United States v. Foote

• Decision Date: 27 April 2015
• Docket Number: No. 13–7841.,13–7841.
• Citation: 784 F.3d 931
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Wesley Devon FOOTE, Defendant—Appellant, North Carolina Advocates For Justice, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

784 F.3d 931

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.

ARGUED:John Clark Fischer, Randolph & Fischer, Winston–Salem, North Carolina, for Appellant. Ripley Eagles Rand, Office of the United States Attorney, Greensboro, North Carolina, for Appellee. Jaclyn Lee DiLauro, Hogan Lovells U.S. LLP, Washington, D.C., for Amicus Curiae. ON BRIEF:Michael F. Joseph, Assistant United States Attorney, Office of the United States Attorney, Greensboro, North Carolina, for Appellee. Noell Tin, Tin Fulton Walker & Owen, PLLC, Charlotte, North Carolina; Neal Kumar Katyal, Hogan Lovells U.S. LLP, Washington, D.C., for Amicus Curiae.

Before DUNCAN, KEENAN, and THACKER, Circuit Judges.

Opinion

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 28 U.S.C. § 2255. The district court concluded that Appellant's petition, which was based on the argument that his career offender designation was later nullified under our decision in United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc), does not present a claim that is cognizable on collateral review.

The language of § 2255 makes clear that not every alleged sentencing error can be corrected on collateral review. The Supreme Court has instructed that only those errors presenting a “fundamental defect which inherently results in a complete miscarriage of justice” are cognizable. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (internal quotation marks omitted). We are not convinced that Appellant's pre-Simmons career offender designation meets this high bar. Neither Appellant's federal offense of conviction nor his state convictions qualifying him as a career offender have been vacated, he was sentenced under an advisory sentencing scheme, and we are hesitant to undermine the judicial system's interest in finality to classify a Sentencing Guidelines error as a fundamental defect. Therefore, we affirm the district court.

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 21 U.S.C. §§ 841(a)(1), (b)(1)(B). On January 10, 2007, the district court found Appellant to be a “career offender” and sentenced him to 262 months in prison.

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.

U.S.S.G. § 4B1.1(a) (2005) (emphasis supplied). A “controlled substance offense” is defined as “a[ ] [drug] offense under federal or state law, punishable by imprisonment for a term exceeding one year.” Id. § 4B1.2(b). Appellant's presentence investigation report (“PSR”) listed, inter alia, two North Carolina convictions for possession with intent to sell cocaine. For the first conviction, which occurred in 1995, Appellant was sentenced to 10–12 months in prison (the “1995 conviction”); for the second, which occurred in 2002, he was sentenced to 13–16 months in prison (the “2002 conviction”).

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 N.C. Gen.Stat. § 90–95(a)(1), (b)(1) (2005), which carried a maximum aggravated sentence of well over 12 months in prison, id. § 15A–1340.17(c). Therefore, under Harp, Appellant was convicted of a crime punishable by a “prison term exceeding one year,” even though his actual sentence did not exceed one year.

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 U.S.S.G. § 4B1.1(b)(1).¹ The district court sentenced Appellant at the bottom of the Guidelines range.

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 appealed from the amended judgment, but we again affirmed. See United States v. Foote, 395 Fed.Appx. 49, 51 (4th Cir.2010). On January 21, 2011, Appellant filed a petition for collateral relief pursuant to 28 U.S.C. § 2255, again arguing that the district court erred in sentencing him as a career offender.²

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 21 U.S.C. § 841(b)(1)(B)(vii) (providing that first-time offenders who possess 100 kilograms or more of marijuana “after a prior conviction for a felony drug offense has become final” are subject to a mandatory minimum sentence of 10 years (emphasis supplied)); id. § 802(44) (defining “felony drug offense” as a drug-related offense “that is punishable by imprisonment for more than one year under any [state] law”). Specifically, the court considered whether Simmons was entitled to relief because the crime that supported his sentencing enhancement—a North Carolina conviction for possession with intent to sell no more than 10 pounds of marijuana—was not an offense “punishable by imprisonment for more than one year” under the CSA. Simmons, 649 F.3d at 240–41.

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 changed the way this Court determines whether prior convictions for certain lower-level North Carolina felonies are punishable by more than one year in prison.”Id. at 145.

Not surprisingly, Appellant amended his § 2255 p...