United States District Court, D. Utah, Central Division
ORDER DENYING MOTION TO CORRECT SENTENCE
CAMPBELL, U.S. DISTRICT COURT JUDGE
Johnathan Flint pleaded guilty to possessing a stolen firearm
and to possessing a controlled substance. In his plea
agreement, Mr. Flint agreed to a sentence of 120 months and
he waived his right to collaterally challenge his sentence.
Now, in spite of his waiver, Mr. Flint seeks to collaterally
challenge his sentence by arguing that the Supreme
Court's decision in Johnson v. United States
rendered his sentence unconstitutional. See 135
S.Ct. 2551 (2015). Because the court holds that Mr.
Flint's collateral-challenge waiver is enforceable, the
court DENIES his motion.
Mr. Flint entered into a plea agreement with the government
under Federal Rule of Criminal Procedure 11(c)(1)(C). Mr.
Flint pleaded guilty to possessing a stolen firearm in
violation of 18 U.S.C. § 922(j) and to possessing a
controlled substance in violation of 21 U.S.C. § 844(a).
As part of his 11(c)(1)(C) plea agreement, the parties agreed
to a sentence of 120 months and Mr. Flint agreed to waive his
right to collaterally challenge his sentence:
[Mr. Flint agrees t]o knowingly, voluntarily, and expressly
waive his right to challenge his sentence, and the manner in
which the sentence is determined, in any collateral review
motion, writ or other procedure, including but not limited to
a motion brought under 28 U.S.C. § 2255.
(Statement in Advance of Plea, Crim. Doc., ECF 58, §
Flint's plea agreement contained a stipulated factual
basis which included Mr. Flint's admission to several
prior felony convictions. In presenting this agreement to the
court, Mr. Flint agreed that he knowingly and voluntarily
waived his right to collaterally challenge his sentence.
was no presentence report but the court accepted the
11(c)(1)(C) agreement and sentenced Mr. Flint to 120 months
in custody. A month after Mr. Flint's sentencing the U.S.
Probation Office for the U.S. Bureau of Prisons prepared and
submitted to the court a Supplemental Report (the Report)
regarding Mr. Flint's criminal history. The Report, which
was not reviewed by the court before sentencing Mr. Flint,
classified one of Mr. Flint's previous felony convictions
as a “crime of violence” under the residual
clause of United States Sentencing Guidelines. USSG §
4B1.2. With this crime of violence, the Report recommended 77
to 96 months in custody.
the Supreme Court ruled in Johnson v. United States
that the Armed Career Criminal Act's (ACCA) definition of
a “crime of violence” was unconstitutionally
vague because of the inclusion of its residual clause. 135
S.Ct. 2551, 2563 (2015). Later, the Tenth Circuit in
United States v. Madrid held that the identical
residual clause in the Sentencing Guidelines-the clause
relied on in the Report to classify one of Mr. Flint's
felony convictions as a crime of violence-also qualified as
unconstitutionally vague under Johnson. See
805 F.3d 1204, 1211 (10th Cir. 2015).
Flint brings this motion, contending that his sentence is
unconstitutional in light of the rulings in Johnson
and Madrid. Admitting that he waived his right to
collaterally challenge his sentence, Mr. Flint argues that
the waiver should not be enforced because (1) he did not
agree to the waiver knowingly and voluntarily as “the
right under Johnson had not been recognized at the
time [he] agreed” to it and (2) Johnson rendered his
sentencing unconstitutional and, consequently, the waiver is
unlawful. (See Reply in Supp. of Pet'r's
§ 2255 Mot., Civ. Doc., ECF 12, 3-4.)
Government responds that Mr. Flint's collateral-challenge
waiver is enforceable. According to the Government, Mr. Flint
knowingly and voluntarily waived his right to collaterally
challenge his sentence, as evidenced by the plea agreement
itself and the plea colloquy. The Government also asserts
that though Johnson created a change in the law, it
does not render Mr. Flint's waiver unlawful.
Flint Knowingly and Voluntarily Waived His Right to
Collaterally Challenge His Sentence.
United States v. Cockerham, the Tenth Circuit held
that “a waiver of collateral attack rights brought
under § 2255 is generally enforceable where the waiver
is expressly stated in the plea agreement and where both the
plea and the waiver were knowingly and voluntarily
made.” See237 F.3d 1179, 1183 (10th Cir.
2001). When determining whether a collateral-challenge waiver
is entered knowingly and voluntarily, a court must first
examine “whether the language of the plea agreement
states that the defendant entered the agreement knowingly and
voluntarily.” United ...