McKay v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15099 SEP 22, 2011
JOHN LEY
________________________ CLERK

D.C. Docket Nos. 08-01900-CV-T-30-TGW
& 05-00374-CR-T-3

TOREY MCKAY,

llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(September 22, 2011)

Before MARCUS and ANDERSON, Circuit Judges, and ALBRITTON,* District
Judge.

MARCUS, Circuit Judge:

*
Honorable William H. Albritton, III, United States District Judge for the Middle District
of Alabama, sitting by designation.
 Torey McKay (“McKay”) appeals the district court’s denial of his motion to

vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255. In

this first-time § 2255 motion, McKay asserts that he was erroneously sentenced as

a career offender under U.S.S.G. § 4B1.1 because, in light of subsequent case law,

his prior conviction for carrying a concealed weapon is not a “crime of violence”

under U.S.S.G. § 4B1.2(a). On appeal, McKay argues that the district court erred

in ruling that his sentencing claim is not cognizable under § 2255. McKay also

says that the actual innocence exception to the procedural default rule applies to

excuse the procedural default of his sentencing claim. Because we conclude that

McKay procedurally defaulted his claim by failing to raise it on direct appeal and

that the actual innocence exception does not apply to McKay’s claim of legal

innocence, we AFFIRM the district court’s denial of McKay’s § 2255 motion.

I.

A.

The facts and procedural history of McKay’s case are straightforward. On

August 25, 2005, McKay was charged in a four-count indictment with drug

trafficking offenses in violation of 21 U.S.C. § 841(a)(1), (b)(1) in the United

States District Court for the Middle District of Florida. Specifically, McKay was

charged with three counts of possession with intent to distribute, and distribution

2
of, cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(iii), (b)(1)(B)(iii) (Counts 1, 2, and 3), and one count of possession with

intent to distribute, and distribution of, cocaine, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(C) (Count 4). On December 8, 2005, McKay pled guilty to all

four counts without a plea agreement.

Pursuant to U.S.S.G. § 2D1.1, the Presentence Investigation Report (“PSI”)

initially calculated McKay’s base offense level at 32, based on the quantity of

drugs involved in McKay’s offenses. After a three-level reduction for acceptance

of responsibility, McKay had an offense level of 29 and a criminal history

category of VI, which yielded a Guidelines range of 151 to 188 months’

imprisonment.

McKay, however, was classified as a “career offender” under U.S.S.G. §

4B1.11 based on two prior felony convictions: (1) carrying a concealed weapon,

which was counted as a “crime of violence”2 and (2) selling cocaine, which was

1
A defendant is a “career offender” if (1) he was “at least eighteen years old at the time
[he] 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). In his § 2255 motion, McKay challenged only the third of these
requirements.
2
Under the Guidelines, a “crime of violence” is defined as a felony under federal or state
law that “(1) has as an element the use, attempted use, or threatened use of physical force against
the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of

3
counted as a “controlled substance offense.” Because of his career offender status,

McKay’s offense level rose to 37, but was reduced to 34 by a three-level reduction

for acceptance of responsibility. With an offense level of 34 and a criminal history

category of VI, the applicable Guidelines range was 262 to 327 months’

imprisonment.

At his March 29, 2006 sentencing hearing, McKay did not object to the

career offender sentence enhancement. McKay did, however, explain by way of

mitigation that his drug use and resulting criminal conduct began after the death of

his infant son. McKay thus argued that the 18 U.S.C. § 3553(a) factors warranted

a downward departure in his sentence, contending that a 180-month (15-year)

sentence would sufficiently serve the statute’s sentencing goals. After considering

the PSI, the § 3553(a) factors, and statements made by McKay, his parents, and his

attorney, the district court ultimately sentenced McKay to 262 months’

imprisonment (21 years, 10 months), which was at the bottom of the applicable

Guidelines range -- 262 months for each of Counts 1, 2, and 3, and 240 months for

Count 4, all to run concurrently. This 262-month sentence, which was within the

explosives, or otherwise involves conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.2(a).

At the time of McKay’s sentencing, the law of this Circuit was that carrying a concealed
weapon constituted a “crime of violence” under the Guidelines. United States v. Gilbert
(“Gilbert I”), 138 F.3d 1371, 1372 (11th Cir. 1998) (per curiam).

4
statutory maximum of life imprisonment,3 was to be followed by five years of

supervised release for Counts 1, 2, and 3, and three years for Count 4, again, all to

run concurrently. McKay was also directed to pay a special assessment in the

amount of $400 ($100 per count). The district court expressly found that “the

sentence imposed [was] sufficient but not greater than necessary to comply with

the statutory purposes of sentencing.” McKay did not object to his sentence, nor

did he file a direct appeal from his conviction or the ensuing sentence.

Effective November 1, 2007, the United States Sentencing Commission

promulgated Amendment 706 to the Sentencing Guidelines, which provided for a

two-level reduction in base offense levels in U.S.S.G. § 2D1.1 for crack cocaine

offenses. United States v. Mills, 613 F.3d 1070, 1075 (11th Cir. 2010); see also

United States v. Moore, 541 F.3d 1323, 1325 (11th Cir. 2008). The Commission

made Amendment 706 retroactively applicable, as of March 3, 2008, to defendants

with crack cocaine convictions who were sentenced under U.S.S.G. § 2D1.1.

Mills, 613 F.3d at 1075; Moore, 541 F.3d at 1325.

3
Specifically, the statutory maximum is 40 years for Counts 1 and 2, 21 U.S.C. §
841(b)(1)(B)(iii), life imprisonment for Count 3, id. § 841(b)(1)(A)(iii), and 20 years for Count 4,
id. § 841(b)(1)(C).

5
 On March 8, 2008, in light of Amendment 706, McKay filed a pro se

motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).4 Soon thereafter, the

district court denied McKay’s motion on the ground that “[p]ersons classified as

career offenders are not affected by the lower guidelines.”5 McKay did not appeal

the district court’s ruling.

B.

On April 16, 2008, the Supreme Court decided Begay v. United States, 553

U.S. 137 (2008), where it held that driving under the influence of alcohol is not a

“violent felony” under the Armed Career Criminal Act (“ACCA”), codified in part

4
Section 3582 provides:

[I]n the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the court may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).
5
A panel of this Court has since held that, because Amendment 706 does not reduce the
Guidelines ranges of defendants sentenced as career offenders under U.S.S.G. § 4B1.1, 18 U.S.C.
§ 3582(c)(2) does not authorize sentence reductions for career offenders. See Moore, 541 F.3d at
1330. The parties agree that, if McKay were resentenced without the career offender
enhancement and with the application of Amendment 706, his Guidelines range would be 130 to
162 months.

6
at 18 U.S.C. § 924(e)(2)(B)(ii).6 Begay, 553 U.S. at 148. In so holding, the Court

explained that the crimes listed in clause (ii) of § 924(e)(2)(B) (burglary, arson,

extortion, and any felony that involves use of explosives) limit the scope of this

clause “to crimes that are roughly similar, in kind as well as in degree of risk

posed, to the examples themselves.” Id. at 143. And “[t]he listed crimes,” the

Court went on, “all typically involve purposeful, violent, and aggressive conduct.”

Id. at 144-45 (internal quotation marks omitted).

Shortly thereafter, this Court decided United States v. Archer, 531 F.3d

1347 (11th Cir. 2008), applying the analysis drawn from Begay to determine

whether carrying a concealed weapon constitutes a “crime of violence” under

U.S.S.G. § 4B1.2(a)(2). A panel of this Court explained that we have “repeatedly

read the definition of a ‘violent felony’ under § 924(e) of the Armed Career

Criminal Act as ‘virtually identical’ to the definition of a ‘crime of violence’ under

U.S.S.G. § 4B1.2.” Archer, 531 F.3d at 1352. This Court determined that

“[c]arrying a concealed weapon does not involve the aggressive, violent conduct

that the Supreme Court [in Begay] noted is inherent in the enumerated crimes. . . .

6
Section 924(e)(2)(B) defines “violent felony” as any felony that “(i) has as an element
the use, attempted use, or threatened use of physical force against the person of another,” or “(ii)
is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).

7
Nor does carrying a concealed weapon necessarily involve purposeful conduct.”

Id. at 1351. We, therefore, held that, “in light of the Supreme Court’s decision in

Begay, the crime of carrying a concealed firearm may no longer be considered a

crime of violence under the Sentencing Guidelines.”7 Id. at 1352.

On October 27, 2008, McKay filed, pro se, an amended motion to vacate,

set aside, or correct his sentence under 28 U.S.C. § 2255, making the

nonconstitutional argument that he was erroneously sentenced as a career

offender.8 McKay sought to be resentenced without the career offender

enhancement, since, in light of Begay and Archer, his prior conviction for carrying

7
The holding in Gilbert I, 138 F.3d 1371, therefore, did not survive. Archer, 531 F.3d at
1352 (“Here, where the Supreme Court [in Begay] has clearly set forth a new standard to
evaluate which crimes constitute ‘violent felonies’ and ‘crimes of violence,’ our prior panel
precedent in Gilbert[ I] has been undermined to the point of abrogation and we are thus bound to
follow this new rule of law.”).

After Archer, this Court also held that carrying a concealed weapon is not a “violent
felony” under the ACCA. See United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009)
(citing Archer, 531 F.3d at 1352).
8
Under section 2255,

[a] prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or 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).

8
a concealed weapon no longer qualifies as a “crime of violence.” To the extent he

had procedurally defaulted this sentencing claim, McKay asked the district court

to excuse his default on the ground that he is “actually innocent” of his career

offender sentence. He recognized that “the actual innocence exception does not

translate easily into the sentencing phase of a non-capital trial.” But, arguing that

there is “little difference between holding that a defendant can be innocent of the

acts required to enhance a sentence in [a] death case and applying a parallel

rationale in non-capital cases,” McKay nevertheless urged the district court to

apply the actual innocence exception to his case. The government responded that

McKay’s sentencing claim was time-barred, was barred under the procedural

default rule, was not cognizable under § 2255, and also failed on the merits

because Begay did not apply retroactively to McKay’s sentence. See McKay v.

United States, No. 8:08-cv-1900-T-30TGW, 2009 WL 2382286, at *1 (M.D. Fla.

July 31, 2009).

The district court denied McKay’s § 2255 motion on the ground that his

Guidelines misapplication claim was not cognizable under § 2255.9 Id. at *1-2.

Having determined that McKay’s sentencing claim was a nonconstitutional one,

9
The district court, therefore, did not address any of the government’s other arguments.
McKay, 2009 WL 2382286, at *1 n.1.

9
the district court explained that McKay’s claim would be cognizable only “if he

[could] demonstrate that 1) his claim ‘could not have been raised in direct appeal’;

and 2) his injury ‘would, if condoned, result in a complete miscarriage of justice.’”

Id. at *2 (quoting Lynn v. United States, 365 F.3d 1225, 1232-33 (11th Cir.

2004)). The district court found that McKay could have raised his sentencing

claim on direct appeal, “even though Begay and Archer had not yet been decided

when Petitioner was sentenced.” Id. (citing United States v. Coley, 336 F. App’x

933, 936 (11th Cir. 2009) (per curiam) (unpublished) (“Begay and Archer had not

yet been decided when Coley was sentenced in 2003; however, if he believed that

his career offender status was improper under the guidelines that claim could have

been made on direct appeal -- just as Begay and Archer later did.”)).

McKay timely filed with the district court a notice of appeal, as well as an

application for a certificate of appealability (“COA”). The district court denied

McKay’s COA application. McKay then filed with this Court an application for a

COA, which, on March 8, 2010, we granted concerning the following issues:

“Whether the district court erred in finding that [McKay’s] sentencing claim about

the career-offender enhancement is not cognizable in proceedings under 28 U.S.C.

§ 2255, and, if cognizable, whether this sentencing claim is procedurally defaulted

in any event.”

10
 II.

A.

In adjudicating the district court’s denial of McKay’s § 2255 motion, “we

review findings of fact for clear error and questions of law de novo.” Rhode v.

United States, 583 F.3d 1289, 1290 (11th Cir. 2009) (per curiam).

As we have stated, the scope of our review of an unsuccessful § 2255

motion is limited to the issues enumerated in the COA. Id. at 1290-91; see also

Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (per curiam).

Although the COA frames cognizability as the threshold issue, it is in fact the

procedural default issue that we answer first. See Doorbal v. Dep’t of Corr., 572

F.3d 1222, 1228 (11th Cir. 2009) (“[W]e are ordinarily bound to consider first any

issue of procedural default.” (citing Lambrix v. Singletary, 520 U.S. 518, 525

(1997))). Because we hold that McKay’s sentencing claim is procedurally

defaulted and that the actual innocence exception does not apply to excuse his

default, we leave for another day the question of whether this type of claim is

cognizable under § 2255 in the first instance. We, therefore, AFFIRM the district

court’s denial of McKay’s § 2255 motion. See Lucas v. W.W. Grainger, Inc., 257

F.3d 1249, 1256 (11th Cir. 2001) (“[W]e may affirm [the district court’s] judgment

11
‘on any ground that finds support in the record.’” (quoting Jaffke v. Dunham, 352

U.S. 280, 281 (1957))).

B.

Under the procedural default rule, “a defendant generally must advance an

available challenge to a criminal conviction or sentence on direct appeal or else

the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn,

365 F.3d at 1234. As the Supreme Court has explained, this rule “is neither a

statutory nor a constitutional requirement, but it is a doctrine adhered to by the

courts to conserve judicial resources and to respect the law’s important interest in

the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504 (2003).

Here, it is beyond dispute that McKay procedurally defaulted his claim that he was

erroneously sentenced as a career offender. McKay failed to advance this claim on

direct appeal -- indeed, a direct appeal was not even filed. His procedural default

can be excused, however, if one of the two exceptions to the procedural default

rule applies.

The exceptions are: (1) for cause and prejudice, or (2) for a miscarriage of

justice, or actual innocence. See Lynn, 365 F.3d at 1234. Under the cause and

prejudice exception, a § 2255 movant can avoid application of the procedural

default bar by “show[ing] cause for not raising the claim of error on direct appeal

12
and actual prejudice from the alleged error.” Id. Under the actual innocence

exception -- as interpreted by current Supreme Court doctrine -- a movant’s

procedural default is excused if he can show that he is actually innocent either of

the crime of conviction or, in the capital sentencing context, of the sentence

itself.10 See Dretke v. Haley, 541 U.S. 386, 388 (2004). Because McKay does not

argue on appeal that the cause and prejudice exception applies -- nor for that

matter did he do so at the district court -- we do not address this exception. We

thus limit ourselves to answering whether the actual innocence exception applies

to excuse McKay’s procedural default, and so pause to examine this exception’s

contours.

The actual innocence exception has been applied in two distinct contexts:

first, in the face of a claim of actual innocence of the crime of conviction and,

second, in the face of a claim of actual innocence of a sentence. See Sibley v.

Culliver, 377 F.3d 1196, 1205-06 (11th Cir. 2004). To show actual innocence of

the crime of conviction, a movant “must show that it is more likely than not that

no reasonable juror would have found [him] guilty beyond a reasonable doubt” in

light of the new evidence of innocence. Schlup v. Delo, 513 U.S. 298, 327 (1995);

10
As will be discussed, infra, although the Supreme Court has only applied the actual
innocence of sentence exception in the capital sentencing context, a few of our sister circuits
have extended it to claims involving noncapital sentences.

13
see also id. at 332 (O’Connor, J., concurring).11 To show actual innocence of a

capital sentence, a movant “must show by clear and convincing evidence that, but

for a constitutional error, no reasonable juror would have found [him] eligible for

the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S.

333, 336 (1992); see also Sibley, 377 F.3d at 1205 (describing how a movant

claiming actual innocence of his capital sentence must show that “he is ‘innocent’

of the death penalty because none of the aggravating factors legally necessary for

invocation of the death penalty applied”).

Neither the Supreme Court nor this Court has yet ruled on whether Sawyer’s

actual innocence of sentence exception extends to the noncapital sentencing

context.12 Several of our sister circuits, however, have spoken on the issue but

11
Although Schlup involved a capital crime, the Court made clear in Calderon v.
Thompson, 523 U.S. 538 (1998), that the “more likely than not” standard applies to claims of
actual innocence of any crime, even noncapital ones. See id. at 560-66 (applying the Schlup
“more likely than not” standard to a claim of actual innocence of a rape conviction).
12
In Haley, 541 U.S. 386, the Supreme Court declined to answer this question, in light of
the posture of the case. Id. at 388-89. The Court held instead that “a federal court faced with
allegations of actual innocence, whether of the sentence or of the crime charged, must first
address all nondefaulted claims for comparable relief and other grounds for cause to excuse the
procedural default.” Id. at 393-94. This holding does not preclude our consideration of actual
innocence not only because McKay has failed to present any grounds for cause to excuse his
procedural default, but also because there are no nondefaulted claims before us -- McKay’s
procedurally defaulted sentencing claim is his only claim.

In Gilbert v. United States (“Gilbert II”), 640 F.3d 1293 (11th Cir. 2011) (en banc), this
Court addressed the applicability of 28 U.S.C. § 2255(e)’s savings clause to a movant’s claim,
otherwise barred by § 2255(h)’s second or successive motions bar, that he was erroneously

14
have reached divergent conclusions. The Second and Fourth Circuits have held

that the actual innocence of sentence exception does apply in the noncapital

sentencing context. See Spence v. Superintendent, Great Meadow Corr. Facility,

219 F.3d 162, 171 (2d Cir. 2000); United States v. Maybeck, 23 F.3d 888, 892-93

(4th Cir. 1994). The Fourth Circuit, however, limits its application to claims of

actual innocence of career or habitual offender sentences. United States v.

Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999). The Eighth and Tenth Circuits,

on the other hand, have explicitly held that the actual innocence of sentence

exception is limited to the capital sentencing context. See Embrey v. Hershberger,

131 F.3d 739, 740 (8th Cir. 1997) (en banc) (“[W]e think that Sawyer, in terms,

applies only to the sentencing phase of death cases.”); United States v. Richards, 5

F.3d 1369, 1371 (10th Cir. 1993) (“A person cannot be actually innocent of a

noncapital sentence . . . .”).

sentenced as a career offender because his prior conviction for carrying a concealed weapon was
not a “crime of violence” under the Guidelines. Id. at 1295, 1301-02. In holding that the savings
clause does not apply to Guidelines misapplication claims, “at least where the sentence the
prisoner is attacking does not exceed the statutory maximum,” id. at 1295, we suggested that, for
purposes of the savings clause, Sawyer’s actual innocence of sentence exception is limited to the
capital sentencing context, id. at 1320. Although Gilbert’s and McKay’s sentencing claims both
address the legal classification of the same crime, because Gilbert II addressed the actual
innocence of sentence exception in a distinct legal context, the en banc Court’s conclusions
regarding the exception are not controlling in this case.

15
 Despite the lack of binding precedent on this question, the Supreme Court

and this Court have articulated several principles that guide our resolution of this

case. First, and most importantly, for purposes of the actual innocence exception,

“‘actual innocence’ means factual innocence, not mere legal insufficiency.”

Bousley v. United States, 523 U.S. 614, 623 (1998) (emphasis added); Sawyer,

505 U.S. at 339 (“[T]he miscarriage of justice exception is concerned with actual

as compared to legal innocence.”); Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001). This is true whether the allegation of actual innocence is of the

crime or of the sentence. Bousley, 523 U.S. at 623 (involving claim of actual

innocence of the crime); Sawyer, 505 U.S. at 339 (involving claim of actual

innocence of the sentence).

Second, as it has been repeatedly emphasized, the actual innocence

exception is a narrow exception. See, e.g., Sawyer, 505 U.S. at 340 (describing

approvingly how, in previous cases, the Court had “emphasized the narrow scope

of the fundamental miscarriage of justice exception”); see also id. at 341

(“bear[ing] in mind that the exception for ‘actual innocence’ is a very narrow

exception”); McCleskey v. Zant, 499 U.S. 467, 502 (1991) (referring to the actual

innocence exception as “[t]hat narrow exception”); Schlup, 513 U.S. at 333

(O’Connor, J., concurring) (describing the actual innocence exception as a “safety

16
valve for the extraordinary case” (quoting Harris v. Reed, 489 U.S. 255, 271

(1989) (O’Connor, J., concurring)) (internal quotation marks omitted)); Johnson,

256 F.3d at 1171 (describing the actual innocence exception as “exceedingly

narrow in scope”). Indeed, the very reason the miscarriage of justice exception

was linked to a movant’s actual innocence was to ensure that this exception

“would remain ‘rare’ and would only be applied in the ‘extraordinary case.’”

Schlup, 513 U.S. at 321 (emphases added).

Third, as the Supreme Court has specifically instructed, we must exercise

restraint when determining whether to expand the exceptions to the procedural

default rule. See Haley, 541 U.S. at 394 (“[I]t is precisely because the various

exceptions to the procedural default doctrine are judge-made rules that courts as

their stewards must exercise restraint, adding to or expanding them only when

necessary.”). The Court has explained that “[t]o hold otherwise would be to

license district courts to riddle the cause and prejudice standard with ad hoc

exceptions whenever they perceive an error to be ‘clear’ or departure from the

rules expedient.”13 Id. at 394-95. “Such an approach,” the Court observed,

13
Although the Supreme Court often refers to “cause and prejudice” as a standard that
itself has an actual innocence exception, see, e.g., Haley, 541 U.S. at 388, it has also referred to
“cause and prejudice” and “actual innocence” as two independent exceptions to the procedural
default rule, see, e.g., Bousley, 523 U.S. at 622; accord Lynn, 365 F.3d at 1234.

17
“would have the unhappy effect of prolonging the pendency of federal habeas

applications as each new exception is tested in the courts of appeals.” Id. at 395.

With these principles in mind, we face the question of whether the actual

innocence of sentence exception applies to McKay’s claim that he was erroneously

sentenced as a career offender because one of his prior convictions does not

qualify as a “crime of violence.” To answer this question, we need not enter the

debate regarding whether the actual innocence exception extends to the noncapital

sentencing context. Even assuming that this exception does extend beyond the

capital sentencing context, it still does not apply to McKay because his claim is

one of legal, rather than factual, innocence and thus fails to fall within the actual

innocence exception’s purview. See Bousley, 523 U.S. at 623; Sawyer, 505 U.S.

at 339.

Consonant with the principle articulated in Bousley and Sawyer, the Second

and Fourth Circuits have made clear that, for the actual innocence exception to

apply in the noncapital sentencing context, a movant must show that he is factually

innocent of the conduct or underlying crime that serves as the predicate for the

enhanced sentence. In other words, a claim of mere legal innocence of a sentence

would not win the day in either of those circuits. In Spence, 219 F.3d 162, for

example, the Second Circuit held that the actual innocence exception applied to

18
excuse the petitioner’s procedural default because the petitioner had shown that he

had not actually committed the underlying conduct -- in that case, a robbery -- on

which his enhanced sentence was based. Id. at 172.

Similarly, in Maybeck, 23 F.3d 888, the Fourth Circuit held that the § 2255

movant was actually innocent of his career offender sentence because he was

“actually innocent of one of the predicate requirements for classification as a

career offender” -- that is, he was factually innocent of one of the prior convictions

justifying his career offender sentence. Id. at 890, 894. And in United States v.

Pettiford, 612 F.3d 270 (4th Cir. 2010), the Fourth Circuit expressly clarified that

the actual innocence of sentence exception “applies in the context of habitual

offender provisions only where the challenge to eligibility stems from factual

innocence of the predicate crimes, and not from the legal classification of the

predicate crimes.” Id. at 284 (emphases added). In Pettiford, the § 2255 movant

claimed that he was actually innocent of his ACCA-enhanced sentence on the

ground that his prior conviction for assault did not qualify as a “violent felony.”

Id. at 282. The Fourth Circuit held, however, that the actual innocence exception

did not apply to this kind of non-factual claim because, unlike the movant in

Maybeck, Pettiford “ma[de] no suggestion whatsoever that he did not actually

commit the . . . assault. Rather, he ma[de] the legal argument that this conviction

19
should not have been classified as a ‘violent felony’ under the ACCA.” Id. at 284.

And, the Fourth Circuit concluded, “[t]his argument . . . is not cognizable as a

claim of actual innocence.” Id.

Just like the movant in Pettiford, McKay makes the purely legal argument

that he is actually innocent of his career offender sentence because his prior

conviction for carrying a concealed weapon should not have been classified as a

“crime of violence” under the Guidelines. McKay does not even suggest, because

he cannot, that he did not actually commit the crime of carrying a concealed

weapon. In other words, he makes no claim of factual innocence of the predicate

offense. No circuit court has held that the actual innocence exception is available

for claims of purely legal innocence, like McKay’s, and we refuse to do so as well.

Thus, even if the actual innocence exception were to extend to the noncapital

sentencing context (a question we need not decide),14 this exception would not

apply to McKay’s claim of legal innocence and thus could not excuse his

procedural default.

14
Indeed, our decision in Gilbert II, 640 F.3d 1293, evinced a general reluctance to extend
the actual innocence exception beyond the capital sentencing context. See id. at 1321 (finding
that “the better view is that the [actual innocence of sentence] exception does not apply to non-
capital sentencing errors” (citing Richards, 5 F.3d at 1371; Embrey, 131 F.3d at 740-41)).

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 We thus decline to extend the actual innocence of sentence exception to

claims of legal innocence of a predicate offense justifying an enhanced sentence.

In so doing, we heed the Supreme Court’s instruction to exercise restraint in

expanding the procedural default rule’s exceptions. We also keep the actual

innocence exception narrow, and ensure that this exception remains “rare” and is

only applied in the “extraordinary case.”

In short, the actual innocence exception does not apply to McKay’s claim

that he was erroneously sentenced as a career offender. This sentencing claim is

barred by the procedural default rule and, therefore, we AFFIRM the denial of

McKay’s § 2255 motion.

AFFIRMED.

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