7th Circuit: Collateral-attack waivers in plea deals defeat firearms appeals

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Two men claiming their firearms convictions should be invalidated after a 2019 Supreme Court ruling failed to find relief at the 7th Circuit Court of Appeals, which ruled that collateral-attack waivers in their plea agreements were valid and thus defeated their challenges to their convictions and sentences.

The 7th Circuit upheld the denial of two motions to vacate convictions in a combined decision Wednesday in Ralph Oliver v. United States of America, 17-2880, and Ryan Ross v. United States of America, 17-2902.

Oliver and Ross were part of a four-person group who committed a string of armed robberies in 2010. One of their targets was a pawn shop in Gary, but the employees fought back, shooting one of the robbers and handcuffing Ross.

Ross pleaded guilty to theft of firearms from a federally licensed dealer, a violation of 18 U.S.C. § 922(u), and use of a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c). As part of his plea, he waived his right to appeal his conviction and sentence and his right to bring a collateral attack. He then received a 15-year sentence.

Oliver was also indicted, eventually pleading guilty to Hobbs Act conspiracy and to a violation of 924(c). Like Ross, he waived his appellate and collateral-attack rights and received a 190-month sentence.

Despite their waivers, both men moved to vacate their use-of-a-firearm convictions after the U.S. Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson held that the “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” was unconstitutionally vague.

The residual clause in 924(c)’s definition of “crime of violence” was likewise unconstitutionally vague, Ross and Oliver argued. Further, offenses under 922(u) could not qualify as a crime of violence under that definition.

The Indiana Northern District Court denied both men’s motions, determining they couldn’t show their actual innocence of a violation of 924(c). But the district court did not decide whether their collateral-attack waivers barred their claims.

Oliver and Ross appealed. Meanwhile, the Supreme Court applied its holding in Johnson to decide United States v. Davis, 139 S. Ct. 2319 (2019). Davis held that the residual clause in 924(c)’s definition of crime of violence was unconstitutionally vague. Instead, convictions based on a crime of violence could only be valid under 924(c)’s elements clause.

But “Oliver and Ross do not satisfy any of our recognized bases for avoiding a valid collateral-attack waiver,” Judge David Hamilton wrote.

In attempting to avoid their waivers, Oliver and Ross first argued that because a 922(u) violation cannot qualify as a predicate crime of violence, their convictions are void under Davis, creating a “‘jurisdictional’ flaw that implicates ‘the very power’ of the government to prosecute them so that the challenge is not waivable … .”

But Hamilton rejected their reliance on United States v. Phillips, 645 F.3d 859 (7th Cir. 2011) and Class v. United States, 138 S. Ct. 798 (2018). Further, he noted that a charge predicated on 922(u) could still be valid under 924(c)’s elements clause.

“The government might well lose under a statutory interpretation of the elements clause,” the judge said, “but the prosecution itself would not lie beyond the government’s power.

The 7th Circuit likewise rejected the defendants’ argument that enforcing their collateral-attack waivers would be a miscarriage of justice. The crime here — robbery of a pawn shop — is a violation of the Hobbs Act, which is a crime of violence under Johnson, Hamilton said.

“Thus, even overlooking the shootout that occurred, the government could easily have premised the § 924(c) counts on the Hobbs Act robbery of the pawn shop in Indiana,” he wrote. “It is not a miscarriage of justice to refuse to put Oliver and Ross in a better position than they would have been in if all relevant actors had foreseen Davis.

Finally, Oliver and Ross argued their convictions rested on a “constitutionally impermissible factor” — the residual clause in the 924(c) definition of crime of violence — so their waivers should not be enforced. The “constitutionally impermissible” limit does exist, Hamilton said, but “normal constitutional challenges to a statute of conviction fall comfortably within the permissible scope of valid waivers like the ones here.

“Oliver and Ross expressly waived their right to appeal or collaterally attack their convictions or sentences, or the manner in which they were determined or imposed, before ‘any Court on any ground,’” Hamilton concluded. “Because the waivers preclude these collateral attacks, we need not consider whether Oliver and Ross procedurally defaulted their claims or whether they could circumvent that default,” the panel concluded in affirming the district court’s denials of relief.

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