Submitted: September 22, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
district court granted Larry Cooney's motion to
vacate and correct his sentence and resentenced him to 108
months' imprisonment. Cooney now appeals that sentence.
We dismiss the appeal, however, based on the appellate waiver
in his plea agreement.
2013, Cooney pleaded guilty to being a felon in possession of
a firearm. See 18 U.S.C. § 922(g)(1). The plea
agreement provides, with exceptions not relevant here, that
Cooney "waives the right to appeal the conviction and
sentence directly under Title 28, United States Code, Section
1291 and/or Title 18, United States Code, Section §
3742(a)." Cooney signed the plea agreement and, after
listening to a description of the waiver, assented to the
waiver again at the plea hearing. At the sentencing hearing,
the district court imposed a 180-month term of
imprisonment-the minimum term for armed career criminals
under the Armed Career Criminal Act. See 18 U.S.C.
§ 924(e); see also United States v. Mata, 869
F.3d 640, 642 (8th Cir. 2017) (describing the designation).
Cooney had stipulated to his designation as an armed career
criminal in the plea agreement.
years after sentencing, Cooney moved under 28 U.S.C §
2255 to vacate and correct his sentence in light of
Johnson v. United States, 135 S.Ct. 2551 (2015). In
Johnson, the Supreme Court held that the Armed
Career Criminal Act's residual clause-under which Cooney
had been designated as an armed career criminal-was
unconstitutionally vague. Id. at 2557. That decision
applied retroactively on collateral review to prisoners like
Cooney. See Welch v. United States, 136 S.Ct. 1257,
1268 (2016). The Government conceded that Cooney no longer
qualified as an armed career criminal, and it did not oppose
Cooney's § 2255 motion. The district court vacated
his sentence and resentenced him to 108 months'
imprisonment and three years' supervised release. The
sentence was less than the ten-year statutory maximum.
See 18 U.S.C. § 924(a)(2).
then brought this appeal under 28 U.S.C. § 1291. He
challenges the calculation of his sentencing guidelines
range, the substantive reasonableness of the sentence, and
certain special conditions of his supervised release. The
Government moved to dismiss the appeal based on the appellate
waiver in the plea agreement.
long as there is no miscarriage of justice, we will enforce a
defendant's waiver if the appeal falls within the scope
of the waiver and the defendant entered into the waiver and
the plea agreement knowingly and voluntarily."
United States v. Seizys, 864 F.3d 930, 931 (8th Cir.
2017). The basis for waiver here is straightforward. A
defendant signing a plea agreement and assenting again at a
plea hearing generally indicate a knowing and voluntary
waiver. See, e.g., United States v.
Aronja-Inda, 422 F.3d 734, 738 (8th Cir. 2005). Cooney
did both here, and in the agreement, he waived his right to
appeal his sentence "under Title 28, United States Code,
Section 1291." Cooney now appeals his sentence-which
includes conditions of supervised release, see United
States v. Meirick, 674 F.3d 802, 806 (8th Cir.
2012)-under Title 28, United States Code, Section 1291.
tries to circumvent the waiver with three arguments. He first
argues that because the "basic assumptions on which this
agreement was made are no longer true, " we should
decline to enforce the waiver. He is correct that the plea
agreement stipulated to his armed-career-criminal status
based on the now-invalidated residual clause. But a
"voluntary plea of guilty intelligently made in the
light of the then applicable law does not become vulnerable
because later judicial decisions indicate that the plea
rested on a faulty premise." United States v.
Reeves, 410 F.3d 1031, 1035 (8th Cir. 2005) (quoting
Brady v. United States, 397 U.S. 742, 757 (1970)).
Time and again, appellate courts have enforced appellate
waivers even after the law has changed. See, e.g.,
Reeves, 410 F.3d at 1035; see also United States
v. Morrison, 852 F.3d 488, 490 (6th Cir. 2017). Courts
often have done so when confronted with Johnson
claims in particular. See Morrison, 852 F.3d at 491
(collecting cases). Indeed, if Cooney were correct, and a
change in law voided an appellate waiver, then a waiver would
mean little. See, e.g., United States v.
Bradley, 400 F.3d 459, 465 (6th Cir. 2005). The law
often changes. A "favorable change in the law after a
plea is simply one of the risks that accompanies" plea
agreements. United States v. Lee, 523 F.3d 104, 107
(2d Cir. 2008) (citation omitted).
next argues that because the waiver fails to mention
resentencing, his appeal falls outside its scope. But whether
preceded by "a sentencing or a resentencing (here,
following a separate, successful collateral attack), the
result challenged is the same: a sentence that is
incorporated in the judgment." United States v.
Kutz, No. 16-6266, 2017 WL 2799859, at *5 (10th Cir.
June 28, 2017) (emphasis in original). That result is what
Cooney appeals and the waiver covers. Courts in this circuit
and others agree: an appellate waiver bars an appeal after
resentencing. See id.; United States v.
Jackson, 328 Fed.Appx. 348, 348-49 (8th Cir. 2009) (per
curiam); United States v. Capaldi, 134 F.3d 307, 308
(5th Cir. 1998). Cooney responds by citing United States
v. McBride, 826 F.3d 293 (6th Cir. 2016), but "the
McBride plea agreement, unlike the one here, did not
include an appeal waiver." See Morrison, 852
F.3d at 491.
final argument fares no better. He claims that the district
court sentenced him to lengthy imprisonment based on a
variety of sentencing errors. According to Cooney, the
district court miscalculated the sentencing guidelines,
overemphasized his criminal history, and improperly expressed
its disagreement with the Johnson decision.
Enforcing the waiver under these circumstances, Cooney
argues, would constitute a miscarriage of justice. Yet
Cooney's sentence now comports with Johnson and
"is within the statutory range authorized for the
offense of conviction, " so enforcing "the waiver
will not result in a miscarriage of justice." See
United States v. Reynolds, 432 F.3d 821, 824 (8th Cir.
2005); see also United States v. Andis, 333 F.3d
886, 892 (8th Cir. 2003) (en banc) ("Specifically, an
allegation that the sentencing judge misapplied the
Sentencing Guidelines or abused his or her discretion is not
subject to appeal in the face of a valid appeal
waiver."). Cooney cites nothing to the contrary. He
invokes United ...