Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dagdag v. United States

United States District Court, E.D. Tennessee

May 31, 2019

HOLLY DAGDAG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE.

         Holly Dagdag has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Respondent has filed a response in opposition to the motion. Having considered the pleadings and the record, along with the relevant law, the Court finds that it is unnecessary to hold an evidentiary hearing, [1] and Dagdag's § 2255 motion will be denied.

         I. BACKGROUND FACTS AND PROCEDURAL HERTORY

         Dagdag pleaded guilty and was convicted of conspiring to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C) [Doc. 39 in No. 3:13-CR-171]. As part of her guilty plea, Dagdag waived her rights to appeal and file any motions pursuant to 28 U.S.C. § 2255, with the exception of claims of ineffective assistance of counsel and prosecutorial misconduct [Doc. 18 ¶ 10(b) in No. 3:13-CR-171]. Based on the drug quantity Dagdag stipulated to when pleading guilty, a two-level firearms enhancement, and a three-level reduction for acceptance of responsibility, Dagdag's total offense level was 19 [Doc. 26 ¶¶ 17, 23-24, 30-32 in No. 3:13-CR-171]. Her prior convictions yielded 10 criminal history points, a criminal history category of V, and a corresponding United States Sentencing Guidelines (“Guidelines”) range of 57 to 71 months' imprisonment [Id. at ¶¶ 47, 65]. Dagdag was sentenced to 57 months' imprisonment [Doc. 39 in No. 3:13-CR-171]. Dagdag did not appeal. The Court thereafter reduced Dagdag's sentence to 46 months' imprisonment pursuant to 18 U.S.C. § 3582(c)(2) and Guidelines Amendment 782 [Doc. 43 in No. 3:13-CR-171].

         In June of 2016, Dagdag filed the instant § 2255 motion for a lesser sentence in light of the holding of Johnson v. United States, which invalidated the residual clause of the Armed Career Criminal Act (“ACCA”). Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) [Doc. 1]. The United States responded to the motion on July 25, 2016 [Doc. 2]. This matter is ripe for review.[2]

         II. LEGAL STANDARD

         After a defendant has been convicted and exhausted her appeal rights, a court may presume that “[s]he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982). A court may grant relief under 28 U.S.C. § 2255, but the statute “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, collateral attack limits a movant's allegations to those of constitutional or jurisdictional magnitude, or those containing factual or legal errors “so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation omitted); see also 28 U.S.C. § 2255(a).

         III. DISCUSSION

         A. Waiver

         In her plea agreement, Dagdag expressly “waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255” with the exception of “claims of ineffective assistance of counsel or prosecutorial misconduct” [Doc. 18 ¶ 10(b) in No. 3:13-CR-171]. A knowing and voluntary waiver of § 2255 claims is enforceable. Davila v. United States, 258 F.3d 448, 450-51 (6th Cir. 2001). There is no dispute that Dagdag entered into a knowing and voluntary plea agreement. Therefore, because Dagdag's claims are not for ineffective assistance of counsel or prosecutorial misconduct, they are barred by her § 2255 waiver.

         It is irrelevant that Dagdag entered into her waiver before Johnson was decided. After all, a “plea agreement allocates risk, and the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.” Slusser v. United States, 895 F.3d 437, 440 (6th Cir. 2018) (citation and quotation marks omitted). Accordingly, Dagdag has waived her right to challenge her sentence under the reasoning of Johnson.

         B. Merits

         Neither would Dagdag be entitled to relief upon consideration of the merits of her motion. Dagdag's complaint is that she received criminal history points because of her prior convictions [Doc. 1 p. 4]. However, Dagdag received criminal history points because her prior convictions constituted “sentences of imprisonment” or “prior sentences” under § 4A1.1 of the Guidelines [See Doc. 26 ¶¶ 36, 39, 41-43, 45-46 in No. 3:13-CR-171]. Dagdag was not sentenced as an armed career criminal, nor as a career offender, nor was her sentenced enhanced due to a “crime of violence” under the Guidelines. Accordingly, the residual clause invalidated in Johnson has no relationship to the Guidelines provisions under which Dagdag received criminal history points for her prior convictions.

         IV. CERTIFICATE ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.