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‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root