     Case: 17-60358      Document: 00514952250         Page: 1    Date Filed: 05/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                 Fifth Circuit

                                                                                FILED
                                      No. 17-60358                           May 10, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

               Plaintiff - Appellee

v.

TIMOTHY JAMARAS BURNS,

               Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi


Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Timothy Burns pleaded guilty to two counts of armed bank robbery and
one count of brandishing a firearm during a crime of violence. He waived his
rights to appellate and collateral review and was sentenced as a career offender
under the then-mandatory federal Sentencing Guidelines. Following the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
Burns filed a § 2255 motion asserting that his prior convictions no longer
qualified him for the career offender enhancement and that his brandishing


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-60358
conviction should be vacated. The district court denied the motion on the
merits. We affirm because Burns waived his right to bring this motion.
                          FACTS AND PROCEEDINGS
      In 2002, Burns was charged with two counts of armed bank robbery in
violation of 18 U.S.C. § 2113(a) and (d) and two counts of brandishing a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c)(1). In a
memorandum of understanding, the Government agreed to dismiss one of the
firearm counts, recommend a sentence on the low end of the Guidelines range,
and grant a reduction for acceptance of responsibility if Burns pleaded guilty.
Burns “expressly waive[d] the right to appeal the conviction and sentence
imposed . . . or the manner in which that sentence was imposed, on the grounds
set forth in [18 U.S.C. §] 3742, or on any ground whatsoever, and expressly
waive[d] the right to contest the conviction and sentence or the manner in
which the sentence was imposed in any post-conviction proceeding . . .
including . . . a motion brought under” 28 U.S.C. § 2255.
      In the presentence investigation report (“PSR”), the probation officer
applied the 2000 edition of the Sentencing Guidelines to determine Burns’s
sentencing range. The PSR stated that Burns qualified as a career offender
under U.S.S.G. § 4B1.1 because the charged bank robberies and at least two of
his prior offenses were “crimes of violence.” Burns was sentenced to concurrent
199-month prison terms for the bank robberies and a consecutive 84-month
term for the firearm offense. He did not appeal.
      In 2016, Burns moved to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255 based on Johnson. He asserted that, because Johnson
invalidated the residual clause in the “violent felony” definition of the Armed
Career Criminal Act, he no longer had two qualifying prior convictions for the
career offender designation and his conviction under § 924(c) should be
vacated. The district court denied the motion on the merits before the
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Government responded. Burns appealed, and this court granted a certificate of
appealability on his claims that the residual clauses in the career-offender-
enhancement provision of the mandatory Guidelines and § 924(c) are
unconstitutionally vague.
                            STANDARDS OF REVIEW
      “This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Kelly, 915 F.3d 344, 348 (5th Cir. 2019) (quotation omitted);
see United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam)
(finding “no principled means of distinguishing . . . a [collateral review] waiver
from the waiver of a right to appeal”). “When considering challenges to a
district court’s decisions under 28 U.S.C. § 2255, this court reviews questions
of law de novo.” United States v. Taylor, 873 F.3d 476, 479 (5th Cir. 2017). The
court “may affirm for any reason supported by the record, even if not relied on
by the district court.” United States v. Batamula, 823 F.3d 237, 240 (5th Cir.
2016) (en banc) (quotation omitted).
                                  DISCUSSION
      We decline to reach the merits of Burns’s motion because we find he has
waived his right to bring it. An informed and voluntary waiver of post-
conviction relief generally bars such relief. Wilkes, 20 F.3d at 653. A waiver is
enforceable if (1) it was knowing and voluntary, and (2) it “applies to the
circumstances at hand, based on the plain language of the agreement.” United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). A waiver is knowing and
voluntary if the defendant knows that he has the right to collateral review and
that he is waiving it in the plea agreement. See United States v. Portillo, 18
F.3d 290, 292 (5th Cir. 1994).
      Burns does not dispute that he was aware of his right to collateral review
and that he was waiving it. Nor does he dispute that the waiver’s broad
language applies to his Johnson claims. Instead, he first argues that the
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Government waived its right to enforce the plea agreement by failing to assert
the waiver in the district court. The Government, however, did not
intentionally relinquish its right to enforce the plea agreement; the district
court dismissed Burns’s motion on the merits before the Government
responded. See United States v. Olano, 507 U.S. 725, 733 (1993); cf. Wood v.
Milyard, 566 U.S. 463, 474 (2012) (finding the State waived a timeliness
argument because it “chose, in no uncertain terms, to refrain from interposing
a timeliness ‘challenge’ to Wood’s petition”).
      Alternatively, Burns relies on two out-of-circuit cases to argue that his
waiver is unenforceable. First, relying on United States v. Torres, 828 F.3d
1113, 1124–25 (9th Cir. 2016), Burns contends that his right to challenge an
illegal or unconstitutional sentence cannot be waived. This argument is
foreclosed by our precedent. This court has held that a defendant can waive his
right to challenge an illegal sentence. See United States v. Hemler, 169 F. App’x
897, 898 (5th Cir. 2006) (per curiam) (rejecting the argument that “a waiver of
appeal does not bar an appeal of an illegal sentence”); United States v. Baty,
980 F.2d 977, 979 (5th Cir. 1992) (noting that a defendant who has waived her
right to appeal cannot appeal an illegal sentence); see also 18 U.S.C.
§ 3742(a)(1)–(2) (the waivable right to appeal includes the right to appeal
sentences “imposed in violation of law” or “imposed as a result of an incorrect
application of the sentencing guidelines”). This court has also held that a
defendant can waive his right to challenge an unconstitutional sentence. See
United States v. Keele, 755 F.3d 752, 756–57 (5th Cir. 2014); United States v.
Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011).
      Next, citing to United States v. McBride, 826 F.3d 293, 294–95 (6th Cir.
2016), Burns argues that he cannot waive a right that did not exist at the time
he agreed to the waiver. But the Sixth Circuit has distinguished McBride
because the plea agreement at issue in that case did not include an appeal
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waiver. The court continues to enforce waivers despite changes in law. See, e.g.,
United States v. Morrison, 852 F.3d 488, 491–92 (6th Cir. 2017). Burns’s
argument is also foreclosed by our precedent. In United States v. Burns, this
court held that “an otherwise valid appeal waiver is not rendered invalid, or
inapplicable to an appeal seeking to raise” a newly recognized constitutional
error “merely because the waiver was made before” the error was recognized.
433 F.3d 442, 450–51 (5th Cir. 2005). 1
       Finally, Burns contends that we could find his waiver unenforceable
under a miscarriage of justice exception. This circuit has declined to explicitly
adopt or reject this exception. See United States v. Ford, 688 F. App’x 309, 309
(5th Cir. 2017) (per curiam); United States v. Powell, 574 F. App’x 390, 394 (5th
Cir. 2014) (per curiam). Regardless, Burns does not explain the contours of
this exception or why it should apply to him. So, he has waived the argument
that it applies. See, e.g., Willis v. Cleco Corp., 749 F.3d 314, 319 (5th Cir. 2014)
(“A party that asserts an argument on appeal, but fails to adequately brief it,
is deemed to have waived it.” (quotation omitted)).
                                       CONCLUSION
       Because Burns waived his right to bring this collateral challenge, we
AFFIRM the district court’s denial of his § 2255 motion.




       1 United States v. Wright, 681 F. App’x 418 (5th Cir. 2017) (per curiam), finding that
a waiver was unenforceable as to a right established by precedent that did not exist at the
time of the waiver, did not overturn Burns. See Jacobs v. Nat’l Drug Intelligence Ctr., 548
F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one
panel of our court may not overturn another panel’s decision, absent an intervening change
in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”).
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