United States v. Prophet

• Decision Date: 03 March 2021
• Docket Number: No. 18-3776,18-3776
• Citation: 989 F.3d 231
• Parties: UNITED STATES of America v. Maximus PROPHET, Mark L. Ferrari, Appellant
• Court: U.S. Court of Appeals — Third Circuit

989 F.3d 231

UNITED STATES of America

v.Maximus PROPHET, Mark L. Ferrari, Appellant

No. 18-3776

United States Court of Appeals, Third Circuit.

Argued November 12, 2020

Opinion Filed: March 3, 2021

Laura S. Irwin, Haley F. Warden-Rodgers (Argued), Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

James S. Ballenger, Zev Klein^* (Argued), Anna C. Pepper* (Argued), University of Virginia Law School, 580 Massie Road, Charlottesville, VA 22903, Counsel for Appellant

Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges

OPINION

RENDELL, Circuit Judge Maximus Prophet (a/k/a Mark Ferrari) appeals the District Court's denial of his motion to vacate his sentence under 28 U.S.C. § 2255 and, in the alternative, his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Prophet challenges the sentencing court's application of a two-point Guidelines enhancement for distribution of child pornography. He argues that the enhancement should not apply because in 2016 the United States Sentencing Commission adopted Amendment 801, limiting the enhancement to those who "knowingly engaged in distribution," and there was no evidence in his case that he knowingly engaged in distribution. Prophet argues that Amendment 801 is a clarifying amendment which should apply retroactively to him. He seeks a resentencing under § 2255 or § 2241 on that basis. The District Court concluded that Amendment 801 is not retroactive and denied Prophet's motion and petition for habeas relief.

We issued a certificate of appealability on four issues but can decide this case based only on the first issue, namely whether Amendment 801 is a clarifying amendment that can be raised and retroactively applied under § 2255. Because we conclude that it is not retroactive and will affirm the District Court's order on that basis, we need not address the other issues which explore the cognizability of the claim under § 2255 and § 2241.¹

The government moved to dismiss the appeal for mootness because Prophet was released from prison in 2019 and is now serving a fifteen-year term of supervised release. This motion has been fully briefed and is ripe for review. We conclude that Prophet's case is not moot and will deny the government's motion to dismiss.

I.

A.

Prophet pleaded guilty to one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4) and eleven counts of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). The sentencing court applied a two-level enhancement for distribution under U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (U.S. Sentencing Commission 2007) because of Prophet's use of LimeWire, a peer-to-peer file sharing network. Prophet has consistently maintained that he did not know that LimeWire made his files available to other LimeWire users. The sentencing court decided that his involvement in LimeWire was enough to trigger the enhancement. The court determined that the enhancement was warranted because "the files found on [Prophet's] computers were available for viewing by other members of the network." App. 23. The court explained that the fact that his files were available for viewing was equivalent to posting the material on a website for public viewing, which was the example provided in Application Note 1 of U.S. Sentencing Guidelines Manual § 2G2.2 (U.S. Sentencing Commission 2007), the version of the Guidelines applicable at the time. The court also noted that "distribution" "is not restricted to acts with intent only." App. 23.

The court applied the 2007 Sentencing Guidelines and determined that Prophet's offense level was 34. This resulted in a Guidelines range of 151 to 188 months. The Guidelines authorized a supervised release term of at least two years for each of the twelve counts, but the accompanying policy statement recommended a term of life because the offense of conviction was a sexual offense.

The court sentenced Prophet to 120 months’ imprisonment for Count One, 168 months’ imprisonment for Counts Two through Twelve, to be served concurrently, and fifteen years of supervised release. The court noted that the term of supervised release

is above the [G]uideline range but not above the maximum permitted by law, and is warranted as it is apparent that you are in need of counseling regarding your appetite for child pornography, and 15 years of supervised release will ensure that you are able to reintegrate successfully and productively into society after your term of imprisonment.

App. 34. Prophet appealed his sentence and we affirmed. United States v. Prophet , 335 F. App'x 250 (3d Cir. 2009).

Prophet moved to vacate his sentence in 2015 based on our decision in United States v. Husmann , 765 F.3d 169 (3d Cir. 2014). In Husmann , we held that the offense of distribution of child pornography under 18 U.S.C. § 2252(a)(2) based on use of a peer-to-peer network requires evidence that another person accessed the material. Id. at 176. The magistrate judge construed Prophet's motion as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, noting that a motion to vacate would be untimely and Prophet had not "present[ed] anything that would statutorily or equitably toll the one-year limitations period in 28 U.S.C. § 2255(f)." App. 55. The magistrate judge concluded that Prophet's petition must be dismissed because in Husmann we addressed the distribution requirement in the Guidelines enhancement and concluded that it applied to broader conduct than the statutory definition. The district court adopted the magistrate judge's report and recommendation, denied Prophet's petition, and we affirmed. We explained that Husmann did not apply to Prophet because it involved the narrower crime of distribution, not the enhancement under the Sentencing Guidelines. United States v. Prophet , 644 F. App'x 128, 129 (3d Cir. 2016). We explained, "Under the applicable sentencing guideline, Prophet's act of merely logging in to a file-sharing network qualified as distribution." Id.

At or around the time that we decided Husmann , there was a split among the circuits as to whether the Guideline enhancement under § 2G2.2(b)(3)(F) required a finding of mens rea. The Second, Fourth, and Seventh Circuits interpreted the Guideline to require knowledge. See United States v. Robinson , 714 F.3d 466, 468 (7th Cir. 2013) ; United States v. Baldwin , 743 F.3d 357, 361 (2d Cir. 2014) ; United States v. Layton , 564 F.3d 330, 335 (4th Cir. 2009). On the other hand, the Fifth, Tenth, and Eleventh Circuits held, "the language of § 2G2.2(b)(3)(F) unambiguously does not contain a scienter requirement." United States v. Baker , 742 F.3d 618, 622 (5th Cir. 2014) ; accord United States v. Ray , 704 F.3d 1307, 1312 (10th Cir. 2013) ; United States v. Creel , 783 F.3d 1357, 1360 (11th Cir. 2015).

The United States Sentencing Commission resolved this debate by promulgating Amendment 801, effective on November 1, 2016. Amendment 801 revised the language of U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) from "If the offense involved ... distribution other than distribution described in subdivisions (A) through (E)," to "If the defendant knowingly engaged in distribution, other than distribution described in subdivisions (A) through (E)." U.S. Sent'g Guidelines Manual app. C, amend. 801 (U.S. Sent'g Comm'n 2016) (emphasis added).

B.

Prophet filed a second motion seeking relief under § 2255 and in the alternative a petition for habeas corpus under § 2241 in October 2017. Prophet argued that Amendment 801 should apply retroactively to his sentence, and as a result he is entitled to be resentenced. The Magistrate Judge reasoned that although Amendment 801 would require a sentencing court today to make findings as to Prophet's knowledge, it is not a retroactive amendment because "[i]n the absence of an express retroactivity provision, see United States Sentencing Guideline § 1B1.10(d), amendments to the Guidelines do not apply retroactively." App. 8. The Magistrate Judge also noted that even if he were to conclude that Amendment 801 was a clarifying amendment and therefore is retroactive, relief under § 2255 would be precluded because the motion to vacate was untimely.

Moreover, the Magistrate Judge concluded, Prophet's argument for relief under § 2241 based on In re Dorsainvil , 119 F.3d 245 (3d Cir. 1997) was unavailable because § 2241 is available only when a motion to vacate is barred for procedural reasons and subsequent authority has negated the criminal liability for the conduct. Because Amendment 801 did not negate Prophet's criminal liability, the Magistrate Judge decided that Dorsainvil was inapplicable.

The District Court adopted the Magistrate Judge's report and recommendation in full and denied Prophet's motion to vacate. Prophet timely appealed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).² United States v. Folk , 954 F.3d 597, 601 (3d Cir. 2020), cert. denied , No. 20-5983, ––– U.S. ––––, 141 S.Ct. 837, ––– L.Ed.2d –––– (U.S. Nov. 9, 2020). We review legal conclusions de novo and factual findings for clear error. Id.

The government has moved to dismiss Prophet's appeal as moot because he is no longer imprisoned. However, because Prophet is now serving the supervised release portion of his sentence, we conclude that Prophet's case is not moot. We will address this issue before turning to the merits of Prophet's appeal.

A.

Under Article III of the Constitution, a federal court may adjudicate "only actual, ongoing cases or controversies." Lewis v. Cont'l Bank Corp. , 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). "This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. The parties must continue to have a personal stake in the outcome of the lawsuit." Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 ...