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Li v. United States

United States District Court, D. Delaware

July 28, 2017

XIANG LI, Movant/ Defendant,
v.
UNITED STATES OF AMERICA, Respondent/ Plaintiff. Cr. Act. No. 10-112-LPS

          Peter Goldberger, Esquire. Attorney for Movant.

          Shannon Thee Hanson, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

          MEMORANDUM OPINION

          STARK, U.S. District Judge

         I. INTRODUCTION

         Movant 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 evidentiary hearing.

         II. BACKGROUND

         On 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. § 1343.

         On 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)

         Movant 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)

         Represented 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. (D.I. 114)

         In 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).

         III. MOTION TO AMEND

         In his 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)

         Federal 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.

         Given 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.

         IV. DISCUSSION

         Movant's 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)

         A. Claims Two and Three: Barred by Collateral Attack Waiver

         A court 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).

         1. Voluntary and Knowing Nature of Waiver

         The 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.

         Here, 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.

         Thus, the Court concludes that Movant's waiver of his collateral rights in exchange for certain promises from the Government was knowing and voluntary.

         2. Scope of the Waiver

         The 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 ...


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