United States v. Wesley Foote, 2015 U.S. App. LEXIS 6871

Wesley Foote pleaded guilty in 2006 to three counts of distribution of crack cocaine and was sentenced in 2007 as a career offender to 262 months imprisonment.
The career-offender designation in the PSR relied on two prior North Carolina convictions (1995 and 2002) for possession with intent to sell cocaine; under then-controlling Fourth Circuit law (Harp) the 1995 conviction was treated as punishable by >1 year.
Foote appealed; after remand in light of Kimbrough the district court resentenced him to the same term (declining to vary), and the Fourth Circuit affirmed.
While Foote’s § 2255 petition was pending, the Fourth Circuit decided Simmons (en banc), which abrogated Harp and held some lower-level NC felonies do not qualify as punishable by >1 year unless the state court made certain findings.
Foote amended his § 2255 petition to argue that Simmons retroactively invalidates his career-offender status and entitles him to resentencing; the district court denied relief but granted a COA on cognizability of the Simmons-based claim.
The Fourth Circuit affirms, holding that a post‑sentencing invalidation of a Guidelines career-offender classification under Simmons is not a cognizable § 2255 claim because it does not constitute a fundamental defect producing a complete miscarriage of justice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Foote can collaterally attack his sentence under 28 U.S.C. § 2255 based on Simmons invalidating his career-offender classification	Foote: Simmons means his 1995 NC conviction no longer qualifies as a predicate; his career-offender designation was therefore invalid and warrants resentencing under Simmons.	Government: The error is an advisory-Guidelines misapplication that did not render the sentence unlawful; § 2255 relief is limited to constitutional, jurisdictional, excess‑statutory‑maximum, or other fundamental defects that produce a complete miscarriage of justice.	Court: Denies cognizability; a Simmons-based invalidation of an advisory Guidelines career-offender classification is not a fundamental defect warranting § 2255 collateral relief when the sentence remains within statutory limits and prior convictions are not vacated.

Davis v. United States, 417 U.S. 333 (1974) (§2255 cognizable where post‑conviction change shows conduct was not criminal and thus a "complete miscarriage of justice").
Addonizio v. United States, 442 U.S. 178 (1979) (post‑sentencing changes that affect execution of sentence but not lawfulness are not cognizable on §2255).
Booker v. United States, 543 U.S. 220 (2005) (rendered Guidelines advisory).
Simmons v. United States, 649 F.3d 237 (4th Cir. 2011) (en banc) (abrogated Harp; narrowed which NC felonies qualify as punishable by >1 year).
Harp v. United States, 406 F.3d 242 (4th Cir. 2005) (prior rule used to treat certain NC felonies as punishable by >1 year).
Mikalajunas v. United States, 186 F.3d 490 (4th Cir. 1999) (misapplication of Guidelines generally does not amount to a miscarriage of justice for §2255).
Pregent v. United States, 190 F.3d 279 (4th Cir. 1999) (error in application of Guidelines ordinarily not cognizable under §2255).
Peugh v. United States, 133 S. Ct. 2072 (2013) (retrospective increases in Guidelines can raise ex post facto concerns but do not automatically convert Guidelines errors into fundamental defects).
Spencer v. United States, 773 F.3d 1132 (11th Cir. 2014) (en banc) (holding erroneous career-offender classification under advisory Guidelines is not cognizable on §2255).
Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc) (similar holding that sentence remained lawful and §2255 relief was inappropriate).