UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6037
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMETRIUS TYRONE GARDNER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:07-cr-00028-jpj-pms-1; 1:09-cv-80154)
Submitted: February 17, 2011 Decided: March 21, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Demetrius Tyrone Gardner, Appellant Pro Se. Zachary T. Lee,
Assistant United States Attorney, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrius Tyrone Gardner seeks to appeal the district
court’s order purporting to deny him relief on his 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion. He also moves to remand the
matter to the district court. 1
In his § 2255 motion before the district court, which
was filed with the assistance of counsel, Gardner argued that
his prior Virginia conviction for taking indecent liberties with
a minor was improperly used to enhance his sentence as a career
offender under U.S.S.G. § 4B1.1. Gardner relied on the Supreme
Court’s decision in Begay v. United States, 553 U.S. 137 (2008),
decided while his direct criminal appeal was pending before this
Court.
The district court’s order addressing Gardner’s § 2255
motion declined to determine whether Begay rendered Gardner’s
sentence unlawful. 2 Instead, the district court reasoned that
1
Gardner’s motion to remand includes his “emergency motion
under local appellate rule 27(e) and IOP 34.1 seeking review of
motion to amend or to supplement [his] original § 2255 petition
under Fed. R. Civ. P.[] Rule 15(a)-(c)[.]”
2
The issue of whether Gardner’s prior Virginia conviction
was a proper predicate conviction under U.S.S.G. § 4B1.1 is
perhaps a difficult question. Indeed, this Court recently voted
to rehear en banc the case of United States v. Vann, 620 F.3d
431 (4th Cir. 2010), in which a majority of the original panel
held that the North Carolina offense of taking indecent
liberties with a child was a “crime of violence” for purposes of
the Armed Career Criminal Act. Nonetheless, a determination of
(Continued)
2
Gardner was not entitled to relief because his sentence was not
“unlawful.” That is, the district court reasoned that even if
Gardner was not a career offender (i.e., even if the prior
Virginia offense was not a predicate offense for purposes of
U.S.S.G. § 4B1.1), the sentence of 360 months was still
appropriate under 18 U.S.C. § 3553(a). Additionally, the
district court noted that, even without the career offender
enhancement, Gardner’s advisory guideline range would have been
324 months to 405 months. The 360-month sentence was within
that guideline range and thus not unlawful, according to the
district court.
Although the district court’s order states that it is
denying Gardner’s § 2255 motion, its reasoning could also be
interpreted, for practical purposes, as essentially granting
§ 2255 relief, vacating Gardner’s sentence and imposing a new
sentence, albeit the same sentence. See United States v.
Hadden, 475 F.3d 652, 661 & nn. 8-9, 664 (4th Cir. 2007) (if the
judgment in a § 2255 motion has the “practical effect” of
whether Gardner’s sentence is “unlawful” seems to require
resolution of this difficult question. Cf. United States v.
Pettiford, 612 F.3d 270, 277-78 (4th Cir. 2010) (the first step
in addressing a § 2255 motion is “to determine whether the
prisoner has met his burden of showing that “his sentence is
unlawful on one of the specified grounds”). Only then could the
district court impose a new sentence. See id.
3
vacating the original sentence and imposing a new sentence, even
one that is the same as the original sentence, then a
certificate of appealability is not required). Under such an
interpretation, no certificate of appealability would be
required because Gardner would essentially be appealing the
imposition of a new sentence. See Hadden, 475 F.3d at 661 n.8.
If, however, the district court’s order was in fact a true
denial of the pending § 2255 motion, then a certificate of
appealability would be required for him to appeal to this Court.
See 28 U.S.C. § 2253(c)(1) (2006).
Because the proper interpretation of the district
court’s order is unclear to this Court, we vacate the district
court’s judgment and remand to give the district court the
opportunity to clarify whether it was in fact imposing a new
sentence. In particular, assuming there are no procedural
hurdles to addressing such a claim, 3 the district court should
address whether Begay renders Gardner’s sentence improper. We
express no opinion on this issue.
3
On appeal, the government raises the question of whether
Gardner has procedurally defaulted his Begay-based claim by
failing to raise it in his direct criminal appeal, a question
not addressed by the district court’s order in Gardner’s § 2255
proceedings. We express no opinion as to whether Gardner may be
able to establish cause and prejudice for his failure based on
his appellate counsel’s failure to raise the claim.
4
The judgment of the district court is therefore
vacated and remanded for proceedings consistent with this
opinion. Gardner’s pending motions are denied without
prejudice.
VACATED AND REMANDED
5