UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

BRYANT RASHAD RIOS, 

Petitioner,

 vs. 

UNITED STATES OF AMERICA, 

Respondent. 

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Cause No. 3:16-cv-398

(Arising out of 3:13-cr-74)

OPINION AND ORDER 

Bryant Rios pleaded guilty to possessing a firearm as a convicted felon, 18 

U.S.C. § 922(g). At sentencing, the court increased Mr. Rios’s base offense level 

because he had a prior felony conviction for a “crime of violence,” U.S.S.G. §§ 

2K2.1(a)(4), 4B1.2, in this case criminal recklessness, Ind. Code § 35-42-2-2 (“A 

person who recklessly, knowingly, or intentionally performs an act that creates 

a substantial risk of bodily injury to another person commits criminal 

recklessness.”). Mr. Rios challenged the sentence in a motion to vacate under 28 

U.S.C. § 2255 based on the Supreme Court’s holding in Johnson v. United 

States, 135 S. Ct. 2551 (2015) that parallel language in the Armed Career 

Criminal Act, 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. The court held 

that the appeal waiver in Mr. Rios’s plea agreement barred his motion. Mr. Rios 

now requests a certificate of appealability under 28 U.S.C. § 2253(c)(2). 

Issuance of a certificate of appealability requires the court to find that Mr. 

Rios has made “a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). He has done so. 
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Mr. Rios’s collateral attack failed Seventh Circuit precedent. He didn’t 

show that the appeal waiver was uninformed or involuntary, that a collateral 

attack was outside of its scope, that sentencing relied on a constitutionally 

impermissible factor, that his sentence exceeded the statutory maximum, or that 

his counsel provided ineffective assistance in negotiating the plea agreement. See

Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (listing exceptions to 

an otherwise-valid appeal waiver). 

Reasonable jurists might disagree. Even though United States v. Bownes, 

405 F.3d 634 (7th Cir. 2005) enforced the appeal waiver of a defendant given a 

within-guideline sentence before United States v. Booker, 543 U.S. 220 (2005), 

Bownes doesn’t address whether a waiver is enforced if the guidelines that 

anchor the sentence are themselves invalid.1 Outside developments in the law 

might encourage the appeals court to revise its interpretation of whether a 

defendant can ever waive rights unknown at the time of the waiver. See United 

States v. McBride, 826 F.3d 293, 294-295 (6th Cir. 2016) (holding that defendant 

agreeing to career offender designation didn’t waive a Johnson-based challenge 

to the designation because “a defendant can abandon only known rights,” so he 

                                                            

1 The court does disagree with Mr. Rios’s interpretation that Bownes allows for flexible exceptions 

for later-determined due process violations because, as Mr. Rios says, the listed exceptions are 

“all firmly rooted in the due process clause.” Bownes explains that broad waivers “are effective 

even if the law changes in favor of the defendant after sentencing,” Bownes, 405 F.3d at 636; see

Keller, 657 F.3d at 681 (explaining that waivers are upheld unless one of the “limited exceptions” 

applies), and isn’t based on the theory that appeal waivers can be circumvented for due process 

violations but not for other kinds of constitutional violations. The kind of exception that Bownes 

rejected was for a sentence imposed under the regime of binding sentencing guidelines that the 

Supreme Court rejected in Booker. The Court rejected this approach not just because it violated 

the Sixth Amendment but because due process requires “proof beyond a reasonable doubt of 

every fact necessary to constitute the crime with which [the defendant] is charged.” Booker, 543 

U.S. at 230 (quoting In re Winship, 397 U.S. 358, 364 (1970)). 
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“could not have intentionally relinquished a claim based on Johnson, which was 

decided after his sentencing”). 

Based on the foregoing, the court GRANTS Mr. Rios’ motion for a certificate 

of appealability [Doc. No. 52] and issues a certificate of appealability with respect 

to the issue of whether a waiver of collateral attack in the plea agreement bars a 

challenge under Johnson v. United States, 135 S. Ct. 2551 (2015). 

 SO ORDERED. 

ENTERED: October 28, 2016 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court