United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's
“Motion Styled as a: Request for Sentence Correction
under Section/Rule 60(b)(1).” (Doc. 251). The motion
focuses on a “claim of breach of plea agreement.”
(Id. at 4). As relief, the defendant “would
like for the terms of my plea to be honored.”
(Id. at 6). The defendant insists the plea agreement
called for a 240-month maximum sentence, and he wants his
360-month sentence reduced accordingly. (Id. at 3).
to the defendant, any breach of the plea agreement
“took place during sentencing.” (Doc. 251). The
defendant was sentenced in September 2015, over four years
before he filed the instant motion. No relief is possible at
this late date. The defendant seeks
“correction” of his sentence, but a court can
correct a sentence only “[w]ithin 14 days after
sentencing.” Fed. R. Crim. P. 35(a). After that date,
the trial court loses all power to act under Rule 35(a).
E.g., United States v. Phillips, 597 F.3d 1190, 1197
(11th Cir. 2010); United States v.
Diaz-Clark, 292 F.3d 1310, 1317 (11th Cir.
2002); United States v. Morrison, 204 F.3d 1091,
1094 (11th Cir. 2000).
Rule 60(b)(1) does not improve the defendant's situation.
This rule applies to, and authorizes relief from, only
civil judgments; it cannot be employed to secure
relief from a criminal judgment. “Rule 60(b)
simply does not provide for relief from judgment in a
criminal case, and as such the defendant cannot challenge the
criminal [sentence] at issue under Fed.R.Civ.P. 60(b).”
United States v. Mosavi, 138 F.3d 1365, 1366
(11th Cir. 1998).
the defendant had any procedural vehicle available to assert
breach of a plea agreement, his motion would fail, as there
plainly was no breach. The defendant pleaded guilty to Counts
One, Three and Four of the second superseding indictment.
(Docs. 191, 197, 202). Pursuant to Rule 11(c)(1)(C), the plea
agreement identified the agreed sentence as 360 months, which
included 240 months on Count Three, a consecutive 120 months
on Count Four, and a concurrent 120 months on Count One.
(Doc. 197 at 5, 10). The Court at sentencing accepted the
agreement and imposed the 360-month sentence to which the
defendant had agreed. (Doc. 232 at 2).
defendant says he “was promised, but in a stealthlike
fashion and told by counsel that the 240 months would be
capped.” (Doc. 251 at 3). The defendant's claim,
however, is for breach of the plea agreement; the terms of
the plea agreement are established by that document, not by
what defense counsel may or may not have stated. Nor could
the defendant, in the face of the explicit language of the
plea agreement, have believed that the government had agreed
to cap to his sentence at 240 months. The defendant, by
signing the plea agreement, declared that he
“underst[oo]d” the agreement and
“voluntarily agree[d] to it.” (Doc. 197 at 13).
He further acknowledged that the only agreement was that
contained in the document, to the exclusion of verbal
agreements outside the document. (Id.). He further
confirmed that “[t]here have been no promises from
anyone as to the particular sentence that the Court will
impose.” (Id. at 3). The defendant repeated
these assertions at his guilty plea hearing. Even if the
defendant really believed his sentence would be capped at 240
months, the government did not agree to any such cap and
therefore did not breach any such non-existent agreement.
defendant elsewhere states he “was under the impression
that only 25 years would be given.” (Doc. 251 at 2).
The plea agreement did leave open the possibility of such a
sentence. The government agreed that, if the
government decided to allow the defendant to cooperate, and
if the defendant cooperated, and if the
government decided his cooperation was full, complete,
truthful and substantial, and if the government
decided his cooperation resulted in substantial assistance in
the investigation and prosecution of another criminal
offense, then the government would move for a
downward departure so that the total sentence would be 25
years rather than 30 years. (Doc. 197 at 5-6, 7-10). The
decision whether to allow the defendant to cooperate was
“reserved solely to the United States in the exercise
of its discretion.” (Id. at 7). The
determination whether the defendant's assistance was
full, complete, truthful and substantial, and the
determination whether it resulted in substantial assistance
in the investigation and prosecution of another criminal
offense, were “specifically reserved by the United
States in the exercise of its sole discretion.”
(Id. at 9). At sentencing, the government declined
to seek a 25-year sentence, on the grounds that the
defendant's information had not resulted in substantial
assistance in the investigation and prosecution of another
criminal offense. Because the plea agreement expressly
allowed the government to make that decision in its
unfettered discretion, the government did not breach the plea
agreement by making that decision.
defendant next claims the government breached the plea
agreement by “supporting” the presentence report
(“PSR”), which established an offense level of
42, even though the plea agreement stipulated both an offense
level of 30 and the defendant's entitlement to reductions
in that offense level. (Doc. 251 at 3-4). The plea agreement,
however, says nothing about the guideline range, other than
to preserve the defendant's ability to appeal a sentence
in excess of the guideline range. (Doc. 197 at 11-12).
defendant says that, regardless of any breach by the
government, the guidelines were incorrectly calculated,
giving him a right to appeal under 18 U.S.C. §
3742(a)(2). (Doc. 251 at 4). As explained in note 1,
supra, any right of appeal the defendant may have
had expired almost four years ago. Moreover, the defendant in
the plea agreement waived the right to appeal anything but a
sentence either above the statutory maximum or above the high
end of the guideline range, (Doc. 197 at 11-12), and he does
not allege his sentence was above the guideline range.
Finally, the defendant through counsel affirmatively denied
any objections to the PSR and its guideline calculations,
(Doc. 222), a representation repeated at sentencing.
apparent effort to sidestep his appeal waiver, the defendant
also insists that his sentence exceeds the statutory maximum.
(Doc. 251 at 4). Again, the defendant's right to appeal
expired in 2015. In any event, his unexplained assertion is
incorrect. As noted, the defendant pleaded guilty to Counts
One, Three and Four. Count One charged the defendant with
criminal conspiracy in violation of 18 U.S.C. § 924(o).
The statutory maximum penalty for such an offense is 20
years. Id. The defendant was sentenced to 20 years
on Count One, which does not exceed the statutory maximum.
Count Three charged the defendant with kidnapping in
violation of 18 U.S.C. § 1201(a)(1) and (g). The
statutory maximum penalty for such an offense is life
imprisonment. Id. § 1201(a). The defendant was
sentenced to 30 years on Count Three, which is less than the
statutory maximum. Count Four charged the defendant with a
firearm offense in violation of 18 U.S.C. §
924(c)(1)(A). The statutory maximum penalty for such an
offense is life imprisonment. United States v.
Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000).
The defendant was sentenced to 10 years on Count Four, which
is less than the statutory maximum.
defendant's second request for relief is that
“section(s) of 924(o) and 924(c) be examined to assure
fairness.” (Doc. 251 at 6). The defendant argues that
the language of these provisions is so similar that
convicting him of both charges and having his sentences on
those convictions run consecutively resulted in a
“double counting” and a “sentence
exsplosion [sic].” (Id. at 2, 3, 5). Even were
it not too late to assert such a challenge, the defendant in
the plea agreement waived the right to do so. (Doc. 197 at
event, there is nothing improper about charging a defendant
with a violation of both statutes or with running the
resulting sentences consecutively. Section 924(o) requires an
agreement with a second person to violate Section 924(c) but
does not require an actual violation of Section 924(c);
Section 924(c) does not require an agreement with a second
person but does require an actual violation of Section
924(c). United States v. Daniels, 345 Fed.Appx. 514,
521 (11th Cir. 2009). The two statutes therefore
create two separate offenses. United States v.
Luong, 627 F.3d 1306, 1310-11 (9th Cir.
2010); United States v. Clay, 579 F.3d 919, 933
(8th Cir. 2009); United States v. Stubbs,
279 F.3d 402, 409 (6th Cir. 2002). And because
they are separate offenses, the government may pursue both to
conviction. United States v. Robinson, 627 F.3d 941,
958 (4th Cir. 2010). Because Congress has
expressly provided that “no term of imprisonment
imposed on a person under this subsection [Section 924(c)]
shall run concurrently with any other term of imprisonment
imposed on the person, ” 18 U.S.C. §
924(c)(1)(D)(ii), courts are legally required to make a
sentence under Section 924(c) run consecutively to a sentence
under Section 924(o). United States v. Raphael, 487
Fed.Appx. 490, 504 (11th Cir. 2012); United
States v. Payne, 148 Fed.Appx. 804, 806, 809
(11th Cir. 2005).
the defendant references United States v. Davis, 139
S.Ct. 2319 (2019). (Doc. 251 at 2, 5). Section 924(c)(1)(A)
makes it unlawful to carry, possess, brandish or discharge a
firearm during and in relation to “any crime of
violence or drug trafficking crime.” Section 924(c)(3)
defines a “crime of violence, ” in part, as a
felony offense “that by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.” The Davis Court held that
“§ 924(c)(3)(B) is unconstitutionally vague,
” 139 S.Ct. at 2336, and the Eleventh Circuit has held
that Davis applies retroactively to defendants, like
this one, whose convictions and sentences became final before
Davis was handed down. In re: Hammoud, 931
F.3d 1032, 1039 (11th Cir. 2019). The defendant,