In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 17-2880 

RALPH OLIVER, 

Petitioner-Appellant, 

v.

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division. 

No. 2:16-cv-00233-JVB — Joseph S. Van Bokkelen, Judge. 

____________________ 

No. 17-2902 

RYAN ROSS, 

Petitioner-Appellant, 

v.

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division. 

No. 2:16-cv-00255-JVB — Joseph S. Van Bokkelen, Judge. 

____________________ 
2 Nos. 17-2880 & 17-2902 

____________________ 

ARGUED DECEMBER 18, 2019 — DECIDED MARCH 4, 2020 

____________________ 

Before HAMILTON, BRENNAN, and SCUDDER, Circuit Judges. 

HAMILTON, Circuit Judge. In 2011, petitioners Ralph Oliver and Ryan Ross pleaded guilty to violating 

18 U.S.C. § 924(c) for brandishing a firearm during a “crime 

of violence”—theft from a federally licensed firearms dealer, 

18 U.S.C. § 922(u). In 2016, both filed motions under 

28 U.S.C. § 2255 to vacate their § 924(c) convictions. They 

argued that, after United States v. Davis, 139 S. Ct. 2319 

(2019), a violation of § 922(u) no longer counts as a crime of 

violence. The district court denied relief. We affirm. Express 

collateral-attack waivers in Oliver and Ross’s plea agreements are valid and bar their challenges to their convictions 

and sentences. 

I. Factual and Procedural Background 

Oliver, Ross, and two other men committed four armed 

robberies in 2010. They first robbed three cell-phone stores in 

Chicago, Illinois. They then robbed a Gary, Indiana, pawnshop, which was also a federally licensed firearms dealer. A 

gun was used in each of the four robberies. At the Indiana 

pawnshop, employees resisted the robbery. They shot and 

injured one of the robbers and managed to handcuff Ross. 

The other three robbers fled, leaving Ross behind. After 

being arrested at the scene, Ross promptly started cooperating. Oliver and Ross were each charged with theft of firearms from a federally licensed dealer in violation of 18 

U.S.C. § 922(u); use of a firearm during a crime of violence 
Nos. 17-2880 & 17-2902 3 

(specifically, the § 922(u) offense) in violation of § 924(c); and 

possessing a firearm as a felon in violation of § 922(g)(1). 

Ross pleaded guilty to the § 922(u) and § 924(c) charges. 

In exchange for the government’s agreement to dismiss the 

felon-in-possession count and to make favorable recommendations at sentencing, he waived his right to appeal his 

conviction or sentence. He also waived the right to bring a 

collateral attack on his conviction or sentence, including 

motions under 28 U.S.C. § 2255. The waiver clause said: 

I expressly waive my right to appeal or to contest my conviction and my sentence or the 

manner in which my conviction or my sentence was determined or imposed, to any 

Court on any ground, including any claim of 

ineffective assistance of counsel unless the 

claimed ineffective assistance of counsel relates 

directly to this waiver or its negotiation, including any appeal ... or any post-conviction 

proceeding, including but not limited to, a proceeding under Title 28, United States Code, 

Section 2255 ... . 

During the plea colloquy, the district court emphasized 

that the waiver would leave Ross no right to challenge his 

conviction or sentence as being “in violation of the Constitution” or on the basis that “the Court was without jurisdiction 

to impose such sentence” or that “the sentence was in excess 

of the maximum authorized by law.” The court accepted 

Ross’s plea and sentenced him to a total of 180 months in 

prison: 96 months for the § 922(u) offense, followed by the 

minimum consecutive 84 months required for the § 924(c) 

offense. 
4 Nos. 17-2880 & 17-2902 

The government then secured a superseding indictment 

against Oliver. In addition to the original counts, the government charged Oliver with a Hobbs Act robbery in violation of 18 U.S.C. § 1951 and a Hobbs Act conspiracy. Oliver 

pleaded guilty to the Hobbs Act conspiracy and the § 924(c) 

charge. He also expressly waived his appellate and collateral-attack rights in exchange for the government’s agreement to dismiss the three remaining counts and to make 

favorable sentencing recommendations. Oliver’s plea 

agreement contained the same waiver clause as Ross’s, and 

the court admonished him similarly. Oliver was sentenced to 

a total of 190 months in prison: 106 months for the Hobbs 

Act conspiracy, followed by the minimum consecutive 

84 months required for the § 924(c) conviction. 

Despite the waivers, after the Supreme Court’s decision 

in Johnson v. United States, 135 S. Ct. 2551 (2015), Oliver and 

Ross moved to vacate their § 924(c) convictions under 

28 U.S.C. § 2255. Johnson held that the so-called “residual 

clause” in the definition of a “violent felony” under the 

Armed Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally vague. Oliver and Ross argued that the similar 

residual clause in § 924(c)’s definition of a “crime of violence” was also unconstitutionally vague and that a violation 

of § 922(u) could not qualify as a crime of violence under the 

so-called “elements clause” of that definition. 

Section 922(u) makes it a crime “to steal or unlawfully 

take or carry away from the person or premises of a person 

who is licensed to engage in the business of importing, 

manufacturing, or dealing in firearms, any firearm in the 

licensee’s business inventory that has been shipped or 

transported in interstate or foreign commerce.” While an 
Nos. 17-2880 & 17-2902 5 

armed robbery of a licensed firearm dealer would violate 

§ 922(u), so would a theft in which there was no actual, 

attempted, or threatened use of violence. 

The district court denied the § 2255 motions. The court 

did not decide whether Oliver and Ross’s collateral-attack 

waivers barred their claims. Instead it determined that they 

would lose anyway under Bousley v. United States, 523 U.S. 

614 (1998), because they could not show their actual innocence of a § 924(c) count. The court reasoned that if the 

government had foreseen recent developments in the Supreme Court’s vagueness doctrine, “it is fair to presume the 

government would not have forgone § 924(c) charges predicated on Hobbs Act robberies.” The court granted a certificate of appealability. 

Oliver and Ross appealed. In the meantime, the Supreme 

Court applied its reasoning from Johnson to hold unconstitutionally vague the residual clause in § 924(c)’s definition of a 

crime of violence. United States v. Davis, 139 S. Ct. 2319 

(2019). After Davis, a § 924(c) conviction based on a crime of 

violence is valid only under the statute’s “elements clause,” 

which treats as crimes of violence only crimes that have as 

an element the actual, attempted, or threatened use of force. 

II. Analysis 

These appeals are governed, in the end, by Oliver and 

Ross’s collateral-attack waivers. We have recognized only a 

“few narrow and rare” grounds for not enforcing a voluntary and effectively-counseled waiver of direct appeal or 

collateral review. United States v. Campbell, 813 F.3d 1016, 

1018 (7th Cir. 2016). For instance: if a district court relied on 

a “constitutionally impermissible factor” like race or gender; 
6 Nos. 17-2880 & 17-2902 

if the sentence exceeded the statutory maximum; or if the 

proceedings lacked a “minimum of civilized procedure.” Id.;

accord, e.g., Keller v. United States, 657 F.3d 675, 681 (7th Cir. 

2011). 

Oliver and Ross do not satisfy any of our recognized bases for avoiding a valid collateral-attack waiver. Instead they 

seek to avoid the waivers on three grounds: (a) that they are 

asserting a non-waivable “jurisdictional” challenge to the 

constitutionality of the statute of conviction; (b) 

that allowing their convictions to stand would result in a 

“miscarriage of justice”; and (c) that their § 924(c) convictions rest on a “constitutionally impermissible factor,” which 

they read much more broadly than our case law does to 

include any constitutional objection. We address these 

arguments in turn. 

A. “Jurisdictional” Challenge? 

Oliver and Ross argue that after Davis, their convictions 

are void because § 922(u) cannot qualify now as a predicate 

crime of violence. They label this a “jurisdictional” flaw that 

implicates “the very power” of the government to prosecute 

them so that the challenge is not waivable, citing United States v. Phillips, 645 F.3d 859 (7th Cir. 2011). We 

explained in Phillips that the defendant’s guilty plea—alone, 

without any express waiver of the right to appeal or bring a 

collateral attack—acted as a waiver of an as-applied vagueness challenge to the constitutionality of the statute of 

conviction. Id. at 862. Our opinion signaled that a guilty plea 

would not waive “jurisdictional” challenges but aptly cited 

cases that rejected various challenges as not “jurisdictional,” 

including a Ninth Circuit opinion that observed: “What 

constitutes such a jurisdictional defect, however, is not 
Nos. 17-2880 & 17-2902 7 

entirely clear: this circuit has held that such claims are 

limited to claims that the statute is facially unconstitutional; 

or that the indictment failed to state a valid claim; or vindictive prosecution; or possibly selective prosecution.” United 

States v. Johnston, 199 F.3d 1015, 1019–20 n.3 (9th Cir. 1999). 

To show what might be “jurisdictional,” Phillips and Johnston

also cited Blackledge v. Perry, 417 U.S. 21, 30–31 (1974), which 

held that a defendant who had been convicted of a misdemeanor could exercise his right to trial de novo in state court 

without being retaliated against with a new felony charge. 

The defendant’s plea of guilty to the felony did not bar him 

from raising a federal due-process challenge to the charging 

decision. Id. 

We need not decide here the scope of such an exception 

for “jurisdictional” challenges after a guilty plea. Phillips and 

the cases it cited teach at most that a guilty plea, standing 

alone, will not be construed as waiving “jurisdictional” 

claims. They do not address express waivers of appeal and 

collateral-attack rights. The broad and explicit terms of 

Oliver and Ross’s collateral-attack waivers encompass their 

current challenges, whether they are labeled “jurisdictional” 

or not. 

Contract principles make Oliver and Ross’s agreements 

enforceable even against a so-called “jurisdictional” challenge. After all, one major purpose of an express waiver is 

to account in advance for unpredicted future developments 

in the law. Waivers like those that Oliver and Ross agreed 

to are intended to cover situations like this one. “We have 

consistently rejected arguments that an [express] appeal 

waiver is invalid because the defendant did not anticipate 

subsequent legal developments.” United States v. McGraw, 
8 Nos. 17-2880 & 17-2902 

571 F.3d 624, 631 (7th Cir. 2009). Plea-bargain waivers 

allocate the risk of the unknown for both sides: “By binding 

oneself one assumes the risk of future changes in circumstances in light of which one’s bargain may prove to have 

been a bad one.” United States v. Bownes, 405 F.3d 634, 636 

(7th Cir. 2005). 

Still, Oliver and Ross argue that their “jurisdictional” 

challenge is different because the law has changed “such 

that a conviction for § 924(c) predicated on § 922(u) is facially unconstitutional,” and they are thus imprisoned under a 

charging theory that is now invalid. But the Supreme Court 

has not declared such claims “non-waivable” by express 

agreement. Neither have we. To the contrary: “We have 

repeatedly said that a defendant’s freedom to waive his 

appellate rights includes the ability to waive his right to 

make constitutionally-based appellate arguments.” United 

States v. Smith, 759 F.3d 702, 707 (7th Cir. 2014). 

Finality matters in plea agreements, especially when the 

parties have negotiated for it expressly. In United States v. 

Worthen, 842 F.3d 552 (7th Cir. 2016), the defendant challenged a § 924(c) conviction on the dual grounds that the 

residual clause is vague and that his predicate offense did 

not qualify under the elements clause. We enforced his 

appeal waiver and dismissed the appeal. We warned that 

ignoring appeal waivers in plea agreements could yield 

“perverse” consequences. Id. at 555. If a defendant can make 

a seemingly beneficial plea agreement and can then “renege 

on his deal and maintain an appeal, then why would the 

government make these kinds of deals in the future? Why 

wouldn’t the government instead just charge defendants ... 

with all applicable crimes and see what sticks after the 
Nos. 17-2880 & 17-2902 9 

appeal?” Id. at 555–56; see also Davila v. United States, 

843 F.3d 729, 732–33 (7th Cir. 2016) (agreement to plead 

guilty under § 924(c) waived right to bring collateral challenge based on Johnson vagueness holding). Here, at the time 

of their pleas, both Oliver and Ross obtained substantial 

benefits in exchange for their promises. The government 

dropped other robbery and firearm charges and recommended favorable departures from the Sentencing Guidelines. 

Nonetheless, Oliver and Ross view Class v. United States, 

138 S. Ct. 798 (2018), as holding that facial constitutional 

challenges to a statute of conviction are simply unwaivable—even by an express waiver. Class is not as sweeping 

as Oliver and Ross contend. Rather, Class was about how to 

interpret only a plea of guilty, not the terms of a plea agreement for which the parties bargained. Class held that a guilty 

plea, by itself, does not implicitly waive a defendant’s right to 

challenge the constitutionality of his statute of conviction.

Id. at 803–05. That holding did not encompass express 

waivers of such challenges. 

This limit on the holding of Class is evident from the logic 

of the opinion. The Court made a point of first considering 

whether Class’s argument fell within the scope of the narrow 

express waivers in his plea agreement before analyzing the 

effect of the plea itself. Id. at 802–03. The Court considered 

whether Class had expressly waived the challenge in his 

plea agreement and found that he did not. Only then did the 

Court move on to the harder question of implied waiver 

from the guilty plea alone. Id. at 803. Later in its opinion, the 

Court again noted that Class’s argument was not encompassed by his express waiver. Id. at 805, 807. Thus, rather 
10 Nos. 17-2880 & 17-2902 

than suggesting that an express waiver cannot bar constitutional arguments against the statute of conviction, the 

Court’s reasoning assumed that Class’s plea agreement could 

have expressly waived such an argument but had not actually done so. In this case, Oliver and Ross did expressly waive 

such challenges. 

There is one additional problem with Oliver and Ross’s 

“jurisdictional” argument. The fact that § 924(c)’s residual 

clause is unconstitutional does not mean that all § 924(c) 

convictions are unlawful. There is still the elements clause. 

To invalidate a § 924(c) conviction, a defendant must raise a 

constitutional challenge to the residual clause and establish 

that the elements clause does not cover the predicate offense. 

A successful claim that a § 924(c) prosecution lay beyond the 

government’s power—and, thus, in Oliver and Ross’s view, 

that their waivers are unenforceable—requires a defendant 

to engage with both the constitutional issue and a question 

of statutory interpretation. 

In Worthen we rejected that approach to invalidating a 

waiver in a § 924(c) case as “entirely circular,” depending on 

the merits of the disputed appeal. 842 F.3d at 555; see also

United States v. Carson, 855 F.3d 828, 831 (7th Cir. 2017) 

(enforcing waiver of appeal and, quoting Worthen, rejecting 

rule “that an appeal waiver is enforceable unless the appellant would succeed on the merits of his appeal”). It would 

not be unconstitutional for the government to prosecute a 

§ 924(c) charge predicated on § 922(u) under the elements 

clause. The government might well lose under a statutory 

interpretation of the elements clause, but the prosecution 

itself would not lie beyond the government’s power. Oliver 
Nos. 17-2880 & 17-2902 11 

and Ross cannot avoid their waivers of collateral attacks on 

the theory that they have raised a “jurisdictional” challenge. 

B. Miscarriage of Justice? 

Nor will enforcing Oliver and Ross’s collateral-attack 

waivers cause a “miscarriage of justice.” Oliver and Ross cite 

United States v. Litos, 847 F.3d 906, 910–11 (7th Cir. 2017), 

where we wrote that we “decided to ignore” an express 

appellate waiver to set aside an unjust restitution order. 

They urge us to extend Litos to § 2255 cases “where the 

petitioner makes a colorable claim of ‘actual innocence’—a 

traditional means of showing a ‘miscarriage of justice.’” 

We decline the invitation. Litos concerned a unique circumstance that required an exercise of our equitable powers. 

There, absent our intervention, a bank that was not a party 

to the appeal waiver the government had negotiated would 

have received significant restitution even though the bank’s 

own recklessness had substantially contributed to the loss. 

We decline to apply the narrow Litos holding against the 

government here. Its only arguable “wrongdoing” here was 

failing to anticipate changes in the Supreme Court’s jurisprudence. See Carson, 855 F.3d at 830–31 (declining to extend 

Litos to waiver of appellate challenge to defendant’s status 

under Armed Career Criminal Act). 

The robbery of the pawnshop plainly violated the Hobbs 

Act, which we and other circuits have held, after Johnson, 

qualifies as a “crime of violence” under § 924(c)’s elements 

clause. United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017) 

(collecting cases); accord, Haynes v. United States, 936 F.3d 

683,690 (7th Cir. 2019). Thus, even overlooking the shootout 

that occurred, the government could easily have premised 
12 Nos. 17-2880 & 17-2902 

the § 924(c) counts on the Hobbs Act robbery of the pawn 

shop in Indiana. It is not a miscarriage of justice to refuse to 

put Oliver and Ross in a better position than they would 

have been in if all relevant actors had foreseen Davis. 

C. Unconstitutional Factor? 

Finally, Oliver and Ross argue that their waivers should 

not be enforced because their convictions rest on a “constitutionally impermissible factor,” by which they mean the 

residual clause of the definition of a crime of violence in 

§ 924(c). Language in our opinions does say a blanket appellate waiver cannot bar a defendant from arguing that he was 

sentenced based on a constitutionally impermissible factor. 

E.g., United States v. Hicks, 129 F.3d 376, 377 (7th Cir. 1997). 

That language does not extend to all arguable constitutional 

claims. We have not expanded this exception beyond “identity-based factor[s] such as race or gender.” See Cross v. 

United States, 892 F.3d 288, 298–99 (7th Cir. 2018) (clarifying 

that this exception is limited to identity-based factors unless 

plea agreement itself ambiguously uses “impermissible 

factor” phrase, thus inviting courts to construe the language 

broadly against the drafter). This limitation makes sense. 

Even broad express waivers are not meant to permit judges 

to base a sentence on race or gender while escaping scrutiny. 

In today’s America, that would be an implausible reading of 

any such agreement’s scope. But normal constitutional 

challenges to a statute of conviction fall comfortably within 

the permissible scope of valid waivers like the ones here. 

* * * 

Oliver and Ross expressly waived their right to appeal or 

collaterally attack their convictions or sentences, or the 
Nos. 17-2880 & 17-2902 13 

manner in which they were determined or imposed, before 

“any Court on any ground.” Because the waivers preclude 

these collateral attacks, we need not consider whether Oliver 

and Ross procedurally defaulted their claims or whether 

they could circumvent that default. The judgments of the 

district court denying relief from the appellants’ convictions 

and sentences are 

AFFIRMED.