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Fox v. United States

United States District Court, D. Hawaii

January 31, 2018

LANCE FOX, Petitioner,




         On April 14, 2014, Petitioner Lance Fox was sentenced to a 69-month term of imprisonment following his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a). On June 6, 2016, Fox filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”), despite a waiver provision in his plea agreement that prohibits appeals and collateral attacks in most circumstances, which the Court held in abeyance pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). Fox contends that his sentence violates due process in light of Johnson v. United States, 135 S.Ct. 2551 (2015), notwithstanding Beckles.[1]

         Fox's Section 2255 Motion is barred for at least two reasons. First, Fox waived his right to collaterally attack his sentence under the terms of his plea agreement. Second, Fox's motion was untimely and Johnson does nothing to change that fact. The Court therefore dismisses the Section 2255 Motion and declines to issue a certificate of appealability.


         I. Plea And Sentencing

         On June 13, 2013, Fox was charged in a three-count Indictment with: (1) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); (2) possession of a firearm while being an unlawful user of a controlled substance in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count 2); and (3) simple possession of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 844 (Count 3). See Dkt. No. 10 (6/13/13 Indictment).

         On November 26, 2013, Fox pled guilty, pursuant to a Memorandum of Plea Agreement, to Count 1 of the Indictment. See Dkt. No. 33 (11/26/13 Court Minutes); Dkt. No. 34 (Mem. of Plea Agreement). At the November 26, 2013 change of plea hearing, the Court accepted Fox's plea of guilty and deferred acceptance of the Memorandum of Plea Agreement pending sentencing and preparation of a Presentence Investigation Report (“PSR”). Dkt. No. 33 (11/26/13 Court Minutes). Under the terms of the plea agreement, the government agreed to move to dismiss Counts 2 and 3 of the Indictment after sentencing. Mem. of Plea Agreement ¶ 4. Fox agreed in the plea agreement to waive “his right to challenge his sentence or the manner in which it was determined in any collateral attack, including, but not limited to, a [Section 2255 Motion], except that [Fox] may make such a challenge (1) [if the Court imposes a sentence greater than specified in the guideline range] or (2) based on a claim of ineffective assistance of counsel.” Mem. of Plea Agreement ¶ 12.

         The PSR prepared in advance of sentencing calculated Fox's total offense level as 21, criminal history category V, with an advisory guideline range of 70-87 months of imprisonment. Dkt. No. 47 ¶ 84 (Am. PSR). The base offense level for Count 1 was 24 (before applying a three-level adjustment for acceptance of responsibility) because Fox had at least two prior felony convictions for either a crime of violence or a controlled substance offense under U.S.S.G. § 2K2.1(a)(2). The PSR cited Fox's prior felony convictions for (1) promoting a dangerous drug in the second degree; and (2) terroristic threatening in the first degree. PSR ¶ 15.[2]Fox did not challenge the PSR's computation of his offense level or the recitation of his criminal history. See Dkt. No. 42 at 12 (Def.'s Sentencing Mem.). The government filed a motion for a downward departure on April 1, 2014. Dkt. No. 40 (4/1/2014 Mot. for §5K1.1 Downward Departure).

         On April 14, 2014, the Court granted the government's motion for a downward departure, adopted the findings of the PSR, and sentenced Fox to a below-guidelines term of imprisonment of 69 months. See Dkt. Nos. 44 (4/10/2014 Court Minutes) and 45 (4/14/2014 Court Minutes); Dkt. No. 46 (4/15/2014 Judgment); Dkt. No. 47 (Am. PSR). The Court also imposed a three-year term of supervised release. See Dkt. No. 45 (4/14/2014 Court Minutes), Dkt. No. 46 (4/15/2014 Judgment).

         Fox did not appeal his conviction or sentence.

         II. Section 2255 Motion

         On June 6, 2016, Fox filed his Section 2255 Motion, relying upon the Supreme Court's decision in Johnson, which held that the Armed Career Criminal Act's (“ACCA”), 18 U.S.C. § 924(e)(2)(b), residual clause is unconstitutionally vague and therefore may not serve as the basis for a sentence enhancement. Id. at 2557. On July 8, 2016, this Court issued its order holding in abeyance consideration of the merits of the Section 2255 Motion, pending the Supreme Court's decision in Beckles, which involved claims that Johnson applied equally to the residual clause of the Sentencing Guidelines. See Dkt. No. 55.

         Although Fox was not sentenced under the ACCA, he contends that his due process claim remains viable under Johnson, regardless of the holding in Beckles, because his advisory Sentencing Guidelines range was enhanced based upon a prior felony conviction for a “crime of violence, ” presumably by operation of the Guidelines' residual clause. He argues that one of his prior convictions-for first degree terroristic threatening in violation of Hawaii Revised Statutes § 707-715-was not a requisite “crime of violence” under the force clause, U.S.S.G. § 4B1.2(a)(1). Mem. in Supp. at 3-6, Dkt. No. 60. According to Fox, U.S.S.G. § 4B1.2(a)(2)'s residual clause is the only basis to support a “crime of violence” determination. Mem. in Supp. at 6. He challenges the Guidelines' residual clause as “unreliable and arbitrary” in all applications because it “does not offer a lawful basis for concluding that a prior conviction is for a crime of violence.” Mem. in Supp. at 6; see also Id. at 7 (“The problem is that every application of it is wrong, because the only way it can be applied is by way of an arbitrary standard that offers no reliable way of determining what crimes the residual clause picks up and what crimes it doesn't.”).

         The government opposed the Section 2255 Motion on the grounds that it is barred by the waiver in Fox's plea agreement and is also untimely. See Mem. in Opp'n, Dkt. No. 61. In his December 14, 2017 reply brief, Fox contends that because his sentence violates the Constitution and is therefore illegal, the plea agreement's waiver is unenforceable.[3] Reply at 2, Dkt. No. 62.


         Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The statute authorizes the sentencing court to grant relief if it concludes “that 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[.]” Id.

         A court may dismiss a Section 2255 motion if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” R. 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. In addition, the Court shall hold an evidentiary hearing on a petitioner's motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). The standard for holding an evidentiary hearing is whether the petitioner ...

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