[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13621 ELEVENTH CIRCUIT
FEB 10, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 9:09-cv-80610-DMM; 9:00-cr-08027-DMM-1
CHRISTIAN KERR,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
_________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________
(February 10, 2012)
Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.
PER CURIAM:
Christian Kerr, a federal prisoner, appeals the district court’s denial of his
pro se 28 U.S.C. § 2255 motion to vacate his 160-month sentence. No reversible
error has been shown; we affirm.
In 2001, Kerr pleaded guilty to bank robbery and was sentenced as a career
offender based on his prior felony convictions for battery on a law enforcement
officer and carrying a concealed firearm. He did not appeal his sentence. In his
section 2255 motion, Kerr argued that he was “actually innocent” of his
career-offender sentencing enhancement because -- based on the Supreme Court’s
decision in Begay v. United States, 128 S.Ct. 1581 (2008), and this Court’s
decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) -- carrying a
concealed firearm no longer qualified as a “crime of violence” under U.S.S.G.
§ 4B1.1(a). The district court denied Kerr’s motion but granted a certificate of
appealability on “[w]hether a freestanding challenge to a career offender sentence
imposed under U.S.S.G. § 4B1.1, brought pursuant to [Archer], states a cognizable
claim on collateral review.”
On appeal, Kerr reasserts that his enhanced sentence violates the sentencing
guidelines in the light of Begay and Archer. Relying on the Supreme Court’s
recent decision in Johnson v. United States, 130 S.Ct. 1265 (2010), he also
contends that his second predicate offense, battery on a law enforcement officer, is
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no longer considered a “crime of violence.” Because Kerr raises this argument for
the first time on appeal, we will not consider it. See Walker v. Jones, 10 F.3d
1569, 1572 (11th Cir. 1994).* Moreover, this argument is not cognizable for the
reason we will discuss.
We review legal issues in section 2255 proceedings de novo. Lynn v.
United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Because Kerr raises a non-
constitutional issue that he failed to raise on direct appeal, section 2255 relief is
available only if the error “(1) could not have been raised on direct appeal and
(2) would, if condoned, result in a complete miscarriage of justice.” See id. at
1232-33. “A ground of error is usually ‘available’ on direct appeal when its merits
can be reviewed without further factual development.” Id. at 1233 n.14.
Kerr argues that he could not have challenged his career-offender status on
direct appeal because there was no legal authority supporting his argument. But
perceived futility in raising an issue on direct appeal does not constitute cause for
not doing so. See Smith v. Murray, 106 S.Ct. 2661, 2666 (1986). Indeed, even
though the decisions in Begay, Archer, and Johnson were unavailable when Kerr
was sentenced in 2001, he could have argued on appeal that his career-offender
*
We will also not consider Kerr’s alternate argument -- raised for the first time on appeal -- that
he is entitled to relief pursuant to 28 U.S.C. § 2241. See Walker, 10 F.3d at 1572.
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status was improper -- just as Begay, Archer, and Johnson did. Because Kerr
could have raised this claim on direct appeal but failed to do so, his claim is not
cognizable now on collateral review under section 2255.
AFFIRMED.
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