United States v. Omar Folk ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-1865
____________
UNITED STATES OF
AMERICA
v.
OMAR SIERRE FOLK,
Appellant
____________
On Appeal from the United States
District Court
for the Middle District of
Pennsylvania
(D.C. No. 1-11-cr-00292-001)
District Judge: Honorable John E.
Jones, III
____________
Submitted Under Third Circuit
L.A.R. 34.1(a):
January 14, 2020
Before: HARDIMAN, PORTER,
and PHIPPS,
Circuit Judges.
(Filed: April 3, 2020)
____________
Philip Gelso
LAW OFFICES OF PHILIP GELSO
63 Pierce Street
Kingston, PA 18704
Counsel for Appellant Omar Sierre Folk
David J. Freed, United States Attorney
Eric Pfisterer, Deputy Chief, Criminal Division
(Harrisburg)
Michael A. Consiglio
Kate L. Mershimer
OFFICE OF THE UNITED STATES ATTORNEY
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee United States of America
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge
Omar Sierre Folk appeals the District Court’s order
denying his Rule 59(e) motion to alter or amend the judgment
denying his motion under 28 U.S.C. § 2255. He argues that the
District Court enhanced his sentence based on an incorrect
career-offender designation under the advisory Sentencing
Guidelines. He also moves to expand his certificate of
appealability. Because Folk’s claim is not cognizable under 28
U.S.C. § 2255, we will affirm the District Court’s order and
deny his motion to expand the certificate of appealability.
I
Folk was convicted by a federal jury of one count of
distribution and possession with intent to distribute cocaine
and cocaine base, in violation of 21 U.S.C. § 841; two counts
of using a firearm to further a drug trafficking offense, in
violation of 18 U.S.C. § 924(c); and one count of felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Before sentencing, the Presentence Investigation Report
(“PSR”) deemed Folk a career offender under U.S.S.G.
2
§ 4B1.1 because he had at least two prior felony convictions
for “crimes of violence.”1 As a result, the PSR recommended
enhancing Folk’s Guidelines range from a sentence between
384 and 465 months’ imprisonment to a sentence between 420
months and life imprisonment.
At sentencing, the District Court discussed Folk’s four
previous convictions with the parties and whether the
convictions constituted crimes of violence. The convictions
included two robberies in 2001, simple assault in 2003, and
terroristic threats in 2003. The District Court adopted the
PSR’s recommended Guidelines range but sentenced Folk to
264 months’ imprisonment—120 months less than the bottom
of the unenhanced Guidelines range and 156 months less than
the bottom of the enhanced Guidelines range. Folk appealed
his conviction, but we affirmed. See United States v. Folk, 577
F. App’x 106 (3d Cir. 2014). Importantly, Folk did not
challenge his sentence or his career-offender designation.
Then, the Federal Public Defender filed a timely § 2255
motion on Folk’s behalf. In his § 2255 motion, Folk argued that
his career-offender designation was invalid because Johnson v.
United States, 135 S. Ct. 2551 (2015), rendered § 4B1.2(a)
void for vagueness. Folk decided to proceed pro se and filed
several motions to amend his § 2255 motion. The District
Court ultimately denied Folk’s § 2255 motion.
Finally, Folk filed a notice of appeal and a motion to
alter or amend the judgment under Federal Rule of Civil
Procedure 59(e). We stayed his appeal pending the District
Court’s resolution of the Rule 59(e) motion. Folk’s Rule 59(e)
motion argued that his robbery, simple assault, and terroristic
threats convictions do not constitute crimes of violence, so the
District Court erroneously designated him as a career offender.
1
U.S.S.G. § 4B1.1(a) (2012) provides that “[a] defendant is a
career offender if . . . [he] has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” A “crime of violence” is an offense
punishable by more than one year of imprisonment that
involves “the use, attempted use, or threatened use of physical
force against the person of another,” or is an otherwise
specified offense. U.S.S.G. § 4B1.2(a) (2012).
3
The District Court denied the motion. Folk then filed an
amended notice of appeal.
Folk’s certificate of appealability identified two issues
for review: (1) whether an erroneous career-offender
designation is cognizable under § 2255; and (2) whether he
was correctly designated as a career offender. 2
After we issued the certificate of appealability, Folk
moved to expand the certificate of appealability and to
supplement his appeal. Folk argued that his conviction for
possession of 280 grams of cocaine is invalid under United
States v. Rowe, 919 F.3d 752, 759 (3d Cir. 2019) (holding that
separate acts of distribution of controlled substances are
distinct offenses rather than a continuing crime). The motion
to expand the certificate of appealability was referred to this
panel and remains pending.
II
The District Court had subject-matter jurisdiction over
Folk’s § 2255 motion under 28 U.S.C. §§ 1331 and 2255. We
have appellate jurisdiction under 28 U.S.C. §§ 1291 and
2253(a). We review legal conclusions de novo and factual
findings for clear error. United States v. Doe, 810 F.3d 132,
142 (3d Cir. 2015).
III
The first issue we must address is whether a challenge
to an incorrect career-offender designation under the advisory
Sentencing Guidelines is cognizable under § 2255. Folk says
that it is.3 We disagree.
2
The parties identified other issues in their briefs on appeal,
including an ineffective-assistance-of-counsel claim. But the
certificate of appealability designated only two issues for
review, and we need not consider uncertified issues. See 3d Cir.
L.A.R. 22.1(b)–(c); see also 28 U.S.C. § 2253(c).
3
For this analysis, we assume without deciding that the District
Court incorrectly designated Folk as a career offender.
4
A
Under § 2255, a federal prisoner may move to vacate,
set aside, or correct his federal sentence if: (1) “the sentence
was imposed in violation of the Constitution or laws of the
United States”; (2) the court lacked “jurisdiction to impose”
the sentence; (3) the sentence exceeded “the maximum
authorized by law”; or (4) the sentence is “otherwise subject to
collateral attack[.]” 28 U.S.C. § 2255(a).
The statute’s language “is somewhat lacking in
precision” but “afford[s] federal prisoners a remedy identical
in scope to federal habeas corpus [under 28 U.S.C. § 2254].”
Davis v. United States, 417 U.S. 333, 343 (1974). The scope of
relief does not reach “every asserted error of law.” Id. at 346.
Rather, § 2255 provides relief for jurisdictional and
constitutional claims, as well as for certain nonconstitutional
claims.
Folk’s career-offender Guideline claim does not satisfy
the first three bases for § 2255 relief. He does not assert that
his sentence violates the Constitution or federal law. Folk does
not argue that the District Court lacked jurisdiction to impose
the sentence. Nor can he argue that his sentence exceeds the
maximum authorized by law because each of his federal
convictions permitted a maximum of life imprisonment. See 21
U.S.C. § 841(b); 18 U.S.C. § 924(c)(1)(A)(i) (permitting any
sentence exceeding five years); 18 U.S.C. § 924(e)(1)
(requiring a sentence to exceed 15 years). So, to justify
receiving § 2255 relief, Folk’s nonconstitutional claim—based
on an incorrect career-offender enhancement—must
“otherwise subject” his sentence to collateral attack. 28 U.S.C.
§ 2255(a); see Bullard v. United States, 937 F.3d 654, 658 (6th
Cir. 2019).
Nonconstitutional claims that otherwise subject a
sentence to collateral attack fall between two poles. See Doe,
810 F.3d at 155. At one end are plainly cognizable claims, such
as a federal prisoner’s claims that he is “either actually
innocent of his crime” or that his “prior conviction used to
enhance his sentence has been vacated[.]” Spencer v. United
States, 773 F.3d 1132, 1139 (11th Cir. 2014) (en banc)
(referencing Davis, 417 U.S. at 346–47 and Johnson v. United
States, 544 U.S. 295, 303 (2005)); see also Doe, 810 F.3d at
5
155 (citing Davis, 417 U.S. at 343). On the other end are
plainly noncognizable claims, which include technical
procedural violations that do not prejudice a defendant. See,
e.g., Peguero v. United States, 526 U.S. 23, 27–28 (1999)
(holding that a district court’s failure to notify a defendant of
his right to appeal was not cognizable when the defendant
knew of the right and was not prejudiced).
Supreme Court precedent recognizes that § 2255 may
remedy a nonconstitutional claim such as a flawed sentence in
two circumstances. See Doe, 810 F.3d at 155 (noting that Reed
v. Farley, 512 U.S. 339 (1994), explains how to fill the narrow
space “between [the] poles”). First, if a sentencing error
resulted in “an omission inconsistent with the rudimentary
demands of fair procedure.” United States v. Timmreck, 441
U.S. 780, 783 (1979) (citation omitted). Second, if a sentencing
error constitutes “a fundamental defect which inherently
results in a complete miscarriage of justice[.]” Id. 4
B
A misapplication of the career-offender Guideline is not
an omission inconsistent with the rudimentary demands of fair
procedure. Sentencing errors that qualify as “omission[s]
inconsistent with” fair procedure include procedural errors that
prejudice a defendant. Doe, 810 F.3d at 155 (quoting Reed, 512
U.S. at 348 (plurality opinion)). Ordinarily, the procedural
error is the failure “to give a defendant advice required by the
Federal Rules [of Criminal Procedure].” Peguero, 526 U.S. at
27–28 (holding that a district court’s failure to notify a
defendant of his right to appeal was not cognizable when the
4
Relying on the plurality opinion in Reed v. Farley, this Court
suggested that “aggravating circumstances” amount to a third
standalone basis for § 2255 relief for nonconstitutional claims.
See Doe, 810 F.3d at 155. The Supreme Court has not
“expressly adopted [the aggravating circumstances] exception
or defined its parameters.” Pethtel v. Ballard, 617 F.3d 299,
305 (4th Cir. 2010). But we need not resolve that tension here
because Folk does not argue that aggravating circumstances
exist. Nor would his claim meet the requirements for relief
under an aggravating-circumstances theory. See, e.g., Reed,
512 U.S. at 357 (Scalia, J. concurring).
6
defendant knew of the right and was not prejudiced by the
failure); see also Timmreck, 441 U.S. at 784–85 (declining to
find cognizable a procedural error under Federal Rule of
Criminal Procedure 11 absent aggravating circumstances); Hill
v. United States, 368 U.S. 424, 428 (1962) (holding that a
district court’s failure to notify a defendant of his right to speak
at his sentencing did not prejudice him and was not a
cognizable claim under § 2255); cf. Reed, 512 U.S. at 349–51
(plurality opinion) (holding that, in a § 2254 proceeding, a state
court’s failure to observe speedy trial requirements was not
cognizable when the failure did not prejudice the defendant).
Peguero, Timmreck, and Hill each involved a district
court’s failure to notify a defendant of certain rights under the
Federal Rules of Criminal Procedure. Reed involved a district
court’s failure to follow certain procedural timing rules. Folk
does not complain that the District Court failed to notify him
of his rights under the Federal Rules of Criminal Procedure.
Nor does he assert any other procedural error. His case is
therefore not analogous to Peguero, Hill, and Timmreck, which
recognized that a prejudicial procedural violation may be
cognizable under § 2255. 5
In Doe, a panel of this Court held that a misapplication
of the career-offender designation under the mandatory
Guidelines was cognizable. Doe’s holding relied, in part, on
Peguero. This Court said that “the incorrect computation of a
mandatory Guidelines range” based on an erroneous career-
offender designation “is at least as serious as the error
5
A miscalculation of a Guidelines range is a procedural error.
See, e.g., Gall v. United States, 552 U.S. 38, 51 (2007). The
District Court’s designation of Folk as a career offender—a
substantive decision—increased Folk’s Guidelines range. See,
e.g., Doe, 810 F.3d at 159 (noting that a “substantive error”—
like a career-offender designation—results in “more time in
prison”); see also Narvaez v. United States, 674 F.3d 621, 627
n.11 (7th Cir. 2011) (“The misapplication of the career-
offender status—which increased Mr. Narvaez’s sentencing
range—is certainly a substantive error.”); United States v.
Jayyousi, 657 F.3d 1085, 1116–17 (11th Cir. 2011) (noting that
a sentence was substantively unreasonable because it failed to
account for a defendant’s career-offender status).
7
discussed in Peguero and thus should also be cognizable
[when] the mistake prejudices the defendant.” Doe, 810 F.3d
at 159.
Doe involved a substantive error. Peguero (and its
predecessor cases at the Supreme Court) involved procedural
errors that potentially caused prejudice. Doe thus blended the
two avenues of § 2255 relief. Relying on Doe, Folk argues that
the District Court’s allegedly erroneous career-offender
designation prejudiced him. For example, Folk parrots Doe and
argues that the alleged “substantive error, like more time in
prison, is doubtless more serious than procedural error, like
failure by the [sic] court to advise someone of appellate
rights[.]” Appellant’s Reply Br. 3 (quoting Doe, 810 F.3d at
159).
But the Supreme Court has never conducted a prejudice
inquiry when deciding whether a substantive nonconstitutional
error—rather than a procedural error—is cognizable under
§ 2255. We decline Folk’s invitation to do so here.6 Because
Folk does not complain of a prejudicial procedural error, his
claim is not cognizable under § 2255 as “an omission
6
Even if we analyzed the prejudice to Folk as Doe suggested,
Folk still would not prevail. Folk notes that the career-offender
designation increased his advisory Guidelines range by one
level. His resulting range was 420 months to life imprisonment.
Without the increase, his Guidelines range would have been
384 to 465 months’ imprisonment. He argues that he therefore
“suffered prejudice because he was sentenced under an
incorrect Guidelines range regardless of whether the ultimate
sentence falls within the correct Guideline[s] range upon
remand.” Appellant’s Reply Br. 4. But the District Court
sentenced Folk to 264 months’ imprisonment—ten years
below the bottom end of the Guidelines range without the
career-offender enhancement. Folk is hard pressed to show that
his below-the-Guidelines-range sentence constitutes a
complete miscarriage of justice. See, e.g., United States v.
Hoskins, 905 F.3d 97, 104–05 (2d Cir. 2018) (finding that a
federal prisoner lacked a cognizable § 2255 claim for his
within-Guidelines sentence).
8
inconsistent with the rudimentary demands of fair procedure.”
Reed, 512 U.S. at 348 (plurality opinion).
C
In Doe, we held that an incorrect career-offender
designation under the mandatory Guidelines is a fundamental
defect inherently resulting in a complete miscarriage of justice
cognizable under § 2255. See 810 F.3d at 160. But United
States v. Booker, 543 U.S. 220, 246 (2005), made the
Guidelines advisory. We have not yet addressed whether an
incorrect career-offender designation under the advisory
Guidelines is cognizable under § 2255.
Nearly every other circuit court of appeals has held or
suggested that such a claim is not cognizable. 7 Today, we join
7
See Snider, 908 F.3d at 189 (holding that the defendant’s
nonconstitutional “challenge to his advisory guidelines range
suffers from a great defect: it is not cognizable under § 2255”);
United States v. Foote, 784 F.3d 931, 940 (4th Cir. 2015)
(same); Spencer, 773 F.3d at 1144 (en banc) (same); Hawkins
v. United States, 706 F.3d 820, 823–24 (7th Cir. 2013), opinion
supplemented on denial of reh’g, 724 F.3d 915 (same); Sun
Bear v. United States, 644 F.3d 700, 704–05 (8th Cir. 2011)
(en banc) (holding that because applying the career-offender
Guideline is an ordinary question of Guidelines interpretation,
the error is not a fundamental defect resulting in a complete
miscarriage of justice and is not cognizable under § 2255).
The Fifth Circuit has held that “[§] 2255 motions may
raise only constitutional errors and other injuries that could not
have been raised on direct appeal that will result in a
miscarriage of justice if left unaddressed.” United States v.
Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (emphasis
added) (citations omitted). Because “[m]isapplications of the
Sentencing Guidelines fall into neither category . . . [they] are
not cognizable in § 2255 motions.” Id. Because of this blanket
prohibition, the Fifth Circuit has not expansively delineated the
rule, unlike other circuits.
Two other circuits have faced the issue. The Second
Circuit avoided drawing a “categorical conclusion,” but
identified “the advisory nature of the challenged career
offender Guidelines as one factor, among others,” that
9
our sister circuits and hold that an incorrect career-offender
enhancement under the advisory guidelines is not cognizable
under § 2255 because it is not a fundamental defect that
inherently results in a complete miscarriage of justice.
Our conclusion is buttressed by four rationales: (1) the
lawfulness of a sentence within the statutory limit; (2) the
advisory nature of the Guidelines; (3) an interest in finality;
and (4) a concern about workable standards.
1
Even when based on an incorrect advisory career-
offender enhancement, a sentence within the statutory
maximum is lawful. See Spencer, 773 F.3d at 1138 (noting that
a sentence is lawful if it is “less than the statutory maximum
sentence prescribed by Congress” (citing United States v.
Addonizio, 442 U.S. 178, 186–87 (1979)); cf. United States v.
Payano, 930 F.3d 186, 193 (3d Cir. 2019) (explaining that
statutory ranges “set the floor and the ceiling within which a
district court must sentence, thereby . . . limit[ing] the extent to
which a district court may permissibly stray from the
Guidelines range” (citations omitted)). And a lawful sentence
is not a complete miscarriage of justice. See Addonizio, 442
U.S. at 186–87. So an incorrect career-offender designation
that results in a sentence within the statutory maximum is not
a fundamental defect inherently resulting in a complete
miscarriage of justice and cannot be cognizable under § 2255.
District courts possess “broad discretion in imposing a
sentence within a statutory range.” Booker, 543 U.S. at 233.
When sentencing defendants, district courts must consider the
factors in 18 U.S.C. § 3553(a), which includes the kinds of
precludes showing that a below- or within-Guidelines sentence
is a “complete miscarriage of justice.” Hoskins, 905 F.3d at 104
n.7. The First Circuit avoided the issue entirely by deciding a
case on alternative grounds. See Cuevas v. United States, 778
F.3d 267, 272 (1st Cir. 2015) (declining to address “the
cognizability of a claim, like the one at issue in [Folk’s case],
that the sentencing court legally erred in applying the
Guidelines”).
10
sentences and the sentencing range suggested for certain
violations. See 18 U.S.C. § 3553(a)(4).
So long as a district court considers the § 3553(a)
factors and imposes a sentence within the statutory limits for
an offense, the criminal proceeding will not be “infected with
any error of fact or law of the ‘fundamental’ character.” See
Addonizio, 442 U.S. at 186. Such a sentence is lawful and
cannot be a complete miscarriage of justice.
Even if a sentencing error affects “the way in which the
[sentencing] court’s judgment and sentence [will] be
performed,” it does not “affect the lawfulness of the judgment
itself—then or now.” Foote, 784 F.3d at 937 (quoting
Addonizio, 442 U.S. at 187); see also Hawkins, 706 F.3d at
821–22, 824, opinion supplemented on denial of reh’g, 724
F.3d 915 (noting that a “sentence that is well below the ceiling
imposed by Congress” is not a complete miscarriage of justice
even if the imposed sentence were “far above the [G]uidelines
range that would have been applicable had the career offender
guideline not been in play”).
For example, in Addonizio, the district court sentenced
the defendant under the belief that the defendant would be
eligible for parole after serving one-third of his sentence. 442
U.S. at 186. After the defendant was sentenced, the parole
commission changed its rules, which subjected the defendant
to more time in prison before he would be eligible for parole.
The district court’s incorrect assumption did not infect the
proceeding “with any error of fact or law of the ‘fundamental’
character” and did not merit § 2255 relief. Id.
Based on Addonizio, other circuit courts have concluded
that a sentencing error is not a fundamental defect requiring
§ 2255 relief when a prisoner is sentenced below the statutory
maximum. See Foote, 784 F.3d at 937; see also Spencer, 773
F.3d at 1138 (citing Addonizio, 442 U.S. at 186–87) (noting
that a sentence “less than the statutory maximum sentence
prescribed by Congress” is lawful, and thus not a fundamental
defect); Hawkins, 706 F.3d at 822, 824; Sun Bear, 644 F.3d at
705; cf. Snider, 908 F.3d at 191 (citing Addonizio, 442 U.S. at
187) (noting that the defendant’s corrected sentence would fall
within the same Guidelines range). We agree.
11
2
Because the Guidelines are advisory and merely one
factor considered within a sentencing court’s discretion, an
incorrect career-offender enhancement is not a fundamental
defect inherently resulting in a complete miscarriage of justice.
First, oddities may arise if a court “declare[s] that a
fundamental defect or a complete miscarriage of justice has
occurred in a situation in which” a defendant could receive the
same sentence “under an advisory Guidelines scheme requiring
individualized analysis of the sentencing factors set forth in . . .
§ 3553(a).” Foote, 784 F.3d at 941. Even if a court provided
§ 2255 relief for an erroneous career-offender designation, “the
district court could [still] impose the same sentence again.”
Spencer, 773 F.3d at 1140 (collecting cases); see also Sun
Bear, 644 F.3d at 705 (noting that the same sentence could be
reimposed); Hawkins, 706 F.3d at 824–25 (acknowledging that
the district court might have imposed a lower sentence but did
not have to do so).
Second, the advisory Guidelines merely inform “the
exercise of a [sentencing] court’s discretion in choosing an
appropriate sentence within the statutory range.” Beckles v.
United States, 137 S. Ct. 886, 892 (2017). It is true that the
advisory Guidelines are the “starting point and the initial
benchmark for sentencing.” Id. at 894 (quoting Gall, 552 U.S.
at 49 (internal quotation marks omitted)). But “the advisory
Guidelines do not fix the permissible range of sentences.” Id.
at 892. “[A] sentencing court may no longer rely exclusively
on the Guidelines range; rather, the court must make an
individualized assessment based on the facts presented and the
other statutory factors.” Id. at 894 (quoting Gall, 552 U.S. at
49 (internal quotation marks omitted)).
Holding otherwise would transform the “advisory”
Guidelines into more than a discretionary guide and undermine
Booker. The Guidelines lack legal force and are not
“tantamount to the laws of Congress” because they are
advisory and therefore not binding on a district court. Spencer,
773 F.3d at 1142 (citing Mistretta v. United States, 488 U.S.
361, 395 (1989)); see also Pepper v. United States, 562 U.S.
476, 501 (2011) (noting that “a district court may in
appropriate cases impose a non-Guidelines sentence based on
12
a disagreement with the [Sentencing] Commission’s views”).
So, a Guidelines error is not a fundamental defect like a
“violation of a statute or constitutional provision” and does not
inherently result in a complete miscarriage of justice. See
Foote, 784 F.3d at 942.
3
An interest in finality cautions against finding that an
erroneous career-offender enhancement is a fundamental
defect inherently resulting in a complete miscarriage of justice.
Section 2255 does not provide relief for “every asserted error
of law.” Davis, 417 U.S. at 346. It strikes a balance “between
the interest in finality and the injustice of a possibly mistaken
sentence,” such as one imposed after an incorrect career-
offender designation. Hawkins, 706 F.3d at 825. Allowing
collateral challenges based on sentencing errors under the
advisory Guidelines “would deal a wide-ranging blow to the
judicial system’s interest in finality.” Foote, 784 F.3d at 943
(citing Addonizio, 442 U.S. at 184). Given a district court’s
discretion and the advisory nature of the Guidelines, an
incorrect career-offender designation is not the type of defect
that supports undermining finality. See Spencer, 773 F.3d at
1144; Foote, 784 F.3d at 943.
4
There is no manageable limit to the types of sentencing
errors that would be cognizable under § 2255 if an incorrect
career-offender enhancement were found to be cognizable.
“[I]t is hard to fathom what the dividing line would be between
a fundamental defect and mere error” when applying the
advisory Guidelines. Foote, 784 F.3d at 943. Courts may
struggle “to catalog the subset of miscalculations of advisory
[G]uidelines that are miscarriages of justice that can be
corrected in [federal] postconviction proceedings.” Hawkins,
706 F.3d at 825.
Perhaps we could establish a rule that an incorrect
career-offender enhancement qualifies for § 2255 relief
because it is more serious than other sentencing errors. After
all, the miscalculation increases the Guidelines range. But
nearly all Guidelines errors will affect the range. See Spencer,
773 F.3d at 1142 (citation omitted). On one hand, limiting
13
§ 2255 relief only to misapplications of the career-offender
designation would be underinclusive. See Foote, 784 F.3d at
943. But, if any sentencing error is cognizable on collateral
review, then the rule would be overinclusive and disrupt
finality. Id.; see also Hawkins, 706 F.3d at 825 (noting that the
defendant’s argument requires “all [sentencing] errors (except,
presumably, harmless ones) [to be] miscarriages of justice”).
The breadth of such a rule would make the limited relief
offered by § 2255 a boundless opportunity for criminal
defendants to re-challenge their sentences.
D
Folk argues that this Court’s decision in Doe and
Supreme Court opinions discussing the advisory Guidelines
require a different outcome. We disagree.
In Doe, we held that an erroneous career-offender
designation under the mandatory Guidelines is cognizable
under § 2255. 810 F.3d at 160. We reasoned that the
“misclassification of the defendant as a career offender [was]
at least as serious as the error discussed in Peguero” and
“should also be cognizable [when] the mistake prejudices the
defendant.” Id. at 159. When discussing prejudice to the
defendant, Doe noted that the career-offender status applies to
“a subgroup of defendants . . . that traditionally has been
treated very differently from other offenders.” Id. (internal
quotation mark and citation omitted). Doe then concluded that
the “misapplication of the mandatory career-offender
Guideline, when such a misapplication prejudices the
[d]efendant, results in a sentence substantively not authorized
by law and is therefore subject to attack on collateral review.”
Id. at 160.
To reach the conclusion, this Court noted that
“sentencing decisions are anchored by the Guidelines” and
even the advisory Guidelines “exert controlling influence on
the sentence that the [sentencing] court will impose.” Id.
(quoting Peugh v. United States, 569 U.S. 530, 541, 545
(2013)). We emphasized that the mandatory Guidelines carry
“even greater force.” Id. (citing Booker, 543 U.S. at 234). Doe
also rejected the suggestion that a sentence within a statutory
limit that violates the mandatory Guidelines is lawful and thus
14
cannot be challenged under § 2255. Id. We stated that Peugh
and Booker rendered this conclusion “implausible.” Id.
Folk adopts Doe’s approach and relies on Peugh and
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016), to
argue that Doe’s holding applies to the advisory Guidelines.
Folk emphasizes that Doe looked to “the actual world of
sentencing.” Doe, 810 F.3d at 160. He argues that “the
determinative role the advisory Guidelines continue to hold at
federal sentencing, which is de facto similar to the role held by
the mandatory Guidelines” requires us to apply Doe here.
Appellant’s Br. 48. Folk’s argument is incorrect for several
reasons.
First, Doe’s narrow holding specifically did not extend
to the advisory Guidelines. See 810 F.3d at 160 (“Our holding
is narrow, and we do not consider challenges to the advisory
Guidelines[.]”).
Second, the advisory Guidelines do not have “the force
and effect of laws.” See Booker, 543 U.S. at 234. They are but
one factor among many statutory factors that a district court
considers when exercising its discretion at sentencing. So a
district court may have multiple possible rationales supporting
a sentence. See United States v. Evans, 526 F.3d 155, 165 (4th
Cir. 2008). A sentencing court is free to deviate from a
Guidelines range within its discretion and after consideration
of the mandatory factors in § 3553(a). Indeed, the District
Court sentenced Folk to a term of imprisonment ten years
below the bottom end of the Guidelines range without the
career-offender enhancement.
What’s more, a sentencing court cannot presume the
reasonableness of a within-Guidelines sentence. See Nelson v.
United States, 555 U.S. 350, 352 (2009) (“The Guidelines are
not only not mandatory on sentencing courts; they are also not
to be presumed reasonable.” (emphasis in original)). In sum,
the Guidelines are a “system of guided discretion” that advises
sentencing courts in “choos[ing] a sentence within [the]
statutory limits.” Beckles, 137 S. Ct. at 894–95 (emphasis
added).
Third, Folk’s reliance on Peugh and Molina-Martinez is
misplaced. Both cases involved direct appeals and not
15
postconviction collateral attacks. See Spencer, 773 F.3d at
1144 (discussing Peugh’s differences); see also Molina-
Martinez, 136 S. Ct. at 1341. The standards employed in both
cases were “far less demanding than the standard” Folk “must
satisfy: that an error in the application of [the] advisory
[G]uidelines ‘inherently results in a complete miscarriage of
justice.’” See Spencer, 773 F.3d at 1144 quoting Hill, 368 U.S.
at 428). In Peugh, the petitioner had to show that “a change in
law create[d] a significant risk of a higher sentence.” Hawkins,
724 F.3d at 917 (internal quotation marks omitted) (quoting
Peugh, 569 U.S. at 550). And in Molina-Martinez, the
petitioner had to demonstrate error creating a “reasonable
probability of a different outcome.” 136 S. Ct. at 1346. Finally,
Peugh involved a constitutional error—a violation of the Ex
Post Facto Clause. 569 U.S. at 538–39. Thus, the constitutional
error—and not a nonconstitutional error misapplying a
Sentencing Guideline—“invalidated the sentence.” Hawkins,
724 F.3d at 916 (discussing Peugh).
Molina-Martinez established a mere “rebuttable
presumption of prejudice” on direct appeal when a sentencing
court miscalculates a Guidelines range, see Payano, 930 F.3d
at 193, which suggests that the error does not inherently result
in a complete miscarriage of justice.
Essentially, Folk contends that perhaps the District
Court would impose an even lower sentence on remand. And
because that possibility exists, Folk asserts that he is prejudiced
and the incorrect career-offender designation is a fundamental
defect inherently resulting in a complete miscarriage of justice.
But it is also possible that, after further review of the § 3553(a)
factors, the District Court would resentence Folk to the same
sentence—or perhaps a higher one. We will not speculate
about how a district court might resentence a criminal
defendant were we to grant collateral relief. Even if one
hypothetical judge might lower a sentence upon remand,
another judge may not. And the theoretical possibility of a
lower sentence does not demonstrate the type of prejudice
necessary to show that the criminal defendant’s current
sentence rests on a fundamental defect inherently resulting in
a complete miscarriage of justice. Cf. Foote, 784 F.3d at 942;
Spencer, 773 F.3d at 1142–43; Hawkins, 724 F.3d at 917; Sun
Bear, 644 F.3d at 706.
16
* * *
In sum, we hold that a nonconstitutional claim based on
an incorrect career-offender enhancement under the advisory
Guidelines is not cognizable under § 2255. Because Folk’s
career-offender claim is not cognizable, we need not address
whether his previous convictions are “crimes of violence”
under the career-offender Guideline.
IV
Folk has moved to expand the certificate of
appealability to include his argument under our decision in
Rowe, 919 F.3d 752. To resolve the motion, we must decide
whether (a) Folk’s motion to expand the certificate of
appealability is properly construed as a motion to amend his
§ 2255 motion or as a second or successive habeas motion, 8
and (b) Folk’s motion survives the resulting standard. Based
on our precedent, Folk’s motion to expand the certificate of
appealability is a second or successive habeas motion. We also
conclude that it fails to satisfy § 2255’s standard for second or
successive habeas motions. So we will deny Folk’s motion to
expand the certificate of appealability.
A
If a federal prisoner “has expended the ‘one full
opportunity to seek collateral review’” that § 2255 affords him,
then a later-filed motion to expand the scope of his § 2255
motion is a second or successive motion. Santarelli, 929 F.3d
at 105 (quoting Blystone v. Horn, 664 F.3d 397, 413 (3d Cir.
2011)). A federal prisoner has expended his opportunity for
collateral review if he “has exhausted all of [his] appellate
remedies with respect to [his] initial habeas petition.” Id. But
if a federal prisoner’s first § 2255 motion has not been
resolved, then a motion to expand the scope of his § 2255
motion is a motion to amend. Id. at 105–06.
8
Even though Folk filed his motion to expand the certificate of
appealability with this Court, we may still find that it is a
motion to amend. See, e.g., United States v. Santarelli, 929
F.3d 95, 106 (3d Cir. 2019) (construing a petition filed with
this Court during an appeal as a motion to amend).
17
Thus, whether Folk’s motion to expand the certificate
of appealability is a motion to amend or a second or successive
§ 2255 motion depends on whether his incorrect career-
offender enhancement claims is cognizable. See id. It is not, so
Folk’s motion to expand the certificate of appealability is a
second or successive habeas petition because Folk has
“expended the ‘one full opportunity to seek collateral review’”
that § 2255 affords him. See id. (quoting Blystone, 664 F.3d at
413). 9
B
Having determined that Folk’s motion to expand the
certificate of appealability is a second or successive § 2255
motion, we must now decide whether to certify it. We must
certify a federal prisoner’s second or successive § 2255 motion
if the motion contains: (1) “newly discovered evidence …
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of
the offense;” or (2) “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable.” 28 U.S.C. § 2255(h)(1)–(2).
Folk’s motion to expand the certificate of appealability
presents neither newly discovered evidence nor a new rule of
constitutional law, so we will not certify Folk’s motion as a
second or successive § 2255 motion. As Folk concedes, “Rowe
. . . is not ‘new evidence.’” See Appellant’s Reply to Gov’t’s
Resp. to Mot. By Appellant to Expand the Certificate of
Appealability and Permit Suppl. Briefing 5 n.3 (June 18, 2019).
So he fails to satisfy § 2255(h)’s first prong. And Rowe was a
decision of this Court—and not the Supreme Court—so Folk
does not satisfy § 2255(h)’s second prong. Accordingly, we
will deny his motion.
V
Today we join every other circuit court of appeals in
deciding that an incorrect career-offender enhancement under
9
If we had decided to vacate or reverse the District Court, “the
district court would again be vested with jurisdiction to
consider” the motion to expand the certificate of appealability
as a motion to amend. Santarelli, 929 F.3d at 106.
18
the advisory Guidelines does not present a cognizable claim
under 28 U.S.C. § 2255. Thus, we will affirm the District
Court’s order denying Folk’s § 2255 motion. We will also deny
Folk’s motion to expand the certificate of appealability
because he does not satisfy the standard for a second or
successive § 2255 motion.
19