16‐1484 (L)
Rodgers v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 16th day of January, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
ORANGE RODGERS,
Petitioner‐Appellant,
‐v.‐ 16‐1484, 16‐2277
UNITED STATES OF AMERICA,
Respondent‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
1
FOR APPELLANT: Jane S. Meyers, Law Office of Jane S.
Meyers, Brooklyn, NY.
FOR APPELLEE: Steven D. Clymer (Ransom P.
Reynolds, on the brief), Assistant
United States Attorneys, for Grant C.
Jaquith, Acting United States
Attorney for the Northern District of
Syracuse, New York, NY.
Appeal from a judgment of the United States District Court for the
Northern District of New York (Suddaby, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.
Petitioner‐appellant Orange Rodgers appeals from an April 19, 2016
judgment, and a June 15, 2016 order, of the United States District Court for the
Northern District of New York denying his motion under 28 U.S.C. § 2255 to
vacate his sentence, imposed in accordance with a binding plea agreement, for
possession by a convicted felon of a firearm that had been shipped and
transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Rodgers
argues on appeal that the district court erred in denying his motion because: (1)
he did not waive his right to bring a § 2255 motion since the district court failed,
in violation of Fed. R. Crim. P. 11(b)(1)(N), to state in the plea colloquy that the
sentence could not be collaterally attacked, and (2) the required predicate offenses
for enhanced sentencing under the Armed Criminal Career Act are now lacking
by virtue of Johnson v. United States, 135 S. Ct. 2551 (2015). We assume the
parties’ familiarity with the underlying facts, the procedural history, and the
issues presented for review.
1. Rodgers’ plea agreement waived any collateral attack on his
sentence. He argues that the waiver should not be enforced because, at the
colloquy in his change of plea hearing, the court stated that Rodgers was waiving
2
his right to appeal his sentence without stating that he was also waiving his right
to bring a challenge under 28 U.S.C. § 2255. According to Rodgers, the district
court’s violation of Fed. R. Crim. P. 11(b)(1)(N) means that his guilty plea was not
knowing; rather, he thought he retained his right to collaterally challenge his
sentence.
Fed. R. Crim. P. 11 is “designed to assist the district judge in making the
constitutionally required determination that a defendantʹs guilty plea is truly
voluntary.” United States v. Maher, 108 F.3d 1513, 1520 (2d Cir. 1997). “[T]his
Circuit has adopted a standard of strict adherence to Rule 11,” so “we examine
critically even slight procedural deficiencies to ensure that the defendant’s guilty
plea was a voluntary and intelligent choice, and that none of the defendant’s
substantial rights has been compromised.” United States v. Livorsi, 180 F.3d 76,
78 (2d Cir. 1999) (internal citations, alterations, and quotation marks omitted).
However, unless there is an objection to a flaw in the plea colloquy, “strict
adherence” to Rule 11 is subject to plain error review, which “does not frequently
require vacatur of a plea.” United States v. Pattee, 820 F.3d 496, 503 (2d Cir.
2016) (internal quotation marks omitted), cert. denied, 137 S. Ct. 222 (2016); see
also id. at 505 (stating that plain error review requires a defendant to demonstrate
(1) error, (2) that was plain, (3) that “prejudicially affected his substantial rights,
and (4) “seriously affected the fairness, integrity or public reputation of judicial
proceedings.” (internal quotation marks omitted)).
Rodgers’ substantial rights were not affected. First, the written plea
agreement, which Rodgers read and signed knowingly and voluntarily, with the
assistance of his counsel, contains an express waiver of collateral attack. Second,
Rodgers averred at the change of plea hearing that he had sufficient time to
discuss the case with his counsel, was satisfied with his representation, had no
questions about the proceedings, and entered the plea agreement knowingly and
voluntarily. The district court then determined that Rodgers understood that he
was waiving his right to appeal his sentence, and asked him if he “underst[ood]
that you may not appeal your sentence if I sentence you to 120 months or less,” to
which Rodgers responded, “[y]es, your Honor.” Joint App’x at 40.
3
Based on these facts, the failure to orally note the collateral attack bar in his
plea agreement at the change of plea hearing is not clear error, and does not
invalidate that bar. See Sanford v. United States, 841 F.3d 578, 581 (2d Cir. 2016)
(although the district court “did not specifically mention that [the defendant] had
waived the right to ‘otherwise challenge’ the conviction or sentence (i.e.,
collaterally attack them)[,] [g]iven [the defedant’s] sworn statement that he had
talked with his lawyer about the plea agreement and signed it, and there being no
evidence indicating that [the defendant] was coerced or misunderstood any of the
relevant facts, we conclude that he knowingly and voluntarily agreed to the
collateral attack waiver.”); Tellado v. United States, 745 F.3d 48, 54 (2d Cir. 2014)
(“We conclude, therefore, that the district court’s omission of the phrase
‘collateral attack’ in its own explanation of the rights [the defendant] was
relinquishing does not, under these facts, constitute plain error.” (emphasis in
original)).
2. At the time of sentencing, Rodgers had three prior violent felony
convictions, which made him subject to a 15‐year minimum sentence as an Armed
Career Criminal, 18 U.S.C. § 924(e). Rodgers argues that, under Johnson v.
United States, 135 S. Ct. 2551 (2015), which invalidated the “residual clause” of
the Armed Career Criminal Act’s definition of “violent felony” as void for
vagueness, his prior conviction for Attempt to Commit Robbery in the Second
Degree, N.Y. Penal Law § 160.10, is no longer a violent felony for the purposes of
the Armed Career Criminal Act. Rodgers sought resentencing on the ground
that the two remaining prior violent felonies would not subject him to the 15‐year
mandatory minimum if he were sentenced today. Since, Rodgers continues, he
entered into his plea agreement only to escape the then‐applicable 15‐year
mandatory minimum (which would no longer apply to him) the Court should
find that his acceptance of a plea agreement does not preclude resentencing.
The government argues that Attempt to Commit Robbery in the Second
Degree, N.Y. Penal Law § 160.10, remains a violent felony notwithstanding
Johnson. But we need not reach this issue. Rodgers’ motion under 28 U.S.C. §
2255 is barred by his plea waiver. “While plea agreements are to be applied
narrowly and construed strictly against the government, exceptions to the
presumption of the enforceability of a waiver . . . occupy a very circumscribed
4
area of our jurisprudence.” Sanford, 841 F.3d at 580 (internal citations and
quotation marks omitted). “Even assuming, however, that [a defendant] was
sentenced under a Guidelines provision that is unconstitutional after Johnson,
this Court has held that a defendant’s inability to foresee a change in the law does
not supply a basis for failing to enforce an appeal waiver. On the contrary, the
possibility of a favorable change in the law after a plea is simply one of the risks
that accompanies pleas and plea agreements.” Id., 841 F.3d at 580 (internal
citations, alteration, and quotation marks omitted); see also United States v. Lee,
523 F.3d 104, 107 (2d Cir. 2008); United States v. Morgan, 406 F.3d 135, 137 (2d Cir.
2005). We have “upheld waiver provisions even in circumstances where the
sentence was conceivably imposed in an illegal fashion or in violation of the
Guidelines, but yet was still within the range contemplated in the plea
agreement.” Sanford, 841 F.3d at 580 (internal citation and quotation marks
omitted).
Accordingly, the sentence of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
5