RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0094p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARLON PORTIS, JR. (20-3776); DEMONTE THOMPSON

(20-3780),

Petitioners-Appellants,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Nos. 20-3776/3780

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

Nos. 1:12-cr-00131, 1:20-cv-00760 (Portis), and 1:20-cv-00763 (Thompson);

Patricia A. Gaughan, Chief District Judge.

Decided and Filed: May 3, 2022

Before: SUTTON, Chief Judge; McKEAGUE and WHITE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Vanessa Faye Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Akron, Ohio, for Appellants. Kelly L. Galvin, UNITED STATES ATTORNEY’S OFFICE, 

Cleveland, Ohio, for Respondent.

SUTTON, C.J., delivered the opinion of the court in which McKEAGUE, J., joined. 

WHITE, J. (pp. 11–16), delivered a separate dissenting opinion.

_________________

OPINION

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SUTTON, Chief Judge. Marlon Portis and Demonte Thompson pleaded guilty to 

conspiring to rob electronics stores and to using firearms in the process. The plea agreements 

prohibited the defendants from bringing direct or collateral challenges to their convictions. 

>
Nos. 20-3776/3780 Portis, et al. v. United States Page 2

Relying on a later U.S. Supreme Court decision that limited what offenses qualify as crimes of 

violence, United States v. Davis, 139 S. Ct. 2319, 2336 (2019), they filed these collateral 

challenges to their firearms convictions under § 2255, claiming that this change in law permits 

them to sidestep the plea agreements’ prohibitions on bringing collateral challenges to their 

convictions. Because they knowingly and voluntarily waived these challenges in their plea 

agreements and because later developments in the law do not permit the parties to the contract—

whether the government or a criminal defendant—to back out of their obligations, see United 

States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005), we dismiss their appeals. 

I.

In 2011, Portis and Thompson committed a series of robberies. A federal grand jury 

indicted them on one count of conspiring to commit a Hobbs Act robbery, two counts of robbery 

under the Hobbs Act, and two counts of using a firearm during a crime of violence.

Under virtually identical written plea agreements, they each pleaded guilty to one count 

of conspiring to commit a Hobbs Act robbery and one count of using a firearm during a crime of 

violence. See 18 U.S.C. § 924(c). As part of each agreement and in return for the government’s 

withdrawal of the two Hobbs Act robbery counts and one of the firearm counts, Portis and 

Thompson “expressly and voluntarily waive[d]” their rights to appeal their convictions or to 

challenge their convictions through a postconviction proceeding, “including a proceeding under 

28 U.S.C. § 2255.” R.102 at 10; R.101 at 10. Both defendants reserved the right to appeal if 

they received sentences that exceeded “the statutory maximum” or the Sentencing Guidelines 

range. R.102 at 10; R.101 at 10. And both retained their rights to pursue claims of ineffective 

assistance of counsel or prosecutorial misconduct. The district court accepted their pleas after a 

plea colloquy that confirmed they understood they were waiving their rights to appeal and to 

bring postconviction challenges.

Seven years after their convictions, the Supreme Court determined that § 924(c)’s 

residual clause was unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336 

(2019). The decision narrowed the types of offenses that qualify as “crimes of violence” under 

§ 924(c), ultimately requiring the government to prove that a defendant met the requirements of 
Nos. 20-3776/3780 Portis, et al. v. United States Page 3

the statute’s elements clause. Davis, we have held, applies retroactively. In re Franklin, 

950 F.3d 909, 911 (6th Cir. 2020) (per curiam). Since Davis, we have limited the statute’s 

application further, ruling that a conspiracy to commit Hobbs Act robbery does not count as a 

predicate “crime of violence” for § 924(c) purposes, whether under the residual clause or the 

elements clause. United States v. Ledbetter, 929 F.3d 338, 361 (6th Cir. 2019). 

After these developments, Portis and Thompson sought relief under § 2255. Once in the 

district court, they argued that their conspiracy convictions served as the predicate offenses for 

their § 924(c) convictions. Because Hobbs Act conspiracies no longer qualify as crimes of 

violence, they asked the district court to vacate their § 924(c) convictions. The government 

responded that the men waived their rights to file § 2255 motions, and that in any event the 

robberies (rather than the conspiracy) served as the predicate offenses. The district court denied 

the motions on the merits, concluding that the robberies served as the predicate offenses and 

opting not to enforce the § 2255 motion waiver. Portis and Thompson now appeal. 

II.

We begin and end with the plea agreement. In no uncertain terms, it waives each 

defendant’s right to challenge his convictions in “a proceeding under 28 U.S.C. § 2255.” R.101 

at 10; R.102 at 10. A defendant may waive any right, even a constitutional one, in a plea 

agreement, if he relinquishes that right knowingly and voluntarily. See Brady v. United States, 

397 U.S. 742, 748 (1970). It follows that a defendant may waive his right to bring future 

postconviction challenges, which are not constitutionally required, so long as the waiver is 

knowing and voluntary. Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999).

Such waivers are not without limit. We will not enforce them if counsel provided

constitutionally ineffective assistance or if the government breached the agreement, and we will

not enforce waivers infected by race discrimination. See United States v. Ferguson, 669 F.3d

756, 764, 767 (6th Cir. 2012); United States v. Swanberg, 370 F.3d 622, 627–28 (6th Cir. 2004). 

The process leading to the waiver also must be fair and comply with Rule 11 of the Federal

Rules of Criminal Procedure. But neither defendant challenges the waiver on any of these

grounds. They do not complain about the process leading to the plea agreement. They do not
Nos. 20-3776/3780 Portis, et al. v. United States Page 4

challenge the plea colloquy. They do not deny that they knowingly and voluntarily entered the

plea agreement in return for the government’s decision to drop several counts against them. And

they do not claim that counsel provided constitutionally ineffective assistance or that the waiver

was premised on race discrimination.

That leaves two other possibilities for challenging their convictions. One, they say, is

that the § 2255 waiver does not apply if later changes in the law might benefit them. The other,

they say, is that the limitation in the agreement to sentences below “the statutory maximum”

permits them to seek relief here. Regrettably for Portis and Thompson, neither option works.

As to the first option, waivers of the right to bring postconviction challenges remain

enforceable after changes in law, here the Davis decision. Subsequent “developments in the 

law” that would make a right to bring a postconviction challenge more valuable do not “suddenly 

make the plea involuntary or unknowing or otherwise undo its binding nature.” United States v. 

Bradley, 400 F.3d 459, 463 (6th Cir. 2005). Any “waiver[ ] of the right to appeal,” we have 

explained, “would amount to little if future changes in the law permitted the benefited party 

nonetheless to appeal.” Id. at 465. “Plea bargains always entail risks,” but they “allocate[] risk 

between the two parties as they see fit.” Id. at 464. And “[i]f courts disturb the parties’ 

allocation of risk in an agreement, they threaten to damage the parties’ ability to ascertain their 

legal rights when they sit down at the bargaining table.” Id. “[M]ore problematically for 

criminal defendants,” when courts throw out mutually beneficial plea agreements, it may “reduce 

the likelihood that prosecutors will bargain away counts.” Id. 

The principle that future changes in law do not vitiate collateral-challenge waivers is 

mainstream. In Brady v. United States, 397 U.S. 742 (1970), the defendant pleaded guilty to a 

crime that came with exposure to a life sentence in order to avoid the risk of a death sentence, 

only to watch the threat of enforcement of the death-penalty provision disappear when the 

provision was declared unconstitutional. The Court held the defendant to his bargain despite the 

change in law and despite the reality that the plea turned on a mistaken assumption about the 

(later) meaning of the law. See id. at 750. “[A] voluntary plea of guilty intelligently made in the 

light of the then applicable law,” the Court reasoned, “does not become vulnerable because later 

judicial decisions indicate that the plea rested on a faulty premise.” Id. at 757; see also United 
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States v. Ruiz, 536 U.S. 622, 630 (2002) (noting that courts may accept guilty pleas regardless of 

“various forms of misapprehension under which a defendant might labor,” including lack of 

“complete knowledge of the relevant circumstances,” potential evidentiary rulings at trial, and 

later changes in the law).

All circuits to our knowledge follow this principle of plea-bargaining law. See United 

States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005); United States v. Riggi, 649 F.3d 143, 149 n.7 

(2d Cir. 2011); United States v. Lockett, 406 F.3d 207, 213–14 (3d Cir. 2005); United States v. 

Blick, 408 F.3d 162, 173 (4th Cir. 2005); United States v. Barnes, 953 F.3d 383, 387–88, 388 n.9 

(5th Cir. 2020); United States v. Bownes, 405 F.3d 634, 636–37 (7th Cir. 2005); United States v. 

Cooney, 875 F.3d 414, 416 (8th Cir. 2017); United States v. Johnson, 67 F.3d 200, 202–03 (9th 

Cir. 1995); United States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005); United States v. 

Masilotti, 565 F. App’x 837, 839–40 (11th Cir. 2014) (per curiam). 

This settled law and this plea agreement leave no room for the first way of thinking about 

Portis and Thompson’s argument. The two defendants expressly waived their rights to bring 

collateral challenges, and the waiver was knowing and voluntary. The written plea agreement 

made clear that it waived the right to bring a “§ 2255” petition. During their plea hearings, both 

men confirmed that they understood that they were waiving their rights to bring postconviction 

challenges. Because their waivers of postconviction challenges under § 2255 were knowing and 

voluntary, their plea agreements preclude this challenge.

Were the rule otherwise, it is difficult to see the point of including a collateral-challenge 

waiver in a plea agreement. As to defendants whose counsel failed to appreciate current law, 

they could obtain relief based on ineffective assistance. As to defendants whose counsel failed to 

be omniscient in anticipating future developments in the law, they could obtain relief on the 

ground that the waiver does not cover future changes in law, whether due to later interpretations 

of a criminal statute, later constitutional rulings, or later congressional changes to criminal laws 

or sentencing. In the short term, that might seem helpful to criminal defendants. But in the long 

term, it would eliminate a bargaining tool to convince the government to drop pending charges 

against a defendant. 
Nos. 20-3776/3780 Portis, et al. v. United States Page 6

That leaves the second option—and another way of characterizing the defendants’ claim. 

Instead of sidestepping the plea agreement, they wish to enforce it by its terms. Recall that the 

plea agreement permits a collateral attack if the sentence exceeds “the statutory maximum.” 

Because Davis limited the crimes that satisfy the elements of § 924(c), the argument goes, Portis 

and Thompson pleaded guilty to something for which no one could be convicted today and thus 

their sentences exceeded the statutory maximum.

Bousley v. United States, 523 U.S. 614 (1998), offers potential support for this theory. 

As here, the defendant pleaded guilty to a § 924(c) offense. As here, a later Supreme Court 

decision changed the interpretation of an element of the crime. And as here, the defendant 

brought a postconviction challenge. On that record, the Supreme Court held that the defendant 

could bring an actual-innocence claim (if he cleared several other hurdles) because guilty pleas 

are constitutionally valid only if they are knowing and voluntary, and a defendant who did not 

understand the “true nature of the charge against him” could not knowingly plead guilty to the 

crime. Id. at 618, 624 (quotation omitted). 

But a salient difference remains between that case and this one. Today’s case involves 

defendants who agreed to waive collateral challenges to their convictions or sentences. That was 

not true in Bousley, and it is dispositive here. The only fair reading of a “statutory maximum” 

carve-out that comes with a collateral-attack waiver is that it applies only to sentences that 

exceed the statutory maximum at the time of the sentence. Else, it would cover all manner of 

later developments—later cases construing the relevant statutes, later constitutional rulings, even 

later decisions by Congress to lower the statutory maximum. That would give the collateralattack waiver little, if any, work to do. Plea agreements are contracts, see United States v. 

Robinson, 924 F.2d 612, 613 (6th Cir. 1991), and where possible we should construe each 

provision to have independent meaning and force, see Kovach v. Zurich Am. Ins. Co., 587 F.3d 

323, 336 (6th Cir. 2009); Restatement (Second) of Contracts § 203(a) (1981). Treating 

“statutory maximum” language in a plea agreement accompanied by a collateral-attack waiver as 

referring only to the law at the time of sentencing gives independent meaning to all of this 

language. 
Nos. 20-3776/3780 Portis, et al. v. United States Page 7

We have said as much before. It is not “reasonable to give the phrase ‘statutory 

maximum’” in a plea agreement a new meaning after a new decision, we explained, before 

holding that the phrase “does not serve to distinguish this case from . . . Bradley”—and thus does 

not permit defendants to challenge guilty pleas based on later changes to the law. United States 

v. Luebbert, 411 F.3d 602, 603–04 (6th Cir. 2005); see also United States v. Diaz, 989 F.3d 390, 

395 (5th Cir. 2021) (noting that courts construe the “language in the appellate waiver . . . in 

accord with the intent of the parties at the time the plea agreement was executed” (quotation 

omitted)). 

Nor does Bousley mean that the collateral-attack waiver may not be enforced because it 

was unknowing. The Court held only that the guilty plea in that case was unknowing, not that a 

collateral-attack waiver would be unknowing or unenforceable. It is one thing to knowingly 

plead guilty to the elements of a crime; it is quite another to knowingly waive collateral 

challenges to a conviction. See United States v. Morrison, 852 F.3d 488, 491 (6th Cir. 2017) 

(holding that while changes in law permit some challenges to pleas without express waivers, a 

new constitutional holding does not permit a challenge when the defendant “intentionally 

relinquish[ed]” his right to appeal down the road and “[i]n doing so, . . . assumed the risk that he 

would be denied the benefit of future legal developments”). The “Supreme Court has not 

declared [collateral attacks] ‘non-waivable’ by express agreement.” Oliver v. United States, 

951 F.3d 841, 846 (7th Cir. 2020). Such waivers would “lose all effect” if they were thrown out 

for every challenge to the validity of the underlying conviction or sentence. United States v.

Worthen, 842 F.3d 552, 555 (7th Cir. 2016); see also United States v. Goodall, 21 F.4th 555, 

562–64 (9th Cir. 2021). Instead, the enforceability of a collateral-attack waiver turns on whether 

the prisoner’s agreement to the waiver was knowing and voluntary, not whether the underlying 

conviction itself no longer appears valid after a change in law. See United States v. Toth, 

668 F.3d 374, 379 (6th Cir. 2012) (noting that even if a defendant had claimed his guilty plea 

was constitutionally defective, “it would not change the conclusion” when the waiver was made 

knowingly and voluntarily).

Put another way, Bousley permits a defendant to collaterally attack a conviction that 

grows out of a guilty plea under some, but not all, circumstances. Because Bousley did not raise 
Nos. 20-3776/3780 Portis, et al. v. United States Page 8

his challenge at the appropriate time, he ran the risk that his § 2255 claim would be procedurally 

defaulted. He escaped that fate by claiming that he was “actually innocent” of the crime. But 

this judge-made exception to procedural default works comfortably with another judge-made 

qualification—that a future defendant may do what Bousley did not, namely agree to waive 

collateral attacks on his conviction no matter what future developments in the law bring.

In contrast to Bousley, Portis and Thompson knowingly and voluntarily agreed to waive 

their right to bring a postconviction challenge. See R.210 at 7 (noting that this § 2255 action 

involves a challenge to the “conviction,” not the “plea,” which was knowing and voluntary); 

R.209 at 6–7 (same). It was well understood then, as it is amply understood now, that judicial 

interpretations of the Constitution and laws could change, and on that ground alone a collateral 

attack waiver would not be unknowing. 

Portis and Thompson do not allege deficiencies in the plea process or that their 

underlying agreements were invalid. See R.210 at 7 (claiming that they are challenging their 

convictions “not [the] validity of [the] plea”); R.209 at 6–7 (same). They just claim that, after 

the change in law brought about by Davis, their convictions “are unconstitutional and require 

reversal.” Appellants’ Br. at 25. That does not suffice. “If the agreement is voluntary, and 

taken in compliance with [Federal Rule of Criminal Procedure] 11, then the waiver of appeal 

must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant 

is entitled to appeal.” United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995). 

Portis and Thompson also raise other objections to enforcing their plea waivers. They 

claim that, because the district court addressed their motion on the merits, we may not invoke the 

plea waiver. Not true. This court may affirm “on any grounds supported by the record.” 

Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 886 (6th Cir. 2020) (quotation omitted). 

The government raised the appeal waiver at every step of these proceedings. The plea agreement 

and record support the argument. And while there is no rigid order of battle in cases like this 

one, it makes considerable sense to address the enforceability of a clearly worded collateralchallenge waiver before turning to the merits. What is the point of having such provisions in a 

plea agreement if they are not enforced at the outset? 
Nos. 20-3776/3780 Portis, et al. v. United States Page 9

Portis and Thompson add that we may not consider the waiver because the order granting 

the certificate of appealability did not mention it. Not true either. Although 28 U.S.C. 

§ 2253(c)(3) states that the certificate of appealability must “indicate which specific issue or 

issues” the court is to consider, “the [certificate of appealability] requirement is asymmetric—it 

applies only [to] petitioners.” 16AA Charles Alan Wright, Arthur R. Miller, & Catherine T. 

Struve, Federal Practice and Procedure § 3968.1 (5th ed. 2021); see Fed. R. App. P. 22(b)(1); 

28 U.S.C. § 2253(c)(2).

Vowell v. United States, 938 F.3d 260 (6th Cir. 2019), does not alter this conclusion. One 

feature of Vowell is unexceptional. It says that a sentence may be challenged on appeal if it 

exceeds the statutory maximum. See id. at 265. Most plea waivers have an express exception of 

this sort, as indeed this one does. But, as shown, such provisions generally measure the reach of 

the exception by the law in place at the time of sentencing, not based on future changes to the 

law. See United States v. Caruthers, 458 F.3d 459, 471 (6th Cir. 2006) (collecting cases that all 

have this feature). That is how the reference to a “statutory maximum” in this plea agreement 

works, and in that sense Vowell does not purport to break new ground.

In addition to making this point, however, Vowell could be read to create an exception to 

the rule that collateral-attack waivers remain enforceable even after subsequent changes in law. 

It suggested that, when the challenger shows that the change in law “would otherwise render a 

defendant or petitioner’s sentence statutorily excessive,” the § 2255 waiver does not apply. 

Vowell, 938 F.3d at 268. In one sense, this language was not necessary to the outcome, as

Vowell’s challenge on the merits came up short anyway. Id. at 271. Accurate or not, however, 

the Vowell dicta does not apply here for at least two reasons.

One is that Vowell did not involve an express qualification to its collateral-attack waiver 

for sentences that exceed “the statutory maximum.” It thus had no occasion to determine 

whether, in the context of a given plea agreement, such language refers to the law in place at the 

time of sentencing or covers changes to the law in the future. As shown, this plea agreement’s 

reference to “the statutory maximum” refers to the maximum sentence at the time of sentencing, 

not to maximum sentences throughout a defendant’s prison term based on future changes to the 

law. Put differently, Vowell does not purport to explain what to do with a plea provision that 
Nos. 20-3776/3780 Portis, et al. v. United States Page 10

permits collateral attacks only for a “sentence that exceeds the statutory maximum at the time of 

sentencing.” That in essence is how this plea agreement works, and Vowell does not speak to its 

meaning or enforceability. 

The other reason that Vowell does not apply is that it involved a dispute about changes in 

law that affect the statutory maximum under §§ 922(g) and 924(e), not changes in law that affect 

the elements of a crime under § 924(c). That explains why the decision does not mention 

Bousley, a case about changes in law that potentially make someone actually innocent of a crime. 

The decision thus had no reason to offer any guidance about what to do with today’s case, in 

which a defendant waived his right to bring a § 2255 claim based on changes in law that affected 

the elements of a crime. 

The dissent, but not Portis and Thompson, argues that a “miscarriage-of-justice” 

exception permits us to sidestep the defendants’ waivers. Dissent at 12–13. But as the dissent 

acknowledges, our circuit has not adopted this exception in a published opinion. Id. at 13 n.2. 

When our unpublished decisions have addressed this theory, it has been in dicta and even then 

only as a possible, not a given, exception. See, e.g., United States v. Matthews, 534 F. App’x 

418, 424–25 (6th Cir. 2013) (collecting cases that all have this feature). Because the defendants 

offer no argument for such an exception, because our court has yet to recognize this exception, 

and because any such exception likely would not apply given the multitude of crimes for which 

the defendants were indicted, there is no basis for applying it here. 

We dismiss both appeals.
Nos. 20-3776/3780 Portis, et al. v. United States Page 11

_________________

DISSENT

_________________

WHITE, Circuit Judge, dissenting. The majority concludes that Portis and Thompson 

cannot challenge their § 924(c) convictions because one can waive any right in a plea 

agreement—including the right to not be imprisoned for a constitutionally non-cognizable 

crime—so long as the waiver is knowing and voluntary. The majority’s conclusion is not only in 

tension with our established precedent, but also would have the court uphold any conviction, 

including those subsequently determined to be unconstitutional, if a defendant has knowingly 

and voluntarily waived the right to attack it in a plea agreement. I respectfully dissent.

I.

In United States v. Caruthers, Caruthers contended that the district court had erred when 

sentencing him because his burglary convictions were not violent felonies within the meaning of 

the Armed Career Criminal Act. 458 F.3d 459, 464 (6th Cir. 2006). But Caruthers had 

knowingly and voluntarily waived the right to make such a challenge in his plea agreement. Id. 

at 470 n.3, 470–71. In determining whether Caruthers nevertheless retained the right to 

challenge his sentence on appeal, the court considered a doctrine uniformly applied in our sister 

circuits—“that an appellate waiver may not bar an appeal asserting that the sentence exceeds the 

statutory maximum.” Id. at 471 (collecting cases). The court outlined different rationales for the 

doctrine: a court is without jurisdiction to impose an illegal sentence; due process demands more 

in the way of “civilized procedure . . . regardless of what the defendant . . . is willing to accept”; 

and, both the supervisory power of the courts of appeals and the unenforceability of 

unconscionable contracts require that plea-agreement terms that would lead to miscarriages of 

justice not be enforced. Id. at 471–72. Without deciding which rationale is most apt, the court 

adopted the doctrine, concluding that “an appellate waiver does not preclude an appeal asserting 

that the statutory-maximum sentence has been exceeded.” Id. at 472.

In Vowell v. United States, the court reaffirmed and expanded Caruthers’s rule, holding 

that “a defendant or petitioner may challenge his sentence as being statutorily excessive . . . even 
Nos. 20-3776/3780 Portis, et al. v. United States Page 12

if the waiver was otherwise knowing and voluntary,” not just when a district court may have 

erred at sentencing, but also “based on a subsequent change in the law.” 1 938 F.3d 260, 268 (6th 

Cir. 2019). The court also explained that other decisions (some relied on by the majority here), 

namely, Brady v. United States, 397 U.S. 742 (1970); United States v. Bradley, 400 F.3d 459 

(6th Cir. 2005); and United States v. Morrison, 852 F.3d 488 (6th Cir. 2017), do not compel a 

contrary conclusion because they simply stand for the proposition that a subsequent change in 

the law does not render an otherwise valid waiver unknowing or involuntary. Id. at 267–68. 

“[These cases] logically extend only to situations in which the defendant or petitioner utilizes 

those later decisions to argue that his waiver was involuntary or unknowing.” Id. at 268. None 

of the cases “concluded that a defendant would be prohibited from pointing to a change in the 

law that renders his sentence in excess of the length authorized by statute, and, therefore, 

illegal.” Id. at 267. Thus, we did not enforce Vowell’s plea-agreement waiver and reached the 

question whether a subsequent change in the law—Johnson v. United States, 576 U.S. 591 

(2015)—had rendered Vowell’s sentence statutorily excessive, i.e., not authorized by law. 

Of course, a miscarriage of justice may involve reasons other than a sentence being in 

excess of the length authorized by statute. A subsequent change in the law that makes it 

unconstitutional to convict someone for certain conduct would make a sentence based on that 

conduct not authorized by law. See United States v. Ledbetter, 929 F.3d 338, 360–61, 366 (6th 

Cir. 2019). After all, “a vague law is no law at all.” United States v. Davis, 139 S. Ct. 2319, 

2323 (2019). 

If Portis’s and Thompson’s § 924(c) convictions were, in fact, predicated on conspiracy 

to commit Hobbs Act robbery, their conduct would not constitute constitutionally cognizable 

offenses and, thus, imprisoning them based on such conduct would not be authorized by law. 

Declining to consider the merits of their claims could therefore result in a grave miscarriage of 

1The rule equally applies on direct appeal and when a conviction is collaterally attacked. Vowell v. United 

States 938 F.3d 260, 267–68 (6th Cir. 2019) (citing United States v. Andis, 333 F.3d 886, 887 n.2 (8th Cir. 2003); 

United States v. Cockerham, 237 F.3d 1179, 1182–83 (10th Cir. 2001) (“[T]he same exceptions to the waiver of the 

right to appeal, if they arise, would be available to the waiver of the right to collateral attack.”)). 
Nos. 20-3776/3780 Portis, et al. v. United States Page 13

justice.2 See, e.g., United States v. Sweeney, 833 F. App’x 395, 396–97 (4th Cir. 2021). In 

refusing to address the merits based on the collateral-attack waiver, the majority ignores the clear 

import of Vowell’s holding—a defendant or petitioner is not prohibited from seeking relief based 

on a change in law that renders his conviction and resultant sentence constitutionally invalid, 

even if he has knowingly and voluntarily waived the right to bring a collateral attack.3 938 F.3d 

at 267–68.

II.

The majority initially attempts to sidestep Vowell’s holding by suggesting that it is dicta; 

it is not. See id. at 268, 271. Consideration of the waiver was necessary to reach the merits. The 

majority then claims that Vowell is inapplicable because Portis’s and Thompson’s plea 

agreements contained provisions allowing them to challenge excessive sentences, which 

Vowell’s did not. But this difference is irrelevant. The Vowell panel did not purport to be 

interpreting the terms of the plea agreement’s waiver provision and it is not clear why the 

presence of the exception to the waiver should cause Portis’s and Thompson’s plea agreements 

to be read more strictly than they would be in the absence of any exception at all. Further, a 

sentence imposed for acts that the Supreme Court has said are not constitutionally cognizable as 

criminal is excessive, in a way, but it is also accurate to say that if a conviction is 

unconstitutional, any corresponding sentence is invalid. See Ledbetter, 929 F.3d at 360–61, 366. 

Additionally, as mentioned, the clear import of Vowell’s holding is that a defendant or petitioner 

may challenge a purportedly invalid sentence based on a subsequent change in the law, 

notwithstanding a knowing and voluntary waiver. Thus, when deciding whether to enforce 

2

I note that our circuit has not expressly adopted the miscarriage-of-justice rationale employed by the 

majority of our sister circuits, but we have recognized it in several unpublished decisions. United States v. Mathews, 

534 F. App’x 418, 424–25, 427 (6th Cir. 2013) (collecting cases). And, of course, in Caruthers. 458 F.3d at 472 

(stating that the rationale implicitly invokes both the unconscionability doctrine of contract law and the supervisory 

power of the courts of appeals). 

3The majority finds it unnecessary to engage with whether a waiver exception permits us to reach the 

merits, in part, because Portis and Thompson do not argue that enforcing the waivers would result in a miscarriage 

of justice. However, the district court did not enforce the collateral-attack waivers, and Portis and Thompson 

therefore had no need to address the issue on appeal. Further, the government—the party arguing that the collateralattack waivers should be enforced on appeal—repeatedly contends that “enforcement of th[e] waiver[s] will not 

result in a manifest injustice.” Appellee Br. at 30. Thus, the question whether an exception applies in the instant 

cases is properly before us.
Nos. 20-3776/3780 Portis, et al. v. United States Page 14

Portis’s and Thompson’s collateral-attack waivers, we must determine only whether their 

challenges implicate convictions that the Constitution forbids and sentences not authorized by 

law. Because they may have been convicted under § 924(c) for conspiracy to commit Hobbs Act 

robbery, this is obviously so. Davis, 139 S. Ct. at 2336; Ledbetter, 929 F.3d at 360–61; In re 

Franklin, 950 F.3d 909, 911 (6th Cir. 2020) (per curiam).

The majority also distinguishes Vowell by pointing to the fact that it considered a 

conviction under § 924(e) in conjunction with § 922(g), not under § 924(c), i.e., that it involved 

changes to the statutory penalties, not changes affecting the elements of the crime. However, the 

Vowell court did not limit the reach of its holding to convictions under § 924(e) in conjunction 

with § 922(g). Its reasoning encompassed the broader proposition that a knowing and voluntary 

waiver of the right to bring a collateral attack does not preclude a challenge based on a change of 

law that has rendered the punishment illegal. And, the court cited cases involving convictions

and sentences under different statutes when making this point. Vowell, 938 F.3d at 265–68. The 

reasoning behind Vowell’s holding is obvious: we should not be enforcing plea-agreement 

waivers when doing so could result in a miscarriage of justice—keeping individuals imprisoned 

on void convictions.4

Finally, the cases relied on by the majority are inapposite. In Brady, the Supreme Court 

stated that waivers of constitutional rights must be voluntary and knowing, and considered 

whether Brady’s guilty plea—offered to limit his punishment to life imprisonment and avoid the 

death penalty—was entered knowingly and voluntarily. 397 U.S. at 748, 758. However, as 

discussed, it is irrelevant whether Portis’s and Thompson’s pleas knowingly and voluntarily 

waived the right to bring a collateral attack because Vowell provides a separate basis for 

invalidating their waivers—an invalid sentence based on a change in law that makes the 

underlying conviction constitutionally infirm—even when the right to mount a collateral attack 

has been knowingly and voluntarily waived. 

4Although an out-of-circuit court enforced similar collateral-attack waivers in the end, it did so only after 

considering whether enforcing them would bring about a miscarriage of justice. Oliver v. United States, 951 F.3d 

841, 847 (7th Cir. 2020) ([T]he government could easily have premised the § 924(c) counts on the Hobbs Act 

robbery. . . . 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.”). As mentioned, the majority opinion does not make it this 

far into the analysis, ruling such an inquiry unnecessary.
Nos. 20-3776/3780 Portis, et al. v. United States Page 15

Bradley concerned a request to be resentenced after the Guidelines had been declared to 

be advisory, not mandatory, which this court denied because this change in law did not suddenly 

make Bradley’s plea involuntary or unknowing. 400 F.3d at 463–64. But, again, Bradley is 

irrelevant—Portis and Thompson need not demonstrate their waivers have been rendered 

involuntary or unknowing based on a subsequent change in the law. For the court to decline to 

enforce the waivers, Portis and Thompson have to demonstrate only the separate basis identified 

in Vowell—that a change in the law may have rendered their convictions void and their sentences 

invalid—which Portis and Thompson have done. And, although Bousley v. United States

involved a § 924 conviction and a challenge to its validity based upon a new interpretation of an 

element of the crime, once again, the dispute turned on whether Bousley’s guilty plea was 

unknowing. 523 U.S. 614, 618–19, 622 (1998). 

In short, the cases cited by the majority are inapposite—Portis and Thompson need not 

rely on Brady, Bradley, or Bousley, nor should they. Vowell acknowledged as much: to the 

extent these cases limit a “petitioner’s ability to use subsequent changes in the law to invalidate 

his appellate waiver, they logically extend only to situations in which the . . . petitioner utilizes 

those later decisions to argue that his waiver was involuntary or unknowing.” 938 F.3d at 268. 

They say nothing regarding whether we should enforce a knowing and voluntary collateral-attack 

waiver when a subsequent change in the law has potentially rendered the conviction 

unconstitutional. Vowell does, however, which is why we must decline to enforce Portis’s and 

Thompson’s collateral-attack waivers.5

III.

Finally, I note that addressing the claims on the merits and even granting relief regarding 

the § 924(c) convictions does not mean that Portis and Thompson will receive lighter sentences. 

After such invalidations, “courts of appeals routinely vacate the defendant's entire sentence on all 

counts so that the district court may increase the sentences for any remaining counts.” 

5To the extent the majority contends that recognizing an exception to the waiver under these circumstances 

will undermine future plea negotiations and be unfair to the government, these concerns are better addressed to the 

merits of the motion to vacate and the individual factual circumstances surrounding the plea agreement and waiver 

and do not support blanket enforcement of all knowing and voluntary waivers without regard to the circumstances.
Nos. 20-3776/3780 Portis, et al. v. United States Page 16

Davis, 139 S. Ct. at 2336 (internal quotation marks omitted). Count 1 would not be affected 

by any invalidation. The presentence report calculated the Guidelines range for this offense as 

188–235 months of imprisonment for Portis and 121–151 months for Thompson, and the district 

court varied downward to sentence Portis to 102 months and Thompson to ninety-six months. 

Portis’s consecutive sentence of 186 months is within his undisturbed Guidelines range and 

Thompson’s undisturbed range is thirty-nine months shy of his consecutive sentence of 

180 months. On resentencing, the court may find reason to impose the same sentences on the 

remaining count.

* * *

For the foregoing reasons, I respectfully dissent.