                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-6440


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PAUL DEWAYNE DORSEY, a/k/a Little Dorsey,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:09-cr-00468-PJM-13; 8:12-cv-02998-PJM)


Submitted:   May 18, 2015                      Decided:   May 22, 2015


Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed in part, and vacated           and   remanded    in   part   by
unpublished per curiam opinion.


Paul Dewayne Dorsey, Appellant Pro Se.  Joseph Ronald Baldwin,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Paul    Dewayne   Dorsey    appeals    the    district    court’s    order

denying relief on his motion construed as one under both 18

U.S.C.   §    3582(c)   (2012),   and   28   U.S.C.    § 2255    (2012).     We

granted a certificate of appealability on the issue of whether

Dorsey is entitled to re-sentencing due to the vacatur of one of

his   state    court    convictions     used   to     enhance    his   federal

sentence.     Having reviewed the parties’ briefs and the record on

appeal, we vacate in part and remand as to this issue but affirm

the denial of relief under § 3582(c).

      Dorsey pled guilty in June 2010 to conspiracy to distribute

and possess with intent to distribute 50 grams or more of crack

cocaine, 21 U.S.C. § 846 (2012), and being a felon in possession

of a firearm, 18 U.S.C. § 922(g) (2012).              The parties stipulated

in the plea agreement that Dorsey’s base offense level was 30.

However, Dorsey’s base offense level was reduced to 26 based on

changes to the Sentencing Guidelines applicable to crack cocaine

offenses that went into effect prior to Dorsey’s sentencing.

His total offense level was 25.

      Dorsey’s criminal history score was determined to be VI,

based on 13 criminal history points.               The resulting Guidelines

range was 110 to 137 months of imprisonment.              The court imposed

a 137-month sentence.      We dismissed Dorsey’s appeal based on the



                                        2
waiver in his plea agreement.                See United States v. Dorsey, No.

11-4962 (4th Cir. July 5, 2012) (unpublished order).

      In September 2012, the District Court for Calvert County

invalidated     one    of    Dorsey’s            challenged    prior      convictions.

Dorsey then filed the underlying motion seeking re-sentencing as

a Criminal History Category V offender. 1                     Dorsey also claimed

that the district court failed to sentence him in accordance

with the Fair Sentencing Act.                Construing Dorsey’s first claim

under § 2255 and his Fair Sentencing Act claim under § 3582, the

district court denied relief.            The court found that, contrary to

his   assertions,     Dorsey      was   in       fact   sentenced    under   the   Fair

Sentencing Act.        The court also found that, even though the

invalidated state conviction would result in a Criminal History

Category of V, not VI, Dorsey was nevertheless not entitled to

relief.       Moreover,     the    court         concluded    that   it    would   have

imposed the same sentence whether Dorsey was a Category V or VI

offender. 2   Dorsey appealed.




      1
       Dorsey’s § 2255 motion was timely filed.                            See United
States v. Jones, 758 F.3d 579 (2014).
      2
       The maximum sentence for a base offense level of 25 and a
Criminal History Category V would have been 125 months’
imprisonment.   Therefore, in order to sentence Dorsey to 137
months as a Category V offender, the district court would have
had to depart upward from the applicable Guidelines range.



                                             3
      The      Supreme      Court        has     held      that,     if    a    defendant      “is

successful in attacking [his] state sentences, he may then apply

for   reopening       of    any        federal      sentence       enhanced     by     the    state

sentences.”        Custis v. United States, 511 U.S. 485, 497 (1994).

Later, in Daniels v. United States, 532 U.S. 374, 382 (2001),

the Supreme Court noted that if a challenge to an underlying

conviction is successful in state court, “the defendant may then

apply for reopening of his federal sentence,” but added that if

the prior conviction is no longer open to direct or collateral

attack    in    its     own      right,        then     the    federal     prisoner      can    do

nothing more about his sentence enhancement.                              And, in Johnson v.

United States, 544 U.S. 295                      (2005), the Court added that the

one-year limitation period begins to run when the petitioner

receives    notice         of    the     order      vacating       the    prior      conviction,

“provided that he has sought it with due diligence in state

court after entry of judgment in the federal case in which the

sentence was enhanced.”                 Id. at 296.

      Applying        these       cases,       we       have   concluded        that    sentence

enhancements          based        on         previous         convictions           should     be

reconsidered if those previous convictions are later vacated.

See United States v. Gadsen, 332 F.3d 224, 228 (4th Cir. 2003)

(noting     that    a      defendant          may   apply      for   a    reopening      of    his

federal     sentence            once     he     has      successfully          challenged      the



                                                    4
underlying conviction). 3         Specifically, if a defendant “succeeds

in a future collateral proceeding in overturning his [state]

conviction, federal law enables him then to seek review of any

federal sentence that was enhanced due to his state conviction.”

United States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996);

see also United States v. Pettiford, 612 F.3d 270 (4th Cir.

2010) (noting that “vacatur alone does not entitle a petitioner

to habeas relief”; the district court must determine whether

petitioner’s sentence is rendered unlawful on one of the grounds

specified in § 2255 before setting aside a sentence); United

States v. Hairston, 754 F.3d 258, 262 (4th Cir. 2014) (holding

that §     2255    motion    seeking    resentencing      based    on   vacatur    of

state conviction was not successive because the facts relied on

“did not exist when the numerically first motion was filed and

adjudicated”).         On the basis of these authorities, we find that

Dorsey is entitled to relief and remand for re-sentencing.

     The    Government       argues     that    Dorsey’s      challenge      to    the

calculation       of   his   sentence    is    not    cognizable   in    a   §    2255

proceeding, citing United States v. Pregent, 190 F.3d 279 (4th

1999).        In       Pregent,   this        court    held    that     “[b]arring


     3
       Gadsen noted that Custis, Daniels, and Johnson apply
“whether the sentence enhancement was imposed because of the
ACCA or because of the Sentencing Guidelines.” Gadsen, 332 F.3d
at 228 n. 3 (internal quotations and citation omitted).



                                         5
extraordinary circumstances . . . an error in the application of

the   Sentencing      Guidelines   cannot       be    raised    in   a    §    2255

proceeding.”          Here,   unlike       in   Pregent,       the   Guidelines

calculation was not erroneous at the time Dorsey was sentenced.

Rather, Dorsey’s Guidelines calculation was not affected until

his state conviction was later vacated.                Cf. United States v.

Foote, ___ F.3d ___, 2015 WL 1883538 (4th Cir. Apr. 27, 2015) at

*1, *10 (“Neither Appellant’s federal offense of conviction nor

his state convictions qualifying him as a career offender have

been vacated” . . . . “[I]t is clear that ‘miscarriages of

justice’   in   the   post-conviction       context    are     grounded   in    the

notion of actual innocence, and Appellant has not been proven

‘actually innocent’ of any of his prior convictions.”), petition

for cert. filed, ___ U.S.L.W ___ (U.S. May 18, 2015) (No. 14-

9792).

      Accordingly, we vacate Dorsey’s sentence and remand for re-

sentencing using a Criminal History Category V.                 With respect to

Dorsey’s claim regarding application of the Fair Sentencing Act,

the district court was correct—he was, in fact, sentenced under

the FSA.   Therefore, we affirm as to this claim. 4



      4
       In his informal brief, Dorsey also raises, for the first
time, several ineffective assistance claims.  Because he failed
to present these claims in the district court, we need not
consider them at this time. See Muth v. United States, 1 F.3d
(Continued)
                                       6
     We dispense with oral argument because the facts and legal

contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




246, 250 (4th Cir. 1993) (stating that arguments raised               for
first time on appeal generally will not be considered).



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