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United States v. Pam

United States Court of Appeals, Tenth Circuit

August 15, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LARRY PAM, Defendant-Appellant.

         Submitted on the briefs: [*]

         Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:16-CV-00358-LH-GBW & 1:11-CR-00882-LH-1)

          Darrell M. Allen, Albuquerque, New Mexico, for Defendant-Appellant.

          James D. Tierney, Acting United States Attorney, Las Cruces, New Mexico; C. Paige Messec, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.

          MCHUGH, CIRCUIT JUDGE.

         I. INTRODUCTION

         After pleading guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Larry Pam was sentenced to a fifteen-year term of imprisonment consistent with a plea agreement entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Mr. Pam's fifteen-year sentence exceeds the ten-year statutory maximum generally applicable to violations of § 922(g)(1). See 18 U.S.C. § 924(a)(2). But the district court accepted the Rule 11(c)(1)(C) plea agreement and imposed the agreed-upon sentence with the understanding that Mr. Pam is an armed career criminal under the Armed Career Criminal Act ("ACCA") and therefore is subject to a mandatory minimum sentence of fifteen years' imprisonment. Id. at § 924(e)(1).

         Mr. Pam unsuccessfully challenged his conviction and sentence on direct appeal and collateral attack, but in light of the United States Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), we granted Mr. Pam authorization to file a second or successive motion for post-conviction relief under 28 U.S.C. § 2255. Accordingly, Mr. Pam filed a pro se § 2255 motion contending that his sentence had been unconstitutionally enhanced under the ACCA. The district court dismissed the motion, determining that the new constitutional rule announced in Johnson is inapplicable to Mr. Pam's sentence and, in the alternative, that the collateral attack waiver contained in Mr. Pam's plea agreement bars him from bringing the instant § 2255 motion.

         Mr. Pam appealed the district court's decision and we granted him a Certificate of Appealability ("COA") as to whether (1) "the district court erred in holding that [Mr.] Pam was not entitled to relief under Johnson, " and (2) "the district court erred in holding that [Mr.] Pam's claims were barred by the collateral attack waiver contained in his plea agreement." Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's dismissal of Mr. Pam's § 2255 motion, but we do so on alternative grounds.[1]

         II. BACKGROUND

         In 2011, Mr. Pam was named in a single-count indictment for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence investigation report ("PSR") calculated Mr. Pam's United States Sentencing Guidelines ("Guidelines") range of imprisonment as 188 to 235 months and indicated Mr. Pam was subject to a statutory minimum fifteen-year term of imprisonment because he qualified as an armed career criminal under the ACCA. To be an armed career criminal under the ACCA, the defendant must have "three previous convictions by any court . . . for a violent felony or a serious drug offense." See 18 U.S.C. § 924(e)(1). The PSR identified Mr. Pam's three ACCA predicate offenses as two convictions for shooting at or from a motor vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), and a single conviction for aggravated assault with a deadly weapon, in violation of New Mexico Statutes Annotated § 30-3-2(A).

         The district court held a plea hearing on September 20, 2011, during which Mr. Pam pled guilty and entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).[2] In addition to containing Mr. Pam's admission of guilt to being a felon in possession of a firearm and ammunition, the plea agreement states that while this offense carries a maximum penalty of "imprisonment for a period of not more than ten (10) years; . . . [Mr. Pam] may be an armed career criminal which carries a minimum sentence of fifteen (15) years['] imprisonment." It further reflects the parties' agreement that "a sentence of 180 months['] imprisonment, or 15 years['] imprisonment, is the appropriate disposition for this case." The plea agreement also includes a section entitled "Validity of Convictions, " in which Mr. Pam stipulates that he has two prior felony convictions for shooting at or from a motor vehicle, as well as a prior felony conviction for aggravated assault with a deadly weapon. Finally, the plea agreement contains a collateral attack waiver, which states:

[T]he Defendant agrees to waive any collateral attack to the Defendant's conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

         At a sentencing hearing conducted four months later, the district court accepted the parties' Rule 11(c)(1)(C) plea agreement and sentenced Mr. Pam to the agreed-upon sentence of 180 months' imprisonment. The district court, in explaining its acceptance of the agreement, noted the PSR's "finding that [Mr. Pam] is an Armed Career Criminal" with "three convictions for violent felonies."

         After unsuccessfully seeking post-conviction relief through an initial § 2255 motion, challenging his conviction and sentence on direct appeal, and pursuing other avenues not relevant to this appeal, Mr. Pam requested authorization to file a second or successive § 2255 motion. His request was based on the Supreme Court's decision in Johnson, which struck down the portion of the ACCA's definition of "violent felony" known as the residual clause. 135 S.Ct. at 2557. We granted Mr. Pam's request and, shortly after his second or successive § 2255 motion was filed with the United States District Court for the District of New Mexico, the district court appointed counsel to represent Mr. Pam. Despite being represented by counsel, Mr. Pam subsequently filed a pro se amended § 2255 motion, which in large measure repeated the claims and arguments presented in the first motion we authorized him to file.

         The district court issued a single order dismissing both motions, reasoning that Mr. Pam is not entitled to post-conviction relief because (1) Johnson is inapplicable to Mr. Pam's sentence, which was imposed pursuant to a Rule 11(c)(1)(C) plea agreement and not under the provisions of the ACCA and (2) Mr. Pam's collateral attack waiver is enforceable and bars him from bringing a § 2255 motion based on Johnson. Through counsel, Mr. Pam filed a motion requesting the district court to vacate its dismissal of his § 2255 motion. Mr. Pam then filed a notice of appeal. Because Mr. Pam's motion to vacate remained pending before the district court, we held his appeal in abeyance until the district court issued an order denying the motion.[3] Mr. Pam subsequently requested but was denied a COA from the district court to challenge the dismissal of his § 2255 motion. Mr. Pam then petitioned this court, and we granted him a COA on two issues: "(1) whether the district court erred in holding that [Mr.] Pam was not entitled to relief under Johnson; and (2) whether the district court erred in holding that [Mr.] Pam's claims were barred by the collateral attack waiver contained in his plea agreement."

         III. DISCUSSION

         "In reviewing denial of a § 2255 motion for post-conviction relief where a COA has been granted, 'we review the district court's findings of fact for clear error and its conclusions of law de novo.'" United States v. Viera, 674 F.3d 1214, 1217 (10th Cir. 2012) (quoting United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)). "But where, as here, the district court does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon an uncontested trial record, our review is strictly de novo." Rushin, 642 F.3d at 1302.

         In examining Mr. Pam's appeal of the district court's decision, we first address the threshold issue of whether Mr. Pam may bring a Johnson-based challenge to an agreed-upon sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement. We conclude Mr. Pam may bring such a challenge because his plea agreement expressly references the ACCA as the basis for his term of imprisonment. Next, we consider whether the collateral attack waiver contained in Mr. Pam's plea agreement bars him from challenging his sentence under § 2255. Determining that it does not, we then examine whether Mr. Pam's felony convictions for shooting at or from a motor vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), constitute violent felonies under the ACCA after Johnson. Resolving this final issue in favor of the government, we conclude the district court was correct in dismissing Mr. Pam's § 2255 motion.

         A. Rule 11(c)(1)(C) and Johnson

         Before the district court, Mr. Pam argued that his 180-month sentence is unconstitutional because his prior convictions for shooting at or from a motor vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), as well as his conviction for aggravated assault with a deadly weapon, in violation of New Mexico Statutes Annotated § 30-3-2(A), no longer constitute violent felonies under the ACCA after Johnson. The district court did not reach the merits of Mr. Pam's arguments, but found he was not entitled to post-conviction relief because (1) his claim for relief from a Rule 11(c)(1)(C) plea agreement does not implicate Johnson and (2) the waiver provision in his plea agreement bars him from raising a Johnson-related collateral attack to his sentence.

         In reaching its determination that Mr. Pam's § 2255 motion does not implicate Johnson, the district court reasoned that because Mr. Pam "was not sentenced under the provisions of the ACCA, but was instead sentenced to a stipulated and agreed[-upon] term of 180 months under" a Rule 11(c)(1)(C) plea agreement, "Johnson is inapplicable to [his] sentence." The district court acknowledged Justice Sotomayor's controlling concurrence in Freeman v. United States, which outlines two situations in which a Rule 11(c)(1)(C) plea agreement is "based on" a Guidelines sentencing range for purposes of post-conviction sentence reductions under 18 U.S.C. § 3582(c)(2). 564 U.S. 522, 534-544 (2011) (Sotomayor, J., concurring) (holding a term of imprisonment resulting from a Rule 11(c)(1)(C) plea agreement is "based on" the Guidelines for purposes of § 3582(c)(2) when the agreement (1) "call[s] for the defendant to be sentenced within a particular Guidelines sentencing range, " or (2) "provide[s] for a specific term of imprisonment . . . but also make[s] clear that the basis for the specified term is a Guidelines sentencing range" and "that sentencing range is evident from the agreement itself"); see also United States v. Graham, 704 F.3d 1275, 1277-78 (10th Cir. 2013) (concluding Justice Sotomayor's concurrence in Freeman is controlling). But the district court concluded the application of Freeman would not change the result here because Mr. Pam's "agreement did not use or employ a Guideline[s] sentencing range."

         Reviewing the district court's determination de novo, United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015), we hold the district court erred in finding that Mr. Pam's sentence was not imposed under the ACCA and therefore the court also erred in concluding that Johnson could not be applicable to Mr. Pam's sentence. Although we agree that Mr. Pam's plea agreement does not implicate the Guidelines and that he is proceeding under § 2255, rather than § 3582(c)(2), we nevertheless consider Freeman's analysis instructive in resolving whether Mr. Pam's plea was based on the enhanced sentence available for an armed career criminal under the ACCA. While, "[i]n the [Rule 11(c)(1)(C)] agreement context, . . . it is the binding plea agreement that is the foundation for the term of imprisonment to which the defendant is sentenced, " Mr. Pam's plea agreement expressly used the ACCA- specifically its statutorily mandated minimum term of imprisonment-to establish the agreed-upon 180-month sentence. Freeman, 564 U.S. at 535 (Sotomayor, J., concurring). Notably, Mr. Pam's plea agreement states that while his crime of conviction carries a maximum penalty of "imprisonment for a period of not more than ten (10) years, " he "may be an armed career criminal which carries a minimum sentence of fifteen (15) years['] imprisonment." The agreement also includes a section entitled "Validity of Convictions, " in which Mr. Pam stipulates to the validity of three of his prior felony convictions-the same three convictions the PSR identifies as ACCA predicate offenses. Finally, the plea agreement sets forth an agreed-upon sentence of 180 months, which exceeds the statutory maximum applicable to violations of 18 U.S.C. §§ 922(g)(1), as set forth in 18 U.S.C. § 924(a)(2), unless the ACCA applies.[4]

         Because Mr. Pam's plea agreement expressly used the ACCA to establish the agreed-upon term of imprisonment, the binding nature of the agreement does not prevent us from considering whether Johnson impacts the constitutionality of Mr. Pam's sentence.[5] Cf. Freeman, 564 U.S. at 534 (Sotomayor, J., concurring) (holding that while a term of imprisonment imposed pursuant to a Rule 11(c)(1)(C) agreement is "'based on' the agreement itself, . . . if a [Rule 11(c)(1)(C)] agreement expressly uses a Guidelines sentencing range . . . to establish the term of imprisonment, . . . the term of imprisonment is 'based on' the range employed" and not the Rule 11(c)(1)(C) agreement itself). Indeed the government concedes this point, stating it "does not contend that [Mr.] Pam is barred from seeking relief under Johnson on the grounds that his sentence was based on his plea agreement, rather than on the ACCA, " and that "it is clear that his sentence was based at least in part on the ACCA because it was the ACCA that raised his statutory sentencing range above the 120-month maximum otherwise applicable."[6] See also Welch, 136 S.Ct. at 1261 ("Because the ordinary maximum sentence for a felon in possession of a firearm is 10 years, while the minimum sentence under the Armed Career Criminal Act is 15 years, a person sentenced under the [ACCA] will receive a prison term at least five years longer than the law otherwise would allow.") In sum, Mr. Pam's sentence was based on the ACCA.

         B. Collateral Attack Waiver

         In addition to holding that Johnson is inapplicable to Mr. Pam's § 2255 motion based on his agreed-to sentence, the district court determined that the collateral attack waiver contained in his plea agreement bars him from bringing the instant § 2255 motion. The district court concluded that the waiver is enforceable and bars Mr. Pam's § 2255 motion because (1) Mr. Pam's request for relief under Johnson falls within the scope of the waiver, (2) Mr. Pam knowingly and voluntarily agreed to the waiver, and (3) enforcement of the waiver would not result in a miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam) (establishing a three-part test to determine whether an appeal waiver is enforceable); see also United States v. Viera, 674 F.3d 1214, 1217-18 (10th Cir. 2012) (applying the Hahn analysis to a collateral attack proceeding). Mr. Pam challenges the district court's decision, arguing the collateral attack waiver is unenforceable because his § 2255 motion does not fall within the scope of the waiver and, alternatively, that enforcement of the waiver would result in a miscarriage of justice.[7] In addition, Mr. Pam argues that he could not have waived his right to bring a Johnson-related § 2255 motion because at the time he entered the plea agreement that right did not yet exist.[8]

         Whether the collateral attack waiver contained in Mr. Pam's plea agreement is enforceable is a question of law that we review de novo. United States v. Leyva-Matos, 618 F.3d 1213, 1216 (10th Cir. 2010); United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Although "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, " such waivers are subject to the "same exceptions [that exist for] waiver[s] of the right to appeal." Cockerham, 237 F.3d at 1183. As a result, where, as here, a petitioner raises a collateral attack to his conviction or sentence despite having waived his right to do so in a plea agreement, we must determine whether the waiver is enforceable by examining "(1) whether the disputed [collateral attack] falls within the scope of the waiver of [collateral attack] rights[, ] (2) whether the defendant knowingly and voluntarily waived his [collateral attack] rights[, ] and (3) whether enforcing the waiver would result in a miscarriage of justice." Hahn, 359 F.3d at 1325; see also Viera, 674 F.3d at 1216; United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).

         We first consider Mr. Pam's argument that his § 2255 motion does not fall within the scope of the collateral attack waiver contained in his plea agreement. In determining the scope of waiver, we apply principles of contract law and examine the plain language of the plea agreement. United States v. Taylor, 413 F.3d 1146, 1151 (10th Cir. 2005). But we strictly construe the scope of the waiver and interpret any ambiguities against the government and in favor of Mr. Pam's collateral attack rights. United States v. Novosel, 481 F.3d 1288, 1291 n.1 (10th Cir. 2007); Taylor, 413 F.3d at 1151-52.

         Here, we need only examine the plain language of Mr. Pam's collateral attack waiver to conclude that it does not bar him from requesting relief from his sentence under Johnson. In its entirety, Mr. ...


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