NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-3479 ___________
UNITED STATES OF AMERICA
v.
MARK O. WHITE, Appellant ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4-12-cr-00322) District Judge: John E. Jones III ____________________________________
Submitted Under Third Circuit LAR 34.1(a) June 14, 2019
Before: HARDIMAN, KRAUSE, and PORTER, Circuit Judges
(Opinion filed: June 19, 2019)
OPINION *
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Mark O. White appeals the District Court’s denial of his 28 U.S.C. § 2255 motion
to vacate his sentence, arguing that his sentence was unconstitutional because, during
plea bargaining, the Government leveraged the threat of a statutory sentencing
enhancement that was subsequently abrogated-in-part as unconstitutional. See Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015). Because White waived his right to bring
such a collateral challenge to his sentence when he entered his plea, and because
enforcing that waiver does not “work a miscarriage of justice,” United States v. Khattak,
273 F.3d 557, 563 (3d Cir. 2001), we will affirm.
Background
White was caught with several guns in his apartment and pleaded guilty to
unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). During
plea negotiations, the Government purportedly “wielded the threat of the Armed Career
Criminal [Act] (‘ACCA’) enhancement,” App. 52, which would have subjected White
upon conviction to a mandatory minimum sentence of fifteen years, see 18 U.S.C. §
924(e). His fear of that prospect ostensibly impelled him to enter into a plea agreement
with the Government in which both parties agreed, pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), that the ten-year statutory maximum for a § 922(g) conviction
was appropriate in his case, see 18 U.S.C. § 924(a)(2), and the Government agreed to
recommend that sentence to the District Court, which imposed it.
Approximately two years later, the Supreme Court struck down the ACCA in part,
concluding that the statute’s residual clause in § 924(e)(2)(B)(ii) violated the Due Process
2 Clause because it was too vague to provide fair notice of the conduct that it punished.
Johnson, 135 S. Ct. at 2557–60. That change in law prompted White to file a motion to
vacate his sentence under 28 U.S.C. § 2255, asserting that the Government’s use of the
ACCA as a bargaining chip to secure his guilty plea rendered his sentence
unconstitutional. The District Court denied the motion, concluding that Johnson did not
affect his sentence because, although the ACCA may have played a role in plea
negotiations, he was not actually sentenced under the ACCA. This appeal followed.
Discussion 1
We will not disturb the District Court’s denial of relief because, as a condition of
White’s plea agreement, he waived his right to “collateral review, including . . . a motion
to vacate judgment under Title 28, United States Code, Section 2255,” App. 32, and the
record here demonstrates that waiver was knowing, voluntary, and enforceable.
A waiver of the right to collateral review is valid if it is “entered into knowingly
and voluntarily and [its] enforcement does not work a miscarriage of justice. United
States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008), abrogated on other grounds by Garza
v. Idaho, 139 S. Ct. 738 (2019). We have declined “to earmark specific situations” that
constitute a “miscarriage of justice” and have instead endorsed several factors to consider
on a case-by-case basis, including the “clarity” of the alleged “error.” Khattak, 273 F.3d
at 563 (quoting United States v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001)).
1 The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2255. Having granted a certificate of appealability, we have jurisdiction pursuant to 28 U.S.C. § 2253(a) and (c). 3 Here, White does not argue that he entered into the waiver unknowingly or
involuntarily and focuses his briefing instead on his contention that its enforcement
would work a miscarriage of justice. 2 That argument is unavailing because the alleged
“error”—the Government’s leveraging of the then-valid ACCA sentencing enhancement
as a bargaining chip in plea negotiations—lacks the sort of “clarity,” Khattak, 273 F.3d at
563 (citation omitted), that attends a miscarriage of justice. Put differently, even if White
had not knowingly and voluntarily agreed to forgo a collateral challenge to his sentence,
that challenge would be dubious on the merits, and we will not set aside his waiver to
consider a claim for relief that is both novel and suspect. See id. at 562 (“A waiver of the
right to appeal includes a waiver of the right to appeal difficult or debatable legal issues .
. . .” (citation omitted)); see also United States v. Cabrera-Rivera, 893 F.3d 14, 30 (1st
Cir. 2018) (acknowledging similarity between miscarriage-of-justice and plain-error
standards).
Generally, for a defendant who has not waived his direct appeal or collateral
review rights, “a voluntary plea of guilty intelligently made in the light of the then
applicable law does not become vulnerable because later judicial decisions indicate that
the plea rested on a faulty premise.” United States v. Lockett, 406 F.3d 207, 213 (3d Cir.
2005) (quoting Brady v. United States, 397 U.S. 742, 757 (1970)). There is “only a
2 White fleetingly states in his brief that “his guilty plea was not knowing or adequately informed because it was premised on the applicability of the . . . [now partially abrogated] ACCA.” Appellant’s Reply Br. 1. But he does not explain that bald assertion, and his brief goes on to argue only that the miscarriage-of-justice exception applies. 4 limited set of grounds . . . available for a defendant to challenge a conviction or sentence
based on a guilty plea.” United States v. Peppers, 899 F.3d 211, 225 (3d Cir. 2018). For
instance, Congress may create statutory mechanisms for defendants who plead guilty to
later challenge a conviction or seek a sentence reduction in light of new legal
developments. See, e.g., 18 U.S.C.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-3479 ___________
UNITED STATES OF AMERICA
v.
MARK O. WHITE, Appellant ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4-12-cr-00322) District Judge: John E. Jones III ____________________________________
Submitted Under Third Circuit LAR 34.1(a) June 14, 2019
Before: HARDIMAN, KRAUSE, and PORTER, Circuit Judges
(Opinion filed: June 19, 2019)
OPINION *
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Mark O. White appeals the District Court’s denial of his 28 U.S.C. § 2255 motion
to vacate his sentence, arguing that his sentence was unconstitutional because, during
plea bargaining, the Government leveraged the threat of a statutory sentencing
enhancement that was subsequently abrogated-in-part as unconstitutional. See Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015). Because White waived his right to bring
such a collateral challenge to his sentence when he entered his plea, and because
enforcing that waiver does not “work a miscarriage of justice,” United States v. Khattak,
273 F.3d 557, 563 (3d Cir. 2001), we will affirm.
Background
White was caught with several guns in his apartment and pleaded guilty to
unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). During
plea negotiations, the Government purportedly “wielded the threat of the Armed Career
Criminal [Act] (‘ACCA’) enhancement,” App. 52, which would have subjected White
upon conviction to a mandatory minimum sentence of fifteen years, see 18 U.S.C. §
924(e). His fear of that prospect ostensibly impelled him to enter into a plea agreement
with the Government in which both parties agreed, pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), that the ten-year statutory maximum for a § 922(g) conviction
was appropriate in his case, see 18 U.S.C. § 924(a)(2), and the Government agreed to
recommend that sentence to the District Court, which imposed it.
Approximately two years later, the Supreme Court struck down the ACCA in part,
concluding that the statute’s residual clause in § 924(e)(2)(B)(ii) violated the Due Process
2 Clause because it was too vague to provide fair notice of the conduct that it punished.
Johnson, 135 S. Ct. at 2557–60. That change in law prompted White to file a motion to
vacate his sentence under 28 U.S.C. § 2255, asserting that the Government’s use of the
ACCA as a bargaining chip to secure his guilty plea rendered his sentence
unconstitutional. The District Court denied the motion, concluding that Johnson did not
affect his sentence because, although the ACCA may have played a role in plea
negotiations, he was not actually sentenced under the ACCA. This appeal followed.
Discussion 1
We will not disturb the District Court’s denial of relief because, as a condition of
White’s plea agreement, he waived his right to “collateral review, including . . . a motion
to vacate judgment under Title 28, United States Code, Section 2255,” App. 32, and the
record here demonstrates that waiver was knowing, voluntary, and enforceable.
A waiver of the right to collateral review is valid if it is “entered into knowingly
and voluntarily and [its] enforcement does not work a miscarriage of justice. United
States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008), abrogated on other grounds by Garza
v. Idaho, 139 S. Ct. 738 (2019). We have declined “to earmark specific situations” that
constitute a “miscarriage of justice” and have instead endorsed several factors to consider
on a case-by-case basis, including the “clarity” of the alleged “error.” Khattak, 273 F.3d
at 563 (quoting United States v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001)).
1 The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2255. Having granted a certificate of appealability, we have jurisdiction pursuant to 28 U.S.C. § 2253(a) and (c). 3 Here, White does not argue that he entered into the waiver unknowingly or
involuntarily and focuses his briefing instead on his contention that its enforcement
would work a miscarriage of justice. 2 That argument is unavailing because the alleged
“error”—the Government’s leveraging of the then-valid ACCA sentencing enhancement
as a bargaining chip in plea negotiations—lacks the sort of “clarity,” Khattak, 273 F.3d at
563 (citation omitted), that attends a miscarriage of justice. Put differently, even if White
had not knowingly and voluntarily agreed to forgo a collateral challenge to his sentence,
that challenge would be dubious on the merits, and we will not set aside his waiver to
consider a claim for relief that is both novel and suspect. See id. at 562 (“A waiver of the
right to appeal includes a waiver of the right to appeal difficult or debatable legal issues .
. . .” (citation omitted)); see also United States v. Cabrera-Rivera, 893 F.3d 14, 30 (1st
Cir. 2018) (acknowledging similarity between miscarriage-of-justice and plain-error
standards).
Generally, for a defendant who has not waived his direct appeal or collateral
review rights, “a voluntary plea of guilty intelligently made in the light of the then
applicable law does not become vulnerable because later judicial decisions indicate that
the plea rested on a faulty premise.” United States v. Lockett, 406 F.3d 207, 213 (3d Cir.
2005) (quoting Brady v. United States, 397 U.S. 742, 757 (1970)). There is “only a
2 White fleetingly states in his brief that “his guilty plea was not knowing or adequately informed because it was premised on the applicability of the . . . [now partially abrogated] ACCA.” Appellant’s Reply Br. 1. But he does not explain that bald assertion, and his brief goes on to argue only that the miscarriage-of-justice exception applies. 4 limited set of grounds . . . available for a defendant to challenge a conviction or sentence
based on a guilty plea.” United States v. Peppers, 899 F.3d 211, 225 (3d Cir. 2018). For
instance, Congress may create statutory mechanisms for defendants who plead guilty to
later challenge a conviction or seek a sentence reduction in light of new legal
developments. See, e.g., 18 U.S.C. § 3582(c)(2) (authorizing courts to reduce a sentence
that was “based on a sentencing range that has subsequently been lowered by the
Sentencing Commission”); see also Hughes v. United States, 138 S. Ct. 1765, 1773, 1775
(2018). As another example, a guilty plea will not preclude a defendant from collaterally
attacking her conviction where, because of a change in law, it becomes clear that the
defendant did not receive “real notice of the true nature of the charge against him” before
pleading guilty. Bousley v. United States, 523 U.S. 614, 618–19 (quoting Smith v.
O’Grady, 312 U.S. 329, 334 (1941)) (allowing collateral challenge where defendant
pleaded guilty to violating a statute that was subsequently interpreted narrowly by the
Supreme Court, such that the defendant allegedly “[mis]understood the essential elements
of the crime with which he was charged” when he pleaded guilty). In a similar vein, we
recently held that a defendant who—unlike White—was actually sentenced under the
ACCA before Johnson was decided is not precluded by a guilty plea from collaterally
attacking his sentence. See Peppers, 899 F.3d at 225–26. As we explained, “[p]arties
may not stipulate to an unlawful sentence in a plea agreement.” Id. at 225.
But none of those exceptional circumstances pertain here. The first two are
inapplicable and, as to the third, White did not stipulate to an unlawful sentence. Just the
opposite: White’s original indictment charged him with a violation of § 924(e), but the
5 unlawful ACCA enhancement was specifically bargained out of his guilty plea. We have
never recognized the availability of collateral review in a case like this, i.e., where a law
later declared unconstitutional merely contributed to the Government’s negotiating
leverage in plea bargaining. In fact, the notion of such relief is in sharp tension with our
precedent, under which “[t]he possibility of a favorable change in the law occurring after
a plea agreement” is ordinarily viewed as “merely one of the risks that accompanies a
guilty plea.” Lockett, 406 F.3d at 214; see also Brady, 397 U.S. at 757 (“A defendant is
not entitled to withdraw his plea merely because he discovers long after the plea has been
accepted that his calculus misapprehended . . . the likely penalties attached to alternative
courses of action.”). Thus, to the extent there is even the possibility that White would be
entitled to relief if he had not waived his right to collateral review, that possibility is faint
at best. Accordingly, there is no miscarriage of justice in enforcing White’s waiver, see
Khattak, 273 F.3d at 562, and we will do so.
Conclusion
For the aforementioned reasons, we will affirm the order of the District Court.