UNITED STATES of America, Plaintiff-Appellee, v. Wesley Devon FOOTE, Defendant-Appellant, North Carolina Advocates For Justice, Amicus Supporting Appellant.
No. 13-7841.
United States Court of Appeals, Fourth Circuit.
Argued: March 25, 2015. Decided: April 27, 2015.
784 F.3d 931
Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge DUNCAN and Judge KEENAN joined.
THACKER, Circuit Judge:
Wesley Devon Foote (“Appellant“) appeals the district court‘s denial of his petition for collateral relief filed pursuant to
The language of
I.
A.
On July 13, 2006, Appellant pled guilty to three counts of distribution of crack cocaine after previously being convicted of a felony drug offense, a conviction that carried a statutory maximum sentence of life in prison. See
Pursuant to the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines“), a defendant can be designated a career offender if
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
At the time of Appellant‘s federal sentencing, this court “determine[d] whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law,] [by] consider[ing] the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005) (second emphasis supplied). Appellant‘s 1995 conviction was for a Class H felony, see
Based on the 1995 and 2002 convictions, the PSR recommended that Appellant be designated a career offender, and the district court agreed. As a result, Appellant‘s offense level rose from 32 to 37 (with a subsequent three-level reduction for acceptance of responsibility), and his advisory Guideline range jumped from 151-188 to 262-327 months in prison. See
Appellant, questioning the propriety of his career offender status, appealed from this judgment. Relying on Harp, we affirmed. See United States v. Foote, 249 Fed.Appx. 967, 969 (4th Cir.2007). However, the Supreme Court vacated and remanded for consideration in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (approving deviation from advisory Guidelines range for crack cocaine offenses). See Foote v. United States, 552 U.S. 1163, 128 S.Ct. 1133, 169 L.Ed.2d 946 (2008). On remand, the district court declined to vary below the Guidelines range and filed an amended judgment on November 13, 2009, sentencing Appellant to the same amount of time in prison—262 months. See United States v. Foote, No. 1:06-cr-177 (M.D.N.C. Nov. 13, 2009). The district court explained,
I do not have a basis to make th[e] decision [about what the proper crack to powder ratio should be]. . . . I look to see where you are with regard to the other factors in 3553(a), and you‘ve got prior controlled substance violations. You‘ve got an assault. On your own, without the application of the career offender provisions, you got 17 criminal history points. . . . I would be glad to consider, if the [crack/powder cocaine equivalency] change is made, how that does effect [sic] your sentence at that point, and adjust the sentence accordingly.
Trans. at 10, Foote, No. 1:06-cr-177 (filed Oct. 15, 2009), ECF No. 31. Foote appeal-
Seven months later, while Appellant‘s petition was pending, this court decided United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc). In Simmons, this court addressed whether a certain North Carolina crime could serve as a predicate “felony drug offense” conviction for purposes of a sentencing enhancement under the Controlled Substance Act (the “CSA“). See id. at 249; see also
Of course, at the time of Simmons‘s initial sentencing, Harp controlled. Following Harp, a Fourth Circuit panel initially rejected Simmons‘s challenge to his sentencing enhancement because North Carolina law dictated that the marijuana conviction could be a crime “punishable by a term exceeding one year” if two conditions were satisfied (even though they were not met in Simmons‘s case). See United States v. Simmons, 340 Fed.Appx. 141, 144 (4th Cir.2009). The Supreme Court remanded the case for consideration in light of Carachuri-Rosendo v. Holder, 560 U.S. 563, 570, 576, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) (holding that courts should look to the “conviction itself,” rather than a crime or sentence with which the defendant “could have been” charged or assigned, in determining whether a previous conviction is an aggravated felony under the INA). See Simmons v. United States, 561 U.S. 1001, 130 S.Ct. 3455, 177 L.Ed.2d 1048 (2010). On remand, this court affirmed Simmons‘s sentence despite Carachuri. See United States v. Simmons, 635 F.3d 140, 146-47 (4th Cir.2011). The court then voted to rehear the case en banc.
On rehearing en banc, this court vacated Simmons‘s sentence and abrogated Harp in light of Carachuri. See Simmons, 649 F.3d at 239, 241. We held that because the state court that sentenced Simmons “never made the recidivist finding necessary to expose Simmons to a higher sentence,” the Government was “precluded from establishing that a conviction was for a qualifying offense” under the CSA. Id. at 243 (internal quotation marks omitted). Two years later, this court held that Simmons can be retroactively applied on collateral review because it “announced a new substantive rule.” Miller v. United States, 735 F.3d 141, 147 (4th Cir.2013). Miller explained, “The Simmons decision
Not surprisingly, Appellant amended his
B.
On September 24, 2013, a federal magistrate judge filed a Memorandum Opinion and Recommendation, recommending that Appellant‘s
[W]hether Petitioner, who was sentenced as a career offender under U.S. Sentencing Guideline § 4B1.1, but who in fact was not a career offender in light of Simmons v. United States, can assert a cognizable claim under 28 U.S.C. § 2255, seeking to challenge a sentence that was below the statutory maximum that would still apply.
Foote v. United States, No. 1:06-cr-177-1, 2013 WL 5962983, at *1 (M.D.N.C. Nov. 7, 2013). Appellant filed a timely notice of appeal.4
This case was placed in abeyance pending our decision in United States v. Whiteside, which presented the cognizability issue we address today. See 748 F.3d 541, 555 (4th Cir.2014) (holding that Whiteside‘s one-year limitations period was equitably tolled and his Simmons claim was cognizable on collateral review), reh‘g en banc granted, opinion vacated, 578 Fed.Appx. 218 (4th Cir.2014). On rehearing en banc, however, the court affirmed dismissal of the habeas petition on statute of limitations grounds without reaching the cognizability issue. See Whiteside v. United States, 775 F.3d 180, 187 (4th Cir.2014) (en banc).
II.
In this appeal, we must determine whether the issue Appellant raises in his amended petition is one that we can entertain under
We note at the outset that the language of
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A.
In addressing collateral review claims brought under
B.
Between these limits—punishment for conduct later rendered non-criminal on one end and non-prejudicial procedural errors on the other—the Supreme Court has also held that a petitioner‘s
Also on the spectrum lie decisions from three of our sister circuits that have addressed cognizability arguments strikingly similar to the one with which we are presented. These circuits have yielded nationally consistent yet internally divided outcomes.
1.
First, the Seventh Circuit considered the petition of Narvaez, who was deemed to have committed two “crimes of violence,” and therefore was designated a career offender. See Narvaez v. United States, 674 F.3d 621, 624 (7th Cir.2011). Due to his designation, the Guidelines range for his sentence increased from 100-125 months to 151-188 months. See id. But post-sentencing, the Supreme Court decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), which removed Narvaez‘s previous convictions from the “crime of violence” realm. The court held that the career offender designation and resulting increase in sentencing range was akin to the conviction in Davis, explaining, “to increase, dramatically, the point of departure for his
The Seventh Circuit recently held, however, that under an advisory Guidelines scheme, a similar claim was not cognizable. See Hawkins v. United States, 706 F.3d 820 (7th Cir.2013). There, the court explained,
Narvaez, as our opinion emphasized, unlike Hawkins, had been sentenced when the guidelines were mandatory. . . . Before [United States v.] Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)], the guidelines were the practical equivalent of a statute.
. . .
The first step in sentencing—calculating the guidelines range correctly—was not changed by Booker. But the step is less important now that the guidelines, including the career offender guideline, are merely advisory and the sentencing judge, being forbidden to presume the reasonableness of a guideline sentence, must make an independent determination of whether a guideline sentence would comport with the sentencing standard set forth in
18 U.S.C. § 3553(a) . That is a critical difference between Narvaez and the present case. . . .
Id. at 822-23 (citations omitted). The Hawkins court also emphasized the importance of finality:
There is a difference between reversing an error on appeal and correcting the error years later. An erroneous computation of an advisory guidelines sentence is reversible (unless harmless) on direct appeal; it doesn‘t follow that it‘s reversible years later in a postconviction proceeding. . . . An error in the interpretation of a merely advisory guideline is less serious [than sentence that exceeds the statutory maximum]. Given the interest in finality, it is not a proper basis for voiding a punishment lawful when imposed.
Id. at 824. For these reasons, Hawkins‘s sentence was not a “miscarriage of justice that can be collaterally attacked.” Id. at 825 (internal quotation marks omitted). Therefore, the takeaway from the Seventh Circuit is that if a career offender defendant is sentenced below the statutory maximum post-Booker, his post-conviction challenge to the career offender status is not cognizable.
2.
The Eleventh Circuit reached a similar conclusion. In Spencer v. United States, a three-judge panel initially held that a petitioner‘s post-conviction challenge to his career offender designation was cognizable, explaining, “categorization as a career offender is not merely a formal requirement of a criminal procedural rule. The Guidelines are the heart of the substantive law of federal sentencing.” 727 F.3d 1076, 1087 (11th Cir.2013), reh‘g en banc granted, opinion vacated (Mar. 7, 2014). The panel relied on the Supreme Court‘s recent Peugh v. United States decision, wherein the Court dubbed the Guidelines the “lodestone of sentencing” and held that a post-conviction increase in the Guidelines range can create an ex post facto problem for those committing crimes under the previously lower range. See — U.S. —, 133 S.Ct. 2072, 2084, 186 L.Ed.2d 84 (2013).
On rehearing en banc, however, the Spencer panel decision was overturned.
3.
Finally, the Eighth Circuit held in a panel decision that a post-conviction change that invalidates one‘s career offender status was cognizable on collateral review. See Sun Bear v. United States, 611 F.3d 925 (8th Cir.2010), reh‘g en banc granted, opinion vacated (Sept. 27, 2010). The panel reasoned,
[W]e [have] held that ordinary questions of sentencing guideline interpretation falling short of the “miscarriage of justice” standard do not present a proper
section 2255 claim. However, Sun Bear‘s claim is more than a run-of-the-mill claim that the district court misapplied the sentencing guidelines. This case is based on a post-conviction change in the law that renders unlawful the district court‘s sentencing determination. . . . “There can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under§ 2255 .”
Id. at 930 (footnote, alterations, and some internal quotation marks omitted) (quoting Davis, 417 U.S. at 346-47).
But like the Eleventh Circuit, the Eighth Circuit overturned the panel decision on rehearing en banc. See Sun Bear v. United States, 644 F.3d 700 (8th Cir.2011) (en banc). The en banc majority held that the defendant‘s 360-month sentence handed down while the defendant was deemed a career offender “[wa]s not unlawful” because it was not “imposed without, or in excess of, statutory authority.” Id. at 705. However, the court also noted that Sun Bear‘s pre-enhancement Guidelines range was 292-365 months, so the ultimate sentence would have fallen within this range anyway. See id. (noting, “the same 360-month sentence could be reimposed were Sun Bear granted the
In sum, there is no decision left standing in any circuit whereby a challenge to one‘s change in career offender status, originally determined correctly under the advisory Guidelines, is cognizable on collateral review. However, we cannot ignore that these decisions are extremely close and deeply divided.
C.
Turning now to our circuit, we have held that “misapplication of the sentencing guidelines does not amount to a miscarriage of justice.” United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999); see also United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir.1999).
In United States v. Mikalajunas, the petitioner sought collateral review based on a misapplication of the “physical restraint” enhancement in the Guidelines. See 186 F.3d at 492;
Similarly, in United States v. Pregent, this court addressed a petitioner‘s
Barring extraordinary circumstances, . . . an error in the application of the Sentencing Guidelines cannot be raised in a
§ 2255 proceeding. Section 2255 provides relief for cases in which “the sentence was in excess of the maximum authorized by law.” Thus, while§ 2255 applies to violations of statutes establishing maximum sentences, it does not usually apply to errors in the application of the Sentencing Guidelines.
Id. at 283-84. The court then dismissed the petition as untimely. Id. at 284.
III.
Considering where this case falls on the cognizability spectrum, we conclude Appellant‘s career offender designation was not a fundamental defect that inherently results in a complete miscarriage of justice.
A.
First, in the rare cases in which the Supreme Court has found post-conviction “miscarriages of justice” to have occurred, it has relied on the actual innocence of the petitioner. The federal conviction that brought Appellant to court in the first place and the state convictions used to enhance his sentence have not been invalidated or vacated; thus, it is difficult to place Appellant‘s case within the ambit of those decisions.
For example, in the
This is in accord with Davis, where the Supreme Court concluded that Davis‘s habeas claim amounted to a “complete mis-
The Supreme Court has extended the concept of actual innocence to sentencing, but only capital sentencing. In Sawyer, the Court held that to excuse procedural default barring a challenge to petitioner‘s death sentence, the petitioner must show “actual innocence” of death penalty eligibility by proving “by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” 505 U.S. at 336.
Reading all of these cases together, it is clear that “miscarriages of justice” in the post-conviction context are grounded in the notion of actual innocence, and Appellant has not been proven “actually innocent” of any of his prior convictions. Furthermore, to the extent Appellant argues that he is “actually innocent” of being a career offender, the Supreme Court has yet to stretch this Sawyer concept to non-capital sentencing, and we will not do so here.
B.
Second, we are hesitant to declare that a fundamental defect or a complete miscarriage of justice has occurred in a situation in which Appellant was (and on remand, would again be) sentenced under an advisory Guidelines scheme requiring individualized analysis of the sentencing factors set forth in
Unlike a statute, the career offender provision is one part of a series of guidelines meant to guide the district court to the proper sentence. District courts are free to vary from the career-offender-based sentencing range, and we have affirmed their decisions to do so. See, e.g., United States v. Moreland, 437 F.3d 424, 436 (4th Cir.2006), overruling on other grounds recognized by
On this point, amicus and Appellant rely heavily on the Supreme Court‘s decision in United States v. Peugh, — U.S. —, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). As explained above, Peugh held that the ex post facto clause is violated when a defendant is sentenced under current Guidelines providing a higher sentencing range than the Guidelines in effect at the time of the offense. The Court explained, “The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” Id. at 2084 (emphasis supplied). But we know of no case where a “sufficient risk” of prejudice or harm has risen to the level of a “fundamental defect” resulting in a “complete miscarriage of justice.” To do so would impermissibly water down standards meant to be “narrow” and “rare.” Schlup, 513 U.S. at 299, 321. We thus decline to give Peugh the weight Appellant attributes to it.
C.
Third, we are not persuaded that Appellant‘s career offender designation is a defect of a “fundamental” nature. Courts have not used the term “fundamental” lightly. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (holding that a constitutional error renders a criminal punishment “fundamentally [un]fair” if it deprives defendant of the “basic protections [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence” (internal quotation marks omitted)); United States v. Ramirez-Castillo, 748 F.3d 205, 217 (4th Cir.2014) (“The Sixth Amendment‘s jury trial guarantee, which includes, ‘as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of guilty,’ is fundamental.” (quoting Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993))).
The language of
Amicus hints that because the career offender enhancement was the result of a
D.
Finally, when it comes to errors in application of the Guidelines, it is hard to fathom what the dividing line would be between a fundamental defect and mere error, and Appellant does not offer a workable one. Appellant first contends that a career offender designation “involves much more than a technical Guidelines error, but, considering the vastly-increased sentence[] resulting from the improper career offender designation, constitute[s] a ‘miscarriage of justice’ by any commonsense definition.” Appellant‘s Br. 8-9. But to draw the line at career offender designations would be underinclusive. It is possible that a career offender may not receive as vast an increase as another defendant who, for example, simply received an erroneous Guidelines enhancement. Compare Sun Bear v. United States, 644 F.3d 700, 702 (8th Cir.2011) (defendant‘s sentencing range was 292 to 365 months without career offender enhancement, and 360 to life with career offender enhancement; defendant was sentenced to 360 months), with Mikalajunas, 186 F.3d at 497 (Murnaghan, J., dissenting) (defendant‘s sentence was increased by more than four years based on incorrect physical restraint enhancement). Appellant does not demarcate how vast a “vastly-increased sentence” must be to rise to the level of a miscarriage of justice.
On the other hand, to draw the line at any sentencing error that increases the sentencing range of the defendant would be overinclusive. It would not only fly in the face of our circuit precedent, see Mikalajunas, 186 F.3d at 496 (“[E]rrors of guideline interpretation or application ordinarily fall short of a miscarriage of justice“), but it would deal a wide-ranging blow to the judicial system‘s interest in finality, see United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (“It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice.” (footnotes omitted)).
E.
For all of these reasons, we believe this case falls closer on the spectrum to Addonizio than Davis. Here, the district court sentenced Appellant “within the statutory limits,” and while the career offender designation may have affected the ultimate sentence imposed, “it did not affect the lawfulness of the [sentence] itself—then or now.” Addonizio, 442 U.S. at 187. Therefore, we are simply not presented with “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
STEPHANIE D. THACKER
UNITED STATES CIRCUIT JUDGE