United States District Court, D. Delaware
Goldberger, Esquire. Attorney for Movant.
Shannon Thee Hanson, Assistant United States Attorney, United
States Department of Justice, Wilmington, Delaware. Attorney
U.S. District Judge
Xiang Li ("Movant") filed a timely Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255. (D.I. 103) The United States
("Government") filed an Answer in Opposition. (D.I.
114) For the reasons discussed, the Court will deny
Movant's § 2255 Motion without holding an
April 3, 2012, a federal grand jury returned a forty-six
count Superseding Indictment against Movant alleging
violations of the following statutes: Conspiracy to
Circumvent a Technological Measure that Protects a
Copyrighted Work, 18 U.S.C. §§ 371 and 2, 17 U.S.C.
§§ 1201(a)(1). and 1204; Conspiracy to Traffic in
Access Control Circumvention Tools and Services, 18 U.S.C.
§§ 371 and 2, 17 U.S.C. §§ 1201(a)(2),
and 1204; Conspiracy to Commit Criminal Copyright
Infringement, 18 U.S.C. §§ 371 and 2, 18 U.S.C.
§ 2319(a)(1)(B); Conspiracy to Commit Wire Fraud, 18
U.S.C. §§ 1343 and 1349; Circumvention of
Technological Measure that Protects a Copyrighted Work, 17
U.S.C. §§ 1201(a)(1), 1204, and 2; Trafficking in
Access Control Circumvention Tools and Services, 17 U.S.C.
§§ 1201(a)(2), 1204 and 2; Criminal Copyright
Infringement, 18 U.S.C. §§ 2319(a)(1)(B) and 2;
Trafficking in Counterfeit Labels, Documentation, and
Packaging, 18 U.S.C. § 2318(a) and 2; Interstate
Transportation of Stolen Property, 18 U.S.C. §§
2314 and 2; Smuggling of Goods into the United States, 18
U.S.C. §§ 545 and 2; and Wire Fraud, 18 U.S.C.
January 7, 2013, Movant pled guilty to Counts Three and Four
of the Superseding Indictment, which charge him with
Conspiracy to Commit Criminal Copyright Infringement and
Conspiracy to Commit Wire Fraud. (D.I. 56; D.I. 89) The Court
sentenced Movant on June 11, 2013 to 144 months of
incarceration, which included concurrent sentences of 60
months on Count Three and 144 months on Count Four. (D.I. 85)
filed a notice of appeal. (D.I. 87) On or about September 9,
2013, the Government filed a Motion for Summary Affirmance to
enforce the appellate waiver contained in Movant's Plea
Agreement. (D.I. 114 at 3) On November 20, 2013, the Third
Circuit entered an order summarily affirming Movant's
conviction and sentence based on the valid appellate waiver.
The Third Circuit denied Movant's Petition for Rehearing
En Banc on December 23, 2013, and its summary affirmance in
lieu of a formal mandate was transmitted to the Court on
December 31, 2013. (D.I. 92)
by counsel, Movant timely filed the pending § 2255
Motion asserting the following two grounds for relief: (1)
defense counsel provided ineffective assistance at sentencing
by failing to advance the correct objection to the
"loss" enhancement used to calculate Movant's
advisory Guidelines range; and (2) the Court imposed
Movant's sentence "in violation of the law, "
due to the "serious miscalculation of the applicable
Sentencing Guidelines." (D.I. 103 at 4-5) Movant
contends that the Court should not enforce the collateral
attack waiver provision in his Plea Agreement because the
waiver was the result of defense counsel's ineffective
assistance. In its Answer, the Government contends that the
collateral attack waiver bars the Court from considering
Claim Two, but concedes that the appellate/collateral attack
waiver should not be enforced to bar consideration of the
ineffective assistance of counsel argument in Claim One.
response to the Government's Answer in Opposition, Movant
filed a pro se Motion to Amend, seeking to add a new
claim alleging his actual innocence of the wire fraud
conspiracy conviction charged in Count Four of the Indictment
(hereinafter referred to as "Claim Three"). (D.I.
115 at 1) Movant's counsel filed a Motion for an
Extension of Time to File a Reply to the Government's
Answer, explaining that he wanted time to consult with Movant
and evaluate Movant's requested amendment. (D.I. 116)
Thereafter, Movant's counsel filed a Reply to the
Government's Answer, raising the "actual
innocence" argument presented in Movant's pro
se motion. (D.I. 117) The Government filed a Sur-Reply
rejecting the "actual innocence" argument on the
basis of the collateral attack waiver (D.I. 117), to which
Movant's counsel filed a Reply in Support of Motion to
Amend (D.I. 119).
MOTION TO AMEND
pro se Motion to Amend, Movant asserts that he is
actually innocent of the wire fraud conspiracy because
"none of the conduct admitted by this defendant, or
proffered by the Government during the plea hearing, falls
within the ambit of either the wire fraud statute or the
conspiracy to commit wire fraud .... The conduct in this case
is more akin to a burglary, and does not bear any fraudulent
characteristics." (D.I. 115 at 2) Movant's counsel
filed a Reply in Support of the Motion to Amend, which
incorporates the "actual innocence" argument but
describes the argument as alleging that Count Four of the
Indictment lacks a factual basis. (D.I. 117 at 34)
Rule of Civil Procedure 15(a)(1)(B) provides that a plaintiff
may amend his pleading once as a matter of course within 21
days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever
is earlier. See Fed. R. Civ. 15(a)(1)(B). Since
Movant filed his pro se Motion to Amend (D.I. 115)
within 21 days after the Government filed its Answer in
opposition, the Court will grant the Motion to Amend.
However, the Court will deny as moot Movant's Motion for
an Extension of Time to file a Reply (D.I. 116), since Movant
has filed a Reply in the interim.
these circumstances, the Court views the instant § 2255
proceeding as involving the following three Claims: (1)
defense counsel provided ineffective assistance during
sentencing; (2) the Court imposed an illegal sentence due to
its miscalculation of the Sentencing Guidelines range; and
(3) Movant is actually innocent of the wire fraud conspiracy
alleged in Count Four because there was no factual basis for
including Count Four in the Indictment.
Plea Agreement contains the following appellate/collateral
attack waiver provision:
The defendant knows that he has, and voluntarily and
expressly waives, the right to file any appeal, any
collateral attack, or any other writ or motion after
sentencing - including, but not limited to, an appeal under
18 U.S.C. § 3742 or 28 U.S.C. § 1291, or a motion
under 28 U.S.C. § 2255 - except that the defendant
reserves his right to appeal only if (1) the Government
appeals from the sentence, (2) the defendant's sentence
exceeds the statutory maximum for the offense set forth in
the United States Code, or (3) the defendant claims his
sentence unreasonably exceeds the Sentencing Guidelines range
determined by the District Court in applying the United
States Sentencing Guidelines.
(D.I. 56 at ¶ 13) The Government contends that the
collateral attack waiver provision bars the Court from
reviewing Claim Two from the original § 2255 Motion and
Claim Three ("actual innocence") from the Motion to
Amend/Reply. (D.I. 114; D.I. 118) Although the Government
concedes that the collateral attack waiver provision does not
bar the Court from reviewing Claim One, it contends that the
Court should deny Claim One as meritless. (D.I. 114)
Claims Two and Three: Barred by Collateral Attack
has an affirmative and "an independent obligation to
conduct an evaluation of the validity of a collateral
waiver." United States v. Mabry, 536 F.3d 231,
238 (3d Cir. 2008). Specifically, a court must consider: (1)
whether the waiver was knowing and voluntary; (2) whether
there is an exception to the waiver which prevents its
enforcement; and (3) whether enforcement of the waiver would
cause a miscarriage of justice. See United States v.
Goodson, 544 F.3d 529, 536 (3d Cir. 2008).
Voluntary and Knowing Nature of Waiver
threshold issue in determining if the collateral attack
waiver provision in Movant's Plea Agreement bars the
Court from reviewing Claims Two and Three is whether the
provision is enforceable. As a general rule, courts will
enforce a collateral attack waiver if the waiver is
"entered knowingly and voluntarily and [its] enforcement
does not work a miscarriage of justice." Mabry,
536 F.3d at 236-37. When analyzing if a movant knowingly and
voluntarily agreed to waive his right to lodge a collateral
attack, the reviewing court must determine if "the
district court inform[ed] the defendant of, and determine[d]
that the defendant under [stood] . . . the terms of any plea
agreement provision waiving the right to appeal or to
collaterally attack the sentence as Federal Rule of Criminal
Procedure ll(b)(1)(N) requires." Mabry, 536
F.3d at 239.
as mandated by Mabry, the transcript of the plea
hearing reflects that the Court explained the specific terms
of the Plea Agreement and questioned Movant to confirm that
he understood the meaning of the provisions. The Court
assured that Movant was competent, and that he had a full
opportunity to discuss the agreement with counsel and make an
informed decision. Notably, the Court reviewed the waiver
paragraph with Movant in detail, and explained the rights
Movant was relinquishing in exchange for the deal with the
Government. The Court further assured that the plea was
entered knowingly and intelligently, with regard to the plea
in general and the appellate/collateral attack waiver in
particular. (D.I. 89 at 13-15) The Court also notes that the
Third Circuit enforced the appellate waiver and dismissed his
direct appeal after determining that Movant knowingly and
voluntarily entered into the waiver.
the Court concludes that Movant's waiver of his
collateral rights in exchange for certain promises from the
Government was knowing and voluntary.
Scope of the Waiver
next question is whether Claims Two and Three fall into any
of the exceptions to the waiver. They do not. The
Government did not appeal the sentence, and Movant does not
challenge his sentence on the ground that it exceeds the
statutory limits or ...