1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

NICHOLAS DECARLO and

NICHOLAS OCHS,

Defendants.

Criminal Action No. 21-00073

Judge Beryl A. Howell

MEMORANDUM OPINION

Defendants Nicholas DeCarlo and Nicholas Ochs both entered guilty pleas, pursuant to 

agreements with the government, on September 9, 2022, to one felony obstruction offense, under 

18 U.S.C. §§ 1512(c)(2) and 2, stemming from their egregious conduct at the U.S. Capitol on 

January 6, 2021. As part of their executed plea agreements and confirmed during their sworn 

colloquies with the Court, defendants agreed to waive their rights to challenge their convictions or 

sentences on direct appeal or via collateral attack, with only minor exceptions, none of which 

appear to be applicable nor is invoked here. See generally Defs.’ Mot. Post-Conviction Relief, 

ECF No. 112.1 On December 9, 2022, defendants were sentenced to 48 months’ imprisonment on 

their convictions and allowed to self-surrender to the custody of the U.S. Bureau of Prisons (BOP)

to begin serving their sentences. They filed no direct appeal.

1 Specifically, defendants’ appeal waivers allowed them to appeal or attack collaterally their convictions or 

sentences if based on newly discovered evidence, a claim of ineffective assistance of counsel, or relief sought under

18 U.S.C. § 3582(c)(2). Plea Agreement Nicholas DeCarlo (“DeCarlo Plea Agreement”) ¶¶ 10(C), (D), ECF No. 

77; Plea Agreement Nicholas Ochs (“Ochs Plea Agreement”) ¶¶ 10(C), (D), ECF No. 81; see also Gov’t’s Opp’n 

Defs.’ Request Release Pending Adjudication Mot. Under 28 U.S.C. § 2255 (“Gov’t’s Opp’n Release”) at 7, ECF 

No. 117. 
2

Nineteen months to the day after defendants’ sentences were imposed, defendants moved 

for post-conviction relief under 28 U.S.C. § 2255, seeking vacatur of their convictions and 

accompanying sentences, and for immediate release pending resolution of their § 2255 motion.

Defs.’ Mot. Post-Conviction Relief, ECF No. 112. Separate briefing schedules were set on the 

two requests contained in defendants’ motion, directing the government to first respond to 

defendants’ request to be “released from custody while [their] motion is pending,” Min. Order, 

July 25, 2024, and separately to defendants’ request to vacate their convictions under § 2255, see 

id.

Now fully briefed and pending before the Court is defendants’ motion for release pending 

resolution of their § 2255 motion, which the government opposes. See Gov’t’s Opp’n Defs.’ 

Request Release Pending Adjudication Mot. under 28 U.S.C. § 2255 (“Gov’t’s Opp’n Release”), 

ECF No. 117. For the reasons stated below, defendants’ motion for release pending resolution of 

their pending § 2255 motion is DENIED.2

I. BACKGROUND

Defendants pled guilty to one felony count of obstruction, in violation of 18 U.S.C. §§ 

1512(c)(2) and 2, on September 9, 2022. See Min. Entry, Sept. 9, 2022; Plea Agreement Nicholas 

DeCarlo (“DeCarlo Plea Agreement”), ECF No. 77; Plea Agreement Nicholas Ochs (“Ochs Plea 

Agreement”), ECF No. 81. The factual basis for their guilty pleas was set out in Statements of 

Offense, executed by counsel to the government and defendants, as well as defendants themselves,

see Statement Offense Nicholas DeCarlo (“DeCarlo SOF”), ECF No. 79; Statement Offense 

Nicholas Ochs (“Ochs SOF”), ECF No. 82, and confirmed under oath by each defendant in 

2 Defendants’ motion to vacate their convictions is not yet ripe for consideration. See Min. Order, July 25, 

2024 (directing that briefing be completed by September 16, 2024).
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response to the Court’s inquiries, see Plea Colloquy Tr. at 18:17–19:16, 27:11–27:24, Sept. 9, 

2022, ECF No. 116. Defendants’ SOFs in support of their guilty pleas were supplemented by 

submission by the government of thirty exhibits of photographs and videos captured on 

defendants’ electronic devices, as well as U.S. Capitol Police closed circuit video. See U.S. Rep.

Regarding Video Evidence Described in Statement of Offense (“SOF Video Evid.”), ECF No. 74. 

These facts are briefly summarized as follows.

DeCarlo traveled from Fort Worth, Texas, and Ochs from Honolulu, Hawaii, to arrive in 

Washington, D.C., on January 5, 2021. DeCarlo SOF ¶ 8; Ochs SOF ¶ 9. Ochs is the founder of 

the Hawaii chapter of the Proud Boys. Ochs SOF ¶ 8. They expressed their reasons for traveling 

to D.C. in terms that anticipated violence, with DeCarlo saying that he wanted to “expose those 

‘tolerant’ leftists for their lies and teach them a lesson they’ll NEVER forget: The MAGA TRAIN 

will KEEP ON ROLLIN’! TRUMP 2020 BABAAAY!” DeCarlo SOF ¶ 8. For his part, Ochs

said that he came to D.C. because “the president asked and said it was gonna be wild and that 

people should wear body cameras.” Ochs SOF ¶ 9. Both men attended former President Trump’s 

“Stop the Steal” rally on January 6, 2021, and then joined the crowd marching to the Capitol. 

DeCarlo SOF ¶ 9; Ochs SOF ¶ 10. 

As they approached the Capitol building, DeCarlo, filming on a GoPro, said, “this is where 

they are going to steal it. And they called on us. They called on us to stop it. We are putting an 

end to it. They said calling all patriots . . . . We’re going to put the kai-bosh on this.” DeCarlo 

SOF ¶ 10; SOF Video Evid., Ex. 8. Ochs said, “the steal is in fact right here and we are going to 

stop it.” Ochs SOF ¶ 11; SOF Video Evid., Ex. 8. After passing through restricted grounds and 

reaching the west side of the U.S. Capitol Building, where preparations were underway for the 

upcoming presidential inauguration, Ochs told DeCarlo, still filming on his GoPro, “we’re not 
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supposed to be here, this is beyond the fence,” and DeCarlo responded, “we’re all felons, yeah!” 

DeCarlo SOF ¶ 11; Ochs SOF ¶ 12; SOF Video Evid., Ex. 8. As police tried to keep the crowd 

away from the Capitol building, both defendants threw smoke bombs at the police line. DeCarlo 

SOF ¶ 12; Ochs SOF ¶ 13; SOF Video Evid., Ex. 12. 

Both defendants entered the Capitol building through the Senate Wing doors at 

approximately 2:23 pm. DeCarlo SOF ¶ 13; Ochs SOF ¶ 14. A video obtained from a flash drive 

owned by DeCarlo shows Decarlo, once inside the building, yelling out asking about the location 

of then-Speaker of the House Nancy Pelosi, DeCarlo SOF ¶ 14; SOF Video Evid., Ex. 18, and as 

Capitol police officers sought to cut off access to parts of the Capitol by closing crash doors, both 

defendants “encouraged and recorded” the efforts of other rioters to block the doors, DeCarlo SOF 

¶ 15; Ochs SOF ¶ 16; see also SOF Video Evid., Exs. 20, 21. Both defendants continued to travel 

throughout the building, meeting up with other rioters, including Proud Boys Ethan Nordean, Paul 

Rae, and at least one other person, along the way, DeCarlo SOF ¶ 16; Ochs SOF ¶ 17, and pointing 

out Pelosi’s office to groups of rioters who gathered there, DeCarlo SOF ¶ 17; Ochs SOF ¶ 18. 

Ochs used his cell phone to film DeCarlo writing “Murder the Media,” the name of defendants’ 

social media channel, on the Chestnut-Gibson Memorial Door to the Capitol in permanent marker, 

DeCarlo SOF ¶ 18; Ochs SOF ¶ 19; SOF Video Evid., Ex. 30, and both men posed for photos with 

the graffiti, DeCarlo SOF ¶ 18; Ochs SOF ¶ 19; SOF Video Evid., Ex. 31. 

During their time in the building, defendants found a Capitol Police duffel bag and stole a 

pair of flexcuffs from inside it. DeCarlo SOF ¶ 19; Ochs SOF ¶ 20; SOF Video Evid., Ex. 31. 

Leaving the Capitol, Ochs, in a video filmed on his cell phone, said, “sorry we couldn’t go live 

when we stormed the fuckin’ U.S. Capitol and made Congress flee.” Ochs SOF ¶ 22; SOF Video 

Evid., Ex. 32. In another video filmed by Ochs, both defendants celebrated the fact that their 
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conduct contributed to Congress stopping its certification of the electoral college due to the riot. 

Ochs said, “it may resume, but the steal is for now stopped,” while DeCarlo said, “we did it,” 

“that’s what I came down here to do,” and “we did it. We did our job.” DeCarlo SOF ¶ 21; Ochs 

SOF ¶ 23; SOF Video Evid., Ex. 33.

At the sentencing hearing on December 9, 2022, defendants’ applicable advisory guidelines 

sentencing range was determined to be 41 to 51 months’ imprisonment, Sentencing Tr. at 9:20–

10:12, Dec. 9, 2022, ECF No. 110, based on finding that both defendants were in Criminal History 

Category I and had a total offense level of 22, id. at 9:14–19, 10:8–12. Specifically, U.S.S.G. §

2J1.2(a) applied to both defendants’ felony obstruction conviction, providing a base level of 14 

points. Id. at 9:20–24. Eight levels were added, pursuant to U.S.S.G. § 2J1.2(b)(1)(B), “for 

threatening or causing injury or property damage to obstruct the administration of justice,” id. at 

9:24–10:2, and another three were added, under U.S.S.G. § 2J1.2(b)(2), for “substantial 

interference with the administration of justice,” id. at 10:2–10:5. Finally, three points were 

subtracted for defendants’ acceptance of responsibility, under U.S.S.G. § 3E1.1, id. at 10:6–8, 

resulting in a total offense level of 22 for both defendants, id. at 10:8–9. Defendants had agreed

in their plea agreements that both enhancements, under U.S.S.G. § 2J1.2(b)(1)(B) and (2), applied 

in their case, see DeCarlo Plea Agreement ¶ 5(A); Ochs Plea Agreement ¶ 5(A), and thus neither 

defendant objected to the application of any enhancements or to the calculation of their sentencing 

guidelines, Sentencing Tr. at 10:16–22.

Both defendants were sentenced at the higher end of the advisory sentencing range to 48 

months’ imprisonment, to be followed by terms of supervised release of 36 months. Id. at 71:11–

18, 76:4–10. Both defendants requested that they be allowed to self-surrender to BOP custody, 

and this request was granted without objection from the government. Id. at 81:18–23.
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Neither defendant filed a direct appeal in the case. Over six months later, on June 28, 2024,

the Supreme Court issued Fischer v. United States, 603 U.S. --, 144 S. Ct. 2176 (2024), holding

that 18 U.S.C. § 1512(c)(2) criminalizes “obstruct[ing], influenc[ing], or imped[ing] any official 

proceeding,” id. at 2181 (quoting 18 U.S.C. § 1512(c)(2)), only if the “defendant impaired the 

availability or integrity for use in an official proceeding of records, documents, objects, or . . . 

other things used in the proceeding, or attempted to do so,” id. at 2190. Given the narrowed scope 

of the statutory provision to which they pled guilty, defendants sought vacatur of their convictions, 

under 28 U.S.C. § 2255, arguing that Fischer “cast[] . . . grave doubt on the validity of the 

indictments” against them and rendered their plea agreements “void.” Defs.’ Mot. Post-Conviction 

Relief at 4. Defendants also asked to be released from custody while their § 2255 motion is 

pending resolution, id. at 6, which request is now ripe for resolution. 

II. LEGAL STANDARD

In a proceeding filed under 28 U.S.C. § 2255, courts have the “inherent power” to order 

the release of a criminal defendant “pending determination of the merits” of his § 2255 claim.

United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986) (quoting Baker v. Sard, 420 F.2d 1342, 

1343 (D.C. Cir. 1969)). The standard for such requests, however, is more stringent than release 

pending direct appeal; defendants must satisfy “a heightened standard requiring a showing of 

exceptional circumstances.” Id. (quoting Baker, 420 F.2d at 1343) (omission in original); see also 

Aronson v. May, 85 S. Ct. 3, 5 (1964) (holding that an incarcerated person seeking bail pending a 

collateral attack must meet a “greater showing of special reasons” and that, “in addition to there 

being substantial questions presented by the appeal, there is some circumstance making this 

application exceptional and deserving of special treatment in the interests of justice”). This 

standard has been interpreted as a two-pronged test, assessing whether (1) the underlying § 2255 
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petition raises a substantial question of law, and (2) the motion for release pending resolution of 

the § 2255 claim is based on “exceptional” circumstances deserving special treatment. See, e.g.,

Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); United States v. Dade, 959 F.3d 1136, 1138 (9th

Cir. 2020) (holding that the “requisite showing” for release pending appeal of a denial of a § 2255 

motion requires showing “special circumstances or a high probability of success” and “exceptional 

circumstances” (quoting United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1995))); Mapp v. 

Reno, 241 F.3d 221, 226 (2d Cir. 2001) (explaining that to meet the “difficult” standard for bail 

pending habeas litigation, a petitioner “must demonstrate that the habeas petition raises substantial 

claims and that extraordinary circumstances exist . . . .” (quoting Grune v. Coughlin, 913 F.2d 41, 

44 (2d Cir. 1990))) (cleaned up).3

Notably, the “Bail Reform Act does not apply to convicted defendants seeking 

postconviction relief,” Kelly, 790 F.2d at 139 (citing Cherek v. United States, 767 F.2d 335, 337 

(7th Cir. 1985)), and motions for release pending resolution of a § 2255 petition are “measured 

against a heightened standard” when compared to motions for release pending appeal, under the 

Bail Reform Act provision codified at 18 U.S.C. § 3143, Baker, 420 F.2d at 1343; see also Cherek,

767 F.2d at 337–38 (finding that, although § 3143(b)(1) is “inapplicable” to motions for release 

pending resolution of a § 2255 motion, because § 3143(b) provides a “more favorable standard,” 

a defendant who cannot satisfy § 3143(b)(1) could not satisfy the more exacting requirements for 

release pending § 2255). Nevertheless, the D.C. Circuit’s definition of a substantial question in § 

3143(b)(1)(B) as “a close question or one that very well could be decided the other way,” United 

3 This two-pronged test in evaluating motions for release pending resolution of a § 2255 motion has been 

applied by the undersigned and other Judges on this Court. See United States v. Stottlemyer, No. 21-cr-334-2 (TJK), 

2024 WL 1076852, at *3 (D.D.C. Mar. 8, 2024) (applying this standard to a motion for release pending resolution of 

a § 2255 petition); Meskel v. United States, No. CRIM.A. 04-0053 (RMU), 2005 WL 1903375, at *2 (D.D.C. July 

13, 2005) (same); United States v. Lyons, No. 21-cr-79 (BAH), 2024 WL 3898550, at *4–*8 (D.D.C. Aug. 22, 2024)

(same). 
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States v. Perholtz, 836 F.2d 554, 555–56 (D.C. Cir. 1987), provides useful guidance in the § 2255

context.

III. DISCUSSION

Defendants claim that release pending resolution of the § 2255 motion is “necessary and 

appropriate under the unique circumstances of this case,” Defs.’ Mot. Post-Conviction Relief at 6, 

citing the obvious impact that Fischer has on the felony obstruction statute to which they pled 

guilty. The government counters by arguing that a focus on Fischer is incorrect, given the 

defendants’ waivers of their appeal rights, and, as refocused on the enforceability of their waivers,

defendants raise “neither a substantial claim nor exceptional circumstances.” Gov’t’s Opp’n 

Release at 2 (arguing that, “regardless of whether Fischer raises a question as to the viability of 

pending § 1512(c)(2) charges, these defendants are in a different posture” because “they 

unambiguously waived their right to file a § 2255 motion”). In this case, defendants fail to 

demonstrate either that their § 2255 motion raises a substantial question of law or that exceptional 

circumstances exist to justify their release. 

A. Substantial Question of Law

Defendants present three challenges to their convictions that they argue raise a substantial 

question of law, arguing (1) the indictment in their case was “void ab initio,” by failing to allege, 

as now required by Fischer, that they “corruptly intended to interfere with documents in 

connection with the electoral vote certification,” Defs.’ Mot. Post-Conviction Relief at 1–2, 4; (2) 

their guilty pleas are invalid because they were not adequately informed of an essential element of 

the obstruction charge, as now outlined in Fischer, and their Statements of Fact provide an

insufficient factual basis to find them guilty of felony obstruction, under 18 U.S.C. § 1512(c)(2),

id. at 4–6; and (3) they are “actually innocent” of the crime of felony obstruction under Fischer’s 
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new construction of the statute, Defs.’ Reply Supp. Mot. Post-Conviction Relief (“Defs.’ Reply”) 

at 1–4, ECF No. 118. In short, all three challenges rely on Fischer to argue that the actions for 

which defendants pled guilty were not crimes under § 1512(c)(2), and thus defendants are 

innocent. See Defs.’ Mot. Post-Conviction Relief at 1–5; Defs.’ Reply at 1 (referencing “the clear 

mandate of the Supreme Court’s decision in Fischer”). 

To be sure, the undersigned and other Judges on this Court have concluded in other cases 

stemming from offense conduct at the U.S. Capitol on January 6, 2021, that Fischer raises a 

substantial question of law qualifying for release pending direct appeal, under 18 U.S.C. 

3143(b)(1), as to defendants “convicted of a single felony Section 1512(c)(2) charge . . . when the 

defendant had already served close to or more than twelve months in prison.” United States v. 

Roche, No. 22-cr-86 (BAH), 2024 WL 1328459, at *3 (D.D.C. Mar. 28, 2024); see also, e.g., 

United States v. Sheppard, No. 21-cr-203 (JDB), 2024 WL 127016, at *3 (D.D.C. Jan. 11, 2024);

United States v. Weyer, No. 22-cr-40 (JEB), 2024 WL 809962, at *3 (D.D.C. Feb. 27, 2024);

United States v. Adams, No. 21-cr-354 (APM), 2024 WL 111802, at *2 (D.D.C. Jan. 10, 2024); 

accord United States v. Lyons, No. 21-cr-79 (BAH), 2024 WL 3898550 (D.D.C. Aug. 22, 2024)

(granting defendant prospective release pending resolution of his § 2255 motion challenging a

felony obstruction conviction, where he raised a significant claim of ineffective assistance of 

counsel for failing to file a direct appeal following a trial on stipulated facts, with no waiver of his 

appellate rights). In all of those cases, however, the defendants had taken steps to preserve their 

right to appeal their felony obstruction conviction and sentence by proceeding with trials, either 

before a jury or on stipulated facts, and declining plea offers made by the government. In stark 

contrast, here, defendants explicitly waived their right to appeal directly and to attack collaterally 
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their convictions and sentences. See DeCarlo Plea Agreement ¶¶ 10(C), (D); Ochs Plea Agreement 

¶¶ 10(C), (D); Plea Colloquy Tr. at 15:19–17:8.

In this case, the government seeks to enforce the collateral attack waiver provision in 

defendants’ plea agreements. See Gov’t’s Opp’n Release at 2, 11. In general, courts enforce 

waivers in plea agreements if (1) the waivers are valid, and (2) the scope of the waiver covers the 

appeal or collateral attack defendants seek to advance. United States v. Hunt, 843 F.3d 1022, 1027 

(D.C. Cir. 2016); see also United States v. Koontz, No. 16-cr-16 (EGS), 2024 WL 3225980, at *5–

*6 (D.D.C. June 28, 2024). Courts view such waivers as a valuable “additional bargaining chip” 

for defendants to use to negotiate a plea agreement, United States v. Guillen, 561 F.3d 527, 530 

(D.C. Cir. 2009); Khadr v. United States, 67 F.4th 413, 421 (D.C. Cir. 2023); United States v. 

Powers, 885 F.3d 728, 733 (D.C. Cir. 2018), and thus favor enforcing them to “improve[] . . . the 

defendant’s bargaining position and increase[] . . . the probability he will reach a satisfactory plea 

agreement with the Government,” Guillen, 561 F.3d at 530. For a waiver to be valid, it must be 

knowing, intelligent, and voluntary. Khadr, 67 F.4th at 419; Powers, 885 F.3d at 733 (“We . . . 

enforce a bargained-for appeal waiver unless the defendant enters into it unknowingly, 

unintelligently, or involuntarily.”); see also United States v. Vigil-Benitez, No. 22-3031, 2023 WL 

6939238, at *1 (D.C. Cir. Oct. 20, 2023) (per curiam). 

The government’s argument that defendants’ collateral attack waiver should be enforced 

presents threshold legal issues as to the enforceability and consequences of the waiver that may 

render defendants’ arguments under Fischer irrelevant, no matter how substantial. Put another 

way, if defendants validly waived the right to file a § 2255 motion, judicial review of their

substantive arguments for vacatur of their felony obstruction convictions and sentences would be 

improper. See Khadr, 67 F.4th at 418–19 (“A dismissal based on an appeal waiver is a 
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determination that the merits may not be reached . . . .”); United States v. Ortega-Hernandez, 804 

F.3d 447, 451 (D.C. Cir. 2015) (holding that a valid, enforceable appeal waiver means courts 

“should not consider” the merits of the underlying appeal); see also, e.g., In re Sealed Case, 40 

F.4th 605, 607–09 (D.C. Cir. 2022) (dismissing an appeal due to a valid appeal waiver without 

considering the merits of the claim raised on appeal). If defendants’ substantive arguments based 

on Fischer may not be considered due to waiver, then defendants fail to raise the requisite 

substantial legal question to meet the first prong for release pending resolution of their § 2255 

motion. Put another way, the question of enforceability is inextricably intertwined with the

briefing on the merits of defendants’ underlying § 2255 motion, which has not been completed

and is thus not yet ripe for consideration. See supra at n.2. Until the enforceability of defendants’ 

waivers is determined, whether defendants’ claims under Fischer present substantial legal 

questions may neither be reached nor resolved.

This reasoning is consistent with that in United States v. Stottlemyer, No. 21-cr-334-2 

(TJK), 2024 WL 1076852 (D.D.C. Mar. 8, 2024), where another Judge on this Court denied the 

defendant’s motion for release pending resolution of her § 2255 motion, id. at *5, which claimed 

ineffective assistance of counsel (IAC) for failure to appeal her conviction based on the dissent in 

the D.C. Circuit’s opinion in Fischer, id. at *3–*4. There, the Court wrote that defendant’s claim 

under Fischer could not have given defendant’s counsel a “nonfrivolous” basis for appeal, since 

the appeal waiver she agreed to as part of her plea agreement barred appealing her conviction on 

the ground that “the admitted conduct d[id] not fall within the scope of the statute.” Id. (alteration 

in original). Instead, the challenge would have been frivolous, barred by the appeal waiver that 

“specifically precluded” such an appeal. Id. at *4 (quoting United States v. Robinson, No. 10-cr310 (RCL), 2017 WL 3446759, at *3 (D.D.C. Aug. 9, 2017)). Defendants in this case agreed to 
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waivers of appeal and collateral attack identical to the one at issue in Stottlemyer. Here, as in 

Stottlemyer, if defendants’ challenge to their convictions is barred by their waiver of collateral 

attack set out in their plea agreements, their Fischer challenges would be “specifically precluded,”

and, since the merits of those challenges would then not be reached, see Khadr, 67 F.4th at 418–

19, they could not raise the substantial legal questions they have so far identified.

As to the threshold legal question whether defendants’ § 2255 motion is barred by the plea 

agreements’ waiver provision, defendant raises little argument at this procedural juncture, let alone 

a basis, given the significant weight of decisions supporting the enforceability of appeal and 

collateral attack waivers, to find this question is even sufficiently “close,” see Perholtz, 836 F.2d 

at 556, to raise a substantial legal question. Consequently, defendants have fallen short of showing 

that their § 2255 motion presents a threshold substantial question of law to satisfy the requirements 

for release pending resolution of their § 2255 motion.

B. Exceptional Circumstances

In addition, defendants fail to show exceptional circumstances exist in this case. They 

argue merely that the circumstances of this case are “unique” because the Supreme Court 

“overturned the legal theory of the defendants’ convictions and there is no basis in the Statement(s) 

of Fact to even remotely suggest that their conduct renders them guilty of the Obstruction statute.” 

Defs.’ Mot. Post-Conviction Relief at 6. Even if true, however, these facts do not rise to the level 

of exceptional or unique such that they merit the special treatment of releasing defendants pending 

resolution of their § 2255 motion.

For circumstances to be exceptional, they must be rare. See Kelly, 790 F.2d at 139 (“[T]he 

power to grant bail pending resolution of a § 2255 proceeding is to be exercised very sparingly.” 

(citing Cherek, 767 F.2d at 337)); Dotson, 900 F.2d at 79 (explaining that most motions for bail 
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pending habeas review will fail because “[t]here will be few occasions where a prisoner will meet 

[the] standard”); see also Exceptional, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/exceptional (last visited Sept. 4, 2024) (defining “exceptional” as 

“forming an exception: rare” or “deviating from the norm.”). Something cannot be “exceptional” 

if it is fairly common or normal.

The facts defendants present to argue their case is “unique” are not particularly rare, and 

defendants present no additional information that would distinguish their legal predicament or 

individual circumstances from the myriad of other cases that present similar legal issues. 

Essentially, defendants’ § 2255 motion raises the legal question whether their collateral attack 

waiver provisions in their plea agreements operate to bar their challenges to their convictions and 

sentences based on a subsequent change in law due to a decision by the Supreme Court. This is 

not a particularly rare occurrence. The Supreme Court has occasionally narrowed the interpretation 

of existing criminal laws, leaving defendants who previously pled guilty to offenses under more 

expansive interpretations of the law at issue to question the validity of their convictions and 

sentences. Such a reinterpretation happened only five years ago in United States v. Davis, 588 

U.S. 445 (2019), when the Supreme Court limited the scope of “crimes of violence,” under 18 

U.S.C. § 924(c). In the wake of this decision, numerous defendants who had pled guilty under the 

old interpretation of § 924(c) sought to have their sentences vacated despite collateral attack 

waivers contained in their plea agreements. See, e.g., United States v. Luis, No. 16-cv-2405 (JMA), 

04-cr-939 (JMA), 2023 WL 4373562 (E.D.N.Y. July 6, 2023); Rudolph v. United States, 551 F. 

Supp. 3d 1270 (N.D. Ala. 2021); Richardson v. United States, No. 19-cv-1499 (MPS), 2021 WL 

736416 (D. Conn. Feb. 25, 2021); United States v. Gregory, No. 07-cr-73-JED, 2020 WL 5751617 

(N.D. Okla Sept. 25, 2020); United States v. Barker, 20-cr-355-AN, 2023 WL 8189756 (D. Or. 
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Nov. 27, 2023). As the government notes, courts around the country have had to consider whether 

collateral attack waivers are enforceable in such a scenario, see Gov’t’s Opp’n Release at 14–18

(citing Portis v. United States, 33 F.4th 331 (6th Cir. 2022); Cook v. United States, 84 F.4th 118 

(2d Cir. 2023); United States v. Goodall, 21 F.4th 555 (9th Cir. 2021), cert denied, 142 S. Ct. 2666 

(2022))—exactly the question raised by defendants’ attempts to challenge their convictions under 

§ 2255. While the waiver enforceability issue is not yet resolved in this case, what is pertinent in 

considering whether defendants qualify for release pending such resolution is that questions about 

the scope and enforceability of appeal and collateral attack waivers after subsequent changes in 

law arise with some regularity—including in scenarios closely analogous to the facts of the instant 

case. The frequency and similarities of these cases strongly suggest that defendants’ 

circumstances, though difficult, do not qualify as “exceptional” in a legally meaningful way. 

Defendants point to the government’s decision in United States v. Riley, 21-cr-69 (APM) 

(D.D.C.), not to oppose the defendant’s motion for release pending resolution of his § 2255 motion, 

where the Riley defendant, just as defendants here, had entered into a plea agreement containing 

the identical collateral attack waiver provision. Defs.’ Reply at 1–2. According to defendants, the 

government’s decision in Riley “raises a question as to the reason for the disparate treatment,” 

since the defendants in both cases “appear to be similarly situated.” Id. at 2.

Just as a defendant has the right to waive appellate and collateral attack rights, the 

government may choose whether to seek to enforce such waivers. See, e.g., United States v. Little, 

78 F.4th 453, 461 n.8 (D.C. Cir. 2023) (noting that “[b]ecause the Government ‘opted not 

to enforce’[the defendant’s] waiver, we need not decide whether [the defendant] reserved the right 

to bring this appeal”); Ortega-Hernandez, 804 F.3d at 451 (“[W]e need not enforce an appeal 

waiver when the government has not asked us to do so”); United States v. Story, 439 F.3d 226, 231 
15

(5th Cir. 2006) (holding that if the government does not object to the defendant’s appeal based on 

his appeal waiver, the waiver is no longer binding “because the government has waived the issue”).

Yet, defendants suggest here that the government is treating similarly situated defendants 

disparately, which may raise legal issues requiring additional scrutiny. In response, the 

government has vigorously outlined factual differences between the instant case and Riley. See

Gov’t’s Opp’n Release at 12 n.3.

For example, in this case, the government “forwent several charges of equal or greater 

seriousness” to the felony obstruction charge as part of the plea negotiations, id. at 11, including 

agreeing not to charge defendants with “using a deadly or dangerous weapon in the course of 

forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal 

officer,” in violation of 18 U.S.C. § 111(b), id. at 22; conspiracy in violation of 18 U.S.C. § 372, 

id. at 24–25; and “destruction of federal property and aiding and abetting,” in violation of 18 

U.S.C. §§ 1361 and 2, id. at 27.4

 In Riley, in contrast, “to the government’s knowledge, [the 

defendant] did not assault officers or commit other crimes of equal or greater seriousness,” and the 

government only dismissed charges, as part of the plea negotiations, for “the four standard 

misdemeanors” that most defendants charged with offense conduct at the U.S. Capitol on January 

6, 2021, faced. Id. at 12 n.3. This distinction is legally relevant because defendants here would 

have to prove actual innocence, the standard that applies to habeas claims that are procedurally 

defaulted for failure to raise them on direct appeal, of both the convicted conduct and any foregone 

charges of equal or more seriousness. See Bousley v. United States, 523 U.S. 614, 622, 624 (1998) 

4 Defendants were originally charged, in Count Three of the First Superseding Indictment, with violating 18 

U.S.C. §§ 1361 and 2, see First Superseding Indictment at 8, ECF No. 68, but were never formally charged with 

violating 18 U.S.C. §§ 111(b) and 371. According to the government, defendants were provided with the evidence 

supporting additional felony charges, which prompted plea negotiations that were successfully concluded with the 

government agreeing not to charge the additional felony violations. See Gov’t’s Opp’n Release at 6.
16

(holding that defendants who procedurally default a claim “by failing to raise it on direct review” 

must show either cause and prejudice or actual innocence, and ruling that, “[i]n cases where the 

Government has forgone more serious charges in the course of plea bargaining, petitioner's 

showing of actual innocence must also extend to those charges”). Defendants would face a far 

more demanding standard than the defendant in Riley, who apparently pled guilty to the most 

serious felony charge against him, which charge subjected him to the most severe penalty, 

including under the advisory sentencing guidelines, and thus he would have to prove actual 

innocence of only that convicted conduct. This is not the situation confronting defendants, who, 

to show actual innocence, would have to make additional showings of actual innocence for up to 

three additional felony charges that were foregone and may carry equal or greater seriousness than 

their charge of conviction. 

Again, however, the contested question whether the foregone charges by the government 

were of equal or greater seriousness, see Gov’t’s Opp’n Release at 3, 11, 22–30; Defs.’ Reply at 

4–6, is not resolved at this procedural juncture since this issue is also closely linked to the merits 

of defendants’ § 2255 motion, see Gov’t’s Opp’n Release at 11 (arguing Bousley is significant 

because it establishes the standard for actual innocence for a claim that is procedurally defaulted—

an issue relating to the underlying § 2255 motion), which is not ripe for consideration, see supra

at n.2. In any event, any implicit concession by the government that exceptional circumstances 

existed in Riley, see Lyons, 2024 WL 3898550, at *8, do not help the instant defendants to meet 

their burden to show exceptional circumstances exist here. 

IV. CONCLUSION

Defendants have failed to show either a substantial question of law as to the threshold issue 

of the enforceability and consequences of their appeal and collateral attack waivers in their plea 
17

agreements, or exceptional circumstances to justify release pending resolution of their motion to 

vacate their felony obstruction convictions and sentences, pursuant to 28 U.S.C. § 2255. 

Accordingly, defendants’ request for immediate release pending resolution of their Motion for 

Post-Conviction Relief, ECF No. 112, is DENIED. An order consistent with this Memorandum 

Opinion will be filed contemporaneously.

Date: September 4, 2024

__________________

BERYL A. HOWELL

United States District Judge