United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES, District Judge.
Alton Paramore, Jr., was indicted in a two-count indictment.
Count 1 charged that Paramore had committed forcible assault
against an officer of the United States, a correctional
officer at the Federal Correctional Complex in Forrest City,
Arkansas, while that officer was engaged in the performance
of his duties, in violation of 18 U.S.C. Â§Â§ 111(a)(1) and
111(b). Document #1. Paramore was also charged with making a
prohibited weapon in violation of 18 U.S.C. Â§ 1791(a)(2).
Id. Paramore entered into a plea agreement with the
United States pursuant to Federal Rule of Civil Procedure
11(c)(1)(C). Document #63. Pursuant to that agreement,
Paramore pled guilty to Count 1. Id. Count 2 was
dismissed. Document #68. In the plea agreement, Paramore and
the United States stipulated to a sentence of 120 months.
Document #63 at 4. At sentencing, the Court accepted the plea
agreement and sentenced Paramore to 120 months. Document #67.
has now filed a motion to vacate and correct his sentence
pursuant to 28 U.S.C. Â§ 2255 and a motion to appoint counsel.
Paramore argues in his motion that his sentence should be
vacated and corrected pursuant to Johnson v. United
States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569,
which held that the residual clause definition of a crime of
violence in the Armed Career Criminal Act, 18 U.S.C. Â§
924(e)(2)(B)(ii), is unconstitutional.
U.S.C. Â§ 2255 provides prisoners in federal custody a
mechanism to challenge the constitutionality, legality, or
jurisdictional basis of a sentence imposed by the court.
Relief under Â§ 2255 is "reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if
uncorrected would result in a complete miscarriage of
justice." United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996). Rule 4(b) of the Rules Governing
Section 2255 Proceedings provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or take other action the judge may order.
the record shows conclusively that Paramore is entitled to no
presentence report shows the base offense level was 14 under
U.S.S.G. Â§ 2A2.2. A four-level enhancement was applied
pursuant to Â§ 2A2.2(b)(2)(B) because a dangerous weapon was
designed, possessed and used. A six-level enhancement was
applied pursuant to U.S.S.G. Â§ 2A2.2(b)(3)(E) because the
victim sustained serious bodily injury. A two-level
enhancement was also applied pursuant to U.S.S.G. Â§
2A2.2(b)(6) because the offense of conviction was under 18
U.S.C. Â§ 111(b). Finally, a six-level enhancement was applied
pursuant to U.S.S.G. Â§ 3A1.2(c)(2). The enhancements brought
the adjusted offense level to 32. Paramore was deemed to be a
career offender, but under U.S.S.G. Â§ 4B1.1, the offense
level also was 32, so his classification as a career offender
did not effect the offense level. At sentencing, the
government moved for a three-level reduction for acceptance
of responsibility. With the three-level reduction,
Paramore's total offense level was 29.
presentence report reported that Paramore was convicted of
two counts of bank robbery in the United States District
Court for the Eastern District of Tennessee in 1999. He was
also convicted of one count of aiding and abetting bank
robbery by force and violence and three counts of bank
robbery by force and violence in the United States District
Court for the Western District of North Carolina in 2004.
According to the presentence report, Paramore had a total
criminal history score of 11, which would have created a
criminal history category of V, but because he was a career
offender, the criminal history category was VI pursuant to
U.S.S.G. Â§ 4B1.1(b).
sentencing table provides for a term of imprisonment between
151 and 188 months for a person with an offense level of 29
and a criminal history category of VI. The sentencing table
also provides for a sentencing range of 140 to 175 months for
a person with an offense level of 29 and a criminal history
category of V. Paramore, however, was sentenced to a term of
120 months pursuant to his Rule 11(c)(1)(C) plea agreement.
Document #63. He was not sentenced pursuant to the
guidelines. Had he been sentenced under the guidelines as a
career offender, as noted, the guideline range would have
been between 151 and 188 months imprisonment. Had he been
sentenced under the guidelines without the designation of a
career offender, his guideline range would have been 140 to
175 months imprisonment. Because the classification of
Paramore as a career offender under the guidelines had no
effect on his sentence, he is not entitled to relief under
Johnson, even if Johnson applies
retroactively to cases on collateral review (which it
probably does not). See United States v. John Keith
McCaughan, E.D. Ark. No. 4:09CR00043-JLH-1, Document
established in the Eighth Circuit that a knowing and
voluntary waiver of collateral-appeal rights is generally
enforceable. Ackerland v. United States, 633 F.3d
698, 701 (8th Cir. 2011); DeRoo v. United States,
223 F.3d 919, 923 (8th Cir. 2000). "Such a waiver is
enforceable when the claim raised falls within the scope of
the waiver, the defendant knowingly and voluntarily entered
into the plea agreement and waiver, and enforcement of the
waiver would not result in a miscarriage of justice."
Ackerland, 633 F.3d at 701 (citing United States
v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en
banc)). Paramore's plea agreement provides that the
defendant waives the right to attack his conviction and
sentence collaterally pursuant to 28 U.S.C. Â§ 2255, except
for claims based on ineffective assistance of counsel or
prosecutorial misconduct. Document #63 at 3. Paramore does
not contend that the sentence imposed was in violation of
this plea agreement, nor does he contend that his guilty plea
was unknowingly and involuntarily made due to ineffective
assistance of counsel. The Eighth Circuit has recognized that
an otherwise valid waiver of post-conviction rights does not
prevent a defendant from attacking an illegal sentence but
"the illegal sentence exception to the general
enforceability of an appeal waiver is an extremely narrow
exception" and does not include sentences imposed within
the statutory range or misapplications of the sentencing
guidelines. Ackerland, 633 F.3d at 702. "A
sentence is illegal when it is not authorized by the judgment
of conviction or when it is greater or less than the
permissible statutory penalty for the crime."
Andis, 285 F.3d at 729. Paramore's sentence was
not illegal. Indeed, it was below the guideline range with or
without the career offender enhancement. And it was exactly
the sentence for which Paramore bargained and to which he
reasons stated, Julian Alton Paramore, Jr.'s motion to
vacate and correct his sentence pursuant to 28 U.S.C. Â§ 2255
is denied. Document #70. The motion to appoint counsel is
denied. Document #71. No certificate of appealability will be
issued. The Court directs the ...