          United States Court of Appeals
                     For the First Circuit

No. 16-2462

                        JAMES REMINGTON,

                     Petitioner, Appellant,

                               v.

                   UNITED STATES OF AMERICA,

                     Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before

                 Thompson, Kayatta, and Barron,
                         Circuit Judges.


     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.



                       September 27, 2017
           BARRON,      Circuit   Judge.      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 motion1 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.

                                     I.

           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



     1 The District Court characterized Remington's filing as a
"petition," but we refer to it as a "motion" -- as Remington did
in the filing itself -- just as § 2255 itself does.


                                   - 2 -
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


                                           - 3 -
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 States v. Booker,

543 U.S. 220 (2005), which held that the sentencing guidelines are


                                   - 4 -
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 the statutory maximum under

§ 2113(a), and to a mandatory consecutive term of 60 months of

imprisonment for his conviction for violating § 924(c).

          More than seventeen years into serving his sentence,

Remington filed this collateral challenge pursuant to 28 U.S.C.

§ 2255 in the United States District Court for the District of

Massachusetts.      Remington's motion under § 2255 seeks to vacate

his conviction under § 924(c) for use of a firearm during the

commission of a crime of violence and to vacate his sentence for

his conviction for bank robbery in violation of § 2113(a).

          The motion relies for both challenges on Johnson v.

United States, 125 S. Ct. 2551 (2015), and Welch v. United States,

136 S. Ct. 1257 (2016).     In Johnson, the Supreme Court held that

what is known as the residual clause in the Armed Career Criminal

Act's    ("ACCA")     definition     of    a   "violent   felony"   is

unconstitutionally vague and thus that the federal Constitution's

guarantee of due process prohibits a defendant's sentence from

being enhanced under the ACCA on the basis of a determination that

a prior offense qualifies as a "violent felony" under the ACCA's

residual clause.      125 S. Ct. at 2556-63.2    Welch then held that


     2 The ACCA's residual clause provides that a "violent felony"
includes any felony that "involves conduct that presents a serious


                                   - 5 -
Johnson's vagueness holding applies retroactively.          136 S. Ct. at

1268.

            Remington contends that, in light of Johnson and Welch,

he is entitled both to resentencing for his bank robbery conviction

under § 2113(a) and to have his § 924(c) conviction (and thus the

accompanying sentence for it) overturned.       First, he argues that,

in light of Johnson, the residual clause that is part of the

career-offender sentencing guideline's definition of a "crime of

violence" is unconstitutionally vague, given that the guideline

was mandatory rather than advisory at the time of his sentencing,

because the wording of the guideline's residual clause is identical

to the wording of the residual clause in the ACCA that Johnson

struck down as unconstitutionally vague.        Remington then proceeds

to argue that his prior Massachusetts convictions for armed robbery

and assault and battery with a deadly weapon do not otherwise fall

within the career-offender guideline's definition of a "crime of

violence."3   Thus, in his view, he must be resentenced, as he does

not have the number of predicate convictions for a "crime of




potential risk    of   physical   injury   to   another."      18   U.S.C.
§ 924(e)(2)(B).
        3
       At the time of Remington's sentencing, the sentencing
guidelines defined a "crime of violence" to include, under the
definition's residual clause, any felony that "involves conduct
that presents a serious potential risk of physical injury to
another." U.S.S.G. § 4B1.2(a)(2) (Nov. 1, 1998).


                                  - 6 -
violence" that are required in order for the career-offender

guideline to which he was subject at sentencing to apply.

           Second, Remington argues that, in light of Johnson, the

residual clause in § 924(c)'s definition of a "crime of violence"

is unconstitutionally vague, given that this provision's residual

clause is worded so similarly to the residual clause in the ACCA

that Johnson invalidated.      Remington then goes on to contend that

his federal bank robbery conviction cannot serve as the predicate

"crime of violence" under § 924(c) because that conviction is not

for an offense that otherwise falls within § 924(c)'s definition

of a "crime of violence."4     And, thus, he argues, that conviction

-- and its accompanying sentence -- cannot stand.

           In response to Remington's § 2255 motion, the government

moved to stay the proceedings pending the Supreme Court's decision

in Beckles v. United States, 136 S. Ct. 2510 (2016).         At the time,

the Supreme Court had granted a writ of certiorari in Beckles to

review whether Johnson's constitutional vagueness holding applies

to   the   residual   clause    in   the   career-offender    sentencing

guideline's definition of a "crime of violence."        See Beckles v.

United States, 137 S. Ct. 886, 891-92 (2017).



     4 The residual clause in § 924(c)'s definition of a "crime of
violence" refers to any felony "that by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense."
18 U.S.C. § 924(c)(3)(B).


                                  - 7 -
            Without   responding     to     the   government's   motion    or

requesting an answer from the government to Remington's § 2255

motion, however, the District Court denied Remington's motion.            In

doing so, the District Court ruled that, regardless of whether

Johnson's holding applies to the residual clause in the definition

of a "crime of violence" in the sentencing guidelines, each of

Remington's prior convictions qualifies as one for an offense that

is a "crime of violence" under what is known as the force clause

in the definition of a "crime of violence" in the career-offender

guideline.5

            Following this ruling, Remington sought a certificate of

appealability, which the District Court issued. This timely appeal

followed.     We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a).

                                     II.

            As a threshold matter, the government contends that in

the plea agreement, Remington waived his right to bring this

collateral challenge.      We thus begin our analysis by considering

that potentially show-stopping contention.

            The plea agreement provides that Remington waives his

rights   to    challenge   either    on     appeal   or   collaterally    his


     5 The force clause refers to any felony that "has as an element
the use, attempted use, or threatened use of physical force against
the person of another."     U.S.S.G. § 4B1.2(a)(1).    The District
Court did not separately reference the residual clause in
§ 924(c)'s definition of a "crime of violence" in addressing
Remington's conviction under § 924(c).


                                    - 8 -
convictions or guilty plea, the District Court's adoption of the

parties' position that he is a career offender, or any sentence

imposed    by   the    District   Court   that   did   not   exceed    the   one

recommended by the parties. However, the waiver provision includes

a carve-out that preserves Remington's right to bring "appeals or

challenges based on new legal principles in First Circuit or

Supreme Court cases decided after [December 29, 1998] which are

held by the First Circuit or Supreme Court to have retroactive

effect."    Thus, it is possible that the waiver does not encompass

the actual collateral challenge that Remington brings and thus

that he has not waived his right to bring the motion that was

denied below.         And, if that is the case, then, contrary to the

government's contention, we would be required to address the merits

of Remington's Johnson-based challenges set forth in his motion.

            The problem for Remington, though, begins with the fact

that his opening brief nowhere mentions the plea agreement's waiver

provision, let alone the exception that it sets forth.                Moreover,

Remington fails to address the potential bar to his right to file

this motion set forth in the waiver provision even though we have

held that

            [a] defendant who waives his right to appeal
            and thereafter attempts to avoid the effect of
            the waiver must confront the waiver head-on.
            Where . . . the defendant simply ignores the
            waiver and seeks to argue the appeal as if no
            waiver ever had been executed, he forfeits any



                                    - 9 -
              right to contend either that the waiver should
              not be enforced or that it does not apply.

United States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007); see

also United States v. Bey, 825 F.3d 75, 82-83 (1st Cir. 2016).

Because we see no reason why the same rule that we announced in

Miliano should not apply to a motion for relief under § 2255, we

agree with the government that Remington gave up the opportunity

to    argue   that      the   waiver    provision     does    not    foreclose      this

collateral challenge.

              Remington does address the waiver issue in his reply.

But   he   does    so    solely   on    the    ground      that,    even   though   the

government had "ample opportunity" in the District Court to raise

the waiver that it now asks us to enforce, the government chose to

respond to the motion below only by asking for the District Court

to issue a stay pending Beckles.

              This argument would fail to persuade, however, even if

Remington could get past the fact that he makes this argument for

the first time only in his reply brief. See Álamo-Hornedo v. Puig,

745 F.3d 578, 582 (1st Cir. 2014).               Under Rule 5(a) of the Rules

Governing Section 2255 Cases, "[t]he respondent is not required to

answer     the    petition     unless    a    judge   so    orders."       Thus,     the

government did not lose its right to object to Remington's § 2255

motion for the simple reason that the District Court never ordered

the government to answer Remington's motion.                   Nor are the § 2255



                                        - 10 -
cases on which Remington relies to the contrary.             In each of those

cases, see Sotirion v. United States, 617 F.3d 27, 32 (1st Cir.

2010); Barreto-Barreto v. United States, 551 F.3d 95, 98 (1st Cir.

2008), the district court had ordered the government to answer the

defendant's § 2255 motion.          See Sotirion v. United States, No.

3:08-cv-30019-MAP (D. Mass. Jan. 17, 2008); Barreto-Barreto v.

United States, No. 3:06-cv-01836-PG (D.P.R. Sept. 7, 2006).

             To be sure, at oral argument Remington did claim, for

the first time, that it is apparent on the face of the plea

agreement's waiver provision that his § 2255 motion falls within

the    carve-out   that   the   provision    sets   forth.     Specifically,

Remington contended at oral argument that the plain terms of the

waiver's carve-out allow this collateral challenge because his

§ 2255 motion is predicated on Johnson, in which the Supreme Court

recognized a "new legal principle[]" that the Court later held in

Welch to have "retroactive effect."          He thus argued that he should

be excused from the usual rule that defendants must address such

waivers "head-on" in their opening appellate briefs because, in

his view, the waiver provision in his plea agreement so plainly

fails to encompass this collateral challenge.

             But, the government disputes that the waiver provision

is so generous as to encompass the type of collateral challenge

that    it   contends   Remington   is   bringing.      And,    in   light   of

Remington's failure to press the proper construction of the waiver


                                    - 11 -
provision's carve-out in his opening brief -- or, for that matter,

even in his reply brief -- we decline his invitation to now wade

into this dispute over how best to construe the waiver's scope in

relation to the collateral challenge that he seeks to make.                    See

United States v. Pizarro-Berríos, 448 F.3d 1, 5-6 (1st Cir. 2006)

("We   have       consistently    held     that,   except      in   extraordinary

circumstances, arguments not raised in a party's initial brief and

instead raised for the first time at oral argument are considered

waived.").

             We    are   aware,   of   course,     that   we   do   have   limited

discretion to disregard a waiver such as this one if doing so would

be "necessary to avoid a clear and gross injustice."                 Miliano, 480

F.3d at 608.       But, we have described the possibility of "clear and

gross injustice" in these circumstances as "hen's-teeth rare,"

id., and Remington has not suggested to us that this is one of

those rare cases.         Thus, we see no basis for concluding that we

must disregard the waiver provision in order "to avoid a clear and

gross injustice."

                                         III.

             For the foregoing reasons, the order denying the motion

is vacated, and the case is remanded for further proceedings

consistent with this opinion.




                                       - 12 -
