16 F.4th 351
2d Cir.2021Background
- In 2009 Borden pleaded guilty to Hobbs Act conspiracy (18 U.S.C. § 1951) and a § 924(c) firearm count, and he executed a plea agreement waiving the right to appeal or otherwise challenge his conviction or sentence if the court imposed 240 months or less.
- In 2015 the district court sentenced Borden to 60 months on the Hobbs Act count and 24 months on the § 924(c) count (consecutive), total 84 months; Borden did not appeal.
- After the Supreme Court’s decision in United States v. Davis (2019) holding § 924(c)’s residual clause void for vagueness, the Government consented to vacatur of Borden’s § 924(c) conviction and requested a full resentencing on the remaining count.
- At resentencing the district court treated Hobbs Act conspiracy as a "crime of violence" under the Guidelines, applied the career-offender enhancement, calculated a higher advisory range, but ultimately imposed 60 months on the Hobbs Act count and three years’ supervised release; Borden was released the same day.
- Borden appealed the resentencing result (career-offender designation and supervised release), arguing the Government had effectively relinquished its right to enforce the appeal waiver by consenting to vacatur; the Government moved to dismiss based on the waiver.
- The Second Circuit held the Government may partially allow a collateral challenge (here, vacatur of the § 924(c) count) without broadly surrendering the right to invoke the appeal waiver for unrelated resentencing issues, and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Government’s consent to vacate Borden’s § 924(c) conviction broadly surrendered its right to enforce the plea agreement’s appellate waiver | Borden: Government’s letter consenting to vacatur and not seeking to enforce the waiver amounted to broad relinquishment of the waiver rights | Government: Consent was limited to vacating the § 924(c) conviction; it did not waive the right to enforce the appellate waiver as to unrelated resentencing issues | Court: Government may grant limited relief from a waiver without broadly relinquishing the waiver; consent here was limited and did not bar enforcement of the waiver; appeal dismissed |
| Whether Borden may appeal resentencing rulings (career-offender designation and supervised-release term) despite the waiver because of procedural or equitable considerations | Borden: The issues arise after the Government’s consent and are not barred; Government cannot selectively enforce waiver | Government: The valid, knowing, and voluntary waiver bars these post-resentencing challenges | Court: Appeal waiver remains enforceable; issues are distinct from the Davis vacatur and are barred by the plea waiver |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (Struck down § 924(c) residual clause as unconstitutionally vague)
- United States v. Ojeda, 946 F.3d 622 (2d Cir. 2020) (limits on partial enforcement when issues are closely related)
- United States v. Arevalo, 628 F.3d 93 (2d Cir. 2010) (appeal waivers presumptively enforceable)
- United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000) (exceptions to waiver rule narrowly construed)
- United States v. Powers, 842 F.3d 177 (2d Cir. 2016) (remedy for conviction error is remand for de novo resentencing)
- Beckles v. United States, 137 S. Ct. 886 (Guidelines are not subject to vagueness challenges under Due Process)
- United States v. Lutchman, 910 F.3d 33 (2d Cir. 2018) (plea agreements construed strictly against the Government)
- United States v. Fisher, 232 F.3d 301 (2d Cir. 2000) (post-sentence advice inconsistent with a valid waiver does not nullify the waiver)
- United States v. Chestnut, 989 F.3d 222 (2d Cir. 2021) (appeals can survive release if supervised release remains)
- United States v. Ortega-Hernandez, 804 F.3d 447 (D.C. Cir. 2015) (permitting limited correction while enforcing waiver for other claims)