    Case: 18-60497   Document: 00515355768     Page: 1   Date Filed: 03/23/2020




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

                                                                       FILED
                                No. 18-60497                     March 23, 2020
                                                                  Lyle W. Cayce
                                                                       Clerk


UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

MICHAEL JAMES BARNES,

                                          Defendant–Appellant.




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




Before JOLLY, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Per a plea agreement, Michael Barnes pleaded guilty, waived his right
to challenge his conviction and sentence (both directly and collaterally), and
was sentenced under the Armed Career Criminal Act (“ACCA”).                   Then in
Johnson v. United States, 135 S. Ct. 2551 (2015), the Court held ACCA’s resid-
ual clause unconstitutional. Based on Johnson, Barnes filed a 28 U.S.C. § 2255
motion to vacate his sentence. The district court dismissed his challenge, and
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Barnes appeals. Because Barnes’s petition is barred by the collateral-review
waiver in his plea agreement, we dismiss the appeal.

                                             I.
       In July 2013, Barnes pleaded guilty of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The plea agreement identified
four of Barnes’s past convictions that constituted either “violent felon[ies]” or
“serious drug offense[s],” which triggered ACCA’s mandatory minimum sen-
tence of fifteen years. Id. § 924(e)(1).

       As part of the plea agreement, Barnes agreed to waive his “right to
contest the conviction and sentence or the manner in which the sentence was
imposed in any post-conviction proceeding, including but not limited to a
motion brought under Title 28, United States Code, Section 2255 . . . .” Barnes
waived that right, among others, “in exchange for the United States Attorney
entering into this Plea Agreement and accompanying Plea Agreement Supple-
ment.” 1 The district court accepted Barnes’s plea and sentenced him to the
fifteen-year mandatory minimum. Barnes didn’t appeal.

       In June 2015, the Supreme Court held that one of ACCA’s clauses
defining what constitutes a “violent felony”—§ 924(e)(2)(B)(ii), also called
§ 924(e)(2)(B)’s residual clause—was unconstitutionally vague. See Johnson,
135 S. Ct. at 2557.        About three months later—and notwithstanding his
collateral-review waiver promising not to do so—Barnes filed a § 2255 motion
challenging his sentence as “imposed in violation of the Constitution” because,
after Johnson, he had no longer been convicted of the three necessary violent


       1 The U.S. Attorney agreed to recommend the fifteen-year mandatory minimum,
which was a below-guidelines sentence based on Barnes’s criminal history and significantly
lower than the statutory maximum of life. The U.S. Attorney also agreed not to prosecute
Barnes for any other conduct “arising out of any event covered by the Indictment” that Barnes
disclosed before accepting the plea agreement.
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                                        No. 18-60497
felonies or serious drug offenses. The government opposed his challenge on
two grounds: (1) Johnson didn’t apply, and thus Barnes’s petition was un-
timely, because his sentence could be sustained under another of ACCA’s
definitions of “violent felony”; and (2) Barnes’s collateral-review waiver barred
his § 2255 petition.

       The district court dismissed Barnes’s petition. The court found that
(1) “Barnes previously waived his right to collaterally attack his sentence in a
§ 2255 motion,” (2) “he failed to demonstrate that he was entitled to proceed
under the auspices and parameters of [Johnson],” and (3) his contention that
he didn’t have the requisite number of “violent felonies” was “both untimely
and procedurally barred.” The court also rejected Barnes’s “miscarriage of jus-
tice” contention. The district court denied Barnes a certificate of appealability,
but a judge of this court granted him one on two issues: (1) “whether Barnes’s
Johnson claims are barred by the collateral-review waiver” and (2) “whether
the district court erred by dismissing the § 2255 motion as time-barred based
on its determination that Johnson did not affect his sentence under the ACCA.”

                                               II.
       We review de novo whether a collateral-review waiver bars an appeal. 2
We consider “(1) whether the waiver was knowing and voluntary and
(2) whether the waiver applies to the circumstances at hand, based on the plain
language of the agreement.” United States v. Kelly, 915 F.3d 344, 348 (5th Cir.
2019). “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.”3


       2 See United States v. Timothy Burns, 770 F. App’x 187, 189 (5th Cir.) (per curiam),
cert. denied, 140 S. Ct. 279 (2019); see also Gaylord v. United States, 829 F.3d 500, 505 (7th
Cir. 2016) (“We review de novo the enforceability of a plea agreement’s waiver of direct or
collateral review.”).
       3   Timothy Burns, 770 F. App’x at 190; see also Kelly, 915 F.3d 344, 348 (“For a waiver
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                                    No. 18-60497
Though we construe waivers in plea agreements narrowly, United States v.
Pleitez, 876 F.3d 150, 156 (5th Cir. 2017), the government nonetheless “has a
strong and legitimate interest in both the finality of convictions and in the
enforcement of plea bargains.” United States v. Dyer, 136 F.3d 417, 429 (5th
Cir. 1998) (footnote omitted).

      Before considering Barnes’s contentions, it’s important to identify what
he isn’t challenging. He doesn’t dispute that he was aware of his right to col-
lateral review or that he agreed to waive that right. Nor is he asserting that
the language of his waiver doesn’t apply to his Johnson-based challenge or that
his waivers were tainted by ineffective assistance of counsel. Instead, he posits
that his waiver is unenforceable for three reasons. First, he maintains that “a
defendant cannot waive a right that is unknown at the time that the waiver
provision is executed.” Second, relying on United States v. Torres, 828 F.3d
1113 (9th Cir. 2016), he avers that he can’t waive his right to challenge an
illegal or unconstitutional sentence. And finally, we could adopt a “miscarriage
of justice” exception and refuse to enforce his waiver on that ground.

      Unfortunately for Barnes, we already confronted—and rejected—each of
those positions in Timothy Burns, 770 F. App’x at 190–91. Barnes acknowl-
edged as much in his reply brief. Though Timothy Burns is unpublished, “we
may consider the opinion as persuasive authority.” Light-Age, Inc. v. Ashcroft-
Smith, 922 F.3d 320, 322 n.1 (5th Cir. 2019) (per curiam). And given the strong
support that its reasoning finds in our caselaw, Timothy Burns is instructive.

                                           A.
      Barnes’s contention that he couldn’t have waived a right that was



to be knowing and voluntary, a defendant must know that he had a right to appeal his sen-
tence and that he was giving up that right.” (cleaned up)).
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unknown at the time of his waiver is foreclosed by United States v. Creadell
Burns, 433 F.3d 442 (5th Cir. 2005). There, the defendant pleaded guilty,
waived his right to appeal, and was sentenced under the then-mandatory
sentencing guidelines. Id. at 443–44. After the Supreme Court held that the
mandatory guidelines violated the Sixth Amendment, 4 Creadell Burns con-
tended that he couldn’t have waived his right to assert a Booker-based chal-
lenge on appeal because that case hadn’t yet been decided when he entered his
plea. See id. at 446–47. We rejected that position, holding instead that “an
otherwise valid appeal waiver is not rendered invalid, or inapplicable to an
appeal seeking to raise a Booker . . . issue (whether or not that issue would
have substantive merit), merely because the waiver was made before Booker.”
Id. at 450–51. Said differently, “a voluntary plea of guilty intelligently made
in the light of the then applicable law does not become vulnerable because later
judicial decisions indicate that the plea rested on a faulty premise.” Brady v.
United States, 397 U.S. 742, 757 (1970).

       Barnes attempts to discount Creadell Burns by contending that it either
conflicts with or was called into doubt by (1) Smith v. Blackburn, 632 F.2d 1194
(5th Cir. Unit A 1980) (per curiam), (2) United States v. Wright, 681 F. App’x
418 (5th Cir. 2017) (per curiam), (3) three orders from the Southern District of
Mississippi, 5 and (4) United States v. McBride, 826 F.3d 293 (6th Cir. 2016).
None of those efforts is persuasive.

       In Smith, 632 F.2d at 1195, a Louisiana defendant was offered two



       4United States v. Booker, 543 U.S. 220, 243–44 (2005) (opinion of Stevens, J.) (holding
that the mandatory guidelines violated the Sixth Amendment); id. at 245 (opinion of
Breyer, J.) (holding that provision making the guidelines mandatory was severable).
       5See United States v. Culpepper, No. 3:12-CR-00118-CWR-FKB-10, 2017 WL 658777
(S.D. Miss. Feb. 15, 2017); United States v. Tarrio, No. 3:08-CR-00001-TSL-LRA (S.D. Miss.
Mar. 13, 2017); United States v. Craven, 2:08-CR-00005-KS-MTP (S.D. Miss. Mar. 22, 2017).
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choices: (1) a jury of six members who could convict by five votes or (2) a jury
of five members who could convict by a unanimous vote. The defendant chose
the latter, thereby waiving his right to the former. Id. After he was convicted,
the Supreme Court determined that both of those options were unconstitu-
tional. 6 On appeal of his federal habeas petition, this court held that Smith
hadn’t waive a “known right or privilege” because Ballew wasn’t decided until
three years after he was put to his choice. Id. But critically, and unlike this
case, there is no indication that the defendant in Smith agreed to an appellate
or collateral-review waiver. Smith is therefore inapposite.

       Next, Barnes is correct that Wright held that “[w]here, as here, a right
is established by precedent that does not exist at the time of purported waiver,
a party cannot intentionally relinquish that right because it is unknown at that
time.” Wright, 681 F. App’x at 420. But Wright, which is unpublished, didn’t
cite or even consider the published opinion in Creadell Burns. And to the
extent the decisions conflict, Creadell Burns controls under our rule of orderli-
ness. 7 The same naturally holds true for the three rulings from the Southern
District of Mississippi. 8


       6 See Ballew v. Georgia, 435 U.S. 223, 245 (1978) (Blackmun, J., announcing the judg-
ment of the Court) (“Petitioner, therefore, has established that his trial on criminal charges
before a five-member jury deprived him of the right to trial by jury guaranteed by the Sixth
and Fourteenth Amendments.”); Burch v. Louisiana, 441 U.S. 130, 138 (1979) (holding that
Sixth and Fourteenth Amendments required “verdicts rendered by six-person juries to be
unanimous”).
       7 See Jacobs v. Nat’l Drug Intell. 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.”); see also Dick v. Colo. Hous. Enters., L.L.C.,
872 F.3d 709, 711–12 (5th Cir. 2017) (per curiam) (refusing to apply an unpublished decision
when doing so would conflict with a published case).
       8  Even if those decisions could call Creadell Burns’s rule into doubt, the reasoning
undergirding them flatly doesn’t. In Culpepper, 2017 WL 658777 at *2, the court stated only
that it “denie[d] the Government’s motion to dismiss and f[ound] it appropriate to reach the
merits of Culpepper’s motion.” It offered no explanation for why it refused to enforce the
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                                        No. 18-60497
       Finally, even if, hypothetically, an out-of-circuit decision could trump
Creadell Burns, McBride doesn’t provide any help to Barnes. In McBride,
826 F.3d at 295, the Sixth Circuit did find that the defendant “could not have
intentionally relinquished a claim based on Johnson.” “But the McBride plea
agreement, unlike the one here, did not include an appeal waiver.” United
States v. Morrison, 852 F.3d 488, 491 (6th Cir. 2017). And based on that dis-
tinction, the Sixth Circuit held in Morrison that a defendant’s appellate waiver
barred his Johnson-based challenge, even though Johnson wasn’t decided until
after he was sentenced. Id.

       At base, Barnes needn’t have understood all the possible eventualities
that could, in the future, have allowed him to challenge his conviction or sen-
tence. His waiver only needed to be “knowing,” not “all-knowing.” When
Barnes waived his right to post-conviction review, he was aware of the right
that he was giving up. By doing so, “he assumed the risk that he would be
denied the benefit of future legal developments.” Id. Most other circuits have
reached the same conclusion when considering appellate or collateral-review
waivers in the context of Johnson-based challenges. 9



collateral-review waiver. The other two decisions didn’t even acknowledge whether the
government tried to enforce the collateral-review waivers at all.
       9 See, e.g., United States v. Bey, 825 F.3d 75, 82–83 (1st Cir. 2016) (enforcing appellate
waiver to bar Johnson challenge, even after considering “miscarriage of justice” exception);
Sanford v. United States, 841 F.3d 578, 581 (2d Cir. 2016) (per curiam) (“Sanford’s collateral
attack waiver therefore bars the present motion because the waiver encompasses any chal-
lenge to his sentence.”); In re Garner, 664 F. App’x 441, 442 (6th Cir. 2016) (“[W]e must deny
Garner’s motion for the same reason he lost his direct appeal and his § 2255 action: Garner
waived his right to challenge his sentence collaterally in his plea agreement.”); United States
v. Ford, 641 F. App’x 650, 651 (8th Cir. 2016) (per curiam) (enforcing appeal waiver to bar
defendant’s Johnson challenge); United States v. Hurtado, 667 F. App’x 291, 292 (10th Cir.
2016) (per curiam) (“The government unequivocally establishes that the [Johnson-based]
appeal falls within the scope of the waiver, the waiver was knowing and voluntary, and en-
forcing the waiver will not result in a miscarriage of justice.”). But see Torres, 828 F.3d
at 1125 (refusing to enforce appeal waiver on the ground that such waivers don’t apply “a
defendant’s sentence is ‘illegal,’ which includes a sentence that ‘violates the Constitution’”);
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                                        No. 18-60497
                                               B.
       Barnes’s theory that he can’t waive his right to challenge an illegal or
unconstitutional sentence is similarly foreclosed by precedent. We have recog-
nized only two exceptions to the general rule that knowing and voluntary
appellate and collateral-review waivers are enforceable: first, ineffective
assistance of counsel, United States v. White, 307 F.3d 336, 339 (5th Cir. 2002),
and second, a sentence exceeding the statutory maximum. 10

       Barnes invokes neither exception but, instead, avers that his sentence
was imposed unlawfully because, after Johnson, it violated the Constitution.
Unfortunately for Barnes, however, that doesn’t get him out from under the
collateral-review waiver to which he agreed. As the Timothy Burns panel rec-
ognized, defendants can waive the right to challenge both illegal and unconsti-
tutional sentences. 11 Barnes’s reliance on Torres is misplaced. The fact that


United States v. Cornette, 932 F.3d 204, 210 (4th Cir. 2019) (“[W]e may review Cornette’s
sentencing challenge [under Johnson] notwithstanding the appeal waiver.”).
       10 See United States v. Leal, 933 F.3d 426, 431 (5th Cir.), cert. denied, 140 S. Ct. 628
(2019). Leal appears to be the first published case, in this circuit, specifically to adopt that
exception, but a past panel purported to adopt it in an unpublished decision. See United
States v. Hollins, 97 F. App’x 477, 479 (5th Cir. 2004) (per curiam). The government brought
Hollins to the attention of the district court and Barnes in its motion to dismiss. Nonetheless,
Barnes didn’t cite Hollins or make any argument—in either his district-court briefing or on
appeal—that his sentence exceeded the applicable statutory maximum. To the extent that
Barnes tried to claim the benefit of Leal at oral argument, he had already forfeited any oppor-
tunity to do so. Cf. Arsement v. Spinnaker Expl. Co., 400 F.3d 238, 247 (5th Cir. 2005) (“No
authority need be cited for the rule that, generally, we do not consider an issue first raised at
oral argument on appeal.”).
       11 See Timothy Burns, 770 F. App’x at 190; see also Kelly, 915 F.3d at 347 (holding that
defendant’s appeal waiver barred court from considering his claim that the district court
improperly “appl[ied] the ACCA enhancement because he lacks the requisite number of vio-
lent felony predicates”); United States v. Keele, 755 F.3d 752, 757 (5th Cir. 2014) (“Here,
because the appeal waiver in Keele’s signed, written plea agreement waived his right to
appeal his sentence with only three specific exceptions, none of which apply here, we conclude
that his Eighth Amendment claims are also waived.” (footnote omitted)); United States v.
Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011) (holding that defendant’s appellate waiver
barred challenge to statute of conviction on Fifth Amendment grounds, because his plea
agreement reserved only his right to challenge the statute on Second Amendment grounds);
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                                       No. 18-60497
Ninth Circuit caselaw runs counter to ours doesn’t empower us to refuse to
apply binding precedent.

                                              C.
       Finally, Barnes spends two paragraphs suggesting that we can refuse to
enforce his waiver by applying a “miscarriage of justice” exception. Though
some other circuits recognize such an exception, we have declined explicitly
either to adopt or to reject it. See United States v. Ford, 688 F. App’x 309, 309
(5th Cir. 2017) (per curiam). Barnes does not, however, (1) explain the proper
scope of that exception, (2) cite any cases purporting to do so, or (3) detail how
and why it should apply to his case. 12 By only briefly alluding to that theory,
Barnes has waived any contention that such an exception applies. See United
States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010). When confronted
with a similarly phrased argument, the Timothy Burns panel, 770 F. App’x
at 191, reached the same conclusion.

       Barnes’s § 2255 motion is barred by his collateral-review waiver. The
appeal is DISMISSED.




United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992) (“After waiving her right to appeal,
the district court could err in its application of the Sentencing Guidelines or otherwise impose
an illegal sentence. . . . Yet, the defendant, who has waived her right to appeal, cannot appeal
these errors.”).
       12 Barnes states merely that “[m]any defendants” have had their sentences reduced
under Johnson and that it would be “patently unjust and unfair” to deny him relief because
he agreed to a collateral-review waiver. But he doesn’t offer any explanation of why it’s unfair
to treat defendants who agree to waive their rights differently from those who don’t.
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                                   No. 18-60497
E. GRADY JOLLY, Circuit Judge, dissenting:
      I dissent because I respectfully disagree with the majority’s disregarding
a binding and precedential decision of this court: United States v. Leal, 933
F.3d 426 (5th Cir. 2019).
      The majority dismisses Appellant’s Leal argument on the grounds that
he did not raise it in the district court nor in his briefing to this court. See
footnote 10 (“To the extent that Barnes tried to claim the benefit of Leal at oral
argument, he had already forfeited any opportunity to do so.”). A flimsy reason
indeed when Leal had not been decided at the time of briefing in the district
court or in this court. Yet the majority thus holds that by failing in his briefing
to cite Leal—which was impossible for Barnes or anyone else to have known—
Barnes somehow “forfeited” the right to raise Leal at oral argument.
      “Forfeiture is the failure to make the timely assertion of a right.” United
States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). Yet, at oral argument
was timely here. Even assuming a forfeiture, however, “[f]orfeited errors are
reviewed under the plain error standard.” Id. The majority, nevertheless, fails
to apply plain error review to Barnes’s Leal claim, effectively treating it as
waived. “[W]aiver is the intentional relinquishment of a known right.” Id. I
repeat myself to say that at the time of briefing, Leal was not a known right.
In short, I would join Judge Smith and his panel in DSC Commc’ns Corp. v.
Next Level Commc’ns, 107 F.3d 322 (5th Cir. 1997), which said it was
“unwilling to . . . perpetuate incorrect law, merely because [a precedent] was
decided after briefing . . . in this case.” Id. at 326 n.2.
      It would seem to me that the panel is obligated to address Leal as it
applies to this case. I therefore respectfully dissent.




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