PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7841
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WESLEY DEVON FOOTE,
Defendant – Appellant,
----------------------------------------
NORTH CAROLINA ADVOCATES FOR JUSTICE,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00177-NCT-1; 1:11-cv-
00042-NCT-JEP)
Argued: March 25, 2015 Decided: April 27, 2015
Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Duncan and Judge Keenan joined.
ARGUED: John Clark Fischer, RANDOLPH & FISCHER, Winston-Salem,
North Carolina, for Appellant. Ripley Eagles Rand, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. Jaclyn Lee DiLauro, HOGAN LOVELLS US LLP, Washington,
D.C., for Amicus Curiae. ON BRIEF: Michael F. Joseph, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. Noell Tin, TIN FULTON
WALKER & OWEN, PLLC, Charlotte, North Carolina; Neal Kumar
Katyal, HOGAN LOVELLS US LLP, Washington, D.C., for Amicus
Curiae.
2
THACKER, Circuit Judge:
Wesley Devon Foote (“Appellant”) appeals the district
court’s denial of his petition for collateral relief filed
pursuant to 28 U.S.C. § 2255. The district court concluded that
Appellant’s petition, which was based on the argument that his
career offender designation was later nullified under our
decision in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), does not present a claim that is cognizable on
collateral review.
The language of § 2255 makes clear that not every
alleged sentencing error can be corrected on collateral review.
The Supreme Court has instructed that only those errors
presenting a “fundamental defect which inherently results in a
complete miscarriage of justice” are cognizable. Davis v.
United States, 417 U.S. 333, 346 (1974) (internal quotation
marks omitted). We are not convinced that Appellant’s pre-
Simmons career offender designation meets this high bar.
Neither Appellant’s federal offense of conviction nor his state
convictions qualifying him as a career offender have been
vacated, he was sentenced under an advisory sentencing scheme,
and we are hesitant to undermine the judicial system’s interest
in finality to classify a Sentencing Guidelines error as a
fundamental defect. Therefore, we affirm the district court.
3
I.
A.
On July 13, 2006, Appellant pled guilty to three
counts of distribution of crack cocaine after previously being
convicted of a felony drug offense, a conviction that carried a
statutory maximum sentence of life in prison. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(B). On January 10, 2007, the district
court found Appellant to be a “career offender” and sentenced
him to 262 months in prison.
Pursuant to the United States Sentencing Guidelines
(“U.S.S.G.” or the “Guidelines”), a defendant can be designated
a career offender if
(1) the defendant was at least eighteen
years old at the time the defendant
committed the instant offense of conviction;
(2) the instant offense of conviction is a
felony that is either a crime of violence or
a controlled substance offense; and
(3) the defendant has at least two prior
felony convictions of either a crime of
violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a) (2005) (emphasis supplied). A “controlled
substance offense” is defined as “a[] [drug] offense under
federal or state law, punishable by imprisonment for a term
exceeding one year.” Id. § 4B1.2(b). Appellant’s presentence
investigation report (“PSR”) listed, inter alia, two North
Carolina convictions for possession with intent to sell cocaine.
For the first conviction, which occurred in 1995, Appellant was
4
sentenced to 10-12 months in prison (the “1995 conviction”); for
the second, which occurred in 2002, he was sentenced to 13-16
months in prison (the “2002 conviction”).
At the time of Appellant’s federal sentencing, this
court “determine[d] whether a conviction is for a crime
punishable by a prison term exceeding one year [under North
Carolina law,] [by] consider[ing] the maximum aggravated
sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history.” United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005) (second emphasis
supplied). Appellant’s 1995 conviction was for a Class H
felony, see N.C. Gen. Stat. § 90-95(a)(1), (b)(1) (2005), which
carried a maximum aggravated sentence of well over 12 months in
prison, id. § 15A-1340.17(c). Therefore, under Harp, Appellant
was convicted of a crime punishable by a “prison term exceeding
one year,” even though his actual sentence did not exceed one
year.
Based on the 1995 and 2002 convictions, the PSR
recommended that Appellant be designated a career offender, and
the district court agreed. As a result, Appellant’s offense
level rose from 32 to 37 (with a subsequent three-level
reduction for acceptance of responsibility), and his advisory
Guideline range jumped from 151-188 to 262-327 months in prison.
5
See U.S.S.G. § 4B1.1(b)(1). 1 The district court sentenced
Appellant at the bottom of the Guidelines range.
Appellant, questioning the propriety of his career
offender status, appealed from this judgment. Relying on Harp,
we affirmed. See United States v. Foote, 249 F. App’x 967, 969
(4th Cir. 2007). However, the Supreme Court vacated and
remanded for consideration in light of Kimbrough v. United
States, 552 U.S. 85 (2007) (approving deviation from advisory
Guidelines range for crack cocaine offenses). See Foote v.
United States, 552 U.S. 1163 (2008). On remand, the district
court declined to vary below the Guidelines range and filed an
amended judgment on November 13, 2009, sentencing Appellant to
the same amount of time in prison -- 262 months. See United
States v. Foote, No. 1:06-cr-177 (M.D.N.C. Nov. 13, 2009). The
district court explained,
I do not have a basis to make th[e] decision
[about what the proper crack to powder ratio
should be]. . . . I look to see where you
are with regard to the other factors in
3553(a), and you’ve got prior controlled
substance violations. You’ve got an
assault. On your own, without the
application of the career offender
provisions, you got 17 criminal history
points . . . . I would be glad to consider,
if the [crack/powder cocaine equivalency]
1
Appellant’s criminal history category was already at level
VI, so the career offender designation had no effect on that
level.
6
change is made, how that does effect [sic]
your sentence at that point, and adjust the
sentence accordingly.
Trans. at 10, Foote, No. 1:06-cr-177 (filed Oct. 15, 2009), ECF
No. 31. Foote appealed from the amended judgment, but we again
affirmed. See United States v. Foote, 395 F. App’x 49, 51 (4th
Cir. 2010). On January 21, 2011, Appellant filed a petition for
collateral relief pursuant to 28 U.S.C. § 2255, again arguing
that the district court erred in sentencing him as a career
offender. 2
Seven months later, while Appellant’s petition was
pending, this court decided United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc). In Simmons, this court addressed
whether a certain North Carolina crime could serve as a
predicate “felony drug offense” conviction for purposes of a
sentencing enhancement under the Controlled Substance Act (the
“CSA”). See id. at 249; see also 21 U.S.C. § 841(b)(1)(B)(vii)
(providing that first-time offenders who possess 100 kilograms
or more of marijuana “after a prior conviction for a felony drug
2
Meanwhile, Appellant filed a motion for retroactive
application of the Guidelines to his crack cocaine offense
pursuant to 18 U.S.C. § 3582(c)(2). The motion was denied on
February 8, 2011, because Appellant had already “received the
benefits of a two-level reduction in his cocaine base
computation at his [Kimbrough] resentencing . . . .” Foote, No.
1:06-cr-177 (filed Feb. 8, 2011), ECF No. 50. Appellant did not
appeal this determination.
7
offense has become final” are subject to a mandatory minimum
sentence of 10 years (emphasis supplied)); id. § 802(44)
(defining “felony drug offense” as a drug-related offense “that
is punishable by imprisonment for more than one year under any
[state] law”). Specifically, the court considered whether
Simmons was entitled to relief because the crime that supported
his sentencing enhancement -- a North Carolina conviction for
possession with intent to sell no more than 10 pounds of
marijuana -- was not an offense “punishable by imprisonment for
more than one year” under the CSA. Simmons, 649 F.3d at 240-41.
Of course, at the time of Simmons’s initial
sentencing, Harp controlled. Following Harp, a Fourth Circuit
panel initially rejected Simmons’s challenge to his sentencing
enhancement because North Carolina law dictated that the
marijuana conviction could be a crime “punishable by a term
exceeding one year” if two conditions were satisfied (even
though they were not met in Simmons’s case). See United States
v. Simmons, 340 F. App’x 141, 144 (4th Cir. 2009). The Supreme
Court remanded the case for consideration in light of Carachuri-
Rosendo v. Holder, 560 U.S. 563, 570, 576 (2010) (holding that
courts should look to the “conviction itself,” rather than a
crime or sentence with which the defendant “could have been”
charged or assigned, in determining whether a previous
conviction is an aggravated felony under the INA). See Simmons
8
v. United States, 130 S. Ct. 3455 (2010). On remand, this court
affirmed Simmons’s sentence despite Carachuri. See United
States v. Simmons, 635 F.3d 140, 146-47 (4th Cir. 2011). The
court then voted to rehear the case en banc.
On rehearing en banc, this court vacated Simmons’s
sentence and abrogated Harp in light of Carachuri. See Simmons,
649 F.3d at 239, 241. We held that because the state court that
sentenced Simmons “never made the recidivist finding necessary
to expose Simmons to a higher sentence,” the Government was
“precluded from establishing that a conviction was for a
qualifying offense” under the CSA. Id. at 243 (internal
quotation marks omitted). Two years later, this court held that
Simmons can be retroactively applied on collateral review
because it “announced a new substantive rule.” Miller v. United
States, 735 F.3d 141, 147 (4th Cir. 2013). Miller explained,
“The Simmons decision changed the way this Court determines
whether prior convictions for certain lower-level North Carolina
felonies are punishable by more than one year in prison.” Id.
at 145.
Not surprisingly, Appellant amended his § 2255
petition, contending that under Simmons, his 1995 North Carolina
conviction “is not punishable by more than a year” under the
9
Career Offender Guidelines. J.A. 58; 3 see U.S.S.G. § 4B1.1(a).
He asks the court to “resentence him pursuant to . . . Simmons
and use an individualized analysis[] in making it’s [sic]
determination.” J.A. 58. He also asks that upon resentencing,
the court should “[p]lace [him] in his proper guideline range,
and credit him with all applicable reductions.” Id. at 58-59.
B.
On September 24, 2013, a federal magistrate judge
filed a Memorandum Opinion and Recommendation, recommending that
Appellant’s § 2255 motion be denied but that a certificate of
appealability (“COA”) be issued with regard to whether Appellant
can assert a cognizable Simmons claim on collateral review. See
Foote v. United States, No. 1:06-cr-177, 2013 WL 5355543, at *8-
9 (M.D.N.C. Sept. 24, 2013). On November 7, 2013, the district
court affirmed and adopted the Opinion and Recommendation and
dismissed the habeas petition, but it issued a COA on the
following issue:
[W]hether Petitioner, who was sentenced as a
career offender under U.S. Sentencing
Guideline § 4B1.1, but who in fact was not a
career offender in light of Simmons v.
United States, can assert a cognizable claim
under 28 U.S.C. § 2255, seeking to challenge
a sentence that was below the statutory
maximum that would still apply.
3
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
10
Foote v. United States, No. 1:06-cr-177-1, 2013 WL 5962983, at
*1 (M.D.N.C. Nov. 7, 2013). Appellant filed a timely notice of
appeal. 4
This case was placed in abeyance pending our decision
in United States v. Whiteside, which presented the cognizability
issue we address today. See 748 F.3d 541, 555 (4th Cir. 2014)
(holding that Whiteside’s one-year limitations period was
equitably tolled and his Simmons claim was cognizable on
collateral review), reh’g en banc granted, opinion vacated, 578
F. App’x 218 (4th Cir. 2014). On rehearing en banc, however,
the court affirmed dismissal of the habeas petition on statute
of limitations grounds without reaching the cognizability issue.
See Whiteside v. United States, 775 F.3d 180, 187 (4th Cir.
2014) (en banc).
4
We note that the COA in this case does not mention a
“denial of a constitutional right” as required by 28 U.S.C. §
2253(c)(2) and (c)(3). However, the Government has not
challenged the propriety of the COA, and at this late stage, we
will not treat this potential defect as jurisdictional. See
Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012) (explaining that
subsections (c)(2) and (c)(3) are “non-jurisdictional rule[s]”
because they “speak[] only to when a COA may issue[;] [they]
do[] not contain . . . jurisdictional terms.”); Spencer v.
United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc)
(“Neither issue in the certificate for this appeal even purports
to involve an underlying error of constitutional magnitude, but
we decline to vacate the certificate at this late hour.”).
11
II.
In this appeal, we must determine whether the issue
Appellant raises in his amended petition is one that we can
entertain under 28 U.S.C. § 2255. This issue presents a pure
question of law, which we review de novo. See United States v.
Dodd, 770 F.3d 306, 309 (4th Cir. 2014); Spencer v. United
States, 773 F.3d 1132, 1137 (11th Cir. 2014).
We note at the outset that the language of § 2255 is
“somewhat lacking in precision.” Davis v. United States, 417
U.S. 333, 343 (1974). What is clear, however, is that by its
terms, § 2255 does not allow for a court’s consideration and
correction of every alleged sentencing error. See id. at 346.
Rather, the statute provides four avenues by which a petitioner
can seek relief:
A prisoner in custody under sentence of a
court established by Act of Congress
claiming the right to be released upon the
ground [1] that the sentence was imposed in
violation of the Constitution or laws of the
United States, or [2] that the court was
without jurisdiction to impose such
sentence, or [3] that the sentence was in
excess of the maximum authorized by law, or
[4] is otherwise subject to collateral
attack, may move the court which imposed the
sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255(a). The Supreme Court has interpreted this
provision such that if the alleged sentencing error is neither
constitutional nor jurisdictional, a district court lacks
12
authority to review it unless it amounts to “a fundamental
defect which inherently results in a complete miscarriage of
justice.” Davis, 417 U.S. at 346 (internal quotation marks
omitted). This standard is only satisfied when a court is
presented with “exceptional circumstances where the need for the
remedy afforded by the writ of habeas corpus is apparent.” Hill
v. United States, 368 U.S. 424, 428 (1962) (internal quotation
marks omitted). For the reasons that follow, we are constrained
to decide that sentencing a defendant pursuant to advisory
Guidelines based on a career offender status that is later
invalidated does not meet this remarkably high bar.
A.
In addressing collateral review claims brought under
§ 2255, the Supreme Court’s decisions have defined the limits of
the cognizability spectrum. In Davis, for example, the
petitioner was convicted of failure to report for induction
pursuant to Selective Service regulations. See 417 U.S. at 336.
While his appeal was pending, the court of appeals reversed a
conviction based on facts “virtually identical to those in
[Davis’s] case.” Id. at 339. Davis filed a § 2255 petition,
arguing that the intervening case required his conviction to be
set aside. See id. at 340. The Government argued that his
claim was not cognizable in a § 2255 collateral proceeding. The
Court held that Davis’s “conviction and punishment are for an
13
act that the law does not make criminal. There can be no room
for doubt that such a circumstance inherently results in a
complete miscarriage of justice and presents exceptional
circumstances that justify collateral relief under § 2255.” Id.
at 346-47 (internal alterations and quotation marks omitted).
Thus, from Davis we know that someone who is convicted based on
conduct that is later rendered non-criminal can bring a
cognizable § 2255 claim. 5
On the other end of the spectrum, however, the Supreme
Court has held that a district court’s failure to follow
procedural rules does not amount to a complete miscarriage of
justice where there is no evidence the defendant was prejudiced.
See Peguero v. United States, 526 U.S. 23, 24 (1999) (holding
that a district court’s failure to inform defendant of the right
to appeal, where defendant knew of the right, was not a basis
for § 2255 relief); United States v. Timmreck, 441 U.S. 780, 785
5
Amicus also cites Johnson v. United States, 544 U.S. 295
(2005). See Amicus Br. 14. While Johnson declared, “a
defendant given a sentence enhanced for a prior conviction is
entitled to a reduction if the earlier conviction is vacated,”
we are reluctant to give Johnson the weight amicus requests.
Id. at 303. For one thing, Johnson was decided on timeliness --
not cognizability -- grounds, and for another, the above-quoted
statement was mentioned in the context of assumptions made by
previous Court decisions. In any event, even attributing the
weight to Johnson that amicus requests, it merely reinforces the
notion that cognizability is an easier question if an earlier
conviction is actually vacated, which did not occur here.
14
(1979) (same, where district court failed to mention a special
parole term at Rule 11 hearing); Hill, 368 U.S. at 429 (same,
where sentencing judge failed to ask a defendant if he had
anything to say at his sentencing hearing).
B.
Between these limits -- punishment for conduct later
rendered non-criminal on one end and non-prejudicial procedural
errors on the other -- the Supreme Court has also held that a
petitioner’s § 2255 claim that post-sentencing changes in Parole
Commission policies prolonged his imprisonment beyond the period
of time intended by the sentencing judge was not cognizable.
See United States v. Addonizio, 442 U.S. 178, 190 (1979). The
Court explained that because the sentence imposed by the
district court was “within the statutory limits,” and the
proceedings were not “infected with any error of fact or law of
the ‘fundamental’ character,” the claim was not appropriate for
§ 2255 review. Id. at 186. The Court distinguished Davis,
explaining that Davis involved “a change in the substantive law
that established that the conduct for which petitioner had been
convicted and sentenced was lawful.” Id. at 186-87. In
contrast, the challenge in Addonizio was “not of the same
character”: while it may have affected “the way in which the
court’s judgment and sentence would be performed,” “it did not
15
affect the lawfulness of the judgment itself -- then or now.”
Id. at 187.
Also on the spectrum lie decisions from three of our
sister circuits that have addressed cognizability arguments
strikingly similar to the one with which we are presented.
These circuits have yielded nationally consistent yet internally
divided outcomes.
1.
First, the Seventh Circuit considered the petition of
Narvaez, who was deemed to have committed two “crimes of
violence,” and therefore was designated a career offender. See
Narvaez v. United States, 674 F.3d 621, 624 (7th Cir. 2011). Due
to his designation, the Guidelines range for his sentence
increased from 100-125 months to 151-188 months. See id. But
post-sentencing, the Supreme Court decided Begay v. United
States, 553 U.S. 137 (2008), and Chambers v. United States, 555
U.S. 122 (2009), which removed Narvaez’s previous convictions
from the “crime of violence” realm. The court held that the
career offender designation and resulting increase in sentencing
range was akin to the conviction in Davis, explaining, “to
increase, dramatically, the point of departure for his sentence
is certainly as serious as the most grievous misinformation that
has been the basis for granting habeas relief [by the Supreme
Court].” Narvaez, 674 F.3d at 629. However, the court
16
emphasized that “at the time of Mr. Narvaez’s sentencing, the
Guidelines were mandatory. The imposition of a career offender
status therefore increased the sentencing range the district
court was authorized to employ.” Id. at 628-29 (emphasis in
original).
The Seventh Circuit recently held, however, that under
an advisory Guidelines scheme, a similar claim was not
cognizable. See Hawkins v. United States, 706 F.3d 820 (7th
Cir. 2013). There, the court explained,
Narvaez, as our opinion emphasized, unlike
Hawkins, had been sentenced when the
guidelines were mandatory. . . . Before
[United States v. ]Booker[, 543 U.S. 220
(2005)], the guidelines were the practical
equivalent of a statute.
. . . .
The first step in sentencing -- calculating
the guidelines range correctly -- was not
changed by Booker. But the step is less
important now that the guidelines, including
the career offender guideline, are merely
advisory and the sentencing judge, being
forbidden to presume the reasonableness of a
guideline sentence, must make an independent
determination of whether a guideline
sentence would comport with the sentencing
standard set forth in 18 U.S.C. § 3553(a).
That is a critical difference between
Narvaez and the present case . . . .
Id. at 822-23 (citations omitted). The Hawkins court also
emphasized the importance of finality:
There is a difference between reversing an
error on appeal and correcting the error
17
years later. An erroneous computation of
an advisory guidelines sentence is
reversible (unless harmless) on direct
appeal; it doesn’t follow that it’s
reversible years later in a postconviction
proceeding. . . .
An error in the interpretation of a merely
advisory guideline is less serious [than
sentence that exceeds the statutory
maximum]. Given the interest in finality,
it is not a proper basis for voiding a
punishment lawful when imposed.
Id. at 824. For these reasons, Hawkins’s sentence was not a
“miscarriage of justice that can be collaterally attacked.” Id.
at 825 (internal quotation marks omitted). Therefore, the
takeaway from the Seventh Circuit is that if a career offender
defendant is sentenced below the statutory maximum post-Booker,
his post-conviction challenge to the career offender status is
not cognizable.
2.
The Eleventh Circuit reached a similar conclusion. In
Spencer v. United States, a three-judge panel initially held
that a petitioner’s post-conviction challenge to his career
offender designation was cognizable, explaining, “categorization
as a career offender is not merely a formal requirement of a
criminal procedural rule. The Guidelines are the heart of the
substantive law of federal sentencing.” 727 F.3d 1076, 1087
(11th Cir. 2013), reh’g en banc granted, opinion vacated (Mar.
7, 2014). The panel relied on the Supreme Court’s recent Peugh
18
v. United States decision, wherein the Court dubbed the
Guidelines the “lodestone of sentencing” and held that a post-
conviction increase in the Guidelines range can create an ex
post facto problem for those committing crimes under the
previously lower range. See 133 S. Ct. 2072, 2084 (2013).
On rehearing en banc, however, the Spencer panel
decision was overturned. See Spencer v. United States, 773 F.3d
1132 (11th Cir. 2014) (en banc). The majority explained,
“Spencer cannot collaterally attack his sentence based on a
misapplication of the advisory guidelines. Spencer’s sentence
falls below the statutory maximum, and his prior [qualifying]
conviction . . . has not been vacated. Spencer’s sentence was
and remains lawful.” Id. at 1135 (emphasis supplied). The
dissent, joined by three judges, countered, “the fact that a
sentence is deemed ‘lawful’ does not prohibit us from
determining that a complete miscarriage of justice has occurred
on collateral review.” Id. at 1145 (Wilson, J., dissenting).
3.
Finally, the Eighth Circuit held in a panel decision
that a post-conviction change that invalidates one’s career
offender status was cognizable on collateral review. See Sun
Bear v. United States, 611 F.3d 925 (8th Cir. 2010), reh’g en
banc granted, opinion vacated (Sept. 27, 2010). The panel
reasoned,
19
[W]e [have] held that ordinary questions of
sentencing guideline interpretation falling
short of the “miscarriage of justice”
standard do not present a proper section
2255 claim. However, Sun Bear’s claim is
more than a run-of-the-mill claim that the
district court misapplied the sentencing
guidelines. This case is based on a post-
conviction change in the law that renders
unlawful the district court’s sentencing
determination. “There can be no room for
doubt that such a circumstance inherently
results in a complete miscarriage of justice
and presents exceptional circumstances that
justify collateral relief under § 2255.”
Id. at 930 (footnote, alterations, and some internal quotation
marks omitted) (quoting Davis, 417 U.S. at 346-47).
But like the Eleventh Circuit, the Eighth Circuit
overturned the panel decision on rehearing en banc. See Sun
Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc).
The en banc majority held that the defendant’s 360-month
sentence handed down while the defendant was deemed a career
offender “[wa]s not unlawful” because it was not “imposed
without, or in excess of, statutory authority.” Id. at 705.
However, the court also noted that Sun Bear’s pre-enhancement
Guidelines range was 292-365 months, so the ultimate sentence
would have fallen within this range anyway. See id. (noting,
“the same 360–month sentence could be reimposed were Sun Bear
granted the § 2255 relief he requests”).
In sum, there is no decision left standing in any
circuit whereby a challenge to one’s change in career offender
20
status, originally determined correctly under the advisory
Guidelines, is cognizable on collateral review. However, we
cannot ignore that these decisions are extremely close and
deeply divided.
C.
Turning now to our circuit, we have held that
“misapplication of the sentencing guidelines does not amount to
a miscarriage of justice.” United States v. Mikalajunas, 186
F.3d 490, 495 (4th Cir. 1999); see also United States v.
Pregent, 190 F.3d 279, 283–84 (4th Cir. 1999).
In United States v. Mikalajunas, the petitioner sought
collateral review based on a misapplication of the “physical
restraint” enhancement in the Guidelines. See 186 F.3d at 492;
U.S.S.G. § 3A1.3. Like the case at hand, Mikalajunas argued
that an intervening decision rendered the enhancement
inapplicable to him. See 186 F.3d at 492. The court held that
a claim that the district court erred in enhancing one’s offense
level “is merely an allegation of ordinary misapplication of the
guidelines that does not amount to a miscarriage of justice.”
Id. at 496.
Similarly, in United States v. Pregent, this court
addressed a petitioner’s 18 U.S.C. § 3583(e) motion for
reduction in his term of supervised release on the grounds that
the district court misapplied the Guidelines. See 190 F.3d at
21
280. Construing the motion as a § 2255 petition, the court
assumed without deciding that Pregent’s motion stated a
cognizable claim under § 2255, but nonetheless explained,
Barring extraordinary circumstances, . . .
an error in the application of the
Sentencing Guidelines cannot be raised in a
§ 2255 proceeding. Section 2255 provides
relief for cases in which “the sentence was
in excess of the maximum authorized by law.”
Thus, while § 2255 applies to violations of
statutes establishing maximum sentences, it
does not usually apply to errors in the
application of the Sentencing Guidelines.
Id. at 283-84. The court then dismissed the petition as
untimely. Id. at 284.
III.
Considering where this case falls on the cognizability
spectrum, we conclude Appellant’s career offender designation
was not a fundamental defect that inherently results in a
complete miscarriage of justice.
A.
First, in the rare cases in which the Supreme Court
has found post-conviction “miscarriages of justice” to have
occurred, it has relied on the actual innocence of the
petitioner. The federal conviction that brought Appellant to
court in the first place and the state convictions used to
enhance his sentence have not been invalidated or vacated; thus,
22
it is difficult to place Appellant’s case within the ambit of
those decisions.
For example, in the 28 U.S.C. § 2254 habeas context,
the Supreme Court has held that while interests in finality
dictate that a court may not ordinarily reach the merits of a
successive or abusive habeas claim, there is an exception: if
failure to entertain the claim would result in a “fundamental
miscarriage[] of justice.” Schlup v. Delo, 513 U.S. 298, 315
(1995) (internal quotation marks omitted). The Court noted that
the exception is based on the idea that “habeas corpus is, at
its core, an equitable remedy,” but it explained that the
exception only applies to a “narrow class of cases” and should
“remain rare” and only applied in the “extraordinary case.” Id.
at 319, 315, 321 (internal quotation marks omitted); see also
Sawyer v. Whitley, 505 U.S. 333, 340 (1992) (“[W]e have
emphasized the narrow scope of the fundamental miscarriage of
justice exception.” (emphasis supplied)). As a result, the
miscarriage of justice exception in this context has
historically been “tied . . . to the petitioner’s innocence.”
Schlup, 513 U.S. at 321; see also United States v. MacDonald,
641 F.3d 596, 610-11 (4th Cir. 2011) (“[T]he exception for a
fundamental miscarriage of justice requires a showing that ‘a
constitutional violation probably has caused the conviction of
one innocent of the crime.’” (quoting McCleskey v. Zant, 499
23
U.S. 467, 494 (1991)); Wolfe v. Johnson, 565 F.3d 140, 160 (4th
Cir. 2009) (“A proper showing of actual innocence is sufficient
to satisfy the miscarriage of justice requirement.” (internal
quotation marks omitted)).
This is in accord with Davis, where the Supreme Court
concluded that Davis’s habeas claim amounted to a “complete
miscarriage of justice” because he claimed that his underlying
conviction was abrogated, i.e., he became actually innocent of
the crime. See 417 U.S. at 346; see also id. at 344 (“[T]here
can be no doubt that the grounds for relief under § 2255 are
equivalent to those encompassed by § 2254 [and] § 2255 was
intended to mirror § 2254 in operative effect.”).
The Supreme Court has extended the concept of actual
innocence to sentencing, but only capital sentencing. In
Sawyer, the Court held that to excuse procedural default barring
a challenge to petitioner’s death sentence, the petitioner must
show “actual innocence” of death penalty eligibility by proving
“by clear and convincing evidence that, but for a constitutional
error, no reasonable juror would have found the petitioner
eligible for the death penalty under the applicable state law.”
505 U.S. at 336.
Reading all of these cases together, it is clear that
“miscarriages of justice” in the post-conviction context are
grounded in the notion of actual innocence, and Appellant has
24
not been proven “actually innocent” of any of his prior
convictions. Furthermore, to the extent Appellant argues that
he is “actually innocent” of being a career offender, the
Supreme Court has yet to stretch this Sawyer concept to non-
capital sentencing, and we will not do so here.
B.
Second, we are hesitant to declare that a fundamental
defect or a complete miscarriage of justice has occurred in a
situation in which Appellant was (and on remand, would again be)
sentenced under an advisory Guidelines scheme requiring
individualized analysis of the sentencing factors set forth in
18 U.S.C. § 3553(a). District courts must make an independent
determination that a Guidelines sentence, even one based on a
career offender designation, would “comport with the sentencing
standard set forth in 18 U.S.C. § 3553(a).” Hawkins v. United
States, 706 F.3d 820, 823 (7th Cir. 2013). District courts may
not even presume that a within-Guidelines sentence is
reasonable. See Nelson v. United States, 555 U.S. 350, 352
(2009) (“The Guidelines are not only not mandatory on sentencing
courts; they are also not to be presumed reasonable.” (emphases
in original)). And a district court’s error in its sentencing
calculations is harmless if the court also provided
justification for the sentence based on the § 3553(a) sentencing
factors. See United States v. Evans, 526 F.3d 155, 165 (4th
25
Cir. 2008) (“[E]ven assuming the district court erred in
applying the Guideline departure provisions, [the defendant’s]
sentence, which is well-justified by [the] § 3553(a) factors, is
reasonable.”). Thus, even if we vacate and remand at this
juncture, the same sentence could be legally imposed. 6
Unlike a statute, the career offender provision is one
part of a series of guidelines meant to guide the district court
to the proper sentence. District courts are free to vary from
the career-offender-based sentencing range, and we have affirmed
their decisions to do so. See, e.g., United States v. Moreland,
437 F.3d 424, 436 (4th Cir. 2006), overruling on other grounds
recognized by United States v. Diosdado–Star, 630 F.3d 359 (4th
Cir. 2011) (“The district court here determined that sentencing
Moreland as a career offender would not comport with the goals
of § 3553(a), and we cannot reject this conclusion as
unreasonable.”). We have also upheld significant variances by
district courts that were supported by their reliance on the
§ 3553(a) factors. See, e.g., United States v. Smallwood, 525
F. App’x 239, 241 (4th Cir. 2013) (affirming sentence 333 months
above the top of the Guidelines range where the district court
6
Indeed, at Appellant’s Kimbrough re-sentencing, when given
a chance to vary downward based on the crack/powder disparity,
the district court declined to do so, sentencing Appellant to
the same 262-month sentence based on the § 3553(a) factors,
including his extensive criminal history.
26
“discussed the § 3553(a) factors, first listing each factor and
then explaining how that factor related to [the defendant]’s
case”).
On this point, amicus and Appellant rely heavily on
the Supreme Court’s decision in United States v. Peugh, 133 S.
Ct. 2072 (2013). As explained above, Peugh held that the ex
post facto clause is violated when a defendant is sentenced
under current Guidelines providing a higher sentencing range
than the Guidelines in effect at the time of the offense. The
Court explained, “The federal system adopts procedural measures
intended to make the Guidelines the lodestone of sentencing. A
retrospective increase in the Guidelines range applicable to a
defendant creates a sufficient risk of a higher sentence to
constitute an ex post facto violation.” Id. at 2084 (emphasis
supplied). But we know of no case where a “sufficient risk” of
prejudice or harm has risen to the level of a “fundamental
defect” resulting in a “complete miscarriage of justice.” To do
so would impermissibly water down standards meant to be “narrow”
and “rare.” Schlup, 513 U.S. at 299, 321. We thus decline to
give Peugh the weight Appellant attributes to it.
C.
Third, we are not persuaded that Appellant’s career
offender designation is a defect of a “fundamental” nature.
Courts have not used the term “fundamental” lightly. See
27
Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (holding that a
constitutional error renders a criminal punishment
“fundamentally [un]fair” if it deprives defendant of the “basic
protections [without which] a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence” (internal quotation marks omitted)); United States v.
Ramirez-Castillo, 748 F.3d 205, 217 (4th Cir. 2014) (“The Sixth
Amendment’s jury trial guarantee, which includes, ‘as its most
important element, the right to have the jury, rather than the
judge, reach the requisite finding of guilty,’ is fundamental.”
(quoting Sullivan v. Louisiana, 508 U.S. 275, 277 (1993))).
The language of § 2255(a) demonstrates that collateral
review is available for defects of a constitutional magnitude
and other defects that are equally fundamental, such as
sentences issued “in excess of the maximum authorized by law.”
28 U.S.C. § 2255(a). However, Booker “stripped [the Guidelines]
of legal force” and made them advisory. United States v. Dean,
604 F.3d 169, 173 (4th Cir. 2010). Because of this lack of
“legal force,” we would be remiss to place an erroneous
Guidelines classification under an advisory scheme in the same
category as violation of a statute or constitutional provision.
See also Spencer, 773 F.3d at 1141 (“[N]o fundamental defect
occurs when a court erroneously sentences a prisoner as a career
offender under advisory guidelines.” (emphasis in original));
28
cf. Mikalajunas, 186 F.3d at 495 (“[T]he scope of [collateral]
review of non-constitutional error is more limited than that of
constitutional error.”).
Amicus hints that because the career offender
enhancement was the result of a congressional directive, it
should be entitled to more weight than a mere Guidelines
provision crafted by the Sentencing Commission. See Amicus Br.
18. This argument is unfounded and was soundly rejected in
Spencer, wherein the court stated, “Spencer’s argument fails to
appreciate the advisory nature of every provision of the
guidelines. Although Congress directed the Sentencing
Commission to create a guideline for career offenders, a
district judge cannot treat that guideline as mandatory.”
Spencer, 773 F.3d at 1141. Therefore, because there is no
dispute that Appellant’s sentence did not exceed the statutory
maximum, his erroneous classification does not rise to the level
of a “fundamental” defect.
D.
Finally, when it comes to errors in application of the
Guidelines, it is hard to fathom what the dividing line would be
between a fundamental defect and mere error, and Appellant does
not offer a workable one. Appellant first contends that a
career offender designation “involves much more than a technical
Guidelines error, but, considering the vastly-increased
29
sentence[] resulting from the improper career offender
designation, constitute[s] a ‘miscarriage of justice’ by any
commonsense definition.” Appellant’s Br. 8-9. But to draw the
line at career offender designations would be underinclusive.
It is possible that a career offender may not receive as vast an
increase as another defendant who, for example, simply received
an erroneous Guidelines enhancement. Compare Sun Bear v. United
States, 644 F.3d 700, 702 (8th Cir. 2011) (defendant’s
sentencing range was 292 to 365 months without career offender
enhancement, and 360 to life with career offender enhancement;
defendant was sentenced to 360 months), with Mikalajunas, 186
F.3d at 497 (Murnaghan, J., dissenting) (defendant’s sentence
was increased by more than four years based on incorrect
physical restraint enhancement). Appellant does not demarcate
how vast a “vastly-increased sentence” must be to rise to the
level of a miscarriage of justice.
On the other hand, to draw the line at any sentencing
error that increases the sentencing range of the defendant would
be overinclusive. It would not only fly in the face of our
circuit precedent, see Mikalajunas, 186 F.3d at 496 (“[E]rrors
of guideline interpretation or application ordinarily fall short
of a miscarriage of justice”), but it would deal a wide-ranging
blow to the judicial system’s interest in finality, see United
States v. Addonizio, 442 U.S. 178, 184 (1979) (“It has, of
30
course, long been settled law that an error that may justify
reversal on direct appeal will not necessarily support a
collateral attack on a final judgment. The reasons for narrowly
limiting the grounds for collateral attack on final judgments
are well known and basic to our adversary system of justice.”
(footnotes omitted)).
E.
For all of these reasons, we believe this case falls
closer on the spectrum to Addonizio than Davis. Here, the
district court sentenced Appellant “within the statutory
limits,” and while the career offender designation may have
affected the ultimate sentence imposed, “it did not affect the
lawfulness of the [sentence] itself -- then or now.” Addonizio
442 U.S. at 187. Therefore, we are simply not presented with
“exceptional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent.” Hill v.
United States, 368 U.S. 424, 428 (1962).
Our decision today does not come without frustration.
Appellant challenged his career offender designation at every
step, met all applicable deadlines (which was not the case in
Whiteside and myriad decisions across the country), and his
career offender designation increased dramatically his advisory
Guidelines range. But we believe the guidance of the Supreme
31
Court and Congress is clear and, in this situation, ties our
hands.
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
32