Case Information

‐ UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________

August Term, (Submitted: October Decided: November Docket No.

_________________________

E LIJAH S ANFORD ,

Petitioner ,

‐‐   ‐‐

U NITED S TATES OF A MERICA

Respondent . _________________________

Before:

K ATZMANN Chief Judge W ESLEY H ALL Circuit Judges . _________________________

Elijah moves U.S.C. challenging Hobbs Act robbery. Because conclude of rights found his agreement enforceable and bars proceeding, DISMISS his motion.

_________________________ B ARRY D. L EIWANT Edward Scott Zas, Federal Defenders New York, Inc., New York, New York, for Petitioner.

M ATTHEW S. A MATRUDA Jo Ann M. Navickas, Attorney’s Office Eastern District New York, Brooklyn, New York, Respondent.

_________________________

P ER C URIAM :

Elijah Sanford pleaded guilty one count Hobbs Act robbery, violation U.S.C. § In his agreement, Sanford agreed “not file or otherwise challenge conviction or event impose[d] term imprisonment months below.” The district court accepted plea, sentenced him to, inter alia, months’ imprisonment. did direct appeal. later filed pro se sentence, U.S.C. arguing district court had lacked jurisdiction over

case lawyers had provided ineffective assistance during criminal proceedings. district court denied motion, finding both arguments *3 were meritless that latter claim barred by Sanford’s of his right collaterally sentence. This Court thereafter denied Sanford a certificate appealability. adjudication of Sanford’s first § 2255 motion became final in now moves, through counsel, §

motion, arguing sentence has been rendered unconstitutional under Johnson S. Ct. (2015). Specifically, he states based, in part, on so called residual clause Sentencing Guidelines (“U.S.S.G.”) § 4B1.2(a)(2), argues residual clause unconstitutionally vague under principles discussed Johnson .

This Court stayed decision on Sanford’s pending further briefing supplementation record Galtieri 1997).

In opposition Sanford’s motion, Government argues agreement bars present proceedings. We agree.

*4 This must deny leave to file a successive § 2255 claim unless, relevant part, it “contain[s]” “a new rule constitutional law, made retroactive to cases collateral review by Supreme Court, previously unavailable.” 28 U.S.C. § 2255(h)(2). We may authorize filing successive § 2255 motion only if movant made prima facie showing proposed motion satisfies criteria. 28 U.S.C. § 2244(b)(3)(C); see Bell v. F.3d (2d Cir. 2002) (stating prima facie standard applies § 2255(h) motions). We have previously granted many motions § motions presenting ‐ challenges residual clause 4B1.2(a)(2). See, e.g. Blow F.3d (2d Cir. 2016). Here, we do reach merits Sanford’s because it is barred by collateral attack agreement.

A defendant’s knowing voluntary right collaterally attack and/or enforceable. See Gomez Perez F.3d (2d Cir. 2000) (addressing appellate rights); Tellado (addressing collateral waiver). While “plea agreements are be applied ‘narrowly’ review. By separate order, deny request stay, terminate stay previously entered case.

construed ‘strictly against the government,’” v. Hernandez , F.3d 110, (2d Cir. 2001) (quoting Tang F.3d 365, (2d Cir.

2000)), “exceptions to the presumption the enforceability of a . . .

occupy a very circumscribed area our jurisprudence,” Gomez Perez F.3d at For instance,

[i]n some cases, a defendant may have a valid claim that the appellate rights is unenforceable, such as [(1)] when was not made knowingly, voluntarily, competently, [(2)] when imposed constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, [(3)] when government breached plea agreement, [(4)] when sentencing court failed enunciate any rationale defendant’s sentence, thus amount[ing] an abdication judicial responsibility subject mandamus.

Id.

Even assuming, however, sentenced a Guidelines provision is unconstitutional after held “a defendant’s ‘inability foresee [a change law] does supply basis failing enforce waiver. On contrary, possibility favorable change law after simply one risks accompanies pleas agreements.’” Lee F.3d (quoting Morgan (2d Cir. 2005)). *6 This Court has “upheld provisions even in circumstances where sentence was conceivably imposed in an illegal fashion in violation Guidelines, but yet was still within range contemplated in plea agreement.” Gomez ‐ Perez , 215 at 319 (citing United States v. Yemitan , 70 F.3d 746, 748 (2d Cir. 1995) (enforcing appeal despite allegation was imposed in illegal fashion)).

Although Court has addressed issue in published decision, Court has recently denied, waivers movants’ agreements, several motions 2255 motions raising Johnson claims. See, e.g. , Riggins v. United States , 2d Cir. ‐ 1157, doc. 43; Parson 2d Cir. ‐ 1401, doc. 42; Benjamin v. 2d Cir. ‐ 1511, doc. also enforced appeal waivers recent direct

appeals, despite presence similar Johnson claims. See Blackwell F. App’x ‐ Cir. June (Summary Order) (concluding defendant’s argument Guidelines range erroneously calculated because, state robbery convictions were no longer “crimes violence,” foreclosed by agreement); Cook (Wilson) 2d (L), doc. *7 (04/12/2016 Order) (granting Government’s dismiss appeal appeal despite appellant making claim).

The record case shows that the enforceable. Sanford agreed his plea agreement “not appeal or otherwise the conviction or sentence the event that the Court imposes term imprisonment months or below.” The imposed months’ imprisonment, thus triggering waiver. Additionally, was knowing and voluntary: during plea hearing, district court confirmed that Sanford had signed agreement and discussed it with lawyer, that he competent plead guilty, and that he had no questions about plea. district court also reviewed terms Sanford’s waiver, although it did specifically mention had waived right “otherwise challenge” or (i.e., collaterally attack them).

Given sworn statement he had talked with lawyer about agreement signed it, there being no evidence indicating coerced misunderstood any relevant facts, conclude he knowingly voluntarily agreed waiver. therefore bars present motion because encompasses any sentence. Accordingly, motion DISMISSED.

[1] In lieu reply, moved stay present proceeding pending outcome Beckles S. Ct. (2016) (order granting writ certiorari), which Supreme granted certiorari decide, inter alia, whether applies retroactively 4B1.2(a)(2)