RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0135p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LARRY M. SLUSSER, ┐
Petitioner-Appellant, │
│
> No. 17-5070
v. │
│
│
UNITED STATES OF AMERICA, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
Nos. 3:11-cr-00078-1; 3:16-cv-00531—Thomas A. Varlan, Chief District Judge.
Argued: June 6, 2018
Decided and Filed: July 10, 2018
Before: COOK and DONALD, Circuit Judges; HALE, District Judge*
_________________
COUNSEL
ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Jennifer
Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.,
Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S
OFFICE, Knoxville, Tennessee, for Appellee.
*The Honorable David J. Hale, United States District Judge for the Western District of Kentucky, sitting by
designation.
No. 17-5070 Slusser v. United States Page 2
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Larry Slusser appeals the district court’s
dismissal of his second or successive motion to vacate, set aside, or correct sentence under
28 U.S.C. § 2255. Slusser challenges his designation as an armed career criminal. We granted a
certificate of appealability (“COA”) to consider one issue: whether Slusser’s 1999 Tennessee
conviction for Class C aggravated assault no longer qualifies as a “violent felony” under the
Armed Career Criminal Act (“ACCA”). Slusser, however, waived his right to challenge his
designation as an armed career criminal through a § 2255 motion as part of his negotiated plea
agreement. Therefore, we AFFIRM.
I.
Slusser pleaded guilty in 2011 to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g). As part of his plea agreement, Slusser waived his right to “file any motions
or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack [his] conviction[] and/or
resulting sentence,” except challenges involving ineffective assistance of counsel or
prosecutorial misconduct. The district court determined that he had at least three prior
convictions for violent felonies or serious drug offenses and sentenced him to a mandatory
sentence of 180 months under the ACCA. The district court pointed to three prior convictions as
qualifying ACCA predicates: a 1994 burglary; 2011 delivery of cocaine; and 1999 aggravated
assault and burglary.1 Slusser did not appeal his conviction or sentence.
In 2012, Slusser filed an initial § 2255 motion, arguing that he received ineffective
assistance of counsel and that the prosecutor engaged in misconduct. The district court denied
the motion, and we declined to issue a certificate of appealability. Slusser v. United States, No.
15-6241 (6th Cir. June 20, 2016) (order), cert. denied, 137 S. Ct. 1216 (2017). Slusser filed an
application in this Court in 2016 for authorization to file a second or successive § 2255 motion,
1Slusser had several other prior convictions that the district court did not cite to when concluding that he
was an armed career criminal.
No. 17-5070 Slusser v. United States Page 3
claiming that he was entitled to relief after the Supreme Court invalidated the residual clause of
the ACCA in Johnson v. United States, 135 S. Ct. 2251 (2015). We granted Slusser’s motion
and authorized the district court to consider his § 2255 motion, finding that Slusser established a
prima facie showing that he may be entitled to relief under Johnson. Slusser v. United States,
No. 16-5671 (6th Cir. Aug. 18, 2016) (order). The district court denied his motion and certified
that an appeal would not be taken in good faith.
On appeal, Slusser continues to contend that his prior convictions no longer qualify as
ACCA-predicate offenses after Johnson. We granted a COA to consider his challenge as to
whether his 1999 Tennessee conviction for Class C aggravated assault is a violent felony post-
Johnson.
II.
This Court applies de novo review to the question of whether a defendant waives his right
to collaterally attack his sentence. Davila v. United States, 258 F.3d 448, 450 (6th Cir. 2001).
We also review de novo a district court’s legal determination as to whether a predicate
conviction is a “violent felony” under the ACCA. Braden v. United States, 817 F.3d 926, 930
(6th Cir. 2016) (quoting United States v. Kemmerling, 612 F. App’x 373, 375 (6th Cir. 2015)).
“The denial of the § 2255 motion . . . may be affirmed ‘on any grounds supported by the record
even if different from the reasons of the district court.’” Cox v. United States, 695 F. App’x 851,
853 (6th Cir. 2017) (quoting Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002)), cert denied,
138 S. Ct. 1282 (2018).
The government first argues that this Court cannot answer the ultimate question of
whether Slusser’s prior aggravated assault conviction qualifies as a violent felony because
Slusser waived his right to challenge his sentence through a § 2255 motion as part of his plea
agreement. Slusser makes no argument that undermines whether his plea agreement was
knowing and voluntary but instead argues that he did not waive his right to challenge a sentence
that is in excess of the statutory maximum.
It is well-settled that a knowing and voluntary waiver of a collateral attack is enforceable.
Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999). Slusser contends that an exception
No. 17-5070 Slusser v. United States Page 4
to the enforcement of such waivers exists when the challenge is to a sentence that exceeds the
statutory maximum. Slusser cites to United States v. Caruthers, where this Court noted in dicta
that “an appellate waiver does not preclude an appeal asserting that the statutory-maximum
sentence has been exceeded.” 458 F.3d 459, 472 (6th Cir. 2006), abrogated on other grounds by
Cradler v. United States, 891 F.3d 659 (6th Cir. 2018); see also Watson, 165 F.3d at 489 (noting
that there is no “principled means of distinguishing” between a collateral attack and a waiver of a
defendant’s right to appeal). Yet, Slusser fails to distinguish the posture of his challenge with
our previous holdings that a Johnson-based collateral attack on an illegal sentence does not
undermine the knowing and voluntary waiver of “any right, even a constitutional right, by means
of a plea agreement.” Cox, 695 F. App’x at 853; accord United States v. Morrison, 852 F.3d
488, 490-91 (6th Cir. 2017) (“[A]fter the Supreme Court voided for vagueness the ‘residual
clause’ in the ACCA’s definition of ‘violent felony,’ courts routinely enforced the appeal
waivers of prisoners who stood to benefit.” (internal citation omitted)).
The indication in Caruthers that appellate waiver does not preclude a collateral attack on
an above-statutory-maximum sentence was dicta, not the holding of the Court. We generally
treat dicta as non-binding. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,
551 U.S. 701, 737-38 (2007). The other cases cited by Slusser, including Curtis v. United States,
699 F. App’x 546, 547 (6th Cir. 2017) and United States v. Page, 662 F. App’x 337, 339 (6th
Cir. 2016), are distinguishable. The panel in Curtis left the question of waiver for the district
court to determine. 699 F. App’x at 547. In Page, the panel considered a challenge to whether
the defendant’s plea was knowing and voluntary. 662 F. App’x at 339-40. Our decision in Cox
to enforce a substantially identical waiver under similar circumstances is instructive. 695 F.
App’x at 853-54.
A voluntary plea agreement “allocates risk,” and “[t]he possibility of a favorable change
in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.”
Morrison, 852 F.3d at 490 (quoting United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005)).
“By waiving the right to appeal, a defendant assumes the risk that a shift in the legal landscape
may engender buyer’s remorse.” Id. (citing United States v. Bradley, 400 F.3d 459, 464 (6th Cir.
2005)). Slusser waived his right to collaterally attack his sentence, including his designation as
No. 17-5070 Slusser v. United States Page 5
an armed career criminal. The subsequent developments in this area of the law “do[] not
suddenly make [his] plea involuntary or unknowing or otherwise undo its binding nature.”
Bradley, 400 F.3d at 463. We, therefore, enforce Slusser’s waiver and need not reach the merits
of his challenge.
III.
Slusser does not challenge that his plea agreement, including his waiver of his right to
collaterally attack his conviction under § 2255, was entered into knowingly and voluntarily.
While this Court has noted in dicta that a waiver may be unenforceable for challenges to
sentences over the statutory maximum, several panels of this Court have held otherwise.
Because Slusser waived his right to present a challenge to his sentence, the panel need not reach
the merits of whether Slusser’s prior 1999 Tennessee aggravated assault conviction qualifies as a
violent felony. We affirm.