QUENTIN ROBERT BRASWELL, Petitioner - Appellant, v. DONNA M. SMITH, Respondent - Appellee.
No. 19-6200
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 4, 2020
PUBLISHED. Argued: January 28, 2020. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-hc-02085-BO). Before DIAZ, THACKER, and QUATTLEBAUM, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Evan Rikhye, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
In United States v. Wheeler, this court set forth a four part test to determine whether an individual can seek relief from an erroneous sentence in a
(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner‘s direct appeal and first
§ 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of§ 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.
Id. at 429 (the “Wheeler test“).
In this case, Quentin Braswell (“Appellant“) appeals from the district court‘s denial of his
We reverse. In applying the second Wheeler prong, we look to the time of the “retroactive change in law,” i.e., the combination of the change in law and its retroactivity. 886 F.3d at 429. Thus, for the reasons that follow, in the unique circumstance where the change in settled substantive law occurred before a petitioner filed his or her first
I.
On July 9, 2009, a federal grand jury in the Eastern District of North Carolina indicted Appellant on gun and drug charges. The Government filed an Information of Prior Convictions for Enhancement of Sentence pursuant to
On September 11, 2009, the grand jury returned a superseding indictment charging Appellant with two counts of distribution of five grams or more of crack cocaine and aiding and abetting pursuant to
Appellant‘s sentencing hearing took place on May 10, 2010. Because of the Information, the statutory range to which Appellant was subjected on Count Two was ten years to life imprisonment, to be followed by a term of supervised release of eight years. See
At sentencing, the district court accepted the Presentence Investigation Report, which designated Appellant as a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines (the “Guidelines“).3 Appellant‘s resulting advisory Guidelines range was 262 to 327 months of imprisonment on Count Two, and a consecutive sentence
of 60 months of imprisonment on Count Four, for a total of 322 to 387 months, plus eight years of supervised release. The district court sentenced Appellant to 262 months on Count Two, and 60 months on Count Four, for a total of 322 months. On March 18, 2011, this court affirmed Appellant‘s conviction and dismissed his challenge to his sentence based on the appellate waiver in his plea agreement. See United States v. Braswell, 418 F. App‘x 195, 196 (4th Cir. 2011).
On August 17, 2011, five months after Appellant‘s direct appeal proceedings ended, this court held that, in considering whether North Carolina drug convictions are “felony drug offense[s]” pursuant to
On March 10, 2012, Appellant moved to vacate his sentence pursuant to
The statutory punishment range on Count Two therefore should have been 5 years to 40 years, not 10 years to life. However, the sentence actually imposed on Count Two -- 262 months -- was still within the correct statutory range.” Id. at 103 n.1.
After Simmons, Appellant filed at least one other
This court decided United States v. Wheeler on March 28, 2018, developing a test for petitioners seeking to file a
Carolina drug conviction for a
Based on Wheeler, on April 11, 2018, Appellant filed a pro se
II.
We review legal issues concerning the savings clause of
III.
A.
The Wheeler Test
Again, the Wheeler test provides that a petitioner can pass through the savings clause if:
(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner‘s direct appeal and first
§ 2255
motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of
§ 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence nowpresents an error sufficiently grave to be deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). “[T]he savings clause requirements are jurisdictional,” id. at 426, so we independently examine whether all four prongs of the Wheeler test are met. See United States v. Urutyan, 564 F.3d 679, 684 (4th Cir. 2009) (a federal court is “obliged to satisfy [itself] of subject-matter jurisdiction“).
1.
Prong One
The first Wheeler prong requires that, “at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence.” 886 F.3d at 429. Appellant easily satisfies this prong because in May 2010, the Simmons panel decision had been vacated and the en banc decision had not yet been issued. The then-prevailing decision of United States v. Harp held, “[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], . . . we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” 406 F.3d 242, 246 (2005) (emphasis in original). A defendant theoretically could have received a sentence of more than one year in prison for the 1997 Conviction; thus, it was a prior offense that could validly enhance Appellant‘s sentence pursuant to
2.
Prong Two
a.
The second prong of Wheeler requires, “[S]ubsequent to the prisoner‘s direct appeal and first
[Appellant] is unable to establish prong two of Wheeler because Simmons was issued before [he] pursued his first
§ 2255 motion. In fact, [Appellant] unsuccessfully raised a Simmons claim in his first§ 2255 motion. Although Simmons was made retroactively applicable to cases on collateral review subsequent to the denial of [Appellant‘s]§ 2255 motion, Wheeler requires both the substantive law to change and for that change to be retroactive subsequent to [Appellant‘s] first§ 2255 motion. Because the substantive law set forth in Simmons changed prior to [Appellant‘s]§ 2255 , he cannot satisfy Wheeler.
J.A. 236 (citations omitted).
Appellant‘s direct appeal concluded in March 2011; the Simmons en banc decision was issued in August 2011; Appellant‘s first
Government, in contrast, asks us to read prong two literally and in isolation from the rest of the opinion.
b.
Although prong two could be read literally such that the change in settled law and the retroactivity determination should
i.
Wheeler demonstrates that the change in settled substantive law and retroactivity determination work together as a package deal. The change in settled substantive law “must have been made retroactive on collateral review. Otherwise, the prisoner would not be able to ‘test the legality of his detention’ in a
[T]he en banc Simmons decision, which abrogated Harp, was decided August 17, 2011, and was made retroactive on collateral review by Miller on August 21, 2013. This all occurred after Appellant‘s direct appeal, filed March 2008, and his first
§ 2255 , filed June 2010. Although Appellant actually
raised a Simmons type claim in his first
§ 2255 on ineffective assistance of counsel grounds, the Simmons en banc decision itself could not have been invoked at that time because it did not exist.
Id. at 429–30 (emphasis supplied). Therefore, because the retroactivity determination occurred after the first chance Appellant had to “invoke[]” the change in settled law in a
Furthermore, prong four of Wheeler demonstrates that the date of retroactivity is the trigger for savings clause relief. That requirement states, “due to this retroactive change [in settled law], the sentence now presents an error sufficiently grave to be deemed a fundamental defect.” 886 F.3d at 429 (emphasis supplied). It is the retroactive change, not just the change, in settled law that renders the sentence fundamentally defective.
ii.
Appellant‘s reading of prong two also furthers the purpose and policy behind the Wheeler opinion. Wheeler could not receive the benefit of Simmons because it “did not exist.” 886 F.2d at 430. Here, Appellant could not receive the benefit of Simmons because it was not applicable retroactively on collateral review. In fact, the legal landscape existing at the time of Appellant‘s first
omitted)). But see United States v. Powell, 691 F.3d 554, 560 (4th Cir. 2012) (holding that Carachuri-Rosendo is not retroactive on collateral review). In this case and Wheeler, the petitioners in their first
To hold otherwise would strip all meaning and purpose from
c.
In support of a literal and isolated reading of prong two, the Government posits, “The use of the word ‘and’ as opposed to ‘or’ is significant.” Gov‘t‘s Br. 17. It also contends, “[T]here was no settled Fourth Circuit barrier or other barrier under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), to the Fourth Circuit‘s making a retroactivity determination on [Appellant‘s] first
place of
First, the Government believes it is significant that the Wheeler test contains “and” rather than “or.” But if the test used the word “or,” prong two would state: “subsequent to the prisoner‘s direct appeal and first
Second, the Government maintains that this court could have deemed Simmons retroactive during the proceedings on Appellant‘s first
Besides, this argument also misses the point. We explained in Wheeler that the purpose of traditional habeas relief was to “remedy statutory, as well as constitutional, claims presenting . . . exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is present.” 886 F.3d at 428 (internal quotation marks omitted). Further, “if we held that a prisoner was foreclosed from seeking collateral relief from a fundamentally defective sentence, and ‘through no fault of his own, has no source
of redress,’ this purpose would remain unfulfilled.” Id. (quoting In re Jones, 226 F.3d 328, 333 n.2 (4th Cir. 2000)) (emphasis omitted). Thus, Appellant, like Wheeler, presents an exceptional circumstance -- at the time of his first
For these reasons, Appellant has satisfied prong two of the Wheeler test.
3.
Prong Three
Prong three of the Wheeler test provides that the prisoner must be “unable to meet the gatekeeping provisions of
4.
Prong Four
Finally, Wheeler prong four requires that “due to th[e] retroactive change [in settled substantive law], the sentence now presents an error sufficiently grave to be deemed a fundamental defect.” 886 F.3d at 429. The Government concedes that Appellant satisfies
prong four under Wheeler, but it takes issue with Wheeler‘s established holding that an increase in a mandatory minimum is a fundamental defect.
In both Wheeler and this case, the mandatory minimum was increased from five to ten years. And in Wheeler, we specifically rejected the argument (which the Government attempts to rehash here) that “any sentence that falls at or below the statutory maximum does not present a fundamental defect.” 886 F.3d at 432. We explained, “An increase in the congressionally mandated sentencing floor implicates separation of powers principles and due process rights fundamental to our justice system.” Id. at 430. The defect is fundamental because it “wrongly prevent[s] [the sentencing court] from exercising the proper range of [its] sentencing discretion.” Lester v. Flournoy, 909 F.3d 708, 713 (4th Cir. 2018) (discussing Wheeler prong four). Because Appellant‘s mandatory minimum was erroneously increased, according to Wheeler, his sentence “presents an error sufficiently grave to be deemed a fundamental defect.” 886 F.3d at 433. Therefore, Appellant satisfies prong four as well.
We make clear, however, that Appellant‘s satisfaction of prong four is based on the increase in his mandatory minimum, not on his career offender designation. As we stated in United States v. Foote, a “fundamental defect or a complete miscarriage of justice” has not occurred where the petitioner was sentenced as a career offender “under an advisory Guidelines scheme.” 784 F.3d 931, 932, 941 (4th Cir. 2015). But see Lester, 909 F.3d at 716 (holding that the petitioner was entitled to proceed pursuant to
Guidelines scheme; thus, to the extent Appellant bases his Wheeler claim on his career offender designation, he does not satisfy prong four.
B.
Plea Agreement Waiver
The district court noted that Appellant‘s
The Defendant agrees . . . [t]o waive all rights conferred by
18 U.S.C. § 3742 toappeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255 , excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant‘s guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.
J.A. 241 (sealed) (emphasis supplied). On direct appeal, this court found the waiver to be knowing and voluntary. See United States v. Braswell, 418 F. App‘x 195, 195, 196 (4th Cir. 2011). However, this Court will not enforce an otherwise valid waiver if “to do so would result in a miscarriage of justice,” United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016), or where there is an “illegal sentence . . . involv[ing] fundamental issues,” United States v. Copeland, 707 F.3d 522, 530 (4th Cir. 2013) (alteration and internal quotation marks omitted). But see United States v. Archie, 771 F.3d 217, 223 (4th Cir. 2014) (“[W]e . . . decline[] to enforce a valid appeal waiver only where the sentencing court violated a
fundamental constitutional or statutory right that was firmly established at the time of sentencing.” (emphasis supplied)).
Although a heading in the Government‘s brief states that the district court “did not err in determining that the waiver in his plea agreement effectively bars [Appellant] from challenging his sentence,” Gov‘t‘s Br. 18, it fails to develop this argument. Rather, the Government concedes that Wheeler renders the plea agreement waiver invalid as to Appellant‘s
IV.
For these reasons, we reverse the dismissal of Appellant‘s
REVERSED AND REMANDED