. He provides no evidence to
support his assertion that Annie Dookhan tested drugs at
issue in his other convictions and no reason why his
allegation should result in dropping these convictions from
his criminal history. Defendant does not show a miscarriage
of justice.
Despite
Craig's dissatisfaction with his sentence, he cannot
circumvent the appellate waiver to which he knowingly and
voluntarily agreed. See Caramadre, 807 F.3d at 379.
The Court therefore cannot address his § 2255 motion on
the merits.
ORDER
Craig's
motion is therefore DENIED ...