Foley’s motion is barred by the waiver provision of his Rule 11(c)(1)(A) and 11(c)(1)(B) plea agreement. Under the terms of the waiver, Foley acknowledged his statutory right to appeal his conviction and sentence, and agreed in exchange for the concessions made by the United States in the Plea Agreement, that he “expressly waives his right to appeal the conviction and any sentence imposed in this case on any and all grounds, including the right to appeal conferred by Case 1:12-cr-00133-LJM-TAB Document 1673 Filed 03/23/16 Page 4 of 6 PageID #: 7099 5 18 U.S.C. § 3742.” [PSR ¶ 9] Foley also expressly agreed “not to contest, or seek to modify, his conviction or sentence or the manner in which it was determined in any type of proceeding, including, but not limited to, an action brought under 18 U.S.C. § 3582 or 28 U.S.C. § 2255.”

at 245-268. So did Pepper v. United States, 562 U.S. 476 (2011), by excising 18 U.S.C. § 3742(g)(2). 562 U.S. at 493-498.

The Plea Agreement’s Waiver of Appeal stipulates as follows: Defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. The Defendant agrees to waive the right to appeal the sentence imposed or the manner in which it was determined on any grounds set forth in Title 18 U.S.C. § 3742. Additionally, the Defendant is aware that Title 28, U.S.C. § 2255, affords the right to contest or “collaterally attack” a conviction or sentence after the conviction or sentence has become final.

A review of the Hahn factors reflects that the Defendant’s post-conviction waiver should be enforced and his petition dismissed. a. Defendant’s Post-Conviction Challenges Fall Within the Scope of His Waiver The Defendant’s plea agreement waiver states: The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a Defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant’s convictions and any sentence that is consistent with the sentence agreed to by the parties in this agreement, as well as any fine and/or restitution ordered by the Court. The Defendant specifically agrees not to appeal the imposition of any term of supervised release or any condition of supervised release.

at 756. Based on this conclusion, the Court further found those provisions of the federal Sentencing Reform Act of 1984 that make the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), or which rely upon the Guideline’s mandatory nature, 18 U.S.C. § 3742(e), incompatible with its Sixth Amendment holding. Booker, 125 S. Ct. at 756.

The notice is therefore the but-for cause of the litigation, which makes the litigation the “result of” the false takedown notice. See Williams v. United States, 503 U.S. 193, 203 (1992) (construing 18 U.S.C. § 3742 and concluding that, when a district court intends to depart from the guideline range, the sentence is nevertheless “imposed ‘as a result of’ a misapplication of the Guidelines if the sentence would have been different but for the district court’s error”); Maryland Cas. Co. v. Regis Ins. Co., 1997 WL 164268, at *4-*5 (E.D. Pa. Feb. 13, 2006) (construing “as a result of” clause in an insurance policy merely to require “but for” causation, because no higher level of causation was stated explicitly); In re Suarez, 400 B.R. 732, 741 (9th Cir. B.A.P. 2009) (Jury, J., concurring) (attorneys’ fees and costs incurred by creditor were “‘as a result of,’ ‘with respect to’ and ‘by reason of’ debtor’s violation of the injunction and court order,” because “[b]ut for debtor’s willful and malicious behavior, no attorneys fees and costs would have been incurred nor awarded by statute”).