Remington v. United States, 872 F.3d 72

Background

In 1998 Remington pleaded guilty to bank robbery (18 U.S.C. § 2113(a)) and to using a firearm during a "crime of violence" (18 U.S.C. § 924(c)(1)); the bank robbery was the § 924(c) predicate.
The plea agreement recommended treating Remington as a career offender under U.S.S.G. § 4B1.1, set a base offense level of 32, and recommended 151 months for the bank robbery plus a consecutive mandatory 60-month term for § 924(c); Remington waived certain appeal/collateral rights in the agreement (with a carve-out for new retroactive First Circuit or Supreme Court decisions after Dec. 29, 1998).
At sentencing the district court adopted the career-offender finding, denied an acceptance-of-responsibility reduction (because Remington briefly escaped custody), calculated a Guidelines range of 210–262 months, and imposed 240 months (statutory maximum) for bank robbery plus 60 months consecutive for § 924(c).
Over 17 years later Remington filed a § 2255 motion invoking Johnson v. United States and Welch v. United States, arguing that the Guidelines' and § 924(c)’s residual clauses are unconstitutionally vague, so his career-offender status and the § 924(c) conviction/sentence must be vacated.
The district court denied the § 2255 motion on the ground that Remington’s prior Massachusetts convictions independently qualify as crimes of violence under the Guidelines’ force clause, without addressing whether Johnson applies to the Guidelines’ residual clause. The district court never ordered the government to answer the § 2255 motion; the government had sought a stay pending Beckles.
On appeal the government argued Remington waived his right to bring this collateral challenge under the plea-agreement waiver; the First Circuit found Remington forfeited the right to press the waiver question because he failed to address the waiver in his opening brief and did not ‘‘confront the waiver head-on.’n

Issues

Issue	Remington's Argument	Government's Argument	Held
Whether Remington may pursue his Johnson-based § 2255 challenges despite a plea-agreement waiver	Johnson/Welch announce a new retroactive legal principle so the plea carve-out preserves his collateral attack	The plea waiver bars the § 2255 motion; Remington forfeited contesting the waiver by not addressing it in his opening brief	Waiver enforced/forfeited: because Remington failed to confront the waiver in his opening brief, the plea waiver bars the § 2255 motion (vacating district court's denial and remanding for dismissal)
Whether the Guidelines’ career-offender residual clause is invalid under Johnson (and Welch retroactivity)	The Guidelines’ residual clause mirrors ACCA’s residual clause invalidated in Johnson, so career-offender designation is invalid	(District court) even if residual clause invalid, Remington’s prior convictions qualify under the force clause	District court’s merits ruling not reached on appeal because waiver issue forecloses review
Whether § 924(c)’s residual-clause definition of "crime of violence" is invalid under Johnson	Johnson invalidates similarly worded residual clauses, so § 924(c) cannot use the bank-robbery predicate	Government disputes waiver and contends predicate still fits other definitions; also raised stay pending Beckles	Not decided on appeal due to waiver/forfeiture; collateral challenge barred by plea waiver
Whether the court should excuse failure to raise the waiver in opening brief because government didn’t answer in district court	The government had opportunity to raise waiver below; carve-out plainly covers Johnson/Welch, so court should reach merits	Remington forfeited by not raising waiver earlier; government was not required to answer under Rule 5(a)	Court enforces forfeiture rule and declines to reach merits; no clear-and-gross-injustice shown

Key Cases Cited

Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
Welch v. United States, 578 U.S. 120 (2016) (held Johnson applies retroactively to cases on collateral review)
United States v. Booker, 543 U.S. 220 (2005) (held Guidelines advisory rather than mandatory)
United States v. Miliano, 480 F.3d 605 (1st Cir. 2007) (defendant must confront appellate waiver directly or forfeits challenge)