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Cisneros v. United States

United States District Court, W.D. North Carolina, Charlotte Division

November 14, 2019

GABRIEL CISNEROS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), in which he raises a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). The Government has filed a Motion to Dismiss Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, (Doc. No. 7).

         I. BACKGROUND

         Petitioner pled guilty in the underlying criminal case to: Count (1), attempted murder of victim 1 in aid of racketeering and aiding and abetting the same (18 U.S.C. §§ 1959(a)(5), 2); Count (2), assault with a dangerous weapon of victim 2 in aid of racketeering activity and aiding and abetting the same (18 U.S.C. §§ 1959(a)(3), 2); and Count (4), discharging a firearm during and in relation to a crime of violence, the assault of victim 2 (18 U.S.C. § 924(c)). (3:10-cr-73, Doc. Nos. 3, 25). As part of his guilty plea, Petitioner waived his direct appeal and post-conviction rights except for claims of prosecutorial misconduct and ineffective assistance of counsel. See (Id., Doc. No. 25 at 6).

         The Presentence Investigation Report (“PSR”) scored the base offense level as 28 after applying the multiple-count adjustment. (Id., Doc. No. 50 at ¶ 50). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 25. (Id., Doc. No. 50 at ¶ 53). No. Chapter Four enhancement was applied. (Id., Doc. No. 50 at ¶ 51). Petitioner had a total of nine criminal history points and a criminal history category of IV. (Id., Doc. No. 50 at ¶ 67). The resulting advisory guideline range was 84 to 105 months' imprisonment plus a minimum mandatory consecutive sentence of not less than 10 years for the § 924(c) conviction. (Id., Doc. No. 50 at ¶ 86).

         The Court adopted the PSR without change and sentenced Petitioner within the advisory range to a total of 220 months' imprisonment comprised of 100 months for Counts (1) and (2), concurrent, and 120 months for Count (4), consecutive. (Id., Doc. No. 69); see (Id., Doc. No. 70). Petitioner filed, then voluntarily dismissed, a direct appeal. See (Id., Doc. No. 73).

         Petitioner filed an application with the Fourth Circuit Court of Appeals for authorization to file a second or successive § 2255 Motion to Vacate. The Fourth Circuit denied successiveness authorization as unnecessary and transferred the matter to this Court where it was docketed as the instant § 2255 Motion to Vacate. See (Doc. Nos. 1-1, 1-2). The § 2255 Motion to Vacate was filed under the prisoner mailbox rule on June 17, 2016. Petitioner argues that the § 924(c) conviction and sentence and career offender enhancement violate due process pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 1).

         This case was stayed for several years during the pendency of United States v. Ali, Fourth Circuit No. 15-4433, and United States v. Davis, United States Supreme Court No. 18-431. See (Doc. Nos. 3, 4). On August 23, 2019, the Government filed a Motion to Dismiss arguing that the § 2255 Motion to Vacate is waived, procedurally barred, and meritless. (Doc. No. 7). Petitioner was informed of the applicable legal standard and was provided the opportunity to respond. (Doc. No. 8). Petitioner filed a Response, (Doc. No. 11), in which he appears to argue that he should not be bound by the waiver contained in his plea agreement because it is a broad waiver of a substantive constitutional right, its enforcement would result in a miscarriage of justice because he is actually innocent of the § 924(c) offense, and that the Government “waived its waiver argument” by failing to raise it when the Fourth Circuit transferred the case to this Court. See (Doc. No. 11 at 5). Petitioner further argues that his § 2255 Motion to Vacate is not procedurally defaulted because it was timely filed within a year of Johnson's issuance pursuant to § 2255(f)(3).

         II. SECTION 2255 STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         (1) Waiver

         “[A] guilty plea constitutes a waiver of all nonjurisdictional defects, including the right to contest the factual merits of the charges.” United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). Thus, after a guilty plea, a defendant may not “raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Blackledge v. Perry, 417 U.S. 21, 29-30 (1974). Rather, he is limited “to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases.” Id. There are narrow exceptions to the enforceability of plea waivers such that “even a knowing and voluntary waiver of the right to appeal cannot bar the defendant from obtaining appellate review of certain claims” such as a sentence imposed in excess of the statutory maximum or a challenge to the validity of a guilty plea. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); see United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

         Petitioner's knowing and voluntary plea included an enforceable waiver of his post-conviction rights except for claims of ineffective assistance of counsel and prosecutorial misconduct, and waived all non-jurisdictional defects. No. error occurred, such as sentencing beyond the statutory maximum, that would warrant setting aside the waiver. See Section (3), infra. Petitioner's post-conviction challenges were waived by ...


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