§ 2255 waiver does not bar an ACCA challenge

Today's published decision in Vowell v. United States giveth and taketh away. It "giveth" in the form of some very helpful published law disambiguating conflicting precedent regarding whether and when a knowingly-entered § 2255 waiver in a plea agreement bars a § 2255 motion asserting that a defendant was wrongly designated as an armed career criminal. A prior published decision in Slusser v. United States suggested the waiver could bar such a motion. However, the Vowell panel found that Slusser improperly considered even earlier precedent (in Untied States v. Caruthers) to be dicta when in fact it was not. The upshot? An improper ACCA designation falls squarely within the category of cases in which a defendant is challenging an increased sentence above the statutory maximum, and thus the waiver does not bar the motion.

That huge procedural win notwithstanding, the Vowell decision "taketh away" in concluding that Mr. Vowell's Georgia burglary was still an ACCA-predicate. The statute is divisible, and a Shepard analysis revealed that his conviction fell into the portion of the statute that would require entry into a "dwelling house" and thus meet the standard for generic burglary.

A few final notes:

1. Numerous footnotes are doing a lot of heavy lifting in this decision.

2. It is not clear when judges started referring to armed career criminals as having been "sentenced as a career offender under the ACCA," as this decision does 13 times, but this is incredibly confusing for criminal practitioners.

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