United States Court of Appeals

for the Fifth Circuit

No. 20-10401

United States of America, 

Plaintiff—Appellee,

versus

Ronald William Brooks, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CV-1680

Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.

Per Curiam:*

Ronald Brooks was under indictment for federal drug charges. When 

FBI officers tried to arrest him, he escaped and broke into an apartment

where he held a woman and two children hostage at gunpoint. He eventually 

surrendered to the officers. A grand jury returned a superseding indictment, 

charging Brooks with additional counts of: (1) kidnapping; (2) being a felon 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 21, 2022

Lyle W. Cayce

Clerk

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in possession of a firearm; and (3) using, carrying, and brandishing a firearm 

during and in relation to a “crime of violence”—the underlying offense being 

kidnapping—in violation of 18 U.S.C. § 924(c).

Brooks entered into a plea agreement. He pleaded guilty to the 

kidnapping, felon-in-possession, and Section 924(c) charges in exchange for 

the government’s dropping the drug charges. The parties also agreed, under 

Federal Rule of Criminal Procedure 11(c)(1)(C), to a stipulated sentence of 

204 months in prison. The district court had some trepidation about the 

leniency of the stipulated sentence, as Brooks otherwise would have faced a 

Guidelines range of 262–327 months with at least another seven years added 

on for the Section 924(c) conviction. The court nonetheless accepted the 

plea agreement and sentenced Brooks to concurrent 120-month terms on the 

kidnapping and felon-in-possession charges and a consecutive 84-month 

term on the Section 924(c) charge.

More than three years later, Brooks filed a Section 2255 motion 

challenging his Section 924(c) conviction as unconstitutional under Johnson 

v. United States, 576 U.S. 591 (2015). He claimed that kidnapping was no 

longer a crime of violence that could serve as a Section 924(c) predicate.

In its answer, the government argued that Brooks’s motion was timebarred because it was filed more than a year after his conviction became final. 

The government additionally argued that Johnson did not restart the statuteof-limitations clock because that case did not concern the statute under which 

Brooks was convicted. But soon after, the Supreme Court decided United 

States v. Davis, 139 S. Ct. 2319 (2019). That case did involve the definition 

of “crime of violence” for Section 924(c) and thus directly supported his 

argument that the conviction was unconstitutional. See id.

The district court ordered supplementary briefing in light of Davis. In 

response, the government invoked a provision in Brooks’s plea agreement 

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waiving the “right to contest [the] conviction and sentence in any collateral 

proceeding.” The district court adopted the magistrate judge’s 

recommendation to enforce the waiver and dismissed Brooks’s motion. It 

then granted a certificate of appealability on: “(1) whether the Government 

forfeited the right to invoke the post-conviction remedy waiver, (2) whether 

the waiver bars [Brooks’s] Davis claim, and (3) whether the waiver is 

unenforceable under the miscarriage of justice exception.”

We begin with Brooks’s argument that the government’s invocation 

of the waiver in the plea agreement was untimely. He argues that by failing 

to invoke the waiver in its original answer, the government waived Brooks’s 

waiver.

Although affirmative defenses like waiver should generally be set forth 

in responsive pleadings, see Fed. R. Civ. P. 8(c), “technical failure to 

comply precisely with Rule 8(c) is not fatal.” Allied Chem. Corp. v. Mackay, 

695 F.2d 854, 856 (5th Cir. 1983). What matters is whether the defense was

raised “at a pragmatically sufficient time” and the opposing party was 

“prejudiced in its ability to respond.” Id. District courts are thus not barred 

from considering defenses raised after the initial answer. See, e.g., Smith v. 

Travelers Casualty Ins. Co. of Am., 932 F.3d 302, 309–10 (5th Cir. 2019) 

(upholding district court decision to consider affirmative defenses raised in 

amended answers); McCadney v. Hamilton, 706 F. App’x 188, 190 (5th Cir. 

2017) (upholding district court decision to consider affirmative defense not 

raised until trial because plaintiff was aware that the defense was an issue in 

the case); Bradberry v. Jefferson County, 732 F.3d 540, 553 (5th Cir. 2013) 

(upholding district court decision to consider affirmative defense raised in 

amended answer because plaintiff had opportunity to respond and was not 

unfairly surprised). Nor are there rigid limitations on when and how 

pleadings can be amended. See Smith, 932 F.3d at 309 (“Proper amendment 

to an answer, pursuant to Rule 15(a), is one way—though not the only way—

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to preserve an affirmative defense.”); 5 Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 1278 

(4th ed. 2022) (“Even as late as the trial, if evidence relating to an unpleaded 

affirmative defense is introduced without objection, Rule 15(b) requires the 

pleadings to be treated as if they actually had raised the defensive issue.”).

Only when the government fails to invoke a waiver of postconviction 

rights until the appellate stage do we typically overlook it. See, e.g., United 

States v. Griffin, 946 F.3d 759, 761 n.1 (5th Cir. 2020) (“Although Griffin 

waived the right to collaterally attack his conviction in his plea agreement, 

the government forfeited the right to invoke Griffin’s waiver by failing to 

assert waiver in the district court.”); United States v. Alexander, 808 F. App’x 

234, 236 n.1 (5th Cir. 2020) (not enforcing waiver that was raised only in a 

Rule 28(j) letter); United States v. Wiese, 896 F.3d 720, 722 n.1 (5th Cir. 2018) 

(refusing to enforce waiver of postconviction rights because government did 

not invoke it). Indeed, we allow district courts to enforce a waiver of 

postconviction rights without waiting to see whether the government would 

invoke it, assuming that “absent word otherwise[,] the government will seek 

enforcement of a waiver it bargained for.” See United States v. Del ToroAlejandre, 489 F.3d 721, 723 (5th Cir. 2007).

Brooks’s argument that the government was late in raising waiver thus 

fails. The government invoked the waiver at a pragmatically sufficient time, 

once it realized that another affirmative defense it relied on—statute of 

limitations—would not work because of Davis. And Brooks was not 

prejudiced in his ability to respond. He replied to the government’s waiver 

argument twice before the district court ruled—once after the government 

submitted its amended response and once after the magistrate judge 

recommended enforcing the waiver.

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Although the government in one of its filings labelled the statute of 

limitations as “the only issue remaining,” the government was only quoting 

some stray language from the district court’s order asking the parties whether 

a stay was warranted in light of the certiorari grant in Davis. It was not 

affirmatively relinquishing the plea agreement waiver. The district court 

thus correctly allowed the government to invoke Brooks’s waiver.

That timely invocation of Brook’s waiver resolves this case. We 

recently held that plea waivers of the right to collaterally attack a sentence 

apply to Davis claims. United States v. Caldwell, -- F.4th --, 2022 WL 

2462834, at *1 (5th Cir. July 6, 2022) (citing Grzegorczyk v. United States, 142 

S. Ct. 2580, 2580 (2022)). And here, Brooks’s waiver was part of a plea 

agreement that provided him with major benefits: the government dismissed 

the drug charge and agreed to a total sentence that was still years below the 

bottom of his Guidelines range for just the kidnapping and felon-inpossession convictions.

We AFFIRM.

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