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Remington v. United States

United States Court of Appeals, First Circuit

September 27, 2017

JAMES REMINGTON, Petitioner, Appellant,
UNITED STATES OF AMERICA, Respondent, Appellee.


          Michael Tumposky, with whom Hedges & Tumposky, LLP was on brief, for appellant.

          Mark T. Quinlivan, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

          Before Thompson, Kayatta, and Barron, Circuit Judges.


         This appeal concerns a collateral challenge that James Remington brings under 28 U.S.C. § 2255 regarding his underlying criminal case, in which he received consecutive prison sentences for his two federal convictions. Remington brings this § 2255 motion[1] notwithstanding that he had pleaded guilty to the underlying crimes pursuant to a plea agreement in which he waived his right to bring certain collateral challenges to either his convictions or his sentences for them.

         Without reference to that waiver, the District Court denied the motion, and Remington argues to us that the District Court erred in doing so. We conclude that the waiver in the plea agreement, coupled with Remington's failure to argue in his briefs that it is self-evidently inapplicable, bars Remington from filing the motion. Accordingly, we vacate the judgment denying the motion on the ground that the motion must be dismissed.


         In 1998, pursuant to a plea agreement, James Remington pleaded guilty in the District of Massachusetts to one count of bank robbery in violation of 18 U.S.C. § 2113(a) and to one count of using a firearm during a "crime of violence" in violation of 18 U.S.C. § 924(c)(1). The bank robbery conviction was the predicate conviction for a "crime of violence" underlying the § 924(c) conviction.

         Under the plea agreement, the parties agreed to recommend that Remington be considered a career offender within the meaning of the United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1(C) for purposes of sentencing him for the bank robbery conviction. Under the sentencing guidelines, an adult defendant with two prior felony convictions for a "crime of violence" qualifies as a career offender upon a third such conviction. U.S.S.G. § 4B1.1. And, in consequence of that designation, a defendant is subject to an enhanced sentencing range. See id.

         The plea agreement then stated that under the sentencing guidelines Remington's base offense level was 32. But the plea agreement explained that the parties agreed, subject to certain conditions, to recommend a three-level downward adjustment for Remington's acceptance of responsibility for the bank robbery. See id. § 3E1.1.

         Ultimately, based on these determinations under the sentencing guidelines, the plea agreement recommended a prison sentence for the bank robbery conviction of 151 months of imprisonment. The plea agreement also recommended as the sentence for the § 924(c) conviction a consecutive term of imprisonment of 60 months, which is the mandatory minimum sentence for that offense. See § 924(c)(1)(A)(i). In addition, the plea agreement contained a provision in which Remington waived certain of his rights to appeal from or to challenge collaterally his convictions and sentences.

         At sentencing, the District Court adopted the parties' recommendation, consistent with the plea agreement, that Remington be considered a career offender under the sentencing guidelines. In determining that Remington was a career offender, the District Court relied on a presentence investigation report finding that Remington had two predicate Massachusetts felony convictions for a crime of violence: a 1989 conviction for armed robbery and a 1990 conviction for assault and battery with a deadly weapon. The District Court denied, however, the recommended downward adjustment for acceptance of responsibility conditionally set forth in the plea agreement because, the District Court explained, Remington had briefly escaped from custody in the intervening period since he had entered into the plea agreement.

         Having made these decisions, the District Court determined that Remington's guidelines sentencing range for the bank robbery conviction was 210 to 262 months based on having assigned him a total offense level of 32 and a criminal history category of VI. This range was mandatory because Remington was sentenced before the Supreme Court decided United Statesv.Booker, 543 U.S. 220 (2005), which held that the sentencing guidelines are advisory rather than mandatory. Id. at 245-46. The District Court then sentenced Remington to 240 months of imprisonment for his bank robbery conviction, which is ...

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