United States v. Michael Palmer

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2016 Decided April 14, 2017

No. 15-3006

UNITED STATES OF AMERICA,
APPELLEE

v.

MICHAEL PALMER, ALSO KNOWN AS TONY, ALSO KNOWN AS
KNOT, ALSO KNOWN AS JAMES,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:89-cr-00036-1)

Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on on the brief were Elizabeth
Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.
 2

Concurring opinion filed by Circuit Judge BROWN.

ROGERS, Circuit Judge: This appeal challenges the
amended judgment entered by the district court following the
partial grant of appellant’s motion pursuant to 28 U.S.C. § 2255.
Section 2255(b) provides that upon granting such a motion, the
district court shall “vacate and set . . . aside” the challenged
judgment and either release the prisoner, resentence him, grant
a new trial, or correct the challenged sentence. Appellant seeks
to gain the benefit of the more lenient sentencing penalties under
the Fair Sentencing Act of 2010 even though he was sentenced
upon conviction at trial before that Act was effective and the
Supreme Court has limited its retroactive effect. See Dorsey v.
United States, 132 S. Ct. 2321, 2326 (2012).

The court need not decide today whether the Fair
Sentencing Act applies to a resentencing upon a successful
collateral attack pursuant to Section 2255. The district court left
intact appellant’s original trial sentence in 1989 except to apply
intervening changes in the law on the merger of offenses. This
limited revision to an otherwise final judgment was not a
reevaluation of the appropriateness of appellant’s original
sentence. As a Section 2255 “correct[ion],” and not a
“resentencing” at which the government has acknowledged the
more lenient penalties under the Fair Sentencing Act would
apply, this entitled appellant to no relief under the Act.
Accordingly, because appellant’s due process challenge to his
continuing criminal enterprise (“CCE”) conviction also affords
no relief, we affirm.

I.

On direct appeal, the court affirmed appellant’s convictions
of conspiracy and related offenses involving presiding over the
large-scale distribution and sale of unlawful drugs in
 3

Washington, D.C., in the late 1980s. United States v. Harris, et
al., 959 F.2d 246 (D.C. Cir.), cert. denied 506 U.S. 933 (1992).
Appellant thereafter filed a series of motions collaterally
attacking his convictions. In 2012, he filed a motion pursuant to
Section 2255 that consolidated twelve challenges to his
convictions. As relevant, appellant argued that (1) his CCE
conviction and sentence should be vacated pursuant to Rutledge
v. United States, 517 U.S. 292, 307 (1996), which held that
conspiracy under 21 U.S.C. § 846 is a lesser included offense of
CCE, and (2) four of his five 18 U.S.C. § 924(c) convictions
must be vacated under United States v. Anderson, 59 F.3d 1323,
1334 (D.C. Cir. 1995), which held that a defendant may only be
charged with one violation of Section 924(c) in relation to a
single predicate crime. Appellant also sought a new sentencing
hearing at which, he argued, the court should apply the updated
Sentencing Guidelines and statutory changes reducing the
disparity between crack and powder cocaine offenses to his
remaining convictions. The government agreed the
Section 924(c) convictions merged and that the conspiracy and
CCE convictions cannot both stand, but argued that appellant’s
conviction for the lesser included offense of conspiracy should
be vacated instead of his CCE conviction.

The district court granted appellant’s Section 2255 motion
in part. United States v. Palmer, 902 F. Supp. 2d 1, 4 (D.D.C.
2012). It vacated four of his Section 924(c) convictions and his
conspiracy conviction and the accompanying sentences. The
district court interpreted Rutledge to leave to “the sound
discretion” of the district court whether to dismiss the lesser
included offense (here, conspiracy), id. at 11, and decided to
“not depart from standard practice” under which the conspiracy
conviction, rather than the CCE conviction, would be vacated,
id. at 12. It acknowledged that the choice “is likely to have
more concrete effects on [appellant’s] actual sentence than cases
in which the two sentences were identical,” id. at 12; appellant
 4

would be eligible for parole if his CCE conviction, for which he
was sentenced to life without possibility of parole, were vacated.

Appellant subsequently filed a motion for issuance of an
updated judgment to reflect the district court’s ruling on his
Section 2255 motion and a special assessment amount limited to
the non-merged convictions. On January 5, 2015, the district
court entered an amended judgment, eliminating the vacated
convictions and excess assessments while leaving the remaining
convictions and sentences as originally imposed in 1989 upon
his convictions by a jury. See chart, below.1

1

Count Conviction Original Amended
Judgment Judgment
(1989) (2015)
1 Conspiracy to Life VACATED
distribute and possess (concurrent)
with intent to distribute
cocaine and cocaine
base, 21 U.S.C.
§§ 841(a) & 846
2 Continuing criminal Life without Life without
enterprise, 21 U.S.C. parole parole
§ 848 (concurrent) (concurrent)
3 Conspiracy to use or 5 years 5 years
carry weapons during (concurrent) (concurrent)
drug trafficking
offense, 18 U.S.C.
§§ 371 & 924(c)
4 Use of juveniles in 20 years 20 years
drug trafficking, 21 (concurrent) (concurrent)
U.S.C. § 845(b)
 5

II.

On appeal, appellant contends that the district court erred by
not applying the Fair Sentencing Act in entering the amended
judgment. The question whether the district court erred in
failing to apply the Fair Sentencing Act presents a question of
law, and our review is de novo. See United States v. Cook, 594
F.3d 883, 886 (D.C. Cir. 2010). The government’s suggestion
that our review of appellant’s sentencing challenge should be for
plain error is not well taken. See Appellee Br. 21 n.9. In
seeking relief pursuant to Section 2255, appellant argued that the
district court should apply “the new guidelines and statutory
changes that alter the [crack to powder cocaine] ratio and

5 Distribution and 5 years 5 years
possession with intent (concurrent) (concurrent)
to distribute 50 grams
or more of cocaine
base, 21 U.S.C.
§§ 841(a),
(b)(1)(A)(iii)
6, 7, Unlawful use of 5 years each VACATED
11, 16 firearm in aid of drug (consecutive)
trafficking, 18 U.S.C.
§ 924(c)
8, 12 Distribution of cocaine, 5 years each 5 years each
§ 21 U.S.C. 841(a) (concurrent) (concurrent)
17 Assault with a 3-9 years 3-9 years
dangerous weapon, 22 (concurrent) (concurrent)
D.C. Code § 502

Neither party mentions that the 1989 judgment refers to a “special
parole term” of three years on Count 5, while this term appears in
Count 17 of the 2015 amended judgment.
 6

penalties[.]” Mot. to Vacate at 52 (Mar. 20, 2012). Although
appellant did not repeat his statutory argument in seeking an
updated judgment, his new motion merely sought a ministerial
revision of the judgment, a procedural action authorized by
Federal Rule of Civil Procedure 58(d). See Perry v. Sheet Metal
Workers’ Local No. 73 Pension Fund, 585 F.3d 358, 362 (7th
Cir. 2009); cf. United States v. Johnson, 254 F.3d 279, 283-85
(D.C. Cir. 2001). As such, appellant’s new motion neither
forfeited nor waived his statutory argument; quite the contrary,
he was seeking a judgment to reflect the district court’s partial
grant of his Section 2255 motion.

In 1989, when appellant was sentenced following his
convictions at trial, the U.S. Sentencing Guidelines were
mandatory. See United States v. Booker, 543 U.S. 220, 233
(2005). Those Guidelines reflected a 100:1 sentencing disparity
for crack and powder cocaine offenses that was tied to the
mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)-
(C), see Dorsey, 132 S. Ct. at 2327, and also incorporated into
the mandatory life sentences for CCE principals involved with
large quantities of unlawful drugs, Anti-Drug Abuse Act of
1986, Pub. L. No. 99-570, 100 Stat. 3207, 3207-15, § 1253(2)
(1986). On August 3, 2010, Congress enacted the Fair
Sentencing Act, which reduced the 100:1 statutory disparity to
18:1 and directed the Sentencing Commission to issue updated
guidelines within ninety days. Fair Sentencing Act, Pub. L. No.
111-220, 124 Stat. 2372, 2372, 2374, §§ 2, 8 (2010); see United
States v. Abney, 812 F.3d 1079, 1084 (D.C. Cir. 2016).

In Dorsey, the Supreme Court held that the more lenient
mandatory minimum penalties of the Fair Sentencing Act applied
to offenders who committed a crack cocaine offense before
August 3, 2010, but were not sentenced until after that date. 132
S. Ct. at 2326. Sentencing courts were confronted with two
statutes that were in tension: a general federal saving statute
 7

provided that courts should apply the sentence in effect at the
time the offense occurred unless Congress “expressly provide[s]”
that a later statute should be used, 1 U.S.C. § 109, and the
Sentencing Reform Act of 1984 provided that courts should
apply the Sentencing Guidelines “in effect on the date the
defendant is sentenced,” 18 U.S.C. § 3553(a)(4)(A)(ii). See
Dorsey, 132 S. Ct. at 2330-31. The Court concluded that
Congress “clearly indicated” this tension should be reconciled in
favor of applying the Fair Sentencing Act to pre-Act offenders
who were sentenced after the Act took effect. Id. at 2326.
Relying “primarily upon the fact that a contrary determination
would seriously undermine basic Federal Sentencing Guidelines
objectives such as uniformity and proportionality in sentencing,”
id., the Court’s analysis of the timing issue considered six
factors, id. at 2331.2 The Court acknowledged that its approach

2
The six factors are: (1) Retroactivity may be conveyed by
the “plain import” or “fair implication” of a statute, rather than its
express terms. Dorsey, 132 S. Ct. at 2332. (2) The Sentencing
Reform Act required that amendments to the Sentencing Guidelines
lowering a sentence “become effective to offenders who committed an
offense prior to the adoption of the new amendments but are sentenced
thereafter.” Id. (3) The Fair Sentencing Act mandated the Sentencing
Commission promptly update its guidelines to “achieve consistency”
with the Act and “other guideline provisions,” id. (quoting Fair
Sentencing Act § 8, 124 Stat. at 2374), indicating “that Congress
intended to follow the Sentencing Reform Act background principle
here,” id. (italics omitted). (4) Failing to apply the Fair Sentencing
Act retroactively to pre-Act offenders sentenced post-Act “would
create disparities of a kind that Congress enacted the Sentencing
Reform Act and the Fair Sentencing Act to prevent.” Id. at 2333
(italics omitted). Individuals who committed the same offense months
or even days apart could face “radically different sentences,” despite
“roughly contemporaneous sentencing, i.e., the same time, the same
place, and even the same judge[.]” Id. (5) Failure to apply the Fair
Sentence Act to pre-Act offenders sentenced post-Act would also
 8

would create disparities based on when a pre-Act offender is
sentenced, but observed that “line-drawing . . . will exist
whenever Congress enacts a new law changing sentences (unless
Congress intends re-opening sentencing proceedings concluded
prior to a new law’s effective date).” Id. at 2335.

This court has held on the direct appeal from a conviction
that the Fair Sentencing Act is not retroactive to sentences
imposed prior to its enactment. In United States v. Bigesby, 685
F.3d 1060 (D.C. Cir. 2012), the court concluded that “Congress’s
desire to have the [Fair Sentencing Act] implemented quickly,”
by issuance of emergency amendments to the Sentencing
Guidelines, “in no way suggests that it also intended to have the
Act apply retroactively to defendants sentenced before it was
passed.” Id. at 1066 (quoting United States v. Bullard, 645 F.3d
237, 248 (4th Cir. 2011)). Congress had a “rational basis for
limiting the [Act’s] retroactive effect — its ‘interest in the
finality of sentences.’” Id. (quoting Johnson v. United States,
544 U.S. 295, 309 (2005)). In United States v. Fields, 699 F.3d
518 (D.C. Cir. 2012), the court viewed Bigesby as consistent
with Dorsey because “the [Supreme] Court expressly
acknowledged that it was creating a disparity ‘between pre-Act

“create new anomalies — new sets of disproportionate sentences”
because such offenders would either be subject to the old, more
stringent statutory mandatory minimums or receive the benefit of the
updated guidelines under the Sentencing Reform Act depending on
small differences in drug quantity. Id. at 2334. (For example, a pre-
Act offender convicted of possession with intent to distribute four
grams of crack who is sentenced post-Act would face a sentence of
two years under the updated guidelines, while “an otherwise identical
offender who possessed five grams would have to receive a 5-year
sentence” under the old statutory minimums. Id.) (6) Finally, “no
strong countervailing consideration” warranted not giving the Fair
Sentencing Act this limited retroactive effect. Id. at 2335 (italics
omitted).
 9

offenders sentenced before August 3 and those sentenced after
that date.’” Id. at 522 (quoting Dorsey, 132 S. Ct. at 2335).

Similarly, in United States v. Swangin, 726 F.3d 205 (D.C.
Cir. 2013), the court held that a defendant seeking a reduction
under 18 U.S.C. § 3582(c)(2) was not entitled to have the Fair
Sentencing Act’s more lenient mandatory minimums applied
retroactively to his sentence. The court concluded that Section
3582(c)(2), which authorizes the district court to reduce a
sentence when the term of imprisonment is calculated “based on
a sentencing range that has subsequently been lowered by the
Sentencing Commission,” if consistent with the applicable
Commission policy statement, provides for “‘only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.’” Id. at 207 (quoting Dillon v. United
States, 560 U.S. 817, 826 (2010)). “[T]hat Swangin received a
§ 3582(c)(2) reduction after the Fair Sentencing Act’s enactment
does not change the fact that he was sentenced before its
enactment and is therefore subject to the rule announced in our
prior decisions.” Id. The court, like other circuits, rejected the
argument that Dorsey required a different outcome. Id. at 207-08
& n. 4.

Still, it is an open question in this circuit whether, on
collateral attack, the Fair Sentencing Act’s reduced penalties are
applicable to sentences imposed pursuant to Section 2255 upon
vacatur of the challenged judgment. Section 2255 instructs the
district court, upon granting the motion, to “vacate and set . . .
aside” the challenged judgment, and then to “discharge the
prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate.” 28 U.S.C. § 2255(b).
Appellant takes a broad view, contending that the Fair
Sentencing Act applies to any sentencing proceeding following
the grant of a Section 2255 motion because the original judgment
no longer exists and in issuing an amended judgment the district
 10

court necessarily had to impose a new sentence. That is, the Act
applies to any revision of the vacated challenged sentence,
whether a correction or a resentencing. The government
responds that even if the Act applies to a resentencing — as the
government has argued to our sister circuits, see, e.g., United
States v. Hinds, 713 F.3d 1303, 1304 n.2 (11th Cir. 2013); see
also Appellee Br. 20, 24 n.10 — the Act does not apply to a mere
correction of a sentence as occurred here.

The text of Section 2255 indicates that Congress intended a
sentence “correct[ion]” and a “resentencing” to entail different
remedies that do not quite favor appellant’s broad approach.
First, Congress is presumed, absent indication to the contrary and
there is none here, to use words in their ordinary meaning. See
Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S.
246, 252 (2004). Dictionaries define a “correction,” as “the act
or an instance of making right what is wrong,” BLACK’S LAW
DICTIONARY (10th ed. 2014), or “remedying or removing error
or defect,” W EBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, UNABRIDGED (2017). A “resentencing” in
contrast, is “[t]he act or an instance of imposing a new or revised
criminal sentence.” BLACK’S LAW DICTIONARY (10th ed. 2014).
These definitions suggest that corrections are limited to a
specific type of action taken with respect to the original
judgment, while resentencings could encompass a broader array
of procedures. They nonetheless leave open the possibility for
overlap between the two and thus are not dispositive.

Second, the Federal Rules of Criminal Procedure embrace
a similar distinction. Rule 35 allows the district court to “correct
a sentence that resulted from arithmetical, technical, or other
clear error.” FED. R. CRIM. P. 35(a). The scope of Rule 35 is
intended to be narrow. See Hill v. United States, 368 U.S. 424,
430 (1962). The Rules Advisory Committee explained that Rule
35
 11

is not intended to afford the court the opportunity to
reconsider the application or interpretation of the
sentencing guidelines or for the court simply to change
its mind about the appropriateness of the sentence. Nor
should it be used to reopen issues previously resolved
at the sentencing hearing through the exercise of the
court’s discretion with regard to the application of the
sentencing guidelines.

FED. R. CRIM. P. 35, Advisory Comm. Notes on 1991 Amends.
(“R. 35, Advisory Comm. Notes”). Rule 35 corrections also are
allowed only within fourteen days of sentencing. FED. R. CRIM.
P. 35(a). The Advisory Committee further notes that a defendant
may seek relief of “obvious sentencing errors” pursuant to
Section 2255 after this time period has lapsed. R. 35, Advisory
Comm. Notes. This explanation suggests that correction of a
sentence pursuant to Section 2255 at least encompasses some of
the changes that could have been made under Rule 35 but for
timing. See United States v. Coyer, 732 F.2d 196, 200 (D.C. Cir.
1984).

Third, courts are to interpret congressional statutes in a way
to avoid surplusage. See Young v. United Parcel Serv., Inc., 135
S. Ct. 1338, 1352 (2015); Mingo Logan Coal Co. v. EPA, 714
F.3d 608, 613-14 (D.C. Cir. 2013). Although the district court
did revise appellant’s original trial sentence, Section 2255’s
mandate to vacate the challenged judgment upon granting relief
affords the district court distinct remedial options. Congress
added the phrase “correct the sentence” to legislation proposed
by the Judicial Conference of the United States in 1943 to allow
courts upon a collateral attack to “discharge the prisoner or
resentence him or grant a new trial as may appear appropriate.”
Compare S. 1451, 79th Cong. (1st Sess. 1945) and H.R. 4233,
79th Cong. (1st Sess. 1945) with Report of the Judicial
Conference 24 (1943). See also H.R. REP. 308 on H.R. 3214, at
 12

7 (1947) reprinted in LEGISLATIVE HISTORY OF THE
CODIFICATION OF TITLE 28 OF THE UNITED STATES CODE
ENTITLED JUDICIAL CODE AND JUDICIARY: P.L. 80-773: CH. 646,
2D SESS. (1948). Congress thus contemplated a sentencing
proceeding in which a correction as well as a resentencing could
follow vacatur. Of course, describing the district court’s revision
as a correction rather than a resentencing does not necessarily
compel the conclusion that it was proper, and depending on how
far beyond Rule 35’s boundaries a Section 2255 sentence
“correct[ion]” extends may mean it is actually a “resentencing.”
This case does not present those complexities.

Here, appellant contends that “the district court did not issue
the new judgment to correct a mathematical or technical
mistake,” and that he “was entitled to more than a Rule 35-type
correction of his sentence.” Reply Br. at 4. We agree that the
district court did not correct a mathematical or technical mistake
in the original sentence, and although Rule 35 also refers to
corrections resulting from “other clear error,” neither was the
district court “fixing judicial gaffes” in that sentence. United
States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008); see also
United States v. Arrington, 763 F.3d 17, 24 (D.C. Cir. 2014).
Rather, the district court revised the original sentence in view of
the change in the law on merger since appellant was sentenced
at trial. In so doing, the record indicates, clearly, that the district
court did no more than mechanically vacate the unlawful
convictions (and accompanying sentences) for the five counts
that had merged under Rutledge and Anderson after applying the
“standard practice,” in this and other circuits,3 of vacating the

3
See, in this circuit, United States v. Mahdi, 598 F.3d 883,
897 (D.C. Cir. 2010), and United States v. Hoyle, 122 F.3d 48, 49 n.1
(D.C. Cir. 1997), and, in other circuits, Lanier v. United States, 220
F.3d 833, 841 (7th Cir. 2000) (citing cases); United States v. Brito,
136 F.3d 397, 408 (5th Cir. 1998); United States v. Avery, 128 F.3d
 13

lesser included offense of conspiracy. Otherwise, the district
court left appellant’s original sentence in place, unaltered.

The district court was required to do no more, for Section
2255(b) accords it discretion in choosing from among four
remedies, “as may appear appropriate.” See United States v.
Haynes, 764 F.3d 1304, 1310 (11th Cir. 2014); Ajan v. United
States, 731 F.3d 629, 633 (6th Cir. 2013); United States v.
Savoca, 596 F.3d 154, 161 (2d Cir. 2010); United States v. Jones,
114 F.3d 896, 897 (9th Cir. 1997). Although appellant did obtain
more than a Rule 35 correction of his original sentence, because
there was no clear error to fix within fourteen days of his original
sentence, he was not resentenced based upon a reevaluation of
the sentence that should be imposed for his convictions. The
district court took none of the actions that the Advisory
Committee cautioned would fall outside of the scope of a Rule
35 correction, such as reconsidering the appropriateness of
appellant’s 1989 sentence. Neither did the district court conduct
any of the usual procedures for a full blown resentencing
hearing: “The probation office did not prepare a new
[presentence report], the district court did not accept any new
evidence or any legal argument, and [appellant] was not given
the opportunity to allocute[.]” United States v. Hadden, 475 F.3d
652, 667 (4th Cir. 2007). Instead, the district court acted, as the
Rule 35 Advisory Committee contemplated, to correct “clear
error” that arose after the time for correction under Rule 35 had
expired. Section 2255 contemplates a sentencing proceeding as
one of the options upon a successful collateral attack, unlike 18
U.S.C. § 3582(c)(2), see Dillon, 560 U.S. at 825, but a revision
to eliminate clear error due to subsequent development of the law
on merger of offenses reflects “a limited adjustment to an

966, 972 (6th Cir. 1997). The Sixth Circuit has recognized an
exception where the lesser included offense carries a greater sentence.
See United States v. Chambers, 944 F.2d 1253, 1269 (6th Cir. 1991).
 14

otherwise final sentence and not a plenary resentencing
proceeding,” Swangin, 726 F.3d at 207 (quoting Dillon, 560 U.S.
at 826). And it did not change the fact that appellant was
originally sentenced before the Fair Sentencing Act was
effective. See id.; see also Fields, 699 F.3d at 522.

Appellant nonetheless disputes that the district court could
enter “a new judgment excising the vacated counts without
considering the remaining sentences or undoing the entire knot
of calculation underlying the original sentencing.” Reply Br. 4
(internal quotation marks omitted). This court has acknowledged
the pertinence of a sentencing scheme in determining that a
remand for resentencing is required, see United States v. Rhodes,
106 F.3d 429, 433 (D.C. Cir. 1997), and that sentences for
individual counts may be so intertwined that a remand for
resentencing is appropriate, United States v. Townsend, 178 F.3d
558, 566-69 (D.C. Cir. 1999). Cf. United States. v. Morris, 116
F.3d 501, 504 (D.C. Cir. 1997). Yet not every judgment
involving multiple convictions presents a sentencing package in
which vacating the sentence on one count unravels the remaining
sentences. E.g., United States v. Smith, 467 F.3d 785, 789-90
(D.C. Cir. 2006). Further, this court has repeatedly concluded
that resentencing is unnecessary where, as here, the district court
merely vacated convictions for lesser included offenses subject
to merger. See, e.g., United States v. Battle, 613 F.3d 258, 266
(D.C. Cir. 2010); United States v. Baylor, 97 F.3d 542, 548 (D.C.
Cir. 1996); United States v. Lewis, 482 F.2d 632, 647 (D.C. Cir.
1973).

Appellant has pointed to no basis to conclude that the
district court presiding at his criminal trial imposed a harsher
sentence on the greater offense than it would have in the absence
of the lesser offense; in that sense, too, there was no need for the
district court here to entertain a resentencing. See United States
v. Fields, 72 F.3d 1200, 1210 (5th Cir. 1996). The only rationale
 15

appellant offers in support of a sentencing package theory is that
had the district court chosen to vacate his CCE conviction, rather
than his conspiracy conviction, he would be eligible for parole.
Even assuming a resentencing would be required to take into
account the possibility of parole, cf. Smith, 467 F.3d at 789-90;
Townsend, 178 F.3d at 568, that is not what happened in
appellant’s case. The district court did acknowledge counsel’s
assertion about appellant’s positive adjustments during his
imprisonment, and various related letters, but nothing in the
Section 2255 record indicates the district court was making a
determination relative to parole itself; instead it was
acknowledging, in light of the specific relief defense counsel
sought for appellant, the effect of the different sentences that had
been originally imposed at trial for CCE and conspiracy.
Palmer, 902 F. Supp. 2d at 12. Appellant remains ineligible for
parole just as he was before the district court partially granted his
Section 2255 motion.

To the extent appellant suggests that this court should
consider the district court’s choice of which conviction to vacate
in light of Rutledge to be an act of resentencing in and of itself,
he ignores this court’s understanding of “resentencing.” See
generally United States v. Blackson, 709 F.3d 36, 40 (D.C. Cir.
2013). A district court’s exercise of discretion — in deciding not
to depart from the “standard practice” in vacating the lesser
included offense rather than the CCE conviction — also does not
make its action a resentencing “in the usual sense.” Dillon, 560
U.S. at 827; see id. at 825-28. Instead, the district court’s
decision followed standard practice in making a “limited
adjustment” to appellant’s original sentence as required by
subsequent developments in the law on the merger of offenses.
Id. at 826. Nothing in the record indicates that the district court
was reevaluating the appropriateness of appellant’s original
sentence, much less his eligibility for parole. That a revision to
a sentence may encompass something more than correction of
 16

a mathematical or technical mistake under Rule 35 does not
necessarily transform whatever else the district court did into a
resentencing under Section 2255.

Appellant’s suggestion that it violates due process to permit
his pre-Fair Sentencing Act sentence to stand is also
unpersuasive for lack of supporting authority, as are his
assertions under the Ex Post Facto Clause and, under Booker, the
Sixth Amendment. There is nothing constitutionally unfair about
leaving appellant’s non-merged convictions in place in view of
the evidence at his trial and the law then in effect. See Hughes,
733 F.3d at 647; Savoca, 596 F.3d at 161. The district court
recounted the district court’s observations at sentencing:
“[Appellant’s] organization ‘created havoc and misery in their
path’ for several years, selling an ‘estimated 100 and 200 kilos
of crack in[] the city,’ for which they earned a total of ‘perhaps
as much as 5 to $10 million,’” Palmer, 902 F. Supp. 2d at 4
(quoting Sent. Hg. Tr. 2 (Oct. 18, 1989)), and “[i]n the 25 years
. . . on the bench, [it] ha[d] seldom, if ever, seen a case in which
the evidence was as overwhelming as it was in this case . . . and
particularly [as to] the guilt of Mr. Palmer,” id. at 5 (quoting
same at 7) (first and fourth brackets and second ellipsis in
original). Further, Booker does not apply retroactively on
collateral review. See, e.g., In re Zambrano, 433 F.3d 886, 889
(D.C. Cir. 2006). Appellant’s reliance on Dorsey, 132 S. Ct. at
2325, is misplaced; his circumstances are not comparable to
those of a defendant who was originally sentenced after the Fair
Sentencing Act was effective, and this court has held that the Act
is not retroactive for defendants who were originally sentenced
prior to the Fair Sentencing Act. See Swangin, 726 F.3d at 208.

In sum, the amended judgment entered by the district court
did no more than apply the substantive law on merger of offenses
as it had developed since appellant’s sentence at trial. In so
doing, the district court applied the “standard practice” to vacate
 17

conspiracy, the lesser included offense of CCE, and then
“removed the [newly existing] error[s] from [appellant’s]
original sentence — and thereby made it ‘right’ — by excising
the unlawful . . . term[s].” Hadden, 475 F.3d at 667. This
limited adjustment to appellant’s original sentence is
distinguishable from a resentencing in which the district court
had “chang[ed] its mind about the appropriateness of the
[original] sentence.” R. 35, Advisory Comm. Notes. But for the
intervening change in the law of merger, the district court left
appellant’s original sentence intact, stating “the rest of the
sentences from [appellant’s] original Judgment of Conviction
remains as announced [in 1989.]” United States v. Palmer, No.
89-cr-36 at 1 (D.D.C. Sept. 26, 2012).

III.

In addition to not deciding whether the Fair Sentencing Act
applies to a resentencing pursuant to Section 2255, the court has
no occasion to decide whether his conviction and sentence for
CCE violates due process because 21 U.S.C. § 848(b) failed to
define a criminal offense at the time of his conviction. It is
procedurally defaulted. Appellant did not raise this issue in his
direct appeal from his conviction, see Harris, 959 F.2d at 250,
252, 267, much less in seeking relief pursuant to Section 2255.
Nor has appellant shown cause and prejudice for his failure to
raise his due process objection on direct appeal. See Bousley v.
United States, 523 U.S. 614, 622 (1998); United States v.
Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008). In his reply brief, he
maintains that there has been a “miscarriage of justice,” Reply
Br. 9; even if not forfeited, see United States v. Wilson, 605 F.3d
985, 1035 (D.C. Cir. 2010), an otherwise procedurally defaulted
claim may be considered by the court only upon a showing as a
factual matter that the defendant is “actually innocent,” Bousley,
523 U.S. at 622-24, and appellant has made no such showing.
 18

Appellant’s challenge to his Section 848(b)(1)(A) conviction
also does not fall within an established exception to procedural
default rules. Under the law of this circuit, facial challenges to
the constitutionality of presumptively valid statutes are not
jurisdictional. United States v. Baucum, 80 F.3d 539, 540 (D.C.
Cir. 1996). Further, whether an indictment charged a proper
offense goes to the merits, not subject matter jurisdiction.
United States v. Cotton, 535 U.S. 625, 630-31 (2002); United
States v. Williams, 341 U.S. 58, 66 (1951); see United States v.
Miranda, 780 F.3d 1185, 1189-90 (D.C. Cir. 2015); United
States v. Delgado-Garcia, 374 F.3d 1337, 1342 (D.C. Cir. 2004);
cf. United States v. Rubin, 743 F.3d 31, 37 (2d Cir. 2014).
Additionally, the “right not to be haled into court at all upon . . .
felony charge[s]” where “[t]he very initiation of the proceedings”
denies a defendant due process, Blackledge v. Perry, 417 U.S.
21, 30 (1974); accord Menna v. New York, 423 U.S. 61, 62
(1975), does not apply to a due process challenge to the
substantive reach of a criminal statute. See Miranda, 780 F.3d
at 1190; Delgado-Garcia, 374 F.3d at 1343; cf. United States v.
Gonzáles, 311 F.3d 440, 443 (1st Cir. 2002).

But even were appellant’s contention viewed as
jurisdictional or as falling within the Blackledge/Menna
exception, it would fail.4 A scrivener’s error did not deprive

4
The Supreme Court granted certiorari in United States v.
Class, No. 15-3015 (D.C. Cir. July 5, 2016), to determine “[w]hether
a guilty plea inherently waives a defendant’s right to challenge the
constitutionality of his statute of conviction.” Pet. for Writ of
Certiorari at i, Class v. United States, No. 16-424 (Sept. 30, 2016); see
2017 WL 670209 (Mem.). Although Class involves a guilty plea, it
is not inconceivable that the Court might hold that a facial challenge
to a statute on the ground it fails to state an offense is a jurisdictional
objection or falls within the Blackledge/Menna exception, overruling
this court’s precedent. For this reason, we address appellant’s
challenge rather than hold his appeal in abeyance pending the
 19

appellant of “fair notice” that Section 848(b)(1)(A) meant to
refer to (c)(1) rather than (d)(1). United States v. Williams, 553
U.S. 285, 304 (2008). At the time appellant was indicted and
convicted, Section 848(b) provided for life imprisonment for a
principal administrator of a CCE if “the violation referred to in
subsection (d)(1) of this section involved at least 300 times the
quantity of a substance described in subsection 841(b)(1)(B) of
[title 21].” 21 U.S.C. § 848(b)(2)(A) (1989). Subsection (d),
however, neither included a paragraph (1) nor stated a violation;
it prohibited suspended sentences and probation. Paragraph
(c)(1), in contrast, defined the violations within the purview of
a CCE. The statutory history of Section 848 makes clear that the
reference to (d)(1) rather than (c)(1) was a “simple scrivener’s
error” rather than a conscious choice by Congress. U.S. Nat’l
Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462
(1993). The text in (c)(1) had previously appeared as (d)(1). See
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat.
13207, 13207-14, § 1253(1) (1986); Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat.
1236, 1265-66, § 408 (1970). The erroneous cross-reference
occurred when (d) was redesignated (c) in amending Section 848
to correct a prior statutory error where subsection (b) was
followed by subsection (d), omitting (c). See Anti-Drug Abuse
Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4382,
§ 6481(b) (1988).

“[A] provision which is the result of obvious mistake should
not be given effect, particularly when it overrides common sense
and evident statutory purpose.” United States v. Babcock, 530
F.2d 1051, 1053 (D.C. Cir. 1976) (internal quotation marks
omitted). The Supreme Court has cautioned against judicially
amending a statute “to provide for what [the court] might think
. . . is the preferred result.” Lamie v. U.S. Tr., 540 U.S. 526, 542

Supreme Court’s decision in Class.
 20

(2004) (quoting United States v. Granderson, 511 U.S. 39, 68
(1994) (Kennedy, J., concurring)) (alterations in Lamie). But
there, even though the plain text of the statute could lead to a
harsh result, the Court concluded the result was not absurd, id. at
536, 538, and consequently it was not inconceivable that
Congress intended for the statute to operate as written, despite
some evidence of a scrivener’s error, id. at 539-42. This court
applied a similar analysis in U.S. ex rel. Totten v. Bombardier
Corporation, 380 F.3d 488 (D.C. Cir. 2004), as did the Fourth
Circuit in United States v. Childress, 104 F.3d 47 (4th Cir. 1996),
on which appellant relies. Here, in contrast, there is no plausible
reading of the plain text absent recognizing and correcting for the
error. Section 848(b)(2)(A) referred to “the violation referred to
in paragraph (d)(1),” but (d)(1) did not exist and (d) did not
describe a violation. Not departing from the “literal wording” of
Section 848 would lead to “an absurd result,” imposing a
sentence for no stated offense, Lange v. United States, 443 F.2d
720, 722, 723 (D.C. Cir. 1971), and thus function as a repeal of
Section 848(b) by implication, which are disfavored, Rodriguez
v. United States, 480 U.S. 522, 524 (1987), or require the court
to treat all of subsection (b) as surplusage, contrary to a basic
interpretative principle, Mingo Logan Coal Co., 714 F.3d at
613-14.

The drafting history and structure of Section 848 show
Congress intended to refer to (c)(1), which identified the
predicate violations for CCE. Cf. United States v. Coatoam, 245
F.3d 553, 558-60 (6th Cir. 2001). By construing Section 848(b)
to refer to (c)(1), rather than a non-existent (d)(1), the court is
“applying what Congress has enacted after ascertaining what it
is that Congress has enacted.” Local 1976, United Bhd. of
Carpenters v. NLRB, 357 U.S. 93, 100 (1958). And because
Congress’ intent is clear, the rule of lenity is inapplicable.
Bifulco v. United States, 447 U.S. 381, 387 (1980).
 21

Accordingly, we affirm the judgment of the district court.
 BROWN, Circuit Judge, concurring: While I agree the
district court’s grant of habeas relief in this action did not
trigger the application of the Fair Sentencing Act’s (“FSA”)
reduced penalties, Op. 10–12, 17, I would reach this conclusion
regardless of whether the district court made a sentence
“correction” or conducted a more complete “resentencing.”
The Supreme Court’s rule in Dorsey v. United States, 132 S.
Ct. 2321 (2012) was a ticket for a few trains only; that ticket
has long since expired. 1

Dorsey holds the FSA should apply to those defendants
who completed their criminal conduct before the statute’s
enactment but who were initially sentenced after the law took
effect. Id. at 2335–36. Specifically, the Dorsey Court
considered application of the FSA to initial sentencings in light
of two competing statutory provisions: (1) 1 U.S.C. § 109,
which instructs, “[t]he repeal of any statute shall not have the

1
As an initial matter, the government does not concede Dorsey applies to
resentencings. Rather, its brief states, “[N]umerous other Circuits have held
that the FSA applies to a true ‘resentencing,’ and the government has
conceded that point in other cases.” Gov’t Br. 24 n.10 (emphasis added).
The mere fact that the government had previously conceded Dorsey applied
to resentencings in other matters is hardly dispositive for this Court’s
review. See NLRB v. Local 103, Int’l Ass’n of Bridge, Structural &
Ornamental Iron Workers, 434 U.S. 335, 351 (1978) (noting a
governmental agency “is not disqualified from changing its mind”). As the
Supreme Court has acknowledged, “private agreements between litigants
. . . cannot relieve this Court of performance of its judicial function” in
interpreting the statutes Congress passed “irrespective of [the litigants’]
prior or present views.” Garcia v. United States, 469 U.S. 70, 79 (1984).
“[T]he proper administration of the criminal law cannot be left merely to
the stipulation of parties.” Young v. United States, 315 U.S. 257, 259
(1942).

Finally, this Court’s oblique statement in United States v. Law, 806 F.3d
1103, 1105 n.1 (D.C. Cir. 2015)—buried in a footnote and noting only that
the district court had “applied” the FSA on resentencing—hardly settles the
legal dispute.
 2
effect to release or extinguish any penalty, forfeiture, or
liability incurred under such statute, unless the repealing Act
shall so expressly provide;” and (2) 18 U.S.C.
§ 3553(a)(4)(A)(ii), which “says that when determining the
particular sentence to be imposed in an initial sentencing, the
[district] court shall consider, among other things, the
sentencing range established by the Guidelines that are in effect
on the date the defendant is sentenced.” 132 S. Ct. at 2330–32
(emphasis omitted) (quoting 1 U.S.C. § 109; 18 U.S.C.
§ 3553(a)(4)(A)(ii)). Since the FSA itself directs the
Sentencing Commission to amend the crack-cocaine
Guidelines soon after the statute’s effective date, the Court
determined—in the context of an initial sentencing—Section
3553(a)(4)(A)(ii)’s “background sentencing principal”
outweighed Section 109’s “default rule.” Id. at 2332–34; see
id. at 2339 (Scalia, J., dissenting).

Fair enough; the Court acknowledged the need to draw an
arbitrary line in light of contradictory statutory language, and
it did so. But nothing in Dorsey indicates it should be extended
to resentencings. To the contrary, the Court’s six-factor
analysis reveals its desire to avoid any future application of its
limited holding. See Op. 7 n.2; see also Dorsey, 132 S. Ct. at
2344 (Scalia, J., dissenting) (“The Court’s [majority] decision
is based on six considerations, taken together, and we are not
told whether any one of these considerations might have
justified the Court’s result in isolation, or even the relative
importance of the various considerations.”). Indeed, the Sixth
Circuit refused to apply Dorsey to a resentencing following a
direct appeal, noting the statutory conflict present in Dorsey
was not present in that new context. United States v. Hughes,
733 F.3d 642, 645 (6th Cir. 2013) (noting Section
3553(a)(4)(A)(ii)’s direction to apply the Sentencing
Guidelines that were “in effect on the date the defendant is
sentenced”—the text Dorsey viewed as dispositive—contained
 3
a critical exemption for resentencing on remand following
direct appeal). The Sixth Circuit, therefore, remarked: “What
the parties ask us to do in this case [apply Dorsey to a
resentencing on remand], then, is remarkable. The
presumption created by § 109 is one that we are bound to take
seriously, as the Supreme Court reminded us in Dorsey. And
in Hughes’s case that presumption is not rebutted . . . .” Id.
Accordingly, the court held the FSA did not apply to a
defendant who had been resentenced following direct appeal
after the statute’s effective date, but who committed his crime
and had been initially sentenced prior to that date.

Here, decades after Palmer’s initial sentencing, we must
answer yet another question: should the FSA apply to a
resentencing on habeas relief following a change in relevant
substantive law? Much like the Sixth Circuit panel in Hughes,
I believe Dorsey need not be extended. While habeas relief
contemplates an exception to the finality of criminal sentences,
the authority of a district court judge to alter a sentence
previously imposed is narrowly circumscribed. Cf. Smith v.
Murray, 477 U.S. 527, 537 (1986) (noting the importance of
finality in criminal proceedings and the evidentiary standard
necessary to overcome it in habeas proceedings). Indeed, in
circumstances where changes in intervening law mandate
reopening a sentence, Supreme Court jurisprudence generally
contemplates “only a limited adjustment to an otherwise final
sentence and not a plenary resentencing proceeding.” Dillon v.
United States, 560 U.S. 817, 826 (2010). To permit more
would create new anomalies in sentencing—anomalies having
nothing to do with the crack/powder cocaine inequities
addressed in the Fair Sentencing Act and Dorsey.

Accordingly, while the Court does not reach the question,
see Op. 2, I would conclude a district court is bound to apply
the law in effect at the time of initial sentencing when
 4
constructing an amended judgment following the grant of
habeas relief. To hold otherwise would transform Dorsey, into
an inappropriately broad exception to the rule of finality in
criminal sentences; prejudice the government, which may need
to fashion arguments to accommodate now-spoiled evidence;
and grant a tremendous windfall to the select few defendants
who manage to partially prevail on habeas motions.