954 F.3d 597
3d Cir.2020Background
- Folk was convicted of drug distribution, two § 924(c) firearm counts, and being a felon in possession; PSR designated him a career offender under U.S.S.G. § 4B1.1 based on two prior "crimes of violence."
- The PSR raised his advisory Guidelines range from 384–465 months to 420 months–life; the District Court adopted the PSR but sentenced Folk to 264 months (well below either Guidelines range).
- Folk did not challenge the career-offender designation on direct appeal; the Federal Public Defender timely filed a § 2255 motion arguing Johnson v. United States invalidated § 4B1.2(a) for vagueness; Folk proceeded pro se and amended his filings.
- The District Court denied his § 2255 motion; Folk filed a Rule 59(e) motion and appealed; he raised two certified issues: (1) whether an erroneous career-offender designation is cognizable under § 2255, and (2) whether his convictions qualify as crimes of violence.
- Folk sought to expand his certificate of appealability to challenge a separate drug-possession conviction under this Court’s Rowe decision; the panel treated that request as a potential second or successive § 2255 motion and evaluated the § 2255(h) standards.
- The panel held that a nonconstitutional challenge to an incorrect career-offender enhancement under the advisory Guidelines is not cognizable under § 2255 and denied Folk’s motion to expand the certificate of appealability as not meeting § 2255(h).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an incorrect career-offender enhancement under the advisory Guidelines is cognizable in a § 2255 collateral attack | Folk: misapplication of career-offender Guideline prejudiced him and is cognizable (invoking Doe and prejudice theory) | Gov: Such nonconstitutional Guidelines errors are not cognizable because the sentence was within statutory maximum, Guidelines are advisory, finality concerns, and no manageable standard | Held: Not cognizable under § 2255; advisory Guideline misapplications do not inherently produce a complete miscarriage of justice |
| Whether Folk’s motion to expand the certificate of appealability (invoking Rowe) should be allowed or treated as second/successive | Folk: Rowe supports invalidating one of his drug convictions and warrants expanding COA | Gov: Request is a second/successive habeas challenge and does not meet § 2255(h) (no new evidence and no new Supreme Court rule made retroactive) | Held: Treated as second/successive and denied because it does not satisfy § 2255(h) requirements |
Key Cases Cited
- United States v. Doe, 810 F.3d 132 (3d Cir. 2015) (held misapplication of the mandatory career-offender Guideline is cognizable on collateral review)
- Booker v. United States, 543 U.S. 220 (2005) (made the Sentencing Guidelines advisory)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause for vagueness; invoked by Folk)
- Addonizio v. United States, 442 U.S. 178 (1979) (a lawful sentence within statutory limits is not a complete miscarriage of justice)
- Peugh v. United States, 569 U.S. 530 (2013) (addressed sentencing effects of changes in law on direct appeal)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (established reasonable-probability standard for prejudice on direct appeal from Guidelines miscalculation)
- Peguero v. United States, 526 U.S. 23 (1999) (procedural sentencing errors may be cognizable if they prejudice defendant)
- United States v. Foote, 784 F.3d 931 (4th Cir. 2015) (rejected cognizability of advisory-Guidelines career-offender challenges)
- Spencer v. United States, 773 F.3d 1132 (11th Cir. 2014) (en banc) (held advisory career-offender misapplications not cognizable on collateral review)