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United States v. Fisher

United States District Court, D. Kansas

January 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
STACY L. FISHER, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         In 2014, Defendant Stacy L. Fisher pleaded guilty to one count of felon in possession of a firearm. The Court sentenced him to a prison term of 86 months, to be followed by three years of supervised release. Fisher now seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Doc. 83). He argues that the Court improperly considered a prior offense when calculating his sentence, resulting in a higher base offense level and higher U.S. Sentencing Guidelines (“Guidelines”) range. Because Fisher waived his right to bring this motion, his motion is denied.

         I. Factual and Procedural Background

         In 2013, Fisher was charged in a five-count indictment of unlawfully and knowingly possessing, with the intent to distribute, cocaine base (crack cocaine), in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), of knowingly and unlawfully possessing a Ruger .22 caliber semi-automatic handgun, a Winchester 16-gauge shotgun, and ammunition in violation of 18 U.S.C. §§ 2 and 922(g)(1), and of knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A). On July 3, 2014, Fisher entered into a plea agreement with the Government, and pleaded guilty to one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).[1] In accordance with the plea agreement, the Government agreed to seek dismissal of the remaining charges.

         Fisher acknowledged that he entered the plea agreement “freely and voluntarily, ”[2] and agreed to the following waiver of appeal and collateral attack rights in the plea agreement:

Defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, conviction and sentence. The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or otherwise attempt to modify or change his sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)], a motion brought under Title 18, U.S.C. § 3582(c)(2) and a motion brought under Fed. Rule of Civ. Pro 60(b). In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence received as authorized by Title 18, U.S.C. § 3742(a). Notwithstanding the forgoing waivers, the parties understand that the defendant in no way waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct.[3]

         The parties requested that the Court apply the Guidelines to calculate Fisher's sentence, and the parties agreed “to request a sentence within the guideline range determined to be appropriate by the U.S. Probation Department.”[4]

         During the Rule 11 colloquy, the Court confirmed that Fisher understood that he was requesting a sentence within the Guidelines range, and that he was waiving any objections or challenges he had to the Guidelines process. The Court explained Fisher's appeal rights, including his right to appeal his sentence or how his sentence was calculated. Fisher stated that he understood that he was essentially waiving his appeal rights, except to the extent he received a sentence above the Guidelines range or in the event the Government filed an appeal. Fisher affirmed that he entered the plea agreement freely and voluntarily. The Court found that Fisher made his plea freely, voluntarily, and because he was guilty as charged, and not out of ignorance, fear, inadvertence, or coercion, but with a full understanding of the consequences.

         After Fisher pleaded guilty, a U.S. Probation Officer (“USPO”) prepared a presentence investigation report (“PSR”) and submitted it to the Court on September 2, 2014. Applying the 2013 Guidelines, the USPO arrived at a total offense level of 21 by starting with a base offense level of 20, adding four levels because Fisher possessed firearms in connection with another felony offense, and subtracting three levels for Fisher's acceptance of responsibility. The USPO determined that the appropriate base offense level was 20 under U.S.S.G. § 2K2.1(a)(4)(A)[5]because Fisher had previously been convicted of a “controlled substance offense” in Kansas state court. According to the PSR, in 1992, Fisher was convicted of possession of cocaine with intent to sell in the Sedgwick County District Court, Wichita, Kansas. Based upon the total offense level of 21 and a criminal history category of VI, the PSR identified the applicable Guidelines range for imprisonment as 77 months to 96 months. The Court adopted this range, and on September 23, 2014, sentenced Fisher to a prison term of 86 months, to be followed by three years of supervised release.[6]

         Proceeding pro se, Fisher filed the current motion under 28 U.S.C. § 2255 on June 19, 2017. He argues that in light of two U.S. Supreme Court[7] cases addressing statutory interpretation of the Guidelines, his prior Kansas conviction should not have been considered a “controlled substance offense” for purposes of U.S.S.G. § 2K2.1, and that his total offense level should have been six levels lower, resulting in a lower Guidelines range. In response, the Government argues that Fisher's motion is meritless, barred by his waiver of his right to collaterally attack his sentence, and barred by the statute of limitations. Because the Court finds that Fisher's motion is barred by the waiver in his plea agreement, the Court does not address the Government's remaining arguments.

         II. Legal Standards

         Under 28 U.S.C. § 2255, a “prisoner in custody . . . claiming the right to be released” may petition the court to vacate, set aside, or correct a sentence on various grounds, including where “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”[8] When alleging constitutional error, “the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict.”[9] When alleging non-constitutional error, “the petitioner must show a fundamental defect in the proceedings resulting in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process.”[10] The petitioner is entitled to a hearing on his motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[11]

         III. Analysis

         Because the motion, files, and records of this case conclusively show that Fisher waived his right to bring this action and is not entitled to relief, the Court denies Fisher's motion without an evidentiary hearing.[12]

         A. Fisher waived his right to collaterally attack his sentence.

         “[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.”[13] The Tenth Circuit requires courts to analyze three factors when determining whether a defendant validly waived his right to bring a post-conviction collateral attack under § 2255: “(1) whether the disputed [claim] falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.”[14]All three prongs are satisfied here.

         1. Fisher's claim falls within the scope of the waiver.

         Courts construe plea agreements “according to contract principles and what the defendant reasonably understood when he entered his plea.”[15] Ambiguities are construed against the Government and in favor of the defendant's appellate rights.[16] Fisher's claim clearly falls within the unambiguous language of the waiver, and his argument that the plea agreement did not specifically waive his right to challenge “a ‘substantive' change of law” fails.[17]

         Although the waiver in Fisher's plea agreement is broad, it is not ambiguous. It expressly includes “any right to appeal or collaterally attack any matter in connection with . . . [the] sentence, ” including “any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court, ” and “any right to challenge a sentence or . . . manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)].”[18] Likewise, the waiver expressly excludes from its scope Fisher's right to challenge his sentence if (1) the “court departs upwards from the applicable sentencing guideline range determined by the court, ” (2) “the ...


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