United States v. Crews
20-3820
| 2d Cir. | Mar 15, 2022Background
- In 2015 Crews pleaded guilty to Hobbs Act conspiracy (18 U.S.C. § 1951) and a § 924(c) count for brandishing a firearm; his plea agreement contained an appellate waiver covering any sentence within or below a stipulated Guidelines range (262–327 months).
- The district court initially sentenced Crews to 204 months (below the stipulated range); Crews appealed and the appeal was held in abeyance pending Supreme Court decisions about § 924(c).
- After Davis, this Circuit held § 924(c) convictions predicated on Hobbs Act conspiracy infirm; the government and Crews jointly moved to vacate the § 924(c) conviction and the case was remanded for resentencing on the Hobbs Act count.
- On remand the district court resentenced Crews to 168 months (again below the stipulated range); Crews appealed, challenging (among other things) the court’s conclusion that Hobbs Act conspiracy qualified as a “crime of violence” under the Career Offender Guideline and the Criminal History Category calculation.
- The government moved to dismiss under the plea-agreement appellate waiver; Crews argued the waiver was unenforceable because the government had earlier consented to vacatur (thereby waiving enforcement), Davis was unforeseeable (so the waiver was not knowing), and the government’s conduct at resentencing breached the plea agreement.
- The Second Circuit held the appellate waiver enforceable under controlling precedent, rejected Crews’s arguments about notice and breach, and dismissed the appeal.
Issues
| Issue | Crews' Argument | Government's Argument | Held |
|---|---|---|---|
| Enforceability of appellate waiver after joint vacatur of § 924(c) | Government effectively waived the waiver by jointly moving to vacate § 924(c); cannot selectively enforce it | Waiver remains presumptively enforceable; joint vacatur did not waive enforcement and was in Crews’s interest | Waiver enforceable; appeal dismissed (follows United States v. Borden) |
| Waiver knowing/voluntary and alleged government breach at resentencing | Davis was unforeseeable so waiver was not knowing; government breach by supporting a different Guidelines calculation (firearm enhancement) | Change in law unforeseeability is not a basis to void a waiver; government’s advocacy at resentencing did not breach the plea agreement | Waiver was knowing/voluntary; no breach shown; arguments rejected |
| Merits of sentencing challenges (career-offender crime-of-violence and CHC calculation) | Raised challenges to Career Offender classification and use of youthful-offender adjudication in CHC | Government seeks to enforce waiver and thus foreclose review of these challenges | Court enforced waiver and did not reach merits; appeal dismissed |
Key Cases Cited
- United States v. Borden, 16 F.4th 351 (2d Cir. 2021) (upholding enforceability of appellate waiver after joint vacatur of § 924(c))
- United States v. Davis, 139 S. Ct. 2319 (2019) (holding the residual clause of § 924(c) unconstitutional)
- United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (holding § 924(c) convictions predicated on Hobbs Act conspiracy infirm)
- United States v. Burden, 860 F.3d 45 (2d Cir. 2017) (enumerating exceptions to the presumption that appeal waivers are enforceable)
- Sanford v. United States, 841 F.3d 578 (2d Cir. 2016) (a defendant’s inability to foresee a change in law does not render an appeal waiver unknowing or involuntary)