MEMORANDUM OPINION
AMIT
P. MEHTA, UNITED STATES DISTRICT JUDGE.
Petitioner-Defendant
Kevin Brown seeks a 12-month reduction of his 72-month
sentence based on the government's purported breach of
the plea agreement. See Mot. for Sentence Reduction,
ECF No. 366 [hereinafter Pet.'s Mot.]. Petitioner's
motion is denied for two reasons.
First,
Petitioner waived his right to bring this motion. Petitioner
originally styled his motion as one arising under 18 U.S.C.
§ 3582(c)(2), see Id. at 1, but that statute
does not apply, as it concerns sentence reductions made
possible by a post-sentencing lowering of the guidelines
range by the U.S. Sentencing Commission, see 18
U.S.C. § 3582(c)(2). Consequently, the court construed
Petitioner's motion as one to “set aside or correct
the sentence” under 18 U.S.C. § 2255. See
Order, ECF No. 417; see also Minute Order, June 25,
2018. However, as part of his plea agreement, Petitioner
waived his right to “modify or change the sentence . .
. in any collateral attack, including, but not limited to, a
motion brought under 28 U.S.C. § 2255.” Plea
Agreement, ECF No. 61 [hereinafter Plea Agreement], ¶
10.E at 9; see also Plea Hr'g Tr., ECF No. 177
[hereinafter Plea Hr'g], at 28-29 (waiver of collateral
attack rights).[1] Therefore, the court cannot consider
Petitioner's sentence reduction request. See United
States v. Bertram, 209 F.Supp.3d 243, 249-50 (D.D.C.
2016) (enforcing waiver of collateral attack rights); cf.
United States v. Adams, 780 F.3d 1182, 1183-84 (D.C.
Cir. 2015) (enforcing waiver of right to
appeal).[2]
Second,
Petitioner's claim fails on the merits. Contrary to
Petitioner's assertion, the government did not promise to
ask for only a 60-month sentence, such that its request for
an 84-month sentence breached the plea agreement.
See Pet.'s Mot. at 1-2. Rather, the parties
agreed, pursuant to Federal Rule of Civil Procedure
11(c)(1)(C), to present for the court's approval a
stipulated sentencing range of 60 to 84 months of
imprisonment. See Plea Agreement ¶ 5 at 5; Plea
Hr'g at 12 (acknowledging plea under Rule 11(c)(1)(C) and
proposed range). The government made no promise as to what
sentence it would ask for within the agreed-upon range.
Cf. Id. But by presenting a sentencing range for the
court's approval, instead of a fixed term, the
parties' “reasonable understanding” plainly
was that the government could request a sentence at the top
of that range. United States v. Murray, 897 F.3d
298, 304 (D.C. Cir. 2018) (citation omitted). The
government's request for an 84-month sentence therefore
did not constitute a breach of the plea agreement.
Petitioner's
reliance on section 4.C of the plea agreement is misplaced.
See Pet.'s Mot. at 1 (citing “page 4 of
13, Section C”). That section simply established 60
months as the applicable guidelines range due to the
statutory mandatory minimum sentence the court had to impose.
See Plea Agreement ¶ 4.C at 4. It does not
contain a promise by the government to seek a term of
imprisonment of only 60 months. In any event, the 60-month
guideline became largely academic upon the court's
acceptance of the parties' agreed-upon sentencing range.
As discussed, under the parties' Rule 11(c)(1)(C) plea,
the court was bound to sentence Petitioner within a range of
60 to 84 months when it accepted the plea, and the government
made no promise as to the sentence it would seek within that
range. The applicable guideline of 60 months thus provides no
ground upon which to assert a breach by the government.
For the
foregoing reasons, Petitioner's Motion for Sentence
Reduction is denied. The court declines to issue a
certificate of appealability, as reasonable jurists would not
disagree as to the outcome of Petitioner's Motion.
See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(citation omitted).
A
final, appealable order accompanies this Memorandum Opinion.
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Notes:
[1] Neither of the two instances in which
Petitioner reserved his right to bring a collateral
attack-the discovery of new evidence or a claim of
ineffective assistance of counsel, see Plea
Agreement ¶ 10.E. at 9-are applicable here.
[2] The court also agrees that Petitioner
has procedurally defaulted his claim. Petitioner could have
raised the government's purported breach on appeal,
see, e.g., United States v. Murray, 897
F.3d 298 (D.C. Cir. 2018) (addressing on direct review
alleged breach of plea agreement by the government), but he
elected not do so, see U.S.' Opp'n to
Pet.'s Mot., ECF No. 455, at 6 (summarizing history of
direct appeal). Petitioner has shown neither cause nor actual
prejudice to overcome the procedural bar. See Bousley v.
United States, 523 U.S. 614, 622 (1998) (stating with
respect to a section 2255 petition, “[w]here a
defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas
only ...