FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Michael Tumposky, with whom Hedges & Tumposky, LLP was on
brief, for appellant.
T. Quinlivan, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
Thompson, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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 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
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.
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)
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.
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.
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
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.
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 ...