King v. United States (11th Cir. July 2022)

The Federal Docket

August 9, 2022

Deandre King was charged, along with three others, with multiple crimes stemming from an armed bank robbery. King negotiated with the government to plea to conspiracy to commit robbery and possession of a firearm during a “crime of violence,” for which the predicate offense was conspiracy to commit robbery. In reaching that agreement, King waived his right to appeal, both directly and collaterally, unless he was sentenced on the firearm charge to more than 84 months.

Several years after King was sentenced, the Supreme Court struck down the residual clause of § 924(c), and that decision was applied retroactively. King then filed a habeas petition under Section 2255, seeking vacatur of his firearm conviction. The district court dismissed his petition, holding that King was barred from seeking relief based on the waiver in his plea agreement.

On appeal, King did not contest that his claim was covered by the waiver. Instead, however, he argued that his case fell within one of a select few exceptions to the enforcement of appeal waivers—where a sentence exceeded the statutory maximum. As conspiracy to commit robbery was unconstitutionally used to predicate his firearm conviction, he argued, that conviction is void. Therefore, the “statutory maximum,” is no months, and any period of imprisonment exceeds that “statutory maximum.”

The Eleventh Circuit rejected King’s argument, joining the Sixth and Seventh Circuits in holding that the statutory-maximum exception only gives a defendant reprieve from an appeal waiver when their sentence exceeded the maximum in effect at the time of sentencing.

In a separate concurring opinion, Judge Anderson considered arguendo whether King’s case might fall under a separate “miscarriage-of-justice/actual innocence exception,” which would permit collateral attack upon a sentence, despite an appeal waiver, where the individual is factually innocent and/or to prevent a miscarriage of justice. Without acknowledging whether such an exception exists in the Eleventh Circuit, Anderson contends King’s case would not fit within one even if it did, given that the government agreed to dismiss the affirmative robbery charge against King pursuant to his guilty plea. As that offense could still properly predicate the firearm conviction today, it can’t be said that King is factually innocent of it.

Appeal from the Northern District of Georgia
Opinion by Grant, joined by Luck and Anderson
Concurrence by Anderson

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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