23-630-cr Roselien v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of September, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, BETH ROBINSON, Circuit Judges. VERNON D. OLIVER, District Judge. * _________________________________________

JEFF ROSELIEN,

Petitioner-Appellant,

v. No. 23-630

UNITED STATES OF AMERICA,

* Judge Vernon Dion Oliver, of the United States District Court for the District of Connecticut, sitting by designation. Respondent-Appellee.

_________________________________________ FOR APPELLANT: PAUL SKIP LAISURE, Paul Skip Laisure, Garden City, New York

FOR APPELLEE: RUSSELL NOBEL, Joann M. Navickas, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, New York

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Dora L. Irizzary, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on March 31, 2023, is

AFFIRMED.

Petitioner Jeff Roselien appeals the district court’s denial of his petition for

habeas relief under

following his convictions for conspiracy to

commit Hobbs Act robbery, in violation of

, and possessing and

brandishing of a firearm in furtherance of a crime of violence, in violation of

(c)(1)(A). 1 Roselien v. United States, No. 16-cr-554,

1 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted. 2 (E.D.N.Y. Mar. 31, 2023). As discussed below, we affirm the judgment of the

district court because on this record Roselien knowingly and voluntarily waived

his right to collaterally attack his conviction, the plea agreement was supported by

valid consideration, and enforcing the collateral-attack waiver would not be

manifestly unjust where the record establishes a different and valid predicate for

the § 924(c) conviction.

In 2017, Roselien pleaded guilty pursuant to a plea agreement to two

criminal charges: conspiracy to commit Hobbs Act robbery and using a firearm in

furtherance of a crime of violence. The plea agreement contained a waiver clause

in which Roselien agreed:

[N]ot to file an appeal or otherwise challenge, by petition pursuant to

or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 180 months or below. This waiver is binding without regard to the sentencing analysis used by the Court. The defendant waives all defenses based on the statute of limitations and venue with respect to any prosecution that is not time-barred on the date that this agreement signed in the event that (a) the defendant’s conviction is later vacated for any reason, (b) the defendant violates this agreement, or (c) the defendant’s plea is later withdrawn. App’x 24.

3 In May 2018, the district court sentenced Roselien to 36 months on the Hobbs

Act robbery conspiracy conviction and 84 months on the § 924(c)(1)(A) conviction,

to be served consecutively. Roselien filed a timely appeal of that judgment, which

this Court dismissed on the grounds that he waived his right to appeal in the plea

agreement.

In 2019, the United States Supreme Court decided that the residual clause in

(c)(3)(B), which defines “crime of violence” for purposes of

§ 924(c)(1)(A), was unconstitutionally vague. United States v. Davis,

(2019). Relying on that decision, Roselien filed a

petition

asking the district court to vacate his § 924(c)(1)(A) conviction. He argued, among

other things, that after Davis the Hobbs Act conspiracy on which his § 924(c)

conviction rested was an invalid predicate for that conviction.

The district court denied the petition in March 2023 based on Roselien’s

plea-agreement waiver of his right to collaterally-attack his conviction. Roselien,

, at *3. Roselien timely appealed and moved for a certificate of

appealability. We granted Roselien a certificate of appealability only on the

question of whether his waiver of his right to collaterally-attack his conviction

applies to his claim that his § 924(c) conviction is invalid after Davis.

4 We review whether a plea agreement collateral-attack waiver precludes a

motion to vacate a conviction without deference to the district court’s

determinations. Cook v. United States,

, 121–22 (2d Cir. 2023). Subject

to a number of exceptions, a waiver of the right to collaterally attack a conviction

is presumptively enforceable.

On appeal, Roselien contends that the collateral-attack waiver of the plea

agreement is unenforceable for three reasons: he did not knowingly waive his right

to challenge his § 924(c)(1)(A) conviction, the agreement was not supported by

consideration, and enforcing the waiver would result in a complete miscarriage of

justice. For the reasons stated below, we disagree.

As to the first point, Roselien contends that his plea was not knowing and

voluntary because he pled guilty with the understanding that he could later

challenge his conviction under § 924(c). 2 The record contradicts his claim and

2 Importantly, Roselien does not contend that his guilty plea was unknowing and involuntary because he was misinformed as to the elements of § 924(c) and did not become aware of his misapprehension until the United States Supreme Court’s decision in Davis. To the contrary, he argues that at the time he pled guilty, he was well aware of the possibility that the Supreme Court might issue a decision undermining the validity of his § 924(c) conviction. He asserts that he misunderstood whether he could appeal or collaterally challenge his conviction, not the state of play with respect to the elements of the crimes charged. These facts distinguish this case from Bousley v. United States,

(1998) and United States v. Balde,

, 93–94 (2d Cir. 2019). 5 shows that Roselien knowingly waived his collateral-attack rights. A waiver is

knowing if the defendant understood the consequences of the waiver. United

States v. Ready,

, 556–57 (2d Cir. 1996). At the plea hearing, the district

court confirmed that Roselien had read and reviewed the written plea agreement

with his lawyer. That agreement specifically provided that he was waiving his

right to appeal or collaterally attack his conviction. During Roselien’s plea

colloquy the district court specifically drew attention to the collateral-attack

waiver and explained to Roselien that he would be giving up his right to

collaterally attack “all or part of the sentence” that it imposed. App’x 45. The

district court then confirmed that Roselien understood what that meant. And the

district court asked Roselien if he had any questions relating to his rights, or

anything else. Roselien said that he did not.

These facts are sufficient to conclude that Roselien knowingly waived his

right to collaterally-attack his conviction. See United States v. Morgan,

(2d Cir. 2004) (finding “no realistic possibility that [the defendant] might have

misunderstood the nature or source of the waiver” after the magistrate judge

specifically stated its consequences); cf. Ready, 82 F.3d at 557–58 (concluding that

the defendant did not knowingly waive his right to appeal in part because when

6 the district court listed the rights the defendant was waiving the district court did

not mention or explain the consequences of waiving the right to appeal).

Our conclusion in this regard is not undermined by Roselien’s counsel’s

statements at sentencing regarding his communications with Roselien about

developing Supreme Court caselaw. The statements were equivocal at best and

were made six months after Roselien’s guilty plea. Counsel even acknowledged

the possibility of Roselien seeking to withdraw his plea; Roselien never sought to

do so. Nothing about these post-plea statements of counsel undermines the

conclusion that Roselien knowingly entered into a plea agreement that included a

collateral-attack waiver.

Next, the plea agreement is not invalid due to lack of consideration. See

United States v. Brunetti,

(2d Cir. 2004) (recognizing that a guilty

plea can be challenged based on lack of consideration). In exchange for pleading

guilty and waiving his right to appeal, Roselien secured an agreement from the

government that it would not challenge the three-point reduction in the

Sentencing Guidelines calculation to account for Roselien’s acceptance of

responsibility; it would not prosecute him for a number of additional robberies

and associated § 924(c) charges, including those arising from crimes that Roselien

7 admitted committing; it would take no position on where within the Guidelines

range Roselien’s sentence should fall; and it would not move for an upward

departure. The record does not support Roselien’s argument that the plea

agreement lacked consideration.

Finally, this case does not portend a complete miscarriage of justice. In Cook,

we held that a collateral-attack waiver bars a challenge to a § 924(c) conviction

predicated on an act that is not a “crime of violence” if the record establishes a

different and valid predicate for it. Cook,

n.4. In addition to

pleading guilty to conspiracy to commit Hobbs Act robbery in connection with the

Mill Park Pharmacy robbery, Roselien admitted to committing a substantive Hobbs

Act robbery of that pharmacy. He also admitted to committing additional

substantive Hobbs Act robberies of pharmacies, each involving brandishing a gun.

Substantive Hobbs Act robbery under

remains a valid predicate

for a § 924(c)(1)(A) conviction even after Davis. So, as in Cook, we decline to

invalidate the collateral-attack waiver as a complete miscarriage of justice.

Roselien highlights several other considerations to support his miscarriage-

of-justice argument. The first two—that the plea agreement lacks valid

consideration and Roselien was under the impression that he would be able to

8 challenge his § 924(c) conviction—fail for the reasons stated above. The third—

that the district court vacated his co-defendant’s sentence—also does not give rise

to a miscarriage of justice that warrants voiding his appeal waiver. His co-

defendant pleaded guilty without a plea agreement. Consequently, he did not

waive his right to collaterally attack his conviction. Like his co-defendant,

Roselien had the option to plead guilty without a plea agreement, but he chose not

to do so. Even assuming that this Court recognizes that a miscarriage of justice

renders a waiver unenforceable, we are bound by Cook’s holding that enforcing

the waiver in these circumstances does not amount to a miscarriage of justice.

* * *

We have considered Roselien’s remaining arguments and conclude that

they are without merit. Accordingly, the District Court’s judgment is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9