                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3479
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                 MARK O. WHITE,
                                         Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 4-12-cr-00322)
                             District Judge: John E. Jones III
                      ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 14, 2019

             Before: HARDIMAN, KRAUSE, and PORTER, Circuit Judges

                              (Opinion filed: June 19, 2019)


                                        OPINION *




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

       Mark O. White appeals the District Court’s denial of his 28 U.S.C. § 2255 motion

to vacate his sentence, arguing that his sentence was unconstitutional because, during

plea bargaining, the Government leveraged the threat of a statutory sentencing

enhancement that was subsequently abrogated-in-part as unconstitutional. See Johnson v.

United States, 135 S. Ct. 2551, 2563 (2015). Because White waived his right to bring

such a collateral challenge to his sentence when he entered his plea, and because

enforcing that waiver does not “work a miscarriage of justice,” United States v. Khattak,

273 F.3d 557, 563 (3d Cir. 2001), we will affirm.

       Background

       White was caught with several guns in his apartment and pleaded guilty to

unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). During

plea negotiations, the Government purportedly “wielded the threat of the Armed Career

Criminal [Act] (‘ACCA’) enhancement,” App. 52, which would have subjected White

upon conviction to a mandatory minimum sentence of fifteen years, see 18 U.S.C. §

924(e). His fear of that prospect ostensibly impelled him to enter into a plea agreement

with the Government in which both parties agreed, pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C), that the ten-year statutory maximum for a § 922(g) conviction

was appropriate in his case, see 18 U.S.C. § 924(a)(2), and the Government agreed to

recommend that sentence to the District Court, which imposed it.

       Approximately two years later, the Supreme Court struck down the ACCA in part,

concluding that the statute’s residual clause in § 924(e)(2)(B)(ii) violated the Due Process

                                             2
Clause because it was too vague to provide fair notice of the conduct that it punished.

Johnson, 135 S. Ct. at 2557–60. That change in law prompted White to file a motion to

vacate his sentence under 28 U.S.C. § 2255, asserting that the Government’s use of the

ACCA as a bargaining chip to secure his guilty plea rendered his sentence

unconstitutional. The District Court denied the motion, concluding that Johnson did not

affect his sentence because, although the ACCA may have played a role in plea

negotiations, he was not actually sentenced under the ACCA. This appeal followed.

       Discussion 1

       We will not disturb the District Court’s denial of relief because, as a condition of

White’s plea agreement, he waived his right to “collateral review, including . . . a motion

to vacate judgment under Title 28, United States Code, Section 2255,” App. 32, and the

record here demonstrates that waiver was knowing, voluntary, and enforceable.

       A waiver of the right to collateral review is valid if it is “entered into knowingly

and voluntarily and [its] enforcement does not work a miscarriage of justice. United

States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008), abrogated on other grounds by Garza

v. Idaho, 139 S. Ct. 738 (2019). We have declined “to earmark specific situations” that

constitute a “miscarriage of justice” and have instead endorsed several factors to consider

on a case-by-case basis, including the “clarity” of the alleged “error.” Khattak, 273 F.3d

at 563 (quoting United States v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001)).



1
  The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2255. Having granted
a certificate of appealability, we have jurisdiction pursuant to 28 U.S.C. § 2253(a) and
(c).
                                              3
       Here, White does not argue that he entered into the waiver unknowingly or

involuntarily and focuses his briefing instead on his contention that its enforcement

would work a miscarriage of justice. 2 That argument is unavailing because the alleged

“error”—the Government’s leveraging of the then-valid ACCA sentencing enhancement

as a bargaining chip in plea negotiations—lacks the sort of “clarity,” Khattak, 273 F.3d at

563 (citation omitted), that attends a miscarriage of justice. Put differently, even if White

had not knowingly and voluntarily agreed to forgo a collateral challenge to his sentence,

that challenge would be dubious on the merits, and we will not set aside his waiver to

consider a claim for relief that is both novel and suspect. See id. at 562 (“A waiver of the

right to appeal includes a waiver of the right to appeal difficult or debatable legal issues .

. . .” (citation omitted)); see also United States v. Cabrera-Rivera, 893 F.3d 14, 30 (1st

Cir. 2018) (acknowledging similarity between miscarriage-of-justice and plain-error

standards).

       Generally, for a defendant who has not waived his direct appeal or collateral

review rights, “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.” United States v. Lockett, 406 F.3d 207, 213 (3d Cir.

2005) (quoting Brady v. United States, 397 U.S. 742, 757 (1970)). There is “only a



2
  White fleetingly states in his brief that “his guilty plea was not knowing or adequately
informed because it was premised on the applicability of the . . . [now partially
abrogated] ACCA.” Appellant’s Reply Br. 1. But he does not explain that bald
assertion, and his brief goes on to argue only that the miscarriage-of-justice exception
applies.
                                              4
limited set of grounds . . . available for a defendant to challenge a conviction or sentence

based on a guilty plea.” United States v. Peppers, 899 F.3d 211, 225 (3d Cir. 2018). For

instance, Congress may create statutory mechanisms for defendants who plead guilty to

later challenge a conviction or seek a sentence reduction in light of new legal

developments. See, e.g., 18 U.S.C. § 3582(c)(2) (authorizing courts to reduce a sentence

that was “based on a sentencing range that has subsequently been lowered by the

Sentencing Commission”); see also Hughes v. United States, 138 S. Ct. 1765, 1773, 1775

(2018). As another example, a guilty plea will not preclude a defendant from collaterally

attacking her conviction where, because of a change in law, it becomes clear that the

defendant did not receive “real notice of the true nature of the charge against him” before

pleading guilty. Bousley v. United States, 523 U.S. 614, 618–19 (quoting Smith v.

O’Grady, 312 U.S. 329, 334 (1941)) (allowing collateral challenge where defendant

pleaded guilty to violating a statute that was subsequently interpreted narrowly by the

Supreme Court, such that the defendant allegedly “[mis]understood the essential elements

of the crime with which he was charged” when he pleaded guilty). In a similar vein, we

recently held that a defendant who—unlike White—was actually sentenced under the

ACCA before Johnson was decided is not precluded by a guilty plea from collaterally

attacking his sentence. See Peppers, 899 F.3d at 225–26. As we explained, “[p]arties

may not stipulate to an unlawful sentence in a plea agreement.” Id. at 225.

       But none of those exceptional circumstances pertain here. The first two are

inapplicable and, as to the third, White did not stipulate to an unlawful sentence. Just the

opposite: White’s original indictment charged him with a violation of § 924(e), but the

                                              5
unlawful ACCA enhancement was specifically bargained out of his guilty plea. We have

never recognized the availability of collateral review in a case like this, i.e., where a law

later declared unconstitutional merely contributed to the Government’s negotiating

leverage in plea bargaining. In fact, the notion of such relief is in sharp tension with our

precedent, under which “[t]he possibility of a favorable change in the law occurring after

a plea agreement” is ordinarily viewed as “merely one of the risks that accompanies a

guilty plea.” Lockett, 406 F.3d at 214; see also Brady, 397 U.S. at 757 (“A defendant is

not entitled to withdraw his plea merely because he discovers long after the plea has been

accepted that his calculus misapprehended . . . the likely penalties attached to alternative

courses of action.”). Thus, to the extent there is even the possibility that White would be

entitled to relief if he had not waived his right to collateral review, that possibility is faint

at best. Accordingly, there is no miscarriage of justice in enforcing White’s waiver, see

Khattak, 273 F.3d at 562, and we will do so.

       Conclusion

       For the aforementioned reasons, we will affirm the order of the District Court.




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