United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE
case arises from a motion to vacate filed pursuant to 28
U.S.C. § 2255. Jeffrey Eugene (“Eugene” or
“petitioner”) claims that he was improperly
sentenced as a career offender because one of the predicate
convictions used to enhance his sentence as a career offender
was vacated by the Commonwealth of Massachusetts.
November, 2010, Eugene was indicted on six counts of
conspiracy to distribute and distribution of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 846.
Petitioner entered a binding plea agreement in October, 2011,
and in January, 2012, the Court sentenced him to 188 months
in prison to be followed by 60 months of supervised release
pursuant to that plea agreement. The government contends
that, in consideration of the plea agreement, it agreed to
withdraw an additional Information filed pursuant to 21
U.S.C. § 851 which would have doubled petitioner's
mandatory minimum sentence from 10 to 20 years and that
petitioner agreed not to challenge his conviction or sentence
collaterally pursuant to 28 U.S.C. §§ 2255 and
2241. The government also reserved the right to press any and
all charges which otherwise could have been brought against
petitioner in the event that he violated the terms of the
plea agreement. Petitioner maintains, however, that he was
sentenced as a career offender pursuant to U.S.S.G. §
June, 2017, Eugene received a letter from the Massachusetts
Supreme Judicial Court notifying him that four drug
convictions against him had been dismissed. The basis of
those dismissals was misconduct engaged in by chemist Annie
Dookhan (“Dookhan”) at the state drug lab. As a
result of that misconduct, the District Attorney assigned to
his case dismissed those drug convictions with prejudice.
Based on the dismissal of those drug convictions, petitioner
filed the present motion to vacate pursuant to § 2255
challenging his sentence because it was based on his prior
status as a career offender which is no longer applicable.
Petitioner asserts that he should be resentenced based on a
total offense level of 29 and a criminal history category of
III yielding a new Sentencing Guideline range of 108-135
months. He concedes that he is subject to a
120-month mandatory minimum pursuant to 21 U.S.C. §
government responds that petitioner explicitly waived his
right to appeal in entering the plea agreement and that his
waiver was knowing and voluntary. It contends that he is,
therefore, barred from now challenging his sentence.
Cuevas v. United States, 778 F.3d 267 (1st Cir.
2015), the First Circuit Court of Appeals held that vacatur
of a defendant's prior state drug convictions was
sufficiently exceptional for his claim for resentencing on
his federal charge to be cognizable under § 2255.
Id. at 271-72. That case involved the same
misconduct by Ms. Dookhan which led to the vacatur of the
petitioner's state drug convictions. Id. at 269.
the defendant in Cuevas, however, petitioner entered a plea
agreement in which he waived his right to appeal his sentence
pursuant to a § 2255 motion to vacate. Generally, a
waiver of appellate rights entered into knowingly and
voluntarily is valid and thus prohibits a subsequent appeal
encompassed by the waiver. See United States v.
Gil-Quezada, 445 F.3d 33, 36-37 (1st Cir. 2006). A court
will not enforce a waiver, however, “if doing so would
work a miscarriage of justice”. Id. at 36
(citing United States v. Teeter, 257 F.3d 14, 25
(1st Cir. 2001)). That exception applies only to
“egregious cases”. United States v.
Morillo, 910 F.3d 1, 4 (1st Cir. 2018) (noting that the
exception does not apply to “garden-variety”
government does not contest that petitioner's claim falls
within the rule of Cuevas and is thus cognizable. This Court
agrees. The government, however, submits that petitioner has
waived his right of appeal and as to that contention, the
Court disagrees. That is because, although the plea agreement
was truly knowing and voluntary, the Court finds that
enforcement of the waiver in this case would constitute a
miscarriage of justice.
entered into a binding plea agreement calling for 188 months
imprisonment based on the assumption that he faced a
Sentencing Guideline range of 262-327 months as a career
offender. The agreed-upon sentence was clearly advantageous
based on that guideline range. Eventually, it was discovered
that, because of serious misconduct of a government official,
petitioner no longer qualifies as a career offender because
of the vacatur of one of his predicate offenses. In light of
his changed status, it is clear that petitioner would never
have entered into the subject plea agreement because the
agreed-upon sentence of 188 months is more than 50 months
higher than the high end of the applicable guideline range
without the career offender enhancement. It is misleading for
the government to argue that there can be no miscarriage of
justice because petitioner received a multi-year reduction
based on the then-applicable Sentencing Guideline range. That
range was informed by the fact that petitioner was then a
career offender but he no longer is and therefore it is
irrelevant. To forbid petitioner from challenging his
sentence because of governmental misconduct unrelated to him
would be a fundamental miscarriage of justice.
the First Circuit discussed the exceptional nature of
Dookhan's misconduct and how a petition pursuant to
encompasses assignments of error that reveal fundamental
defect[s] which, if uncorrected, will result in a complete
miscarriage of justice . . . .
Cuevas, 778 F.3d at 272 (alterations in original)
(internal quotation marks omitted) (quoting David v.
United States, 134 F.3d 470, 474 (1st Cir. 1998)). While
the First Circuit discussed the concept of “miscarriage
of justice” in the context of determining whether the
defendant's claim was cognizable under § 2255, there
is no reason to believe that prohibiting petitioner from
challenging his sentence here would be any less justified
because there is an appeal waiver in his plea agreement. In
both situations, the criminal misconduct of Ms. Dookhan
presents a sufficiently exceptional circumstance such that
justice requires petitioner to be able to challenge his
sentence. This is not a “garden-variety”
challenge to a federal sentence.
the Court finds that enforcement of petitioner's appeal
waiver would be a miscarriage of justice and therefore will