By Elizabeth DeFrance
Is a Claim for Collateral Relief Pursuant to 28 U.S.C. § 2255 Cognizable When the Petitioner’s Career Offender Designation Was Later Nullified?
On April 27, 2015, in the criminal case U.S. v. Foote, the Fourth Circuit affirmed in a published opinion the district court’s denial of a defendant’s petition for collateral relief under 28 U.S.C. § 2255. The Court held that a Sentencing Guidelines error resulting from a change in the defendant’s career offender status did not rise to the level of fundamental defect when the sentence did not exceed the statutory maximum and the Sentencing Guidelines were advisory.
Foote’s Prior Convictions and Procedural History
On July 13, 2006 Wesley Devon Foote pled guilty to three counts of distribution of crack cocaine, a felony drug offense. Pursuant to the United States Sentencing Guidelines (“Guidelines”), the district court found Foote to be a “career offender” and sentenced him to 262 months in prison. As a result of his career offender designation, Foote’s advisory Guideline range rose from 151–188 months to 262–327 months.
Under the Guidelines, a defendant is considered a career offender if his instant conviction is a felony controlled substance offense and he has at least two prior felony controlled substance offenses. To meet these requirements, the felony controlled substance offenses must be punishable by imprisonment exceeding one year.
In 1995 and again in 2002, Foote was convicted of possession with intent to sell cocaine. He was sentenced to ten to twelve months for the first conviction and thirteen to sixteen months for the second. Although Foote’s 1995 sentence did not exceed one year, at the time of his sentencing, the court determined whether a conviction met the career offender requirements by considering whether the maximum aggravated sentence that could be imposed for that crime exceeded one year. Thus, because the maximum aggravated sentence for his 1995 conviction was well over one year, it was inconsequential that his actual sentence was below the required length.
Foote appealed his career offender designation. The Fourth Circuit affirmed, but he United States Supreme Court vacated and remanded based on the decision in Kimbrough v. United States allowing sentences for crack cocaine offenses to deviate from the sentencing Guidelines. The district court entered an amended judgement for 262 months, declining to reduce Foote’s sentence below the Guidelines.
Foote appealed again and after the Fourth Circuit affirmed, he filed a petition for collateral relief under 28 U.S.C. § 2255. While the petition was pending, the Fourth Circuit held in United States v. Simmons that the determination of whether a conviction meets the career offender sentence length requirement should be based on the conviction itself instead of the sentence the defendant could have received. Accordingly, a certificate of appealability based on Simmons was issued allowing Foote to appeal.
Avenues for Relief Under § 2255
Under § 2255, the only sentencing errors subject to collateral review are those that are (1) a violation of the Constitution, (2) imposed by a court without jurisdiction, (3) excessive of the statutory maximum, or (4) otherwise subject to collateral attack. Where the error does not violate the constitution and the court had jurisdiction, the error is only reviewable if it “amounts to a fundamental defect which inherently results in a complete miscarriage of justice.”
Because the Guidelines Foote Was Sentenced Under Were Advisory Rather Than Mandatory, the Sentencing Error was Not Fundamental
The Court looked to decisions from other circuits on this issue and found that, although the courts were internally divided, the outcomes all indicated that a change in career offender status is not cognizable on collateral review. The Court also noted that Supreme Court cases where the “miscarriage of justice” standard has been met are rare and rely on the actual innocence of the petitioner. However, in this case, none of Foote’s convictions had been invalidated or vacated.
The reasoning the Court most relied on was that the Guidelines Foote was sentenced under originally, and would be sentenced under again if his appeal was successful, are advisory rather than mandatory. Thus, because Foote’s sentence did not exceed the statutory maximum, the Court reasoned that it was not a miscarriage of justice because it was entirely possible for Foote to receive the exact same sentence even if he won the appeal.
Foote’s Sentence Upheld
Although the change in career offender status may have affected the length of Foote’s sentence, it was, and still is, within the statutory limits. Because the sentencing error did not rise to the level of a fundamental defect resulting in the miscarriage of justice, the judgement of the district court was affirmed.
