Law Office of Jeremy Gordon Secures Time Served Order Following Successful 2255 Motion: Wright

United States v. Wright, No. 4:12-cr-197 (N.D. Okla.)

In 2013, Wright pled guilty to conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. 1951; attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951 and 2; possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c); and carjacking, in violation of 18 U.S.C. 2119. Wright’s 924(c) conviction was predicated on the attempted Hobbs Act robbery count. As a part of the plea agreement, Wright waived his right to challenge his conviction and sentence on direct appeal or by 28 U.S.C. 2255.

Wright was sentenced to a total term of 219 months imprisonment. The sentence consisted of 135 months on the two Hobbs Act counts and carjacking, to run concurrently, and 84 months on the 924(c) count, to be served consecutively.

Following the Supreme Court’s decision in United States v. Davis, 139 S.Ct. 2319 (2019), Wright successfully sought permission from the Tenth Circuit to file a second or successive 28 U.S.C. 2255 motion challenging the constitutionality of his 924(c) conviction. However, in July 2020, the district court denied Wright’s 2255 motion, concluding that every court to consider the issue held that aiding and abetting Hobbs Act robbery categorically qualifies as a crime of violence for 924(c) purposes. Wright timely appealed and sought a certificate of appealability from the Tenth Circuit. While the appeal was pending, the Supreme Court issued its decision in United States v. Taylor, 142 S.Ct. 2015 (2022).

After the denial of his 2255 motion, Wright engaged the services of the Law Office of Jeremy Gordon. On appeal, the government agreed to a joint remand so that the district court could decide the impact of Taylor on Wright’s case in the first instance. United States v. Wright, 2022 WL 3348980 (10th Cir. Aug. 15, 2022).

On remand, the district court ordered supplemental briefing on the effects of Taylor. The government conceded that Wright’s conviction for attempted Hobbs Act robbery could no longer support his 924(c) conviction. Nonetheless, the government urged the court to deny the 2255 motion because it alleged (1) Wright was procedurally barred from raising his Taylor claim, and (2) the collateral attack waiver of the plea agreement foreclosed relief.

In response, Wright argued that the procedural default doctrine had been overcome because, at the time of Wright’s direct appeal, every circuit court to have considered the issue concluded that attempted Hobbs Act robbery was a crime of violence under the elements clause of 924(c). As such, the state of the law at the time of Wright’s appeal did not offer a reasonable basis to challenge his plea. Accordingly, Wright contended that the novelty of the claim was sufficient cause for any procedural default. Turning to prejudice, the fact that Wrights suffered an unconstitutional conviction was enough to show that the error was an actual and substantial disadvantage.

In response to the plea agreement collateral review waiver, Wright argued that enforcement of the waiver would result in a fundamental miscarriage of justice. Serving an 84-month consecutive sentence for a crime he was actually innocent of, Wright argued, amounted to a miscarriage of justice if the plea waiver were enforced.

Alternatively, the government also argued that Wright was not actually innocent because of his carjacking conviction. According to the government’s theory, it could have charged Wright with a 924(c) predicated on carjacking but instead only relied on the attempted Hobbs Act robbery charge. According to the government, this meant that Wright was not actually innocent.

Wright countered that the government had made the same argument in an Eighth Circuit case, Jones v. United States, 39 F.4th 523 (2022). To that end, the Eighth Circuit held:

“The government suggests that Jones also brandished a firearm during a carjacking, but carjacking was not charged as a predicate crime of violence under Count Four. With no predicate offense to support the charge of brandishing a firearm during a crime of violence, Jones has established that he likely would not have entered the guilty plea to Count Four, and that it would be a miscarriage of justice to leave in place his 84-month consecutive sentence on that count.

39 F.4th at 526.

After receiving supplemental briefing from the parties, the district court entered its order granting Wright’s 28 U.S.C. 2255 motion. The court first found that both cause and prejudice had been established in the procedural default because the law at the time of Wright’s direct appeal did not offer a reasonable basis to challenge his guilty plea.

In addressing the collateral attack waiver, the court looked to (1) whether the disputed appeal fell within the scope of the waiver; (2) whether the defendant knowingly and voluntarily waived his appellate rights, and (3) whether enforcing the waiver would have resulted in a miscarriage of justice. The court noted that the Tenth Circuit had only found four instances where enforcing a collateral attack waiver would result in a miscarriage of justice: (1) where the district court relied on impermissible factors such as race; (2) where ineffective assistance of counsel in connection with the plea negotiations rendered the waiver invalid; (3) where the sentence exceeds the statutory maximum; and (4) where the waiver is otherwise unlawful. The district court found that Wright’s case fell under the third instance–concluding that leaving the 84-month sentence in place would constitution a fundamental miscarriage of justice.

Lastly, the district court turned to the government’s argument that there was no miscarriage of justice because Wright admitted facts that would have supported a conviction on the 924(c) charge based on the carjacking conviction. To this, the court responded that “Any number of circumstances could have, and likely would have, changed the law with respect to Attempted Hobbs Act Robbery and 924(c) been different at the time these crimes were originally charged. It is not possible, however, to reconstruct what might have happened then had the law been different. The fact remains that the only predicate offense for [the 924(c)] was the attempted Hobbs Act robbery . . . which the Supreme Court held in Taylor is not a crime of violence. As a result, any sentence imposed for their convictions for that crime exceeds that which is authorized by law[.]”

Accordingly, the district court granted Wright’s 2255 motion, vacated his conviction and sentence on the 924(c) count, and reduced Wright’s term of imprisonment to time served on the remaining counts of the Indictment.