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Flint v. United States

United States District Court, D. Utah, Central Division

January 18, 2017

BRIAN JOHNATHAN FLINT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 1:11-CR-00020-TC

          ORDER DENYING MOTION TO CORRECT SENTENCE

          TENA CAMPBELL, U.S. DISTRICT COURT JUDGE

         Brian 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.

         BACKGROUND

         In 2012 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, § 12(A)(3)(a-d)).

         Mr. 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.

         There 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.

         In 2015 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).

         ANALYSIS

         Mr. 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.)

         The 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.

         I. Mr. Flint Knowingly and Voluntarily Waived His Right to Collaterally Challenge His Sentence.

         In 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 ...


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