Deandre Markee King v. USA

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14100
____________________
DEANDRE MARKEE KING,
a.k.a. Santonio Spratlin,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:13-cr-00073-TWT-JKL-1
____________________
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2 Opinion of the Court 20-14100
Before GRANT, L UCK , and ANDERSON, Circuit Judges.
G RANT, Circuit Judge:
A criminal defendant who wishes to plead guilty can waive
the right to challenge his conviction and sentence in exchange for
a better plea deal. With limited exceptions, a valid waiver of the
right to collateral appeal bars habeas claims brought under 28
U.S.C. § 2255. This case requires us to decide whether that
principle applies when a defendant seeks to challenge his sentence
based on the Supreme Court’s recent decision in
United States v.
Davis, 139 S. Ct. 2319 (2019). In short, does a valid waiver of
collateral attack foreclose habeas relief based on a new retroactive
constitutional rule?
We hold that it does. None of the narrow exceptions that
permit a court to look past an appeal waiver apply here. Because
the defendant waived his right to bring a habeas challenge, we
affirm the district court’s order below.1
I.
In 2012, Deandre King and three associates robbed a
Dunwoody, Georgia bank at gunpoint, escaping with $71,668.
With help from the bank’s surveillance cameras and the suspects’
cell phone data, FBI agents tracked down the perpetrators. King
1 The district court determined both that King’s collateral appeal waiver
prevented his petition and that King failed to overcome his procedural default.
Because the waiver is valid and no exception applies, we hold that it precludes
King’s claim. We thus do not reach the question of procedural default.
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20-14100 Opinion of the Court 3
and the others were arrested near another bank four months after
the robbery; the car they were traveling in contained guns, masks,
and gloves.
The government first charged King with three separate
crimes. But in exchange for King’s agreement to plead guilty, it
substituted a lesser set of charges: one count of conspiracy to
commit bank robbery under 18 U.S.C. § 371 and one count of
using, carrying, or possessing a firearm during a crime of violence
under 18 U.S.C. § 924(c)(1)(A)(ii). The government specified that
the “crime of violence” underlying the § 924(c) charge was
conspiracy to commit Hobbs Act robbery. King’s plea agreement
included a “waiver of appeal” 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
(including, but not limited to, motions filed pursuant to 28 U.S.C.
§ 2255).”2 The district court imposed a 135-month sentence, 51
months for the conspiracy offense and 84 months for the § 924(c)
offense.
As agreed, King did not directly appeal his conviction or
sentence after signing the waiver. But later developments in
constitutional law inspired him to mount a collateral challenge. In
2015, the Supreme Court held that the residual clause of the Armed
2 King’s waiver encompassed both the right to directly appeal and the right to
collaterally attack his conviction and sentence, but we call it an “appeal
waiver” for the sake of brevity.
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4 Opinion of the Court 20-14100
Career Criminal Act was unconstitutionally vague.
Johnson v.
United States, 576 U.S. 591 (2015). Though King’s case was
unrelated to ACCA, he filed a pro se § 2255 motion to vacate his
sentence. The district court denied the motion, pointing out that
ACCA “played no role” in determining King’s sentence—and that,
in any case, King’s appeal waiver barred any collateral challenge.
Four years later, in
United States v. Davis, the Supreme
Court applied its reasoning from
Johnson to hold that the residual
clause of § 924(c) was also unconstitutional. 139 S. Ct. at 2336.
That opinion hit closer to home, because the government’s use of
conspiracy as an underlying “crime of violence” to King’s § 924(c)
conviction had relied on that statute’s residual clause. This Court
soon held that
Davis ’s new constitutional rule was retroactive to
cases on collateral review.
See In re Hammoud, 931 F.3d 1032,
1039 (11th Cir. 2019). When King requested permission to file a
second § 2255 motion challenging his conviction and sentence, we
granted it because King had made a prima facie showing that he
was entitled to relief under
Davis. Soon after, we joined several
other circuits in holding that “conspiracy to commit Hobbs Act
robbery does not qualify as a ‘crime of violence’” for § 924(c)
purposes after
Davis.
Brown v. United States, 942 F.3d 1069, 1075–
76 (11th Cir. 2019) (quoting 18 U.S.C. § 924(c)(3)(A)).
The district court denied King’s second motion. First and
foremost, the court explained that King’s appeal waiver prevented
him from challenging his sentence. King argued that he qualified
for an exception to the appeal waiver, analogizing his case to one
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20-14100 Opinion of the Court 5
in which a district court imposed a sentence above the statutory
maximum.
See United States v. Johnson, 541 F.3d 1064, 1068 (11th
Cir. 2008). But the court rejected that comparison as qualitatively
different. It also concluded that because King had not challenged
his sentence on direct appeal, his claim was procedurally barred.
King now appeals.
II.
We review the validity and scope of an appeal waiver de
novo.
See United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir.
1993).
III.
As a rule, “sentence appeal waivers, made knowingly and
voluntarily, are enforceable.”
Bushert, 997 F.2d at 1345. King
agreed not to challenge his conviction or sentence “on any ground”
outside an agreed-upon 84-month maximum for his firearms
conviction and as long as the district court stayed within the
Sentencing Guidelines range. Even so, King now asserts that the
Supreme Court’s decision in
Davis is a “winning lottery ticket” that
“renders [his] § 924(c) conviction and sentence unlawful.” But
neither the law nor the odds are on his side.
“A plea agreement is, in essence, a contract between the
Government and a criminal defendant.”
United States v. Howle,
166 F.3d 1166, 1168 (11th Cir. 1999). Like any contract, a plea
agreement must be construed according to the intent and
reasonable expectation of the parties.
United States v. Rubbo, 396
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6 Opinion of the Court 20-14100
F.3d 1330, 1334 (11th Cir. 2005). That interpretive practice is
longstanding and well understood—by both prosecutors and
defendants.
If courts step back from the contract-based approach for
appeal waivers, it will upset significant reliance interests—again,
for both prosecutors and defendants. First, prosecutors. A court’s
refusal to enforce a waiver as written would “deprive the
government of the benefit that it has bargained for and obtained in
the plea agreement.”
United States v. Boyd, 975 F.3d 1185, 1191
(11th Cir. 2020) (quotation omitted). As for defendants, ignoring
appeal waivers would offer a second chance for some (at least to
start), but that move would backfire in the end—if a defendant
cannot offer an airtight appeal waiver, a plea bargain will be much
harder to strike.
See Howle, 166 F.3d at 1169. Certainty, in short,
benefits both prosecutor and defendant.
To maintain that certainty, we permit appeal waivers to
apply “not only to frivolous claims, but also to difficult and
debatable legal issues.”
United States v. DiFalco, 837 F.3d 1207,
1215 (11th Cir. 2016). A defendant who signs an appeal waiver
gives up even “the right to appeal blatant error,” because the
waiver would be “nearly meaningless if it included only those
appeals that border on the frivolous.”
Howle, 166 F.3d at 1169.
The same principle applies here. So even when a new
constitutional rule might provide a strong basis for collateral
attack, we enforce an appeal waiver according to its terms.
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20-14100 Opinion of the Court 7
Of course, like most rules, this one has exceptions. In
United
States v. Bushert, we explained that even “judicially enforced,
knowing and voluntary sentence appeal waivers” do not bar a
“collateral § 2255 action concerning certain subjects.” 997 F.2d at
1350 n.17. But those subjects are few and sharply defined. The
most obvious is a jurisdictional defect; an appeal waiver cannot
confer jurisdiction on a court where none exists.
See DiFalco, 837
F.3d at 1215. We have also carved out narrow substantive
exceptions. We will review a sentence “based on a constitutionally
impermissible factor such as race.”
Bushert, 997 F.2d at 1350 n.18
(quotation omitted). And in one case, we suggested that perhaps
“extreme circumstances”—like a “public flogging” sentence—
might justify overlooking an appeal waiver as well.
Howle, 166
F.3d at 1169 n.5. One last exception remains. We also allow review
of “a sentence imposed in excess of the maximum penalty provided
by statute.”
Bushert, 997 F.2d at 1350 n.18 (quotation omitted).
These exceptions are crucial to King’s attempted appeal
because his plea agreement, on its face, bars his challenge. King
does not dispute the plain terms of his plea agreement: though he
admitted to forcing bank employees to turn over tens of thousands
of dollars—at gunpoint—the government dropped an armed bank
robbery charge and a conspiracy charge brought under 18 U.S.C.
§ 1951. It kept only a charge of using, carrying, or possessing a
firearm during a crime of violence under § 924(c), and substituted
in a less serious conspiracy charge.
See 18 U.S.C. § 371. In
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8 Opinion of the Court 20-14100
exchange, King pleaded guilty to this lesser set of charges and
agreed to waive the right to appeal his conviction and sentence.
This deal had obvious benefits for King. His original charges
carried steep sentences—a 25-year statutory maximum for armed
bank robbery and a 20-year maximum for conspiracy under § 1951,
not to mention a possible sentence of life in prison for the § 924(c)
firearms charge.
See 18 U.S.C. §§ 2113(a), 2113(d), 1951(a);
Alleyne
v. United States, 570 U.S. 99, 112 (2013). Yet the guilty plea left him
with a sentence of only 135 months—less than 12 years. The bank
robbery charge was dropped entirely, and the new conspiracy
charge had a statutory maximum of five years instead of twenty.
See 18 U.S.C. §§ 371, 1951. As for the § 924(c) firearms charge, the
government agreed to limit King’s sentence to 84 months,
dramatically under the statutory maximum—life in prison. A
handwritten addition initialed by the lawyers on both sides
specifically preserved King’s right to attack any § 924(c) sentence
exceeding that number. Beyond that, he forfeited the right to
challenge any sentence within the Sentencing Guidelines.
King says that, after
Davis, conspiracy to commit Hobbs Act
robbery cannot qualify as a predicate for a § 924(c) charge. True
enough, but his habeas petition does not challenge an outside-the-
Guidelines sentence or a prison term above 84 months for the
§ 924(c) charge. Those are the only grounds on which King can
appeal, and his
Davis claim does not fit.
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20-14100 Opinion of the Court 9
Nor does it fall within any of our established categories of
unwaivable claims.3 King tries to recast his
Davis argument into a
claim that his sentence exceeds the statutory maximum—one that
he could bring despite his appeal waiver. According to King,
because his § 924(c) conviction was explicitly based on a conspiracy
charge that can no longer serve as a predicate, the firearm crime
for which he was convicted was “no crime at all.” And, he
concludes, no crime at all deserves no sentence at all.
This argument misinterprets the nature and scope of the
appeal-waiver exception for sentences exceeding the statutory
maximum. The “maximum penalty provided by statute”
referenced in
Bushert is not a moving target that changes with new
legal developments—it is the maximum statutory penalty in effect
at the time of sentencing.
As we have explained, plea agreements must be understood
to mean what their signatories intended, and the maximum-
penalty exception fits comfortably within this framework.
Rubbo,
396 F.3d at 1334;
Bushert, 997 F.2d at 1350 n.18. That is because
the maximum sentence prescribed by statute forms a crucial
backdrop to any plea agreement. All plea negotiations operate on
3 Though it would not be a fit here in any event, we note that our Circuit has
never adopted a general “miscarriage of justice” exception to the rule that
valid appeal waivers must be enforced according to their terms.
See Johnson,
541 F.3d at 1067–68, 1069 n.5;
cf. United States v. Andis, 333 F.3d 886, 891 (8th
Cir. 2003) (en banc) (explaining that the Eighth Circuit will “refuse to enforce
an otherwise valid waiver if to do so would result in a miscarriage of justice”).
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10 Opinion of the Court 20-14100
the assumption that the statutory maximum currently in effect is
the highest penalty available, and for good reason—the parties
have no reason to expect a court to defy the law by exceeding it.
See Bushert, 997 F.2d at 1350 n.18. If a court imposes a sentence
unauthorized by statute it thus violates a fundamental assumption
underlying the plea agreement—much as it would if it convicted
the defendant of a crime to which she did not plead guilty. We
disregard a valid appeal waiver only when the court ignores one of
the “fundamental and immutable legal landmarks within which the
district court must operate regardless of the existence of sentence
appeal waivers.”
Id. The statutory maximum is one such
landmark.
The same cannot be said for legal developments that may or
may not someday occur. As the Seventh Circuit recently
explained, an appeal waiver is designed “to account in advance for
unpredicted future developments in the law.”
Oliver v. United
States, 951 F.3d 841, 845 (7th Cir. 2020). Both parties understand
that a higher court could later announce a new legal rule relevant
to the defendant’s conviction or sentence.
That possibility generates risk that the plea agreement may
someday be open to attack, whether on direct appeal or through
collateral review. An appeal waiver eliminates that risk for the
government; the waiver is valuable precisely because it allocates
the risk to the defendant. If a new constitutional rule favoring the
defendant is later announced, no underlying assumption of the plea
agreement or its appeal waiver has been upended. All that has
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20-14100 Opinion of the Court 11
happened is that the government’s wager has paid off—just as the
defendant’s wager pays off in the many cases in which no new rule
provides a basis for appeal. The exception for sentences that
exceed the statutory maximum honors the mutual understanding
of the parties.
We have already interpreted the meaning of this exception
in the context of appeal waivers that explicitly set it out (rather than
rely only on our caselaw recognizing the exception). In such cases,
we have held, the statutory maximum means “the upper limit of
punishment that Congress has legislatively specified for violation
of a statute.”
Rubbo, 396 F.3d at 1334–35;
see also United States v.
Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). It is not the
maximum punishment permitted by a “line of decisions that was
evolving at the time.”
Rubbo, 396 F.3d at 1335. Rather than
reevaluating the “maximum penalty provided by statute” each
time the Supreme Court announces a new rule, we apply the
meaning understood by both parties when the appeal waiver was
signed: the statutory maximum in effect at that time.
This Court has resisted previous attempts to “effectively
write into the contract an exception that the parties did not agree
to” by artificially broadening the statutory-maximum exception.
Johnson, 541 F.3d at 1069. In
United States v. Johnson, the
defendant urged us to apply that exception to a claim based on an
untimely restitution order. We declined, explaining that the
statutory-maximum exception in
Bushert targets “the imposition
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12 Opinion of the Court 20-14100
of a sentence exceeding the statutory range authorized for the
offense of conviction.”
Id.
We see no reason to backtrack here. The statutory
maximum for King’s § 924(c) charge at the time of his conviction
was life in prison.
See Alleyne, 570 U.S. at 112. He managed to
negotiate a far lower limit; his plea agreement preserved the right
to challenge “any sentence over 84 months with respect to” that
charge. The district court respected that limit. Because King
received a lesser sentence—one within the 84-month limit he had
negotiated—the statutory-maximum exception of
Bushert does
not come into play. As in
Johnson, we will not stretch that
exception beyond what it can reasonably bear.
Nor would it benefit defendants in the long run if we were
to do so. Forcing constitutional claims into the statutory-
maximum exception would render the promise of waiver virtually
meaningless, robbing defendants of a powerful bargaining tool.
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. To the contrary, the “principle that future
changes in law do not vitiate collateral-challenge waivers is
mainstream.”
Portis v. United States, 33 F.4th 331, 335 (6th Cir.
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20-14100 Opinion of the Court 13
2022). Two of our sister circuits have recently held that such
waivers prohibit § 2255 motions based on
Davis. The Seventh
Circuit explained that a
Davis challenge did not “satisfy any of [its]
recognized bases for avoiding a valid collateral-attack waiver,”
including a statutory-maximum exception.
Oliver, 951 F.3d at 844–
45. And the Sixth 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.”
Portis, 33 F.4th at 339.
King points out, and we acknowledge, that not all circuits
have consistently followed this approach.
See United States v.
Cornette, 932 F.3d 204, 210 (4th Cir. 2019) (expanding a statutory-
maximum exception to cover
Johnson claims);
Vowell v. United
States, 938 F.3d 260, 268 (6th Cir. 2019) (same);
United States v.
Torres, 828 F.3d 1113, 1125 (9th Cir. 2016) (holding that an appeal
waiver will not bar a challenge to an “illegal” sentence). But
circuits that once considered arguments like King’s have changed
course in later decisions involving
Davis claims—decisions that
support our understanding of appeal waivers. The Sixth Circuit
recently distinguished an earlier panel decision suggesting an
expansive view of the statutory-maximum exception.
See Portis,
33 F.4th at 338–39. And the Ninth Circuit similarly declined to
extend an established exception, noting that while “there always
remains a chance the law could change in the defendant’s favor,”
when that defendant signs an appeal waiver, he “knowingly and
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14 Opinion of the Court 20-14100
voluntarily assumes that risk because he receives a presumably
favorable deal under existing law.”
United States v. Goodall, 21
F.4th 555, 563–64 (9th Cir. 2021). We agree. And to the extent that
other jurisdictions are willing to ignore a defendant’s voluntary
choice to sign an appeal waiver simply because the law has
changed, we find their reasoning unpersuasive.
* * *
But for a few narrow exceptions, a defendant that waives the
right to collaterally attack his sentence is bound by that decision.
King’s
Davis claim is no exception. We therefore AFFIRM the
district court’s order.
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20-14100 ANDERSON, J., concurring 1
ANDERSON, Circuit Judge, concurring:
I concur in the result reached in the opinion for the Court in
this case. In
United States v. Bushert, this Court held that
collateral-attack waivers that defendants “knowingly and
voluntarily” enter are enforceable. 997 F.2d 1343, 1345 (11th Cir.
1993). King’s plea agreement contained a collateral-attack waiver,
and he affirmed that he understood the rights he was waiving
during his plea colloquy. However, he argues that this waiver does
not bar his appeal because, after the Supreme Court held that the
residual clause of 28 U.S.C. § 924(c) was void for vagueness in
United States v. Davis, 139 S. Ct. 2319 (2019), he is serving a
sentence beyond the statutory maximum allowed for his illegal
§ 924(c) conviction.
In
Bushert, we acknowledged—in
dicta—that a waiver
might not bar a defendant’s collateral attack when (1) the court
sentences the defendant based on his race, religion, or other
invidious classification or (2) it “impose[s] a penalty for a crime
beyond that which is authorized by statute.” 997 F.2d at 1350 n.18.
I agree with the opinion for the Court that the second
Bushert
exception—
i.e., the statutory-maximum exception—cannot
provide King relief because it only allows defendants to challenge
sentences that exceed the maximum statutory penalty in effect at
the time of sentencing. As the opinion for the Court explains,
King’s 84-month sentence for his § 924(c) conviction did not exceed
the maximum sentence authorized by § 924(c) as it existed at the
time of his sentencing. Accordingly, the statutory-maximum
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2 ANDERSON, J., concurring 20-14100
exception does not allow King to circumvent his collateral-attack
waiver. I agree that later developments in the law typically do not
obviate a collateral-attack waiver.
I write separately to address King’s argument that a
miscarriage-of-justice/actual innocence exception would allow
King to challenge his § 924(c) sentence despite his collateral-attack
waiver.
See, e.g.,
United States v. Khattak, 273 F.3d 557, 563 (3d
Cir. 2001) (“Waivers of appeals, if entered into knowingly and
voluntarily, are valid, unless they work a miscarriage of justice.”);
United States v. Andis, 333 F.3d 886, 891–92 (8th Cir. 2003) (en
banc) (“As the miscarriage of justice exception relates to [this]
appeal, we reaffirm that in this Circuit a defendant has the right to
appeal an illegal sentence, even though there exists an otherwise
valid waiver.”). The opinion for the Court notes that we have
never adopted a general “miscarriage of justice” exception. But
assuming
arguendo that this Court would adopt a miscarriage-of-
justice exception, I conclude that it would not apply here. King
admitted at his plea colloquy to robbing a bank while possessing
and brandishing a firearm. The Government originally indicted
King on three counts: (1) conspiracy to commit a Hobbs Act
robbery in violation of 18 U.S.C. § 1951; (2) armed bank robbery in
violation of §§ 2113(a), (d); and (3) use of a firearm during and in
relation to a crime of violence in violation of § 924(c). The parties
negotiated a plea, and King pled guilty to a two-count information
for (1) conspiracy to commit bank robbery in violation of 18 U.S.C.
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20-14100 ANDERSON, J., concurring 3
§ 371 and (2) use of a firearm during and in relation to a crime of
violence in violation of § 924(c).
The “crime of violence” predicate for the § 924(c) firearm
charge was the § 371 conspiracy charge, which qualified at that
time as a “crime of violence” under § 924(c)’s “residual clause.”1
The Supreme Court recently held that § 924(c)’s “residual clause”
is unconstitutionally vague,
Davis, 139 S. Ct. at 2325–36, but
Davis’s holding does not mean that King is actually innocent of his
§ 924(c) firearms conviction. He admitted at his plea colloquy that
he participated in armed bank robbery, and the Government could
have used the armed bank robbery charge from King’s original
indictment as the predicate offense for the § 924(c) firearms charge.
Even after
Davis, the armed bank robbery charge would have
served as a predicate “crime of violence” offense under § 924(c)’s
elements clause.
1 Section 924(c)(3) defines “crime of violence” as follows:
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of
another may be used in the course of committing the
offense.
The first definition in § 924(c)(3)(A) is the “elements clause” whereas the
second definition in § 924(c)(3)(B) is the “residual clause.”
Davis, 139 S. Ct. at
2324.
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4 ANDERSON, J., concurring 20-14100
In my view, the contours of a miscarriage-of-justice
exception to the enforceability of a collateral-attack waiver would
closely track—if not mirror—the actual innocence exception to the
procedural default rule.
See, e.g.,
Bousley v. United States, 523 U.S.
614, 623, 118 S. Ct. 1604, 1611 (1998) (stating that a petitioner’s
appeal may proceed despite procedural default if he can show his
actual innocence);
Lewis v. Peterson, 329 F.3d 934, 936–37 (7th Cir.
2003) (stating that, to satisfy the actual-innocence exception to
procedural default, a petitioner must show his actual innocence
both of the crime of which he was convicted and of any more, or
equally, serious charges the Government dropped in the course of
plea bargaining). Here, King clearly cannot show he is actually
innocent of the foregone armed bank robbery charge because he
admitted to doing so during his plea colloquy. Therefore, our
conclusion that the collateral-attack waiver bars King’s appeal
would not cause a miscarriage of justice. Accordingly, I concur in
the judgment reached in the opinion for the Court.
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