United States v. Wesley Foote

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