Jeremy Gordon

Second Circuit Dismisses Appeal Because of Partial Invocation of Plea Waiver: Borden

The Second Circuit considered and rejected a post-sentencing appeal of a sentence after allowing a 2255 motion to be filed because of United States vs. Davis.

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Borden's Plea Agreement and Plea Waiver

Borden was charged with and found guilty of Conspiracy to Commit Robbery and a Carrying a firearm in furtherance of a crime of violence.  He plead guilty pursuant to a plea agreement that contained the following: 

The defendant agrees not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 240 months or below. This waiver is binding without regard to the sentencing analysis used by the Court.

Ultimately Borden was sentenced in December of 2015 to 60 months for the robbery case and 24 months for the firearm case for a total sentence of 84 months. 

The Impact of United States Vs. Davis

Several years later the Supreme Court issued their decision in United States vs. Davis which held that a carrying a firearm charge that was in furtherance of a crime of violence under 18 USC 924(c)(3)(b) was not constitutional and should be vacated. 

Considering this, the government consented to the vacatur of his firearm charge and asked that the district court resentence him.  Borden’s firearm charge was vacated, and he was resentenced to the Conspiracy to commit Hobbs Act robbery. 

At resentencing the court indicated that Borden’s Guidelines Range was 151-188 months because his Conspiracy to commit Hobbs Act Robbery was a crime of violence under the guidelines and this triggered the career offender guideline provision in United States Sentencing Commission Guideline 4B1.2(a).   However, the District Court ultimately sentenced him to 60 months, citing his good conduct in the prison and the fact that he had support and an offer of steady employment. Borden filed an appeal because of the designation as a career offender.

Partial Invocation of the Appeal Waiver

The court considered whether the appeal waiver blocked this case from going forward.; specifically, whether “partial enforcement” or “partial invocation” of a plea agreement’s waiver provision is permitted under limited circumstances.

The Court first indicated that it was a matter of judicial economy and in the interests of justice for the court to permit Borden to vacate the firearm charge.  The court indicated that they saw no reason to “discourage the Government from consenting to the correction of a constitutional error by offering limited relief from an appeal waiver … that benefits the defendant.” 

Second to determine that partial invocation of the plea waiver was appropriate by the government, the court had to determine that the issue that the Government permitted Borden to pursue (the Davis claim) and the issue that the court wanted to invoke the appeal waiver on (the career offender issue) should not be closely linked.  The court determined that was true in this case. 

The court determined that “Borden’s § 2255 motion relating to whether his  § 924(c) conviction should be vacated after  Davis, and this appeal relating to whether Hobbs Act robbery is a crime of violence triggering the career offender sentencing enhancement, raise significantly different issues.”  This meant that they were not closely related and that “partial invocation” of the waiver could be appropriate. 

Further, the fact that the prosecutors sought to dismiss all of Borden’s challenges on appeal here as opposed to asking the court to dismiss some of the challenges while inviting the court to settle other challenges, was a further reason to consider “partial invocation” of the plea waiver. 

Finally, Borden indicated that the fact that the court advised him of his right to appeal and the government did not object constituted a relinquishment of rights under the waiver provision.  But the court’s case law prohibited that:

“If enforceable when entered, [a] waiver does not lose its effectiveness because the district judge gives the defendant post-sentence advice inconsistent with the waiver. No justifiable reliance has been placed on such advice.”

The second circuit dismissed the appeal.  19-4316

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