Joshua Richard Ackerland pled guilty to conspiracy to distribute and to possess with intent to distribute 500 grams or more of methamphetamine. The district court sentenced Ackerland to 96 months’ imprisonment. The court later granted Ackerland’s motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, concluding that it incorrectly calculated Ackerland’s criminal history score under the sentencing guidelines at sentencing. The government filed a motion to reconsider, which the district court denied. The government appeals the district court’s orders. We vacate the order vacating Ackerland’s sentence and remand for further proceedings.
I.
In September 2007, Ackerland pled guilty, pursuant to a written plea agreement, to conspiracy to distribute and to possess with intent to distribute 500 grams
In March 2009, Ackerland moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Ackerland argued that the district court erroneously calculated his criminal history score by assessing a criminal history point for the conviction involving possession of drug paraphernalia. He urged that this error caused him to be scored in criminal history category II, and thus made him ineligible for relief under 18 U.S.C. § 3553(f) and USSG § 5C1.2, the so-called “safety-valve” provisions. These provisions allow the court to sentence a defendant below a statutory minimum term of imprisonment that is otherwise applicable. The guideline applicable to Ackerland’s drug trafficking offense further provides for a two-level decrease in the base offense level if the defendant meets the safety-valve criteria. USSG § 2D1.1(b)(16). Ackerland also argued he was entitled to relief because he received ineffective assistance of counsel, in violation of the Sixth Amendment.
The district court granted Ackerland’s § 2255 motion and ordered resentencing. The court concluded that Ackerland’s prior misdemeanor conviction for possession of drug paraphernalia was uncounseled and that there was no evidence that Ackerland waived his right to counsel. Citing
Alabama v. Shelton,
The government then filed a motion to reconsider, and submitted evidence to show that Ackerland waived his right to counsel before he pled guilty to the drug paraphernalia offense. The district court concluded that the government could have presented the new evidence at the original hearing, and denied the motion. The government appeals, challenging the district court’s order granting the § 2255 motion and its order denying the motion to reconsider.
II.
After the government’s appeal was docketed, Ackerland moved to dismiss the appeal of the district court’s underlying order granting the § 2255 motion. Ackerland asserted that this portion of the appeal was untimely under Federal Rule of Appellate Procedure 4(a)(1)(B), because it was filed more than sixty days after the
Under Rule 4(a)(1)(B), when the United States is a party, a notice of appeal must be filed “within 60 days after the judgment or order appealed from is entered.” Rule 4(a)(4) provides, however, that when a party files certain specified motions, the time to file an appeal runs from the district court’s entry of the order disposing of the motion. Ackerland contends that Rule 4(a)(4) is inapplicable, because the government’s “motion to reconsider” is not one of the tolling motions listed in the rule.
We conclude that the government timely filed its notice of appeal. Although we have discouraged the use of a self-styled motion to reconsider “that is not described by any particular rule of federal civil procedure,”
Sanders v. Clemco Indus.,
Ackerland relies on
United States v. Whitford,
III.
On the merits, the government argues that the district court erred in vacating Ackerland’s sentence, because Ackerland’s plea agreement included a waiver of his right to seek collateral relief under § 2255, and the court cited no valid reason to avoid the waiver. A defendant may waive the right to seek collateral relief under § 2255.
Chesney v. United States,
The plea agreement does not include a reservation of rights with respect to “an illegal sentence.” The agreement does say that Ackerland waives his right to appeal pursuant to 18 U.S.C. § 3742(a), “reserving only the right to appeal from an upward departure from the applicable Guideline range.” This reservation, however, applies only to a direct appeal, not to a collateral attack under § 2255, and in any event, the challenge at issue involves the district court’s computation of a criminal history score under Chapter Four of the Guidelines Manual, not an “upward departure from the applicable Guideline range.”
See
USSG § 1B1.1, comment. (n.1)(E) (“ ‘Departure’ means ... imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guideline sentence.”);
Irizarry v. United States,
Our cases, as opposed to Ackerland’s plea agreement, do establish that an otherwise valid waiver of post-conviction rights or appeal rights does not prevent a defendant from attacking “an illegal sentence.”
Andis,
The district court’s ruling is contrary to these clear statements from Andis. Ackerland’s sentence was within the statutory range. His claim accepted by the district court was that the sentencing judge misapplied the sentencing guidelines by miscalculating his criminal history score. The “illegal sentence exception” thus provides no basis for Ackerland to avoid his waiver of the right to contest his sentence in a post-conviction proceeding.
For the foregoing reasons, the district court’s order of February 8, 2010, granting Ackerland’s motion to vacate his sentence is vacated, and the case is remanded for further proceedings. Given this disposition, the government’s appeal of the district court’s denial of the motion to reconsider is moot.