dissenting.
Would it be a miscarriage of justice to deny a criminal defendant the opportunity to correct a sentence enhancement for which he no longer qualifies because he waived his right to seek collateral review? The majority answers in the negative. Because I believe otherwise, I respectfully dissent.
In circumstances without a waiver, the Supreme Court has observed that “a defendant given a sentence enhanced for a prior conviction is entitled to a reduction' if the earlier conviction is vacated.” Johnson v. United States, 544 U.S. 295, 303, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). To reduce a no-longer valid enhancement, a prisoner should “proceed under [28 U.S.C.] § 2255 after successful review of the prior state conviction on federal habeas under [28 U.S.C.] § 2254 or favorable resort to any postconviction process available under state law.” Id. at 304, 125 S.Ct. 1571; see also id. at 313, 125 S.Ct. 1571 (Kennedy, J., dissenting) (“Congress did not expect federal sentences to be enhanced irrespective of the validity of the state conviction relied upon for the enhancement.... [T]he proper procedure for reducing a federal sentence enhanced on the basis of an invalid state conviction is to seek a vacatur of a state conviction, and then proceed through federal habeas.”). In light of his vacated state conviction,1 Sabater no longer qualifies for the career offender enhancement he received. He has filed a habeas petition seeking to correct the enhancement. No one questions that Sabater has followed the Supreme Court’s procedural guidance. What obstructs his otherwise clear path to seeking a sentence correction *73is his Plea Agreement’s waiver of his right to seek collateral review.
When we considered Sabater’s direct appeal, we stated: “As Sabater validly waived his right to the present appeal and Sabater has not shown that a manifest injustice will result from enforcing the waiver, we decline to consider the merits of Sabater’s appeal.” United States v. Sabater, 270 Fed.Appx. 219 (3d Cir.2008). I agree with the majority that the voluntariness of his waiver remains the law of the case. I cannot agree, however, with the majority’s statement that “Sabater has not alleged new facts that could constitute the manifest injustice necessary to his claim.” Maj. Op. at 71 n. 3. Sabater has alleged a new fact: since we considered his appeal, a state conviction on which his federal sentence was enhanced has been vacated. Given this intervening event, I believe that enforcing the waiver would cause a manifest injustice.
The “miscarriage of justice” exception exists to “capture any truly deserving case.” United States v. Teeter, 257 F.3d 14, 26 (1st Cir.2001); accord United States v. Khattak, 273 F.3d 557, 562-563 (3d Cir.2001) (endorsing the approach in Teeter). “[Wjaivers are meant to bring finality to proceedings conducted in the ordinary course, not to leave acquiescent defendants totally exposed to future vagaries (however harsh, unfair, or unforeseeable).” Teeter, 257 F.3d at 25.
In this case, Sabater presents indisputable evidence that he no longer qualifies for the career offender enhancement. He does not seek to unwind his guilty plea, but instead to enforce his deal on the right facts (i.e., be sentenced as a non-career offender). Because — in circumstances without a waiver — denying a defendant the opportunity to remedy a no-longer-valid sentence enhancement through § 2255 would be “a fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Johnson, 544 U.S. at 303-304, 125 S.Ct. 1571, his predicament is significantly more than “insubstantial,” United States v. Mabry, 536 F.3d 231, 243 (3d Cir.2008) (enforcing a waiver when the defendant raised only “insubstantial” issues). To enforce the waiver in this case is to countenance the 10 to 35 months’ additional incarceration2 of an individual based on a Sentencing Guidelines enhancement that is no longer applicable as a result of a state conviction vacated pursuant to a claim of racial profiling. Under these circumstances, I believe that enforcing Sabater’s waiver of collateral review is a manifest injustice.
. Sabater's state conviction was vacated based on a claim of racial profiling, which the State of New Jersey did not defend. Although not vacated as a result of actual innocence, his conviction was vacated on the basis of an alleged (and undefended) serious constitutional violation. Cf. Dique v. N.J. State Police, 603 F.3d 181 (3d Cir.2010) (considering a Fourteenth Amendment claim of selective enforcement arising from a New Jersey conviction vacated as a result of alleged racial profiling).
. Sabater had a criminal history category of V, based in part on a subtotal criminal history score of seven. As a result of qualifying as a career offender, his criminal history category was automatically raised to VI under U.S.S.G. § 4B 1.1(b). His now-vacated prior conviction would have two effects: first, he would no longer qualify as a career offender, and second, his subtotal criminal history score of seven would be reduced to four. A criminal history score of four would result in a level IV criminal history category. Note 6 of the § 4A1.2 commentary would allow the Court to raise his score from four back to seven, but it would not allow the Court to reinstate a career offender enhancement. At most, therefore, Sabater would have a criminal history category of V, not the VI that the career offender enhancement landed him.