Ackerland v. United States, 633 F.3d 698

Ackerland pled guilty to conspiracy to distribute and to possess with intent to distribute 500 grams or more of methamphetamine, under 21 U.S.C. §§ 841(a)(1), 846.
District court computed a guideline range of 188–235 months based on a criminal history category II from two misdemeanors (DUI and possession of drug paraphernalia) and then sentenced him to 96 months with five years' supervised release after a substantial-assistance reduction.
Ackerland moved under 28 U.S.C. § 2255 asserting the criminal-history calculation was erroneous, affecting eligibility for safety-valve relief under 18 U.S.C. § 3553(f) and USSG § 5C1.2, and he claimed ineffective assistance of counsel.
The district court vacated the sentence, concluding the paraphernalia conviction was uncounseled and improperly contributing to his criminal-history score, and ordered resentencing.
The government moved to reconsider, the district court denied the motion, and the government appealed the § 2255 grant and denial of reconsideration.
The court addresses timeliness of the appeal, enforceability of a waiver of collateral-relief rights, and whether the “illegal sentence” exception allows collateral attack on a sentence within the statutory range.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of the government's appeal	Ackerland argues the appeal was untimely	Ackerland contends Rule 4(a)(4) tolling does not apply	Timely; Rule 4(a)(4) tolling applied to March 9, 2010 denial and April 15 filing was timely
Enforceability of the § 2255 waiver	Ackerland asserts waiver does not bar collateral attack on an illegal sentence	The government argues waiver generally bars § 2255 claims	Waiver does not bar claims alleging an illegal sentence; the exception is narrow
Whether the sentence constitutes an illegal sentence under the waiver	The sentence was improperly computed due to miscalculated criminal history	Waiver applies to collateral challenges absent the illegal-sentence exception	Illegal-sentence exception does not apply because the sentence was within the statutory range
Effect of uncounseled paraphernalia conviction on criminal history	Paraphernalia conviction uncounseled and cannot be used to enhance sentence	Waiver and other guidelines do not support exclusion of that conviction	District court erred by vacating on the uncounseled conviction basis; the government’s evidence can be considered
Remand posture after § 2255 ruling	Remand is appropriate to address errors in calculation and potential relief	The appeal should be dismissed or limited based on waiver and timeliness	District court's order vacating sentence vacated; remand for further proceedings; mootness of reconsideration appeal

Chesney v. United States, 367 F.3d 1055 (8th Cir. 2004) (waiver of collateral relief rights generally enforceable)
DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000) (waiver status; collateral relief rights)
Andis v. United States, 333 F.3d 886 (8th Cir. 2003) (illegal-sentence exception to waiver is narrow)
United States v. Shelton, 535 U.S. 654 (U.S. 2002) (uncounseled sentences; impact on later sentencing)
United States v. Cousins, 455 F.3d 1116 (10th Cir. 2006) (scope of waiver and post-conviction relief)
Irizarry v. United States, 553 U.S. 708 (U.S. 2008) (definition of 'departure' under Guidelines)
Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir. 1988) (tolling of appeal period via Rule 59/60-type motions)
Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853 (8th Cir. 2008) (treatment of reconsideration motions for timing purposes)
Whitford, 758 F.2d 329 (8th Cir. 1985) ( Rule 60(b)/Rule 4 tolling not controlling under prior version)
United States v. Austin, 217 F.3d 595 (8th Cir. 2000) (criminal appeal timing distinctions)