1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. NICHOLAS DECARLO and NICHOLAS OCHS , Defendant s
. Criminal Action No. 2 1

- 0007 3
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, d efendants 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 serv ing 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’ sentence s 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. T he factual basis for their guilty pleas w as set out in Statement s of Offense , executed by counsel to the government and defendants, as well as defendants themselves,

see Statement Offense Nicholas DeCarlo (“DeCar lo 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).3 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 an d 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 the y 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 not4 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, o nce 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 a s 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 D oor to the Capitol in permanent marker, DeCarlo SOF ¶ 18; Ochs SOF ¶ 19; SOF Video Evid. , Ex. 30, and both men posed for p hotos with the graffiti , DeCarlo SOF ¶ 18; Ochs SOF ¶ 19 ; SOF Video Evid., Ex. 3 1

. During their time in the building, d efendants 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, Och s, 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 their5 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 l evel 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 level s 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

– 23.6 Neither defendant filed a direct appeal in the case. Over six months later, o n June 28, 2024, the Supreme Court issued Fischer v. United States , 603 U.S.

-- , 144 S. Ct. 2176 (2024) , h olding 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 p roceeding, 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,

u nder 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. D efendants also asked to be released from custody while their § 2255 motion is pending resolution, i d. 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. (quotin g 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 appl ication exceptional and deserving of special treatment in the interests of justice”). This standard h as been interpreted as a two

- pronged test , assessing whether ( 1) the underlying § 22557 petition raise s 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 (6 th Cir. 1990) ; United States v. Dade , 959 F.3d 1136, 1138 (9 th 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 (9 th 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 extr aordinary 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 m otions 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 exac ting requirements for release pending § 2255). Nevertheless, t h e 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 T his 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

. S ee 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)

.8 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) charge s, 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
D efendants 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 ,” b y failing to alleg e , 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 i n Fischer , and the ir Statements of Fact provide a n in sufficient 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 ’s9 new construction of the sta tute , Defs.’ Reply Supp

. Mot. Post

- Conviction Relief (“Defs.’ Reply”)
at 1

– 4, ECF No. 118

. In short, a ll 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 ha d already served close to or more than twelve months in prison.” United States v. Roche , No. 22

- cr - 86 (BAH), 2024 WL 1328459, a t *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 fact s, and declining plea offers made by the government

. In stark contrast, here, defendants explicitly waived their right to appeal direct ly and to attack collaterally10 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

. S ee 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.4 th 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.4 th at 419; Powers , 885 F.3d at 7 33 (“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, i f defendants validly waived the right to file a § 2255 motion, judicial review of the ir substantive arguments for vacatur of their felony obstruction convictions and sentences would be improper

. See Khadr , 67 F.4 th at 418

– 19 (“A dismissal based on an appeal waiver is a11 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.4 th 605, 607

– 0 9 (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 conside red 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, t he 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

. S ee supra at n.2. Until the enforceability of defendants’ waivers is determined, whether defendants’ claims under Fischer present substantial legal question s 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

- cr 310 (RCL) , 2017 WL 3446759 , at *3 (D.D.C. Aug. 9, 2017)). Defendants in this case agreed to12 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 the ir waiver of collateral attack set out in their plea agreements, their Fischer c hallenges would be “specifically precluded , ” and , since the merits of those challenges would then not be reached, see Khadr , 67 F.4 th at 418

– 19, they could not raise the substantial legal question s 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 present s a threshold substantial question of law to satisfy the requirements for release pending resolution of their § 2255 motion.
B. Exceptional Circumstances In addition, d efendants 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, t hese facts do not rise to the level of exceptional or unique such that they merit the special treatment of releasi ng 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 bail13 pending habeas review will fail because “[t]here will be few occasions where a prisoner will meet [the] standard”) ; s ee also Exceptional , Merriam

- Webster.com, https://www.merriam

webster.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 the ir collateral attack waiver provision s in their plea agreement s operate to bar their challenge s to their conviction s and sentences based on a subsequent chan ge in law due to a decision by the Supreme Court

. This is not a particularly rare occurrence. T he Supreme Court has occasionally narrowed the interpretation of existing criminal laws, leaving defendants who previously pled guilty to offense s under more expansive interpretation s 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. 202 1); 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.14 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.4 th 331 (6th Cir. 2022) ; Cook v. United States , 84 F.4 th 118 (2d Cir. 2023); United States v. Goodall , 21 F.4 th 555 (9 th Cir. 2021), cert denied , 142 S. Ct. 2666 (2022) )

— exactly the question raised by defendants’ attempts to challenge their convictions under § 2255. W hile 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 a ttack 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 t he 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. S ee, 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, 23115 (5 th 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 outlin ed factual differences between the instant case and Riley

. See Gov’t’s Opp’n Release at 12 n.3. For example, in this case, t he 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 defendant s 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 f ederal 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 con duct 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 felon y charges, which prompted plea negotiations that were successfully concluded with the government agreeing not to charge the additional felon y 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 , whi ch 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.
A gain, however, t he 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 t his 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 underly ing § 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 plea17 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