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U.S. v. FOOTE, NO. 13-7841

Decided On: April 27, 2015

The Fourth Circuit held that defendant’s collateral appeal, based on §2225 allegations, did not state a claim of error that sufficiently fulfilled the high standards required in §2225, and affirmed the lower court’s decision.

The appellant, Foote, originally pled guilty to drug crimes that resulted in his designation as a “career offender,” and a sentence of 262 months. Under the sentencing guidelines, and due to a decision rendered in U.S. v. Harp, one of Foote’s prior drug crimes qualified him as a “career offender,” which elevated his offense level and the sentence range, and the district court sentenced him at the bottom of the sentencing range. Although Foote appealed, and the Fourth Circuit affirmed based on Harp, the Supreme Court vacated and remanded for consideration due to the decision in Kimbrough v. U.S. On remand, the district court applied the same sentence, and the Fourth Circuit again affirmed. However, a subsequent case, U.S. v. Simmons, abrogated Harp in light of Carachuri-Rosendo v. Holder, which held that a court should look to the conviction itself, and not the crime or sentence that a defendant could have been sentenced with when determining a defendant’s “career offender” status. Because the court announced that Simmons could be applied retroactively, and because this appeal was still pending at that announcement, appellant amended his §2225 complaint, asking the court to resentence him, and reduce his sentence.

The court first determined that, since the appeal was a matter of pure law, it could review the case de novo. The court then examined §2225 itself, noting that if the error is neither constitutional nor jurisdictional, then a district court would not have jurisdiction to hear the case unless the alleged error was of a nature of “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” The court first looked at U.S. v. Davis, a case where the court held that defendants could bring a §2225 claim when they are convicted for acts that are later determined to be non-criminal. The court then looked at other cases where §2225 claims were not allowed, such as when a district court’s failure to follow procedural rules did not prejudice the defendant. In between these two types of cases, what the court termed the “spectrum,” the court placed the kinds of cases where §2225 claims were unsuccessful, where the way the court’s sentencing was changed but not in a way that made the sentence unlawful. After looking at these cases, the court then proceeded to examine how three other circuits had decided cases similar to Foote’s, noting that those cases were “nationally consistent yet internally divided.” Although the three circuits reached the same conclusion, and that there is no circuit where  “a challenge to one’s change in career offender 21 status, originally determined correctly under the advisory Guidelines, is cognizable on collateral review,” the court also recognized that these were close decisions that needed to be addressed. The court then looked at two Fourth Circuit cases that held that errors in applying the Sentencing Guidelines normally could not be addressed in §2225 claims, and that errors in the “post-conviction context are grounded in actual innocence.” Furthermore, the court was “hesitant to declare that a fundamental defect or a complete miscarriage of justice has occurred in a situation in which Appellant was (and on remand, would again be) sentenced under an advisory Guidelines scheme requiring individualized analysis of the sentencing factors set forth in 18 U.S.C. § 3553(a).” Since Foote was not claiming innocence, and since the district court did not seem to have overstepped its discretion in sentencing, and since the Fourth Circuit did not think that the “career offender” designation was a “fundamental” error, and, even though the Fourth Circuit acknowledged that Foote’s sentence was increased due to the “career offender” status, the Fourth Circuit affirmed the district court’s decision.

Full Opinion

Jennie Rischbieter