Walton v. United States

MONROE J. WALTON, III, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. 20-cv-1051-pp

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

May 28, 2021

ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. §2255 (DKT. NO. 1), DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND DISMISSING CASE WITH PREJUDICE

On July 13, 2020, the petitioner filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. §2255, challenging his conviction in United States v. Monroe J. Walton III, Case No. 17-cr-108 (E.D. Wis.). Dkt. No. 1. The motion asserts that the petitioner's sentence violates the United States Supreme Court's decision in United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019). Id. at 3. Because the petitioner plainly is not entitled to relief, the court denies the §2255 motion and dismisses the case.

I. Background

A. Underlying Case

1. Indictment

On June 13, 2017, the grand jury returned an indictment against the petitioner, Javon Walton and Devontea Walton. United States v. Monroe Walton III, Case No. 17-cr-108 (E.D. Wis.), Dkt. No. 1. Count One charged all three with conspiring to (1) commit Hobbs Act robberies in violation of 18 U.S.C. §1951, (2) take a motor vehicle by force, violence and intimidation with the intent to cause death and serious bodily harm in violation of 18 U.S.C. §2119(1) and (3) brandish, carry and use a firearm during and in relation to and to possess a firearm in furtherance of crimes of violence in violation of 18 U.S.C. §924(c). Id. at 1-2. Count Two charged the petitioner and Javon Walton with the April 9, 2017 Hobbs Act robbery of a Sprint store in violation of 18 U.S.C. §§1951(a) and 2. Id. at 3. Count Three charged the petitioner and Javon Walton with the April 14, 2017 Hobbs Act robbery of a Metro PCS store in violation of 18 U.S.C. §§1951(a) and 2. Id. at 4. Count Four charged the petitioner and Devontea Walton with the May 5, 2017 Hobbs Act robbery of a US Cellular store in violation of 18 U.S.C. §§1951(a) and 2. Id. at 5. Count Five charged the petitioner and Devontea Walton with knowingly using, carrying and brandishing a firearm during and in relation to that crime of violence in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2. Id. at 6. Count Six charged the petitioner and Devontea Walton with taking a motor vehicle by force, violence and intimidation with the intent to cause death and serious bodily harm in violation of 18 U.S.C. §§2119(1) and 2. Id. at 7. Count Seven charged the petitioner and Devontea Walton with knowingly using, carrying and brandishing a firearm during and in relation to that crime of violence in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2. Id. at 8.

2. Plea agreement

On September 25, 2018, the petitioner (represented by Attorney Craig Johnson) signed a plea agreement. Dkt. No. 77 at 15. The plea agreement was filed on October 24, 2018. Dkt. No. 77. The agreement stated that the petitioner was pleading to Counts Two, Three, Four and Five of the indictment. Id. at ¶4. In the agreement, the petitioner acknowledged that he had read and fully understood "the nature and elements of the crimes with which he ha[d] been charged" and that his attorney fully explained "the terms and conditions of the plea agreement." Id. at ¶3. The petitioner acknowledged, understood and agreed that he was guilty of the offenses in Counts Two, Three, Four and Five of the indictment. Id. at ¶5. He admitted that facts attached to the plea agreement established his guilt beyond a reasonable doubt and were true and correct. Id. He stated that he understood and agreed that the maximum term of imprisonment for Counts Two, Three and Four was twenty years in prison, a $250,000 fine, three years of supervised release and an unspecified amount of restitution; he understood and agreed that Count Five carried a "[m]andatory minimum of seven years and up to life in prison" consecutive to any other sentence, a maximum of five years of supervised release and a $250,000 fine. Id. at ¶6. The petitioner acknowledged, understood and agreed that he had "discussed the relevant statute as well as the applicable sentencing guidelines with his attorney." Id. at ¶7.

The agreement also laid out the elements of the charges. Id. at ¶¶9-10. It said that the parties understood and agreed that in order to sustain the HobbsAct robbery charges in Counts Two, Three and Four, the government would have had to prove beyond a reasonable doubt that (1) "[the petitioner] or his accomplice knowingly obtained money from or in the presence of a person," (2) "[the petitioner] or his accomplice did so by means of robbery," (3) "[the petitioner] or his accomplice believed that the person parted with the money because of the robbery," and (4) "the robbery affected interstate commerce." Id. at ¶9. The parties confirmed that they understood and agreed that in order to sustain the charge of brandishing a firearm during a crime of violence in Count Five, the government would have been required to prove that (1) the petitioner committed the Hobbs Act robbery alleged in Count Four and (2) "[the petitioner's] accomplice used and brandished a firearm during that crime, and [the petitioner] had advance knowledge that his accomplice possessed a firearm." Id. at ¶10.

The petitioner acknowledged and agreed "that his attorney . . . discussed the applicable sentencing guidelines provisions with him to [the petitioner's] satisfaction." Id. at ¶13. He acknowledged and understood "that the sentencing guidelines recommendations contained in this agreement [did] not create any right to be sentenced within any particular sentence range, and that the court [might] impose a reasonable sentence above or below the guidelines range. Id. at ¶15. The parties acknowledged, understood and agreed that the sentencing court could "consider relevant conduct in calculating the sentencing guidelines range, even if the relevant conduct [was] not the subject of the offenses to which [the petitioner] [was] pleading guilty." Id. at ¶16. "The parties agree[d] torecommend to the sentencing court that the applicable base offense level for the offense charged in Counts Two, Three and Four" was 20. Id. at ¶17. They agreed that the government would recommend that "a two level increase under Sentencing Guidelines Manual § 2B3.1(b)(2) [was] applicable to the offense level for the offense charged in Count Two because a threat of death was made." Id. at ¶18.

"The parties agree[d] to recommend . . . that a five-level increase under Sentencing Guidelines Manual § 2B3.1(b)(2) [was] applicable to the offense level for the offense charged in Count Three because the offense level involved the use of a firearm." Id. at ¶19. The parties understood and acknowledged "that the government agreed to recommend . . . a three-level increase for the multiple counts involved under Sentencing Guidelines Manual § 3D1.4 [was] applicable to determine the combined offense level of 28 for the offenses charged in Counts Two, Three, and Four." Id. at ¶20. The government agreed to recommend a two-level decrease under U.S.S.G. §3E1.1(a) for the petitioner's acceptance of responsibility, "but only if [the petitioner] exhibit[ed] conduct consistent with the acceptance of responsibility," including but not limited to the petitioner's "voluntary identification and disclosure to the government of any and all actual or potential victims of the offense prior to sentencing." Id. at ¶21. They agreed that if the court determined at the time of sentencing that the defendant was entitled to that two-level reduction, the government would make a motion under U.S.S.G. §3E1.1(b) for an additional one-level increase because of the defendant's timely agreement to plead guilty. Id.

The government agreed to recommend a sentence "at the low end of the guideline range applicable to the Hobbs Act robbery counts, as determined by the sentencing court." Id. at ¶24. It further agreed not to object to petitioner's "request that the sentence on Counts Two, Three, and Four run concurrent to his probation revocation sentence in Waukesha County Circuit Court Case Number 2015CF1551." Id. The parties acknowledged and understood "that the sentence on Count Five must run consecutive to any other sentence, including a state sentence." Id. The parties acknowledged, understood and agreed that "[t]he sentencing court [would] make its own determinations regarding any and all issues relating to the imposition of sentence and [might] impose any sentence authorized by law up to the maximum penalties" set forth in the agreement. Id. at ¶25. The petitioner acknowledged, understood and agreed that under the terms of the agreement, he could not "move to withdraw the guilty plea solely as a result of the sentence imposed by the court." Id. at ¶26.

The agreement also contained the petitioner's waiver of rights. Based on the agreement, the petitioner "knowingly and voluntarily waive[d] his right to appeal his sentence in this case and further waive[d] his right to challenge his conviction or sentence in any post-conviction proceeding, including but not limited to a motion pursuant to 28 U.S.C. §2255." Id. at ¶35. The petitioner's waiver included "the waiver of any claim that (1) the statutes or Sentencing Guidelines under which [the petitioner] is convicted or sentenced are unconstitutional, and (2) the conduct to which the [the petitioner] has admitted does not fall within the scope of the statutes or Sentencing Guidelines." Id."This waiver [did] not extend to an appeal or post-conviction motion based on (1) any punishment in excess of the statutory maximum, (2) the sentencing court's reliance on any constitutionally impermissible factor, such as race, religion, or sex, (3) ineffective assistance of counsel in connection with the negotiation of the plea agreement or sentencing, or (4) a claim that the plea agreement was entered involuntarily." Id.

The agreement provided that if ...