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‐ 1484 (L)

Rodgers v. United States



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT = S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 16 th day of January, two thousand

eighteen.

PRESENT: DENNIS JACOBS,

REENA RAGGI,

CHRISTOPHER F. DRONEY,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

ORANGE RODGERS,

Petitioner

‐ Appellant,

‐ v. ‐ 16

‐ 1484, 16

‐ 2277

UNITED STATES OF AMERICA,

Respondent

‐ Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X2 FOR APPELLANT: Jane S. Meyers, Law Office of Jane S.

Meyers, Brooklyn, NY.

FOR APPELLEE: Steven D. Clymer (Ransom P.

Reynolds, on the brief), Assistant

United States Attorneys, for Grant C.

Jaquith, Acting United States

Attorney for the Northern District of

Syracuse, New York, NY.

Appeal from a judgment of the United States District Court for the

Northern District of New York (Suddaby, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be

AFFIRMED

.

Petitioner

‐ appellant Orange Rodgers appeals from an April 19, 2016

judgment, and a June 15, 2016 order, of the United States District Court for the

Northern District of New York denying his motion under 28 U.S.C. § 2255 to

vacate his sentence, imposed in accordance with a binding plea agreement, for

possession by a convicted felon of a firearm that had been shipped and

transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Rodgers

argues on appeal that the district court erred in denying his motion because: (1)

he did not waive his right to bring a § 2255 motion since the district court failed,

in violation of Fed. R. Crim. P. 11(b)(1)(N), to state in the plea colloquy that the

sentence could not be collaterally attacked, and (2) the required predicate offenses

for enhanced sentencing under the Armed Criminal Career Act are now lacking

by virtue of Johnson v. United States, 135 S. Ct. 2551 (2015). We assume the

parties’ familiarity with the underlying facts, the procedural history, and the

issues presented for review.

1. Rodgers’ plea agreement waived any collateral attack on his

sentence. He argues that the waiver should not be enforced because, at the

colloquy in his change of plea hearing, the court stated that Rodgers was waiving3 his right to appeal his sentence without stating that he was also waiving his right

to bring a challenge under 28 U.S.C. § 2255. According to Rodgers, the district

court’s violation of Fed. R. Crim. P. 11(b)(1)(N) means that his guilty plea was not

knowing; rather, he thought he retained his right to collaterally challenge his

sentence.

Fed. R. Crim. P. 11 is “designed to assist the district judge in making the

constitutionally required determination that a defendant ʹ s guilty plea is truly

voluntary.” United States v. Maher, 108 F.3d 1513, 1520 (2d Cir. 1997). “[T]his

Circuit has adopted a standard of strict adherence to Rule 11,” so “we examine

critically even slight procedural deficiencies to ensure that the defendant’s guilty

plea was a voluntary and intelligent choice, and that none of the defendant’s

substantial rights has been compromised.” United States v. Livorsi, 180 F.3d 76,

78 (2d Cir. 1999) (internal citations, alterations, and quotation marks omitted).

However, unless there is an objection to a flaw in the plea colloquy, “strict

adherence” to Rule 11 is subject to plain error review, which “does not frequently

require vacatur of a plea.” United States v. Pattee, 820 F.3d 496, 503 (2d Cir.

2016) (internal quotation marks omitted), cert. denied, 137 S. Ct. 222 (2016); see

also id. at 505 (stating that plain error review requires a defendant to demonstrate

(1) error, (2) that was plain, (3) that “prejudicially affected his substantial rights,

and (4) “seriously affected the fairness, integrity or public reputation of judicial

proceedings.” (internal quotation marks omitted)).

Rodgers’ substantial rights were not affected. First, the written plea

agreement, which Rodgers read and signed knowingly and voluntarily, with the

assistance of his counsel, contains an express waiver of collateral attack. Second,

Rodgers averred at the change of plea hearing that he had sufficient time to

discuss the case with his counsel, was satisfied with his representation, had no

questions about the proceedings, and entered the plea agreement knowingly and

voluntarily. The district court then determined that Rodgers understood that he

was waiving his right to appeal his sentence, and asked him if he “underst[ood]

that you may not appeal your sentence if I sentence you to 120 months or less,” to

which Rodgers responded, “[y]es, your Honor.” Joint App’x at 40.4 Based on these facts, the failure to orally note the collateral attack bar in his

plea agreement at the change of plea hearing is not clear error, and does not

invalidate that bar. See Sanford v. United States, 841 F.3d 578, 581 (2d Cir. 2016)

(although the district court “did not specifically mention that [the defendant] had

waived the right to ‘otherwise challenge’ the conviction or sentence (i.e.,

collaterally attack them)[,] [g]iven [the defedant’s] sworn statement that he had

talked with his lawyer about the plea agreement and signed it, and there being no

evidence indicating that [the defendant] was coerced or misunderstood any of the

relevant facts, we conclude that he knowingly and voluntarily agreed to the

collateral attack waiver.”); Tellado v. United States, 745 F.3d 48, 54 (2d Cir. 2014)

(“We conclude, therefore, that the district court’s omission of the phrase

‘collateral attack’ in its own explanation of the rights [the defendant] was

relinquishing does not, under these facts, constitute plain error.” (emphasis in

original)).

2. At the time of sentencing, Rodgers had three prior violent felony

convictions, which made him subject to a 15

‐ year minimum sentence as an Armed

Career Criminal, 18 U.S.C. § 924(e). Rodgers argues that, under Johnson v.

United States, 135 S. Ct. 2551 (2015), which invalidated the “residual clause” of

the Armed Career Criminal Act’s definition of “violent felony” as void for

vagueness, his prior conviction for Attempt to Commit Robbery in the Second

Degree, N.Y. Penal Law § 160.10, is no longer a violent felony for the purposes of

the Armed Career Criminal Act. Rodgers sought resentencing on the ground

that the two remaining prior violent felonies would not subject him to the 15

‐ year

mandatory minimum if he were sentenced today. Since, Rodgers continues, he

entered into his plea agreement only to escape the then

‐ applicable 15

‐ year

mandatory minimum (which would no longer apply to him) the Court should

find that his acceptance of a plea agreement does not preclude resentencing.

The government argues that Attempt to Commit Robbery in the Second

Degree, N.Y. Penal Law § 160.10, remains a violent felony notwithstanding

Johnson. But we need not reach this issue. Rodgers’ motion under 28 U.S.C. §

2255 is barred by his plea waiver. “While plea agreements are to be applied

narrowly and construed strictly against the government, exceptions to the

presumption of the enforceability of a waiver

. . . occupy a very circumscribed5 area of our jurisprudence.” Sanford, 841 F.3d at 580 (internal citations and

quotation marks omitted). “Even assuming, however, that [a defendant] was

sentenced under a Guidelines provision that is unconstitutional after Johnson,

this Court has held that a defendant’s inability to foresee a change in the law does

not supply a basis for failing to enforce an appeal waiver. On the contrary, the

possibility of a favorable change in the law after a plea is simply one of the risks

that accompanies pleas and plea agreements.” Id., 841 F.3d at 580 (internal

citations, alteration, and quotation marks omitted); see also United States v. Lee,

523 F.3d 104, 107 (2d Cir. 2008); United States v. Morgan, 406 F.3d 135, 137 (2d Cir.

2005). We have “upheld waiver provisions even in circumstances where the

sentence was conceivably imposed in an illegal fashion or in violation of the

Guidelines, but yet was still within the range contemplated in the plea

agreement.” Sanford, 841 F.3d at 580 (internal citation and quotation marks

omitted).

Accordingly, the sentence of the district court is hereby AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK