United States v. Folk

954 F.3d 597

UNITED STATES of America

v.Omar Sierre FOLK, Appellant

No. 18-1865

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a: January 14, 2020

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

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

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. § 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 , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (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. 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.

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, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The scope of relief does not reach "every asserted error of law." Id. at 346, 94 S.Ct. 2298. 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, 94 S.Ct. 2298 and Johnson v. United States , 544 U.S. 295, 303, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) ); see also Doe , 810 F.3d at 155 (citing Davis , 417 U.S. at 343, 94 S.Ct. 2298 ). 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, 119 S.Ct. 961, 143 L.Ed.2d 18 (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, 114 S.Ct. 2291, 129 L.Ed.2d 277 (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, 99 S.Ct. 2085, 60 L.Ed.2d 634 (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, 114 S.Ct. 2291 (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, 119 S.Ct. 961 (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 by the failure); see also Timmreck , 441 U.S. at 784–85, 99 S.Ct. 2085 (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, 82 S.Ct. 468, 7 L.Ed.2d 417 (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, 114 S.Ct. 2291 (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...