Stoney Lester v. J v. Flournoy , 909 F.3d 708 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6956
STONEY LESTER,
Petitioner − Appellant,
v.
J.V. FLOURNOY, Warden of FCI Jesup,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:12-cv-00681-LO-JFA)
Argued: October 30, 2018 Decided: November 30, 2018
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which
Judge Duncan and Judge Keenan joined.
ARGUED: Bradley Nelson Garcia, O’MELVENY & MYERS LLP, Washington, D.C.,
for Appellant. Michael Alan Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Jonathan D. Hacker, Kathryn E. Tarbert,
Rakesh Kilaru, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Leslie
R. Caldwell, Assistant Attorney General, Brian A. Benczkowski, Assistant Attorney
General, David A. O’Neil, Acting Deputy Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney
General, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Dana J. Boente, Acting United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
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DIAZ, Circuit Judge:
In 2004, after pleading guilty to selling crack cocaine to a government informant,
Stoney Lester was sentenced to almost 22 years in prison. Lester received that sentence
because he was designated a career offender under the then-mandatory Sentencing
Guidelines. Later precedent, however, established that this designation was wrong and
that, as a result, Lester’s sentence should have been up to 11 years shorter. Lester sought
relief through habeas corpus, but the district court denied his petition. Because our recent
decision in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), permits Lester’s
challenge, we vacate and remand.
I.
Lester pled guilty to a single count of possession with intent to distribute crack
cocaine in violation of 21 U.S.C. § 841. Under the Sentencing Guidelines, which at that
time were mandatory, Lester was deemed a career offender and subject to a sentencing
enhancement. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1 (2004). This
enhancement depended on a past conviction for a “crime of violence,” namely Lester’s
1990 Georgia conviction for walkaway escape. With the enhancement, the guidelines
range was 262–327 months in prison. Without the enhancement, however, Lester’s
Guidelines range would have been 121–151 months. The statutory maximum sentence was
40 years. See 21 U.S.C. § 841(b)(1)(B). Lester received a sentence of 262 months (a bit
under 22 years), right at the bottom of the required Guidelines range.
3
Lester appealed, unsuccessfully, and filed a motion to vacate his sentence under 28
U.S.C. § 2255, which was denied. In those proceedings Lester couldn’t successfully
challenge his classification as a career offender because, under then-controlling precedent,
walkaway escape under Georgia law was a crime of violence. See United States v. Gay,
251 F.3d 950, 954–55 (11th Cir. 2001). 1 As the years passed by, however, the law changed
in two important ways. First, the Supreme Court stripped the Sentencing Guidelines of
legal force and made them purely advisory. United States v. Booker, 543 U.S. 220, 245
(2005). Second, it ruled that the generic crime of failing to report to a prison was not a
crime of violence, Chambers v. United States, 555 U.S. 122, 127–28 (2009), which led
courts to hold that the escape offense Lester committed was not a crime of violence either.
See United States v. Clay, 627 F.3d 959, 969 (4th Cir. 2010) (collecting circuit cases);
United States v. Lee, 586 F.3d 859, 874 (11th Cir. 2009).
These new precedents in hand, Lester sought habeas relief in the U.S. District Court
for the Eastern District of Virginia in 2012. In his petition, he contended that his escape
offense was not a crime of violence, that he thus wasn’t subject to the career offender
enhancement, and that his 262-month sentence was therefore unlawful because it exceeded
the then-mandatory Guidelines range of 121–151 months.
1
Lester was sentenced in the Middle District of Georgia, so the Eleventh Circuit’s
precedents governed the legality of his sentence back then. But he filed his current petition
in the Eastern District of Virginia because that’s where he was confined at the time. See
28 U.S.C. § 2241(a).
4
Because Lester had already filed a petition under 28 U.S.C. § 2255, the ordinary
recourse for federal prisoners seeking postconviction relief, he couldn’t bring his challenge
under that statute. Instead, he filed under 28 U.S.C. § 2241, a catchall habeas statute,
arguing that such petitions are allowed, pursuant to § 2255’s so-called “savings clause,”
when the latter statute is “inadequate or ineffective to test the legality of [one’s] detention.”
See id. § 2255(e). But the district court rejected this argument, reasoning that the savings
clause didn’t allow challenges based on Sentencing Guidelines errors, at least when the
petitioner’s sentence, like Lester’s, still fell below the statutory maximum.
Lester appealed.
II.
That was in 2013. Since then, Lester’s appeal has been held in abeyance while our
court decided three potentially relevant cases: Whiteside v. United States, 775 F.3d 180
(4th Cir. 2014) (en banc), United States v. Surratt, 797 F.3d 240 (4th Cir. 2015), vacated
& dismissed as moot, 855 F.3d 218 (4th Cir. 2017) (en banc), and Wheeler, 886 F.3d 415.
But now, with Wheeler shining light on the issues before us, we consider whether Lester
may challenge his sentence via the savings clause of 28 U.S.C. § 2255. This is a question
of law that we review de novo. United States v. Foote, 784 F.3d 931, 935–36 (4th Cir.
2015).
Section 2255 allows federal prisoners to challenge the legality of their confinement
by petitioning the court where they were sentenced. 28 U.S.C. § 2255(a). But once the
prisoner has filed one unsuccessful § 2255 motion, as Lester has, he may not file another
5
except under very limited circumstances. Specifically, before filing a “second or
successive” petition, the prisoner must first receive permission from the court of appeals
by showing either “newly discovered evidence” proving he was not guilty of his offense or
that a new, previously unavailable rule of constitutional law made retroactive on collateral
review by the Supreme Court entitles him to relief. Id. § 2255(h)(1)–(2). These restrictions
are referred to as the “gatekeeping provisions” of § 2255. Crucially, they don’t allow a
second petition for new statutory constructions.
The gatekeeping provisions bar most federal prisoners from taking a second bite at
the habeas apple. But not completely. In limited circumstances, courts including ours have
said that a prisoner otherwise unable to file a second or successive § 2255 petition may
instead seek relief under 28 U.S.C. § 2241. See, e.g., In re Jones, 226 F.3d 328, 333–34
(4th Cir. 2000); In re Davenport, 147 F.3d 605, 610–12 (7th Cir. 1998). That’s because
§ 2255, while generally blocking habeas petitions by federal prisoners outside that statute,
permits such petitions when it appears that § 2255 “is inadequate or ineffective to test the
legality of [the prisoner’s] detention.” 28 U.S.C. § 2255(e). This clause is commonly
referred to as the “savings clause” as it arguably saves § 2255 from unconstitutionally
suspending habeas corpus. See Reyes-Requena v. United States, 243 F.3d 893, 901 n.19
(5th Cir. 2001) (citing Swain v. Pressley, 430 U.S. 372, 381 (1977)). 2
2
Not all circuits agree that § 2255’s savings clause authorizes successive motions
otherwise barred by that statute. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1090–91 (11th Cir. 2017) (en banc); Prost v. Anderson, 636 F.3d 578, 588–
89 (10th Cir. 2011) (“[T]he savings clause is satisfied so long as a petitioner could’ve raised
his argument in an initial § 2255 motion.”).
6
We have held that § 2255’s savings clause applies when, after a prisoner’s first
§ 2255 motion, “the substantive law changed such that the conduct of which the prisoner
was convicted is deemed not to be criminal.” Jones, 226 F.3d at 333–34. When a prisoner
in that situation is barred by the gatekeeping provisions from filing a second § 2255 motion,
we have said § 2255 is “inadequate or ineffective to test the legality of [his] conviction”
and allowed a petition under § 2241. Id. at 334.
More recently, in Wheeler, we ruled that a prisoner may use § 2255’s savings clause
to challenge not just an unlawful conviction, but also a defective sentence. In that case,
Gerard Wheeler was sentenced to ten years for involvement in a drug conspiracy. Wheeler,
886 F.3d at 419. That sentence was the minimum required by statute because the district
court determined that Wheeler’s prior North Carolina conviction for cocaine possession
was a “felony drug offense.” Id. (quoting 21 U.S.C. § 841(b)(1)(B)). Without the
enhancement for the North Carolina conviction, however, Wheeler’s statutory sentencing
range would have been between five and 40 years. Id. at 419–20.
After Wheeler was sentenced and had exhausted his direct appeals, we decided
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Under this new
precedent, Wheeler’s North Carolina conviction no longer qualified as a felony drug
offense, so the ten-year mandatory minimum would not apply. Wheeler, 886 F.3d at 421.
Wheeler thus sought to challenge his allegedly erroneous sentence, but he had already filed
one unsuccessful § 2255 motion, and the gatekeeping provisions barred a second as
Simmons was not a constitutional decision.
7
Nevertheless, we allowed Wheeler’s petition under § 2241 to proceed. We held that
the savings clause could be used to challenge sentences, reasoning that the statutory
language of the savings clause speaks of the legality of one’s “detention,” not simply one’s
“conviction” or “offense.” Id. at 427–28; see 28 U.S.C. § 2255(e). We also noted that the
Supreme Court has “long recognized a right to traditional habeas corpus relief based on an
illegally extended sentence.” Wheeler, 886 F.3d at 428 (citing Nelson v. Campbell, 541
U.S. 637, 643 (2004)).
We then outlined when the savings clause may be used to challenge erroneous
sentences. Specifically, we said, § 2255 is inadequate and ineffective to test the legality of
a sentence if the following four conditions are met:
(1) at the time of sentencing, settled law of this circuit or the Supreme Court
established the legality of the sentence;
(2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the
aforementioned settled substantive law changed and was deemed to apply
retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2)
for second or successive motions; and
(4) due to this retroactive change, the sentence now presents an error
sufficiently grave to be deemed a fundamental defect.
Id. at 429 (paragraph breaks added).
Finding that Wheeler satisfied all four conditions, we allowed him to challenge his
sentence. Id. at 429–30.
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III.
The question before us is whether Lester, like Wheeler, can use the savings clause
to challenge his sentence. We must decide, in short, how Wheeler applies in Lester’s case.
Nobody disagrees that the first three Wheeler requirements are satisfied. First,
Lester’s sentence was legal at the time. When Lester was sentenced in June 2004, settled
precedent established that his past conviction for walkaway escape was a “crime of
violence.” With this prior crime of violence (plus an old controlled substance offense
irrelevant to this appeal), Lester was deemed a “career offender,” subjecting him to an
enhanced sentencing range. See U.S.S.G. § 4B1.1(a)–(b). Second, well after Lester’s
direct appeal and § 2255 motion, the substantive law changed. After the Supreme Court
decided Chambers in 2009, both the Eleventh and Fourth Circuits ruled that Lester’s prior
offense is not a crime of violence. Clay, 627 F.3d at 969; Lee, 586 F.3d at 874. The
government hasn’t disputed that this new authority applies retroactively on collateral
review. Cf. Narvaez v. United States, 674 F.3d 621, 623 (7th Cir. 2011) (holding that
Chambers applies retroactively). Third, Lester can’t satisfy the gatekeeping provisions of
§ 2255. No new evidence suggests he’s actually innocent of the federal drug charges he
was imprisoned for, and Chambers is a decision of statutory interpretation, not
constitutional law.
The only dispute, then, is whether this case meets the fourth Wheeler requirement—
whether Lester’s misclassification as a career offender, which increased his mandatory
Guidelines range from a maximum of 151 months to a minimum of 262, is an “error
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sufficiently grave to be deemed a fundamental defect.” Wheeler, 886 F.3d at 429.
Applying the holding and reasoning of Wheeler, we conclude that it is.
A.
In Wheeler, we addressed whether an erroneous increase in the petitioner’s
mandatory minimum from five to ten years made his sentence fundamentally defective. Id.
at 430. We said it did because an “increase in the congressionally mandated sentencing
floor implicates separation of powers principles and due process rights fundamental to our
justice system.” Id. Specifically, we found the petitioner’s sentence fundamentally
defective because the district court was wrongly prevented from exercising the proper
range of his sentencing discretion.
We reached this conclusion primarily by relying on two Supreme Court cases. First,
we observed that in Hicks v. Oklahoma, 447 U.S. 343 (1980), the Supreme Court found a
Fourteenth Amendment violation where a jury imposed a 40-year mandatory sentence
under a habitual offender statute that was later struck down. Without the enhancement, the
jury could have imposed a sentence as low as ten years. Id. at 346. The Supreme Court,
we noted, held that Hicks had a “substantial and legitimate expectation that he would be
deprived of his liberty only to the extent determined by the sentencing body in the exercise
of its statutory discretion.” Wheeler, 886 F.3d at 430 (brackets omitted) (quoting Hicks,
447 U.S. at 346). We observed that likewise in Wheeler’s case, without the enhancement
“the district court’s statutory discretion would have been expanded by a much lower
mandatory minimum.” Id. at 431.
10
Second, we discussed United States v. Tucker, 404 U.S. 443 (1972). In that case the
Supreme Court vacated a 25-year sentence that the judge had clearly based on two prior
convictions that were later ruled constitutionally invalid. Id. at 444–45, 448–49. The Court
explained that the sentence was not “imposed in the informed discretion of a trial judge”
but instead rested upon “misinformation of constitutional magnitude” and “assumptions
concerning [the defendant’s] criminal record which were materially untrue.” Id. at 447
(quoting Townsend v. Burke, 334 U.S. 736, 741 (1948)). We reasoned that Wheeler’s
sentence was similarly defective: the district court assumed his prior conviction was
sufficient to double his statutory minimum when in fact it was not. Wheeler, 886 F.3d at
431.
Turning to our own precedent, we noted that we have previously described incorrect
sentencing benchmarks as fundamentally problematic because they create “the mistaken
impression that the district court had no discretion to vary downward from the low end of
the defendant’s range.” Id. (brackets omitted) (quoting United States v. Newbold, 791 F.3d
455, 460 n.6 (4th Cir. 2015) (citing Hicks, 447 U.S. at 346)). Given this fundamental
problem with an incorrect sentencing range, we rejected the notion that Wheeler’s sentence
was immune to challenge because he could have received the same ten-year sentence even
with the correct mandatory minimum. “[S]uch an arbitrary disregard of the petitioner’s
right to liberty,” we said, quoting Hicks, “is a denial of due process of law.” Id. at 431–32
(quoting 447 U.S. at 346).
We also rejected the argument that any sentence below Wheeler’s 40-year statutory
maximum cannot be fundamentally defective, relying on two out-of-circuit cases. We
11
noted that the Sixth and Seventh Circuits have held that a federal prisoner may use the
savings clause “to challenge the misapplication of the career offender Guideline, at least
where . . . the defendant was sentenced in the pre-Booker era,” even though the sentence
was below the statutory maximum. Id. at 432 (quoting Brown v. Caraway, 719 F.3d 583,
588 (7th Cir. 2013)); id. at 433 (discussing Hill v. Masters, 836 F.3d 591, 599 (6th Cir.
2016)). In both those cases, the petitioners—just like Lester—were erroneously subject to
career offender enhancements that substantially increased their sentencing ranges under
the then-mandatory Guidelines. See Hill, 836 F.3d at 593; Brown, 719 F.3d at 585. Both
courts, we noted, thus “recognize[d] the fundamental significance of a proper sentencing
range.” Wheeler, 866 F.3d at 433. Accordingly, we agreed with their view that a
sentencing error “need not result in a sentence that exceeds statutory limits in order to be a
fundamental defect.” Id.
B.
Lester argues that his sentence is fundamentally defective because, like Wheeler’s,
it was the product of an erroneous increase to his mandatory sentencing range. He says he
therefore should be allowed to challenge it under § 2241 via the savings clause. Under
Wheeler, we must agree.
As the preceding discussion of Wheeler makes clear, in that case, we found that
Wheeler’s sentence suffered the same fundamental defect as the sentence in Hicks. A
defendant has a due process right to be “deprived of his liberty only to the extent
determined by the [trier of fact] in the exercise of its statutory discretion,” Hicks, 447 U.S.
at 346, but, because of an interpretive error, Wheeler was denied that right. And we
12
suggested that incorrectly applied sentencing benchmarks are fundamentally problematic
because they wrongly cabin the district court’s discretion to impose a lower sentence when
the facts of the crime warrant it.
Those problems are present in Lester’s case, but more so. Wheeler’s erroneous
sentencing enhancement raised the floor of the district court’s sentencing discretion from
five to ten years. Yet even without the erroneous enhancement, the court could still have
given Wheeler the same ten-year sentence. Lester’s sentence, in contrast, fell well outside
the district court’s proper range of sentencing discretion. Because of Lester’s erroneous
designation as a career offender, the court was required by statute to impose a sentence
between 262 and 327 months. See 18 U.S.C. § 3553(b)(1) (requiring courts to impose
Guidelines sentences), invalidated by Booker, 543 U.S. at 245. Without the enhancement,
though, the court would have been bound to issue a sentence within the 121–151 months
range. Lester’s 262-month sentence, then, is more than nine years longer than the
maximum sentence that the court rightfully had discretion to order. By Wheeler’s logic,
this sentence is fundamentally defective.
Our conclusion that Lester may collaterally attack his sentence also follows from
Wheeler’s discussion of two cases allowing challenges by petitioners in Lester’s very
predicament. In both Hill and Brown, the Sixth and Seventh Circuits allowed petitioners
sentenced within erroneous Guidelines ranges pre-Booker to challenge their sentences
under § 2241 via the savings clause. We cited these cases to reject the government’s
contention that any sentence falling below the statutory maximum is per se lawful and thus
immune from savings clause challenge. Our discussion of those cases, however, would
13
have made little sense if we did not agree with their basic holding—that a sentence is
fundamentally defective when it exceeds the mandatory Guidelines range that, according
to later retroactive precedent, should have applied.
For these reasons, we conclude that the sentencing error in Lester’s case is
“sufficiently grave to be deemed a fundamental defect.” Wheeler, 886 F.3d at 429.
C.
The government offers two main arguments why Lester’s sentence is not
fundamentally defective such that he may not proceed via § 2255’s savings clause. We
find neither persuasive.
First, the government urges that Wheeler doesn’t control here because, in that case,
the petitioner was sentenced pursuant to an erroneous statutory enhancement whereas
Lester’s range was mandated by the Sentencing Guidelines. Unlike statutes, the
government contends, the Guidelines don’t establish the maximum and minimum lawful
sentences for crimes. See Mistretta v. United States, 488 U.S. 361, 396 (1989). Thus, it
argues, the separation-of-powers reasons for treating statutory mandatory minimum
sentences as fundamental defects do not translate to mandatory Guideline errors.
The problem with the government’s argument, however, is that Wheeler was not
primarily a separation-of-powers case. To be sure, our opinion in Wheeler stated general
separation-of-powers principles applicable to sentencing. See 886 F.3d at 430 (“In the
federal system, ‘defining crimes and fixing penalties are legislative, not judicial,
functions.’” (quoting United States v. Evans, 333 U.S. 483, 486 (1948))). But we didn’t
find Wheeler’s sentence fundamentally defective because the court lacked authority from
14
Congress to impose it. Nor could we, given that Wheeler’s ten-year sentence fell well
within the correct statutory range of 5–40 years. Rather, Wheeler turned on the notion that
a defendant has a due process right to have the trier of fact “exercise . . . its statutory
discretion” when imposing a sentence. Hicks, 447 U.S. at 346. The government can’t
dispute that Lester’s right to this appropriate exercise of discretion was denied here because
his erroneous designation as a career offender produced a statutorily required sentencing
range much higher than the correct range.
The government’s second argument is that United States v. Foote, and not Wheeler,
applies here. In Foote, we said a prisoner couldn’t challenge a trial court’s misapplication
of the advisory Guidelines under § 2255. 784 F.3d at 932. The government is correct that
in Foote, we distinguished a misapplied career offender enhancement from fundamental
defects such as “sentences issued ‘in excess of the maximum authorized by law.’” Id. at
942 (quoting 28 U.S.C. § 2255(a)). But crucial to our analysis in Foote was that the
petitioner, unlike Lester, was sentenced after Booker had rendered the Guidelines purely
advisory. Because the Guidelines lacked legal force, we explained, an erroneous advisory
Guidelines classification was unlike a violation of a statute or constitutional provision. Id.
at 942; see Wheeler, 886 F.3d at 432 n.9 (distinguishing Foote).
Foote undoubtedly would bar Lester’s petition had he been sentenced under the
advisory Guidelines. But Foote simply doesn’t apply to a petitioner sentenced in the pre-
Booker era. Indeed, we denied the petitioner’s claim in Foote partly on the grounds that,
because he was sentenced under the advisory Guidelines, the district court not only had
discretion to decide whether the Guidelines sentence was justified, but in fact was required
15
to do so. Foote, 784 F.3d at 941–42; see 18 U.S.C. § 3553(a) (requiring individualized
analysis of sentencing factors). That discretion is precisely what the district court lacked
at Lester’s sentencing because, at that time, the Guidelines were mandatory.
We also reject the idea, floated here and there by the government, that because a
district court theoretically could depart from the Guidelines even when they were
mandatory, the due process concerns in Wheeler are misplaced. Departures were allowed
only when the court found aggravating or mitigating circumstances “not adequately taken
into consideration by the Sentencing Commission” in writing the Guidelines. 18 U.S.C.
§ 3553(b)(1). As the Supreme Court explained in Booker, “[i]n most cases, as a matter of
law, the Commission will have adequately taken all relevant factors into account, and no
departure will be legally permissible.” 543 U.S. at 234. In other words, in most cases—
and doubtless in a “run-of-the-mill drug case” like Lester’s—the district court had no
discretion to deviate from the Guidelines. See id. at 235.
In short, we find the government’s attempts to skirt Wheeler unpersuasive. And this
is so even as we are mindful that the savings clause should provide only the tightest
alleyway to relief. Section 2255 is not “inadequate or ineffective” just because the prisoner
can’t successfully challenge his sentence under that provision. As we have said before,
interpreting the savings clause coextensively with § 2255 would “effectively nullify the
gatekeeping provisions” that Congress carefully wrote into that statute. Jones, 226 F.3d at
333.
However, our analysis is governed by Wheeler, and we find no meaningful
distinction to support a different result in this case. Where, as here, an erroneous career
16
offender designation raises a defendant’s mandatory prison term from a maximum of 12 ½
years to a minimum of almost 22, the resulting sentence is fundamentally defective.
IV.
Because Lester satisfies all four Wheeler requirements, we hold that 28 U.S.C.
§ 2255 is inadequate and ineffective to test the legality of his detention and that his petition
under 28 U.S.C. § 2241 should be heard on the merits. We therefore vacate the district
court’s judgment and remand the case for further proceedings consistent with this opinion.
VACATED AND REMANDED
17