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United States v. Akel

United States District Court, D. Nevada

July 25, 2019

United States of America, Plaintiff
v.
Gergory Akel, Defendant

          ORDER DENYING GOVERNMENT'S MOTION TO DISMISS AND ORDERING GOVERNMENT RESPONSE [ECF NOS. 121, 125]

          JENNIFER A. DORSEY U.S. DISTRICT JUDGE

         Federal prison inmate Gregory Akel brings this § 2255 petition to modify his sentence after he pled guilty to receipt of child pornography.[1] He contends that a post-sentencing amendment to the U.S. Sentencing Guidelines entitles him to a sentence reduction. The government moves to dismiss his petition because Akel waived his right to bring collateral challenges in his plea agreement.[2] I construe Akel's § 2255 petition as a motion for resentencing under 18 U.S.C. § 3582(c)(2). And because a motion under that statute is not a collateral attack, I deny the government's motion to dismiss and order the government to respond to the merits of Akel's motion by August 8, 2019.

         Background

         In March 2015, Akel signed a plea agreement in which he pled guilty to one count of receipt of child pornography.[3] In the agreement, the parties agreed to jointly recommend a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distributing material[4] and a low-end guidelines-range sentence of 97-121 months.[5] Akel also waived all collateral challenges, including claims under 28 U.S.C. § 2255.[6] At Akel's March 2015 sentencing hearing, the government failed to recommend a low-end sentence, [7] and the sentencing judge sentenced Akel to a mid-range sentence of 112 months.[8]

         Akel appealed, contending that the government breached the plea agreement by failing to recommend a low-end sentence, and he requested that his sentence be vacated and the case be remanded to a different judge for resentencing. The government did not oppose Akel's appeal, and the Ninth Circuit reversed, remanded, and ordered that the case be reassigned for resentencing. At Akel's May 2017 resentencing hearing, the parties agreed that the 2015 Sentencing Guidelines should be applied to Akel's case. Using that version of the Guidelines, I sentenced Akel to 99 months' imprisonment.[9]

         Akel appealed, and the Ninth Circuit dismissed his appeal in light of the valid appeal waiver.[10] Then, in October 2018, Akel filed his first § 2255 petition, arguing that Amendment 801 to the 2016 Sentencing Guidelines “expressly requires that distribution be knowing for the two-level enhancement [in U.S.S.G. § 2G2.2(b)(3)(F)] to apply.”[11] He contends that he did not admit to knowing distribution in his plea agreement, so his sentence should be modified in light of Amendment 801. Akel then filed an identical “amended petition” in March 2019.[12]

         I ordered the government to respond to Akel's petition in April, [13] and the government moved to dismiss it, arguing that Akel waived all collateral attacks to his sentence.[14] Akel responds that his petition was not a collateral attack to his original sentence, but rather a request for modification in light of a post-sentencing amendment to the applicable guideline.[15]Alternatively, Akel argues that if his request is a collateral attack that was waived, his counsel's failure to inform him of that fact amounts to ineffective assistance of counsel. The government did not reply.

         Discussion A.

         I construe Akel's § 2255 petition as a motion for resentencing under 18 U.S.C. § 3582(c)(2).

         In his operative § 2255 petition, Akel states that the Sentencing Commission recently issued and enacted Amendment 801, which clarifies the application of the 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). Akel argues that following that amendment, a 2-level enhancement under § 2G2.2(b)(3)(F) should be applied only for knowing distribution of unlawful images and he did not admit to knowing distribution in his plea agreement. He contends that this amendment therefore requires his sentence to be corrected.

         But Akel's claim is not cognizable under § 2255:

Although collateral review under section 2255 is . . . quite broad, “it does not encompass all claimed errors in . . . sentencing.” If a petitioner does not allege lack of jurisdiction or constitutional error, an error of law will not provide a basis for habeas relief unless that error “resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure.”[16]

         Akel's contention that he should be resentenced in light of Amendment 801 raises neither constitutional nor jurisdictional error. Further, a “‘district court's failure to apply a guideline that was not effective at the time of sentencing does not give rise to a complete miscarriage of justice.'”[17] So, Akel's claim is not cognizable under § 2255. However, “consistent with the duty of federal courts to construe pro se pleadings liberally, ” I construe Akel's § 2255 petition as a motion for resentencing under 18 U.S.C. § 3582(c)(2).[18]

         B. A motion under § 3582(c)(2) is not encompassed in the waiver of Akel's right to collaterally attack his sentence

         Akel's plea agreement contained a waiver provision, in which he “knowingly and expressly waive[d] all collateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the Court adjudicated guilt and imposed sentence, except non-waivable claims of ineffective assistance of counsel.”[19] The government moves to dismiss Akel's petition based on this waiver. Akel responds that his request for a modification of his sentence is not a collateral attack and is therefore not waived under that provision. Because I construe Akel's § 2255 petition as a request for a sentence modification under § 3582(c)(2), the question that remains is whether a § 3582(c)(2) motion is a collateral attack within the meaning of Akel's plea agreement.

         The Ninth Circuit has not addressed head-on the issue of whether a broad collateral-attack waiver bars § 3582(c)(2) motions. But in United States v. Lightfoot, it held that a broad appellate waiver didn't waive the defendant's right to appeal the district court's denial of his § 3582(c)(2) motion.[20] In reaching that conclusion, the court highlighted the different considerations in a § 3582(c)(2) motion versus original sentencing and quoted the Fifth Circuit's holding in United States v. Cooley that “a motion for sentence modification under 18 U.S.C. § 3582(c)(2) is not properly considered an ‘appeal' or ‘collateral proceeding' under the terms of a general waiver of appeal . . . .”[21]

         Other circuit courts that have addressed this issue have all held that § 3582(c)(2) motions are not barred collateral attacks. For example, the Seventh Circuit found that a § 3582(c)(2) motion “is fundamentally different from the legal challenges and assertions of error typically at issue in appeals and collateral attacks” because a defendant does not “seek to impugn the district court's rationale, nor . . . claim that the district court erred in any way” by imposing the sentence it did; instead, a defendant “simply ask[s] the district court to consider revising his sentence in light of a development completely external to the court's original judgment . . . .”[22] The Tenth Circuit reached a similar conclusion in United States v. Chavez-Salais.[23] The defendant waived his right to appeal or “challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to, a motion brought under [§ 2255], except to the extent that the court may depart upwards from the applicable sentencing guideline range.”[24] He later moved to modify his sentence under ...


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