                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-6096


JERMAINE LENARD MOSS,

                     Petitioner - Appellant,

              v.

KENNY ATKINSON, Warden,

                     Respondent - Appellee.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-hc-02078-D)


Argued: March 19, 2019                                           Decided: April 19, 2019


Before GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Chief Judge
Gregory and Judge Harris joined.


ARGUED: Jason Neal, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW,
Morgantown, West Virginia, for Appellant. Amy N. Okereke, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Lawrence D.
Rosenberg, Washington, D.C., Benjamin G. Minegar, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. Robert J. Higdon, Jr., Jennifer P. May-Parker, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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DIAZ, Circuit Judge:

       Jermaine Moss appeals the denial of his petition for habeas corpus. He contends

that a retroactive change in the law has made his sentence unlawful. We affirm the district

court’s judgment because Moss’s sentence remains lawful under applicable precedent.



                                              I.

       Moss was tried in a Florida federal district court for two drug offenses and one

firearms offense. The jury convicted him on all three counts. At sentencing, the district

court calculated a Guidelines range of 324–405 months in prison, with lengthy mandatory

minimums on the drug charges. It sentenced Moss to 27 years each on the drug charges

and 20 years on the firearms charge, all concurrent.

       Normally, one of Moss’s drug offenses would carry a mandatory minimum of 10

years and the other a mandatory minimum of 5 years. 21 U.S.C. § 841(b)(1)(A), (b)(1)(B)

(2006). But the government filed an information pursuant to 21 U.S.C. § 851(a) before

trial. The information said that Moss had a prior conviction for a serious drug felony.

Under the law at the time, such a prior conviction increased the mandatory minimums to

20 years and 10 years, respectively. 21 U.S.C. § 841(b)(1)(A), (b)(1)(B) (2006). The

purported conviction arose when Moss pleaded nolo contendere to a drug felony in Florida

state court; the state judge withheld adjudication of guilt for the offense.

       An Eleventh Circuit case established that Moss’s nolo contendere plea counted as a

conviction for § 841, despite the withholding of adjudication. See United States v. Mejias,

47 F.3d 401, 403–04 (11th Cir. 1995). Given that precedent, Moss didn’t challenge the

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mandatory minimums in his direct appeal, his motion for habeas corpus under 28 U.S.C.

§ 2255, or his other attempts at collateral relief. But Moss now contends that the Eleventh

Circuit effectively overruled Mejias in United States v. Clarke, 822 F.3d 1213 (11th Cir.

2016). After Clarke, Moss sought resentencing through a petition for habeas corpus under

28 U.S.C. § 2241 in federal district court in North Carolina (where he is now incarcerated).

The district court denied the petition, and Moss appealed.

       Before appellate briefing, this court decided United States v. Wheeler, which set the

standard for challenging an illegal sentence through § 2241. 886 F.3d 415 (4th Cir. 2018),

cert. denied, No. 18-420, 2019 WL 1231947 (U.S. Mar. 18, 2019). Applying the Wheeler

standard, we affirm the district court’s judgment.



                                              II.

       Whether Moss may challenge his sentence through a § 2241 petition is a question

of law that we review de novo. See Lester v. Flournoy, 909 F.3d 708, 710 (4th Cir. 2018).

Under our precedent, a federal prisoner may challenge his sentence through a § 2241

petition if

       (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.




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Wheeler, 886 F.3d at 429. Moss can satisfy Wheeler’s first and third elements. But he

can’t satisfy Wheeler’s second element because his sentence is still legal under Eleventh

Circuit law. ∗ When he was sentenced, Eleventh Circuit precedent squarely established that

his conviction counted as a prior “serious drug felony” under 21 U.S.C. § 841. Mejias, 47

F.3d at 403–04. Moss claims that Clarke effectively overruled that precedent. 822 F.3d at

1215. But there is every indication that Mejias is still good law.

       Mejias held that the term “conviction” in 21 U.S.C. § 841 is defined by federal law,

not by the law of the state of conviction. 47 F.3d at 403–04 (citing Dickerson v. New

Banner Inst., Inc., 460 U.S. 103, 119 (1983) (holding that federal law defines terms in

federal statutes unless Congress indicates otherwise)). As an example of what the term

“conviction” means under federal law, the court cited United States v. Jones, 910 F.2d 760,

761 (11th Cir. 1990). In Jones, a nolo contendere plea with adjudication withheld counted

as a conviction for purposes of a Sentencing Guidelines enhancement. Id. The court in




       ∗
          This court has not definitively resolved whether a petitioner sentenced out of
circuit must show that his sentence is illegal under the sentencing circuit’s law or our
circuit’s law. Wheeler concerned a change in Fourth Circuit law for a petitioner sentenced
in circuit. 886 F.3d at 429–30. And while the petitioner in Lester was sentenced in the
Eleventh Circuit, the law had changed in the petitioner’s favor in both our court and the
Eleventh Circuit. 909 F.3d at 710, 712. In this case, we will apply the substantive law of
the Eleventh Circuit. The parties agree that Moss, who was sentenced in a district court in
Florida, deserves resentencing only if his sentence is now illegal under Eleventh Circuit
law. And applying our court’s substantive law likely wouldn’t change the outcome because
Moss’s sentencing enhancement would likely be legal under Fourth Circuit precedent. See
United States v. Bridges, 741 F.3d 464, 469–70 (4th Cir. 2014); United States v. Campbell,
980 F.2d 245, 249–51 (4th Cir. 1992).

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Mejias saw no reason for a different rule for § 841, which might disrupt uniformity in

sentencing and undermine efforts to deter recidivism. 47 F.3d at 404.

       The Eleventh Circuit’s Clarke decision concerned the federal felon in possession

statute, which defines the term “conviction” according to the law of the state where the

crime was prosecuted. 822 F.3d at 1214; see 18 U.S.C. § 921(a)(20). In Clarke, the

Eleventh Circuit certified the question to the Florida Supreme Court of whether a guilty

plea with adjudication withheld is a conviction under Florida law. 822 F.3d at 1214. The

Florida Supreme Court ruled that such a plea is not a conviction under state law. Clarke v.

United States, 184 So. 3d 1107, 1116 (Fla. 2016). With that answer in hand, the Eleventh

Circuit held that such a plea is not a conviction for the federal felon in possession statute.

Clarke, 822 F.3d at 1214–15. In so ruling, the court overruled two circuit precedents that

had come to the opposite conclusion about Florida law. Id. at 1215.

       Moss’s argument is as follows. Mejias relied on Jones. Jones, in turn, relied on

cases that Clarke overruled. Thus, Clarke effectively overruled both Jones and Mejias.

But in the Eleventh Circuit, the first panel decision controls unless there has been an

intervening change in applicable law. Hattaway v. McMillian, 903 F.2d 1440, 1445 n.5

(11th Cir. 1990). The Clarke panel could only overrule two Eleventh Circuit precedents

because of an intervening change in Florida law. 822 F.3d at 1215. Mejias, in contrast,

explains what a conviction is for purposes of federal law. Thus, the Clarke panel could not

overrule Mejias—only the Supreme Court or the en banc Eleventh Circuit could.

       In any event, Mejias can stand without the cases that Clarke overruled. Those cases

turned on Florida state law, whereas Mejias relies on a federal law definition of

                                              6
“conviction.” A new construction of Florida law would have no impact on whether a nolo

contendere plea with adjudication withheld is a conviction for 21 U.S.C. § 841. Mejias’s

citation to Jones, moreover, changes nothing.

       First, the Clarke panel could not overrule Jones, a decision based on federal law.

Second, Mejias turned on the general federal definition of the term “conviction” and used

Jones to illustrate that definition. Mejias, 47 F.3d at 403–04. It does not appear that Jones

controlled Mejias; in fact, the Mejias court considered whether to establish a different rule

than Jones and decided against it. Id. at 404 (“To decide otherwise would disrupt

uniformity in federal sentencing and frustrate the purpose of [§ 841(b)(1)(B)]—to punish

and deter recidivism.”). The Eleventh Circuit has consistently used the same definition for

other cases in which federal law defines the term “conviction.” See, e.g., United States v.

Maupin, 520 F.3d 1304, 1306–07 (11th Cir. 2008); United States v. Fernandez, 234 F.3d

1345, 1346–47 (11th Cir. 2000). It seems quite unlikely that Clarke—which concerned

state law—silently triggered a chain reaction that overruled a body of cases based on

federal law.

       This conclusion is in accord with Eleventh Circuit case law after Clarke. The same

day it issued Clarke, the Eleventh Circuit panel issued an unpublished opinion in the same

case. United States v. Clarke (Clarke II), 649 F. App’x 837 (11th Cir. 2016). Despite the

ruling in Clarke, the Clarke II opinion held that the district court did not plainly err by

holding that a suspended sentence with adjudication withheld counts as a conviction for

§ 841. Id. at 848–49 (citing Mejias, 47 F.3d at 404). If the Clarke panel believed it had

overruled Mejias, it likely would have found plain error on this point in Clarke II. What’s

                                             7
more, several recent unpublished Eleventh Circuit opinions that concern the federal

definition of “conviction” treat Mejias as good law. See United States v. Solis-Alonzo, 723

F. App’x 863, 865 (11th Cir. 2018); United States v. Marius, 678 F. App’x 960, 964 (11th

Cir. 2017); United States v. Baker, 680 F. App’x 861, 862, 865 (11th Cir. 2017); cf. United

States v. Green, 873 F.3d 846, 859 (11th Cir. 2017) (citing Mejias in a discussion of Federal

Rule of Evidence 404(b)).

       We hold that Moss cannot demonstrate a change in Eleventh Circuit substantive

law. Therefore, we need not address Wheeler’s remaining requirements.

       Moss’s three alternative arguments are unavailing. First, he contends that equitable

principles justify remanding his case for resentencing, but he provides no authority

suggesting that equitable relief remains an option when a petitioner fails to pass a threshold

test for filing a § 2241 petition. Second, he contends that he is entitled to resentencing

because he shouldn’t have received a criminal history point for his nolo contendere plea.

But Eleventh Circuit precedent forecloses this argument. See United States v. Rockman,

993 F.2d 811, 813–14 (11th Cir. 1993). As with Mejias, we think it is implausible that

Clarke overruled Rockman. And third, Moss contends that if we do not grant his habeas

petition, we should still transfer the petition to the sentencing court in Florida to decide the

merits. But Moss fails to cite any procedural mechanism by which we could transfer this

case to the Middle District of Florida without granting his petition. Furthermore, the

Eleventh Circuit’s jurisprudence on § 2241 petitions would foreclose Moss’s petition, so

transferring the petition to a Florida district court would be futile. See McCarthan v. Dir.



                                               8
of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1090 (11th Cir. 2017) (en banc) (holding

that a § 2241 petition cannot be based on a change in circuit law).

       The district court’s judgment is therefore

                                                                             AFFIRMED.




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