United States District Court, D. Maine
Brock Hornby, United States District Judge
sentenced this defendant on January 11, 2017, finding that he
was a career offender under the Guidelines. As a result, his
Guideline range was 151 to 188 months. Tr. 24 (ECF No. 48).
Without career offender status, his Guideline range would
have been 30-37 months. I imposed a variant sentence of 108
months. J. in a Criminal Case at 2 (ECF No. 41).
September 29, 2017, the defendant filed a section 2255 motion
challenging his sentencing classification as a career
offender. He argues that soon after I sentenced him, namely
on April 14, 2017, the First Circuit decided a case (already
pending when he was sentenced) that makes one of his two
predicate convictions no longer countable toward career
offender status. Pet'r's Mot. 1 (ECF No. 49-1). The
case is United States v. Mulkern, 854 F.3d 87 (1st
government opposed the section 2255 motion and the Magistrate
Judge has recommended that I deny it. Gov't's Resp.
to Pet'r's Mot. (ECF No. 53); R. & R. on
Pet'r's Mot. (ECF No. 55).
government now concedes that a different predicate
conviction, described in paragraph 27 of the Revised
Presentence Report, cannot be relied upon to support the
career offender classification. Gov't's Resp. to
Pet'r's Obj. 1-2 (ECF No. 57). That is because, as a
result of a presentence conference, I announced at sentencing
that I did not find whether that conviction should be counted
since it would not affect the sentence. Tr. 5. Therefore, the
impact of Mulkern is properly presented unless there
is a different ground to deny the section 2255
government urges me to adopt the Recommended Decision and
deny the section 2255 motion on the alternate ground that the
defendant “did not object to the sentencing court's
career offender finding or pursue a direct appeal of his
sentence.” Gov't's Resp. to Pet'r's
Mot.; R. & R. 7 (the defendant “did not raise [this
claim] at sentencing or on appeal”). But neither the
Recommended Decision nor the government's memoranda
opposing the motion and supporting the Recommended Decision
take into account that the defendant's plea agreement
explicitly waived his right to appeal his sentence in the
Defendant is aware that Title 18, United States Code, Section
3742 affords a defendant the right to appeal the sentence
imposed. Knowing that, Defendant waives the right to appeal
. . .
b. A sentence of imprisonment that does not exceed 120
Plea Agreement 3 (ECF No. 29). Indeed, I told the defendant when
I sentenced him that in his plea agreement he had given up
his right to appeal and that such agreements are generally
enforceable. Tr. 30-31.
neither the Recommended Decision nor the government's
filings address the defendant's claim of ineffective
assistance of counsel. Pet'r's Reply 4-5;
Pet'r's Obj. 3-6. In procedural default analysis, the
treatment of that issue- a constitutional one-differs from
treatment of Guideline sentencing errors. See Knight v.
United States, 37 F.3d 769, 774 (1st Cir. 1994).
I Request a new legal memorandum from the
government addressing these issues by June 29, 2018. If the
defendant wishes to respond, he shall do so by July 20, 2018.