                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 14-6124


DAVID J. FALSO,

                    Petitioner – Appellant,

             v.

ERIC D. WILSON, Warden, FCC Petersburg

                    Respondent – Appellee.


Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:13–cv–00356-JAG)


Argued: September 20, 2019                                  Decided: November 5, 2019


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


Affirmed by unpublished opinion.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


ARGUED: Frank Policelli, LAW OFFICES OF FRANK POLICELLI, Utica, New York,
for Appellant.     Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United
States Attorney, Dana J. Boente, Acting United States Attorney, Alexandria, Virginia,
Jonathan H. Hambrick, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Chief Judge:

       David J. Falso appeals the dismissal of his petition for habeas corpus, contending a

change in settled substantive law applies retroactively to render his sentence unlawful and

the district court erroneously dismissed his petition. Applying the relevant standard, we

see no error and affirm the district court’s dismissal.


                                              I.

       Between July 2000 and June 2005, Falso traveled to several foreign countries,

mostly in Asia, where he engaged in sexual acts with minors, produced photos of those

acts, transported them to New York, and maintained them (along with numerous others) in

his home. In 2006, he pleaded guilty in a New York federal district court to 242 counts of

crimes related to child pornography: two counts of traveling in foreign commerce with

intent to engage in illicit sexual conduct with minors, in violation of 18 U.S.C. §§ 2423(b),

(f) and 2246 (Counts 1 and 2); eight counts of producing child pornography, in violation

of 18 U.S.C. § 2251(a) (Counts 3 to 10); 223 counts of receiving child pornography, in

violation of 18 U.S.C. §§ 2252A(a)(2)(A), (B) and 2256 (Counts 11 to 233); eight counts

of transporting and shipping child pornography in foreign commerce, in violation of 18

U.S.C. §§ 2252A(a)(1) and 2256 (Counts 234 to 241); and one count of possession of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) (Count 242).

       Convictions under §§ 2251 and 2252A, like Falso’s, qualify for enhanced

sentencing if a defendant has a prior conviction “under the laws of any State [for crimes]

relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct [or contact]



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involving a minor.” See 18 U.S.C. §§ 2251(e) and 2252A(b)(1). The New York district

court concluded that his prior conviction in New York state court for endangering the

welfare of a child, in violation of New York Penal Code § 260.10(1), constituted a prior

conviction relating to sexual abuse. As a result, statutory mandatory minimum sentence

for Falso’s crimes was increased from 15 to 25 years for Counts 3 to 10, five to fifteen

years for Counts 11 to 241, and zero to ten years for Count 242. See 18 U.S.C. §§ 2251(e)

and 2252A(b)(1), (2). Critically, however, the statutory maximum sentence of 30 years for

Counts 1 and 2 was unaffected by Falso’s prior conviction. 18 U.S.C. § 2423(b).

       Falso was sentenced to 30 years’ of imprisonment for the first two counts, 30 years

for the next 239 counts, and 20 years for the last count, with all sentences running

concurrently.   In two separate opinions, the Second Circuit affirmed both Falso’s

convictions and sentences. See United States v. Falso, 544 F.3d 110 (2d Cir. 2008), cert.

denied, 558 U.S. 933 (2009); United States v. Falso, 293 F. App’x 838, 840 (2d Cir. 2008)

(noting the court “need not decide the merits of Falso’s challenge to the district court’s

imposition of statutory sentencing enhancements . . . because the enhancements—even

assuming they were erroneous—did not affect Falso’s ultimate sentence”). Apart from his

direct appeals, Falso also unsuccessfully sought habeas relief pursuant to 28 U.S.C. § 2255.

       In 2012, the Second Circuit held in a separate appeal that a district court erred in

employing the modified categorical approach to the offense of endangering the welfare of

a child pursuant to New York Penal Code § 260.10(1) and under the proper standard—i.e.,

the categorical approach—the appellant’s “state conviction does not qualify as a

§ 2252A(b)(1) predicate offense.” United States v. Beardsley, 691 F.3d 252, 254 (2d Cir.


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2012). After Beardsley was decided, Falso sought resentencing through a petition for

habeas corpus under 28 U.S.C. § 2241 in federal district court in Virginia (where he is now

incarcerated). In dismissing his petition, the district court applied the then-controlling test

set forth in In re Jones, 226 F.3d 328, 333 (4th Cir. 2000), noting that Falso’s “actual

argument boils down to an assertion that he is innocent of the sentencing factor that

enhanced his federal sentence,” which he may not challenge.

       Falso timely appealed the district court’s denial order. However, the appeal was held

in abeyance until this Court’s ruling in United States v. Wheeler, 886 F.3d 415, 428 (4th Cir.

2018), cert. denied, 139 S. Ct. 1318 (2019), and the parties were then ordered to submit

supplemental briefing to address the applicability of Wheeler to Falso’s pending appeal.

Applying the Wheeler standard to Falso’s appeal, we affirm the district court’s dismissal.


                                              II.

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

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

Under our precedent, a federal prisoner may challenge his sentence, including errors in

sentencing enhancements, through a § 2241 petition if:

       (1) [A]t 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.

Wheeler, 886 F.3d at 429 (citations omitted).



                                               4
                                              III.

       Falso’s primary contention as to why he is entitled to habeas relief is that Beardsley

represents a change in settled substantive law. As a result, Falso claims he satisfies all four

elements set forth in Wheeler. (Beardsley, of course, does not represent a change in settled

substantive Supreme Court or Fourth Circuit law.) We disagree and hold that Falso fails

to satisfy Wheeler’s second element.

       In Beardsley, the petitioner was convicted of two counts of crimes related to child

pornography and sentenced to 15 years in prison, the enhanced mandatory minimum

sentence. 691 F.3d at 256. While the 15-year sentence was within the range of what the

Beardsley petitioner could have received for an unenhanced sentence, the Second Circuit

appeared to be particularly concerned with the fact that a lower aggregate sentence could

have been imposed. In particular, the Second Circuit “expressed no view on what sentence

the district court will find appropriate, but note[d] that [its] holding is not that the sentence

imposed in this case was unreasonable, only that the district court was not required to

impose it.” Id. at 274–75. Importantly, the Second Circuit did not explain that Beardsley

represents a change in settled substantive Second Circuit law. Instead, the Second Circuit

concluded it had no prior opportunity “to decide whether and under what circumstances

§ 2252A(b)(1) permits a modified categorical analysis of a prior state conviction.”

Beardsley, 691 F.3d at 259. Beardsley, therefore, “presents a question of first impression

for [the Second Circuit]” and is not appropriately viewed as a change in settled substantive

law. Id. Even the Second Circuit recognized the issue presented in Beardsley was “a close




                                               5
question, one that neither the Supreme Court nor our own precedents squarely answer.”

See id. at 273.

       Falso also relies upon In re Davenport, 147 F.3d 605 (7th Cir. 1998), for the

proposition that the change in law is not to be equated to a difference between the law in

the circuit in which the prisoner was sentenced (i.e., the Second Circuit) and the law in the

circuit in which he is incarcerated (i.e., the Fourth Circuit). But the Seventh Circuit also

expressly stated that “[w]hen there is a circuit split, there is no presumption that the law in

the circuit that favors the prisoner is correct.” Id. at 612 (noting “no basis for supposing

[the petitioner] unjustly convicted merely because he happens to have been convicted in

the other circuit”).

       Even if we were to give Falso the benefit of the doubt and conclude that a petitioner

incarcerated in the Fourth Circuit could rely on a change in Second Circuit law, Falso

would still fail to satisfy Wheeler’s second element because any purported change in

Beardsley was not deemed by the Second Circuit to apply retroactively on collateral

review. In fact, Falso fails to offer any explanation as to why any purported change in

Beardsley must be applied retroactively.

       To the extent we construe Falso’s argument as suggesting that a sentencing court

does not make sentencing decisions in isolation without regard to how various counts relate

to each other (i.e., the New York district court would not have sentenced him to 30 years

for Counts 1 and 2 if it had known that his sentencing range was 0 to 15 years for Counts

3 to 242), his argument is far too speculative. Falso offers no support for his contention

that he would have received a different sentence.         Indeed, he has not—nor can he


                                              6
successfully—raised a collateral challenge to his unenhanced sentence of 30 years on

Counts 1 and 2. See United States v. Carney, 761 F. App’x 150, 153–54 (4th Cir. 2019)

(affirming sentence and concluding appellant’s argument regarding improper career

offender designation “speculative, and in the absence of any authority in support of this

position, [there is] no basis on which to conclude that any error was not harmless in this

case”); see also § 2255(a) (relief limited to a challenge to a sentence that is “in excess of

the maximum authorized by law or is otherwise subject to collateral attack”).

       In sum, we hold Falso cannot establish a change in Second Circuit settled

substantive law or that such a change in the Second Circuit, if it occurred, constitutes a

change in Fourth Circuit settled substantive law. Falso therefore fails to satisfy Wheeler’s

second element. Accordingly, we need not address Wheeler’s remaining elements.


                                             IV.

       For the foregoing reasons, we affirm the district court’s dismissal of Falso’s petition.


                                                                                 AFFIRMED




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