Mckay v. U.S., No. 09–15099.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: MARCUS, Circuit Judge:
• Citation: 23 Fla. L. Weekly Fed. C 432,657 F.3d 1190
• Parties: Torey McKAY, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Docket Number: No. 09–15099.
• Decision Date: 22 September 2011

657 F.3d 1190
23 Fla. L. Weekly Fed. C 432

Torey McKAY, Petitioner–Appellant,
v.
UNITED STATES of America, Respondent–Appellee.

No. 09–15099.

United States Court of Appeals, Eleventh Circuit.

Sept. 22, 2011.

[657 F.3d 1191]

Mara Allison Guagliardo, Fed. Pub. Def., Tampa, FL, George Allen Couture, Asst. Fed. Pub. Def., Rosemary T. Cakmis, Fed. Pub. Def., Orlando, FL, for Appellant.Yvette Rhodes, Tampa, FL, for Appellee.Appeal from the United States District Court for the Middle District of Florida.Before MARCUS and ANDERSON, Circuit Judges, and ALBRITTON,^* District Judge.MARCUS, Circuit Judge:

Torey McKay (“McKay”) appeals the district court's denial of his motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255. In this first-time § 2255 motion, McKay asserts that he was erroneously sentenced as a career offender under U.S.S.G. § 4B1.1 because, in light of subsequent case law, his prior conviction for carrying a concealed weapon is not a “crime of violence” under U.S.S.G. § 4B1.2(a). On appeal, McKay argues that the district court erred

[657 F.3d 1192]

in ruling that his sentencing claim is not cognizable under § 2255. McKay also says that the actual innocence exception to the procedural default rule applies to excuse the procedural default of his sentencing claim. Because we conclude that McKay procedurally defaulted his claim by failing to raise it on direct appeal and that the actual innocence exception does not apply to McKay's claim of legal innocence, we AFFIRM the district court's denial of McKay's § 2255 motion.I. A.

The facts and procedural history of McKay's case are straightforward. On August 25, 2005, McKay was charged in a four-count indictment with drug trafficking offenses in violation of 21 U.S.C. § 841(a)(1), (b)(1) in the United States District Court for the Middle District of Florida. Specifically, McKay was charged with three counts of possession with intent to distribute, and distribution of, cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), (b)(1)(B)(iii) (Counts 1, 2, and 3), and one count of possession with intent to distribute, and distribution of, cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 4). On December 8, 2005, McKay pled guilty to all four counts without a plea agreement.

Pursuant to U.S.S.G. § 2D1.1, the Presentence Investigation Report (“PSI”) initially calculated McKay's base offense level at 32, based on the quantity of drugs involved in McKay's offenses. After a three-level reduction for acceptance of responsibility, McKay had an offense level of 29 and a criminal history category of VI, which yielded a Guidelines range of 151 to 188 months' imprisonment.

McKay, however, was classified as a “career offender” under U.S.S.G. § 4B1.1¹ based on two prior felony convictions: (1) carrying a concealed weapon, which was counted as a “crime of violence”² and (2) selling cocaine, which was counted as a “controlled substance offense.” Because of his career offender status, McKay's offense level rose to 37, but was reduced to 34 by a three-level reduction for acceptance of responsibility. With an offense level of 34 and a criminal history category of VI, the applicable Guidelines range was 262 to 327 months' imprisonment.

At his March 29, 2006 sentencing hearing, McKay did not object to the career offender sentence enhancement. McKay did, however, explain by way of mitigation that his drug use and resulting criminal conduct began after the death of his infant son. McKay thus argued that the 18 U.S.C. § 3553(a) factors warranted a downward departure in his sentence, contending that a 180–month (15–year) sentence

[657 F.3d 1193]

would sufficiently serve the statute's sentencing goals. After considering the PSI, the § 3553(a) factors, and statements made by McKay, his parents, and his attorney, the district court ultimately sentenced McKay to 262 months' imprisonment (21 years, 10 months), which was at the bottom of the applicable Guidelines range—262 months for each of Counts 1, 2, and 3, and 240 months for Count 4, all to run concurrently. This 262–month sentence, which was within the statutory maximum of life imprisonment,³ was to be followed by five years of supervised release for Counts 1, 2, and 3, and three years for Count 4, again, all to run concurrently. McKay was also directed to pay a special assessment in the amount of $400 ($100 per count). The district court expressly found that “the sentence imposed [was] sufficient but not greater than necessary to comply with the statutory purposes of sentencing.” McKay did not object to his sentence, nor did he file a direct appeal from his conviction or the ensuing sentence.

Effective November 1, 2007, the United States Sentencing Commission promulgated Amendment 706 to the Sentencing Guidelines, which provided for a two-level reduction in base offense levels in U.S.S.G. § 2D1.1 for crack cocaine offenses. United States v. Mills, 613 F.3d 1070, 1075 (11th Cir.2010); see also United States v. Moore, 541 F.3d 1323, 1325 (11th Cir.2008). The Commission made Amendment 706 retroactively applicable, as of March 3, 2008, to defendants with crack cocaine convictions who were sentenced under U.S.S.G. § 2D1.1. Mills, 613 F.3d at 1075; Moore, 541 F.3d at 1325.

On March 8, 2008, in light of Amendment 706, McKay filed a pro se motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).⁴ Soon thereafter, the district court denied McKay's motion on the ground that “[p]ersons classified as career offenders are not affected by the lower guidelines.” ⁵ McKay did not appeal the district court's ruling.

B.

On April 16, 2008, the Supreme Court decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), where it held that driving under the influence of alcohol is not a “violent felony” under the Armed Career Criminal Act (“ACCA”), codified in part at 18 U.S.C. § 924(e)(2)(B)(ii). ⁶

[657 F.3d 1194]

Begay, 553 U.S. at 148, 128 S.Ct. 1581. In so holding, the Court explained that the crimes listed in clause (ii) of § 924(e)(2)(B) (burglary, arson, extortion, and any felony that involves use of explosives) limit the scope of this clause “to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. at 143, 128 S.Ct. 1581. And “[t]he listed crimes,” the Court went on, “all typically involve purposeful, violent, and aggressive conduct.” Id. at 144–45, 128 S.Ct. 1581 (internal quotation marks omitted).

Shortly thereafter, this Court decided United States v. Archer, 531 F.3d 1347 (11th Cir.2008), applying the analysis drawn from Begay to determine whether carrying a concealed weapon constitutes a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). A panel of this Court explained that we have “repeatedly read the definition of a ‘violent felony’ under § 924(e) of the Armed Career Criminal Act as ‘virtually identical’ to the definition of a ‘crime of violence’ under U.S.S.G. § 4B1.2.” Archer, 531 F.3d at 1352. This Court determined that “[c]arrying a concealed weapon does not involve the aggressive, violent conduct that the Supreme Court [in Begay] noted is inherent in the enumerated crimes .... Nor does carrying a concealed weapon necessarily involve purposeful conduct.” Id. at 1351. We, therefore, held that, “in light of the Supreme Court's decision in Begay, the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.”⁷ Id. at 1352.

On October 27, 2008, McKay filed, pro se, an amended motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, making the nonconstitutional argument that he was erroneously sentenced as a career offender.⁸ McKay sought to be resentenced without the career offender enhancement, since, in light of Begay and Archer, his prior conviction for carrying a concealed weapon no longer qualifies as a “crime of violence.” To the extent he had procedurally defaulted this sentencing claim, McKay asked the district court to excuse his default on the ground that he is “actually innocent” of his career offender sentence. He recognized that “the actual innocence exception does not translate easily into the sentencing phase of a non-capital trial.” But, arguing that there is “little difference between holding that a defendant can be innocent of the acts required to enhance a sentence in [a] death case and applying a parallel rationale in non-capital cases,” McKay nevertheless urged the district court to apply the actual

[657 F.3d 1195]

innocence exception to his case. The government responded that McKay's sentencing claim was time-barred, was barred under the procedural default rule, was not cognizable under § 2255, and also failed on the merits because Begay did not apply retroactively to McKay's sentence. See McKay v. United States, No. 8:08–cv–1900–T–30TGW, 2009 WL 2382286, at *1 (M.D.Fla. July 31, 2009).

The district court denied McKay's § 2255 motion on the ground that his Guidelines misapplication claim was not cognizable under § 2255.⁹ Id. at *1–2. Having determined that McKay's sentencing claim was a nonconstitutional one, the district court explained that McKay's claim would be cognizable only “if he [could] demonstrate that 1) his claim ‘could not have been raised in direct appeal’; and 2) his injury ‘would, if condoned, result in a complete miscarriage of justice.’ ” Id. at *2 (quoting Lynn v. United States, 365 F.3d 1225, 1232–33 (11th Cir.2004)). The district court found that McKay could have raised his sentencing claim on direct appeal, “even though Begay and Archer had not yet been decided when Petitioner was sentenced.” Id. (citing United States v. Coley, 336 Fed.Appx. 933, 936 (11th Cir.2009) (per curiam) (unpublished) (“ Begay and Archer had not yet been decided when Coley was sentenced in 2003; however, if he believed that his career offender status was improper under the guidelines...