                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-7841



UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

           v.

WESLEY DEVON FOOTE,

                 Defendant – Appellant,

----------------------------------------

NORTH CAROLINA ADVOCATES FOR JUSTICE,

                Amicus Supporting Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge.    (1:06-cr-00177-NCT-1; 1:11-cv-
00042-NCT-JEP)


Argued:   March 25, 2015                   Decided:   April 27, 2015


Before DUNCAN, KEENAN, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Duncan and Judge Keenan joined.


ARGUED: John Clark Fischer, RANDOLPH & FISCHER, Winston-Salem,
North Carolina, for Appellant.   Ripley Eagles Rand, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. Jaclyn Lee DiLauro, HOGAN LOVELLS US LLP, Washington,
D.C., for Amicus Curiae. ON BRIEF: Michael F. Joseph, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. Noell Tin, TIN FULTON
WALKER & OWEN, PLLC, Charlotte, North Carolina; Neal Kumar
Katyal, HOGAN LOVELLS US LLP, Washington, D.C., for Amicus
Curiae.




                               2
THACKER, Circuit Judge:

            Wesley Devon Foote (“Appellant”) appeals the district

court’s    denial      of    his        petition           for    collateral      relief       filed

pursuant to 28 U.S.C. § 2255.                   The district court concluded that

Appellant’s petition, which was based on the argument that his

career     offender     designation             was         later       nullified      under     our

decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc), does not present a claim that is cognizable on

collateral review.

            The    language         of    §    2255        makes     clear      that   not     every

alleged sentencing error can be corrected on collateral review.

The     Supreme    Court         has     instructed              that    only     those       errors

presenting a “fundamental defect which inherently results in a

complete    miscarriage           of     justice”           are    cognizable.          Davis       v.

United    States,      417       U.S.    333,      346       (1974)      (internal      quotation

marks    omitted).          We    are    not       convinced        that     Appellant’s        pre-

Simmons     career      offender          designation             meets      this      high    bar.

Neither Appellant’s federal offense of conviction nor his state

convictions       qualifying           him    as       a    career       offender      have     been

vacated, he was sentenced under an advisory sentencing scheme,

and we are hesitant to undermine the judicial system’s interest

in    finality    to   classify          a    Sentencing            Guidelines      error      as    a

fundamental defect.          Therefore, we affirm the district court.



                                                   3
                                            I.

                                            A.

            On    July    13,     2006,     Appellant          pled   guilty     to       three

counts of distribution of crack cocaine after previously being

convicted of a felony drug offense, a conviction that carried a

statutory maximum sentence of life in prison.                             See 21 U.S.C.

§§   841(a)(1),    (b)(1)(B).          On   January         10,   2007,    the      district

court found Appellant to be a “career offender” and sentenced

him to 262 months in prison.

            Pursuant      to     the   United         States    Sentencing     Guidelines

(“U.S.S.G.” or the “Guidelines”), a defendant can be designated

a career offender if

            (1) the defendant was at least eighteen
            years   old   at  the   time  the    defendant
            committed the instant offense of conviction;
            (2) the instant offense of conviction is a
            felony that is either a crime of violence or
            a    controlled   substance    offense;    and
            (3) the defendant has at least two prior
            felony convictions of either a crime of
            violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a) (2005) (emphasis supplied).                           A “controlled

substance      offense”    is     defined        as    “a[]     [drug]    offense         under

federal   or     state    law,    punishable          by   imprisonment       for     a    term

exceeding one year.”             Id. § 4B1.2(b).               Appellant’s presentence

investigation      report       (“PSR”)     listed,        inter      alia,    two        North

Carolina convictions for possession with intent to sell cocaine.

For the first conviction, which occurred in 1995, Appellant was

                                            4
sentenced to 10-12 months in prison (the “1995 conviction”); for

the second, which occurred in 2002, he was sentenced to 13-16

months in prison (the “2002 conviction”).

           At the time of Appellant’s federal sentencing, this

court   “determine[d]              whether      a    conviction       is     for     a   crime

punishable     by    a    prison        term    exceeding      one    year   [under        North

Carolina      law,]       [by]       consider[ing]           the     maximum       aggravated

sentence that could be imposed for that crime upon a defendant

with the worst possible criminal history.”                               United States v.

Harp,   406    F.3d       242,       246    (4th     Cir.    2005)       (second     emphasis

supplied).          Appellant’s          1995    conviction        was     for   a   Class    H

felony, see N.C. Gen. Stat. § 90-95(a)(1), (b)(1) (2005), which

carried a maximum aggravated sentence of well over 12 months in

prison, id. § 15A-1340.17(c).                    Therefore, under Harp, Appellant

was convicted of a crime punishable by a “prison term exceeding

one year,” even though his actual sentence did not exceed one

year.

           Based         on    the      1995     and    2002    convictions,         the    PSR

recommended that Appellant be designated a career offender, and

the district court agreed.                      As a result, Appellant’s offense

level   rose    from          32   to      37   (with    a     subsequent        three-level

reduction for acceptance of responsibility), and his advisory

Guideline range jumped from 151-188 to 262-327 months in prison.



                                                 5
See    U.S.S.G.     §     4B1.1(b)(1). 1            The    district    court    sentenced

Appellant at the bottom of the Guidelines range.

               Appellant,        questioning        the    propriety    of    his    career

offender status, appealed from this judgment.                          Relying on Harp,

we affirmed.        See United States v. Foote, 249 F. App’x 967, 969

(4th       Cir.   2007).         However,      the    Supreme     Court      vacated     and

remanded      for    consideration        in       light    of   Kimbrough      v.   United

States, 552 U.S. 85 (2007) (approving deviation from advisory

Guidelines        range    for    crack   cocaine         offenses).      See    Foote    v.

United States, 552 U.S. 1163 (2008).                        On remand, the district

court declined to vary below the Guidelines range and filed an

amended judgment on November 13, 2009, sentencing Appellant to

the same amount of time in prison -- 262 months.                               See United

States v. Foote, No. 1:06-cr-177 (M.D.N.C. Nov. 13, 2009).                               The

district court explained,

               I do not have a basis to make th[e] decision
               [about what the proper crack to powder ratio
               should be]. . . . I look to see where you
               are with regard to the other factors in
               3553(a), and you’ve got prior controlled
               substance   violations.     You’ve   got   an
               assault.      On   your  own,   without   the
               application    of    the   career    offender
               provisions, you got 17 criminal history
               points . . . . I would be glad to consider,
               if the [crack/powder cocaine equivalency]

       1
       Appellant’s criminal history category was already at level
VI, so the career offender designation had no effect on that
level.



                                               6
              change is made, how that does effect [sic]
              your sentence at that point, and adjust the
              sentence accordingly.

Trans. at 10, Foote, No. 1:06-cr-177 (filed Oct. 15, 2009), ECF

No. 31.     Foote appealed from the amended judgment, but we again

affirmed.       See United States v. Foote, 395 F. App’x 49, 51 (4th

Cir. 2010).      On January 21, 2011, Appellant filed a petition for

collateral relief pursuant to 28 U.S.C. § 2255, again arguing

that the district court erred in sentencing him as a career

offender. 2

              Seven   months   later,   while   Appellant’s     petition     was

pending, this court decided United States v. Simmons, 649 F.3d

237 (4th Cir. 2011) (en banc).          In Simmons, this court addressed

whether     a   certain   North   Carolina      crime   could   serve   as     a

predicate “felony drug offense” conviction for purposes of a

sentencing enhancement under the Controlled Substance Act (the

“CSA”).     See id. at 249; see also 21 U.S.C. § 841(b)(1)(B)(vii)

(providing that first-time offenders who possess 100 kilograms

or more of marijuana “after a prior conviction for a felony drug


     2
        Meanwhile, Appellant filed a motion for retroactive
application of the Guidelines to his crack cocaine offense
pursuant to 18 U.S.C. § 3582(c)(2).     The motion was denied on
February 8, 2011, because Appellant had already “received the
benefits   of  a   two-level  reduction   in  his  cocaine  base
computation at his [Kimbrough] resentencing . . . .” Foote, No.
1:06-cr-177 (filed Feb. 8, 2011), ECF No. 50. Appellant did not
appeal this determination.



                                        7
offense has become final” are subject to a mandatory minimum

sentence     of    10   years     (emphasis          supplied));          id.       §    802(44)

(defining “felony drug offense” as a drug-related offense “that

is punishable by imprisonment for more than one year under any

[state]    law”).        Specifically,             the    court    considered            whether

Simmons was entitled to relief because the crime that supported

his sentencing enhancement -- a North Carolina conviction for

possession       with   intent    to        sell    no    more     than    10       pounds       of

marijuana -- was not an offense “punishable by imprisonment for

more than one year” under the CSA.                  Simmons, 649 F.3d at 240-41.

            Of     course,       at     the        time     of      Simmons’s             initial

sentencing, Harp controlled.                 Following Harp, a Fourth Circuit

panel initially rejected Simmons’s challenge to his sentencing

enhancement       because    North          Carolina       law     dictated          that      the

marijuana    conviction      could      be     a    crime    “punishable            by    a    term

exceeding    one    year”    if       two    conditions          were    satisfied            (even

though they were not met in Simmons’s case).                            See United States

v. Simmons, 340 F. App’x 141, 144 (4th Cir. 2009).                              The Supreme

Court remanded the case for consideration in light of Carachuri-

Rosendo v. Holder, 560 U.S. 563, 570, 576 (2010) (holding that

courts should look to the “conviction itself,” rather than a

crime or sentence with which the defendant “could have been”

charged     or     assigned,      in        determining          whether        a        previous

conviction is an aggravated felony under the INA).                              See Simmons

                                              8
v. United States, 130 S. Ct. 3455 (2010).                        On remand, this court

affirmed      Simmons’s       sentence     despite            Carachuri.         See       United

States v. Simmons, 635 F.3d 140, 146-47 (4th Cir. 2011).                                         The

court then voted to rehear the case en banc.

              On    rehearing     en    banc,       this      court    vacated        Simmons’s

sentence and abrogated Harp in light of Carachuri.                              See Simmons,

649 F.3d at 239, 241.            We held that because the state court that

sentenced Simmons “never made the recidivist finding necessary

to   expose    Simmons     to    a   higher        sentence,”         the    Government          was

“precluded         from   establishing         that       a    conviction       was        for     a

qualifying         offense”     under    the       CSA.         Id.    at     243     (internal

quotation marks omitted).               Two years later, this court held that

Simmons    can       be   retroactively            applied      on     collateral          review

because it “announced a new substantive rule.”                              Miller v. United

States, 735 F.3d 141, 147 (4th Cir. 2013).                             Miller explained,

“The   Simmons       decision     changed      the     way      this    Court        determines

whether prior convictions for certain lower-level North Carolina

felonies are punishable by more than one year in prison.”                                        Id.

at 145.

              Not     surprisingly,        Appellant            amended        his     §     2255

petition, contending that under Simmons, his 1995 North Carolina

conviction “is not punishable by more than a year” under the




                                               9
Career Offender Guidelines.           J.A. 58; 3 see U.S.S.G. § 4B1.1(a).

He asks the court to “resentence him pursuant to . . . Simmons

and   use   an    individualized      analysis[]        in   making   it’s    [sic]

determination.”      J.A. 58.        He also asks that upon resentencing,

the court should “[p]lace [him] in his proper guideline range,

and credit him with all applicable reductions.”                  Id. at 58-59.

                                        B.

            On    September    24,    2013,    a   federal     magistrate     judge

filed a Memorandum Opinion and Recommendation, recommending that

Appellant’s § 2255 motion be denied but that a certificate of

appealability (“COA”) be issued with regard to whether Appellant

can assert a cognizable Simmons claim on collateral review.                       See

Foote v. United States, No. 1:06-cr-177, 2013 WL 5355543, at *8-

9 (M.D.N.C. Sept. 24, 2013).            On November 7, 2013, the district

court affirmed and adopted the Opinion and Recommendation and

dismissed   the    habeas     petition,      but   it   issued    a   COA    on   the

following issue:

            [W]hether Petitioner, who was sentenced as a
            career   offender   under   U.S.  Sentencing
            Guideline § 4B1.1, but who in fact was not a
            career offender in light of Simmons v.
            United States, can assert a cognizable claim
            under 28 U.S.C. § 2255, seeking to challenge
            a sentence that was below the statutory
            maximum that would still apply.

      3
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                        10
Foote v. United States, No. 1:06-cr-177-1, 2013 WL 5962983, at

*1 (M.D.N.C. Nov. 7, 2013).       Appellant filed a timely notice of

appeal. 4

            This case was placed in abeyance pending our decision

in United States v. Whiteside, which presented the cognizability

issue we address today.      See 748 F.3d 541, 555 (4th Cir. 2014)

(holding    that   Whiteside’s    one-year     limitations   period     was

equitably    tolled   and   his   Simmons    claim   was   cognizable   on

collateral review), reh’g en banc granted, opinion vacated, 578

F. App’x 218 (4th Cir. 2014).            On rehearing en banc, however,

the court affirmed dismissal of the habeas petition on statute

of limitations grounds without reaching the cognizability issue.

See Whiteside v. United States, 775 F.3d 180, 187 (4th Cir.

2014) (en banc).




     4
       We note that the COA in this case does not mention a
“denial of a constitutional right” as required by 28 U.S.C. §
2253(c)(2) and (c)(3).       However, the Government has not
challenged the propriety of the COA, and at this late stage, we
will not treat this potential defect as jurisdictional.      See
Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012) (explaining that
subsections (c)(2) and (c)(3) are “non-jurisdictional rule[s]”
because they “speak[] only to when a COA may issue[;] [they]
do[] not contain . . . jurisdictional terms.”); Spencer v.
United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc)
(“Neither issue in the certificate for this appeal even purports
to involve an underlying error of constitutional magnitude, but
we decline to vacate the certificate at this late hour.”).



                                    11
                                       II.

              In this appeal, we must determine whether the issue

Appellant raises in his amended petition is one that we can

entertain under 28 U.S.C. § 2255.                  This issue presents a pure

question of law, which we review de novo.                 See United States v.

Dodd,   770    F.3d   306,    309   (4th    Cir.    2014);   Spencer   v.   United

States, 773 F.3d 1132, 1137 (11th Cir. 2014).

              We note at the outset that the language of § 2255 is

“somewhat lacking in precision.”                Davis v. United States, 417

U.S. 333, 343 (1974).          What is clear, however, is that by its

terms, § 2255 does not allow for a court’s consideration and

correction of every alleged sentencing error.                  See id. at 346.

Rather, the statute provides four avenues by which a petitioner

can seek relief:

              A prisoner in custody under sentence of a
              court   established   by  Act   of   Congress
              claiming the right to be released upon the
              ground [1] that the sentence was imposed in
              violation of the Constitution or laws of the
              United States, or [2] that the court was
              without    jurisdiction   to   impose    such
              sentence, or [3] that the sentence was in
              excess of the maximum authorized by law, or
              [4] is otherwise subject to collateral
              attack, may move the court which imposed the
              sentence to vacate, set aside or correct the
              sentence.

28 U.S.C. § 2255(a).           The Supreme Court has interpreted this

provision such that if the alleged sentencing error is neither

constitutional        nor    jurisdictional,        a   district   court    lacks

                                           12
authority      to   review     it    unless         it    amounts     to    “a    fundamental

defect which inherently results in a complete miscarriage of

justice.”        Davis,    417      U.S.    at      346    (internal       quotation       marks

omitted).        This    standard      is      only       satisfied    when       a   court    is

presented with “exceptional circumstances where the need for the

remedy afforded by the writ of habeas corpus is apparent.”                                 Hill

v. United States, 368 U.S. 424, 428 (1962) (internal quotation

marks omitted).         For the reasons that follow, we are constrained

to    decide    that     sentencing        a     defendant       pursuant        to   advisory

Guidelines      based     on   a    career       offender        status     that      is   later

invalidated does not meet this remarkably high bar.

                                               A.

               In addressing collateral review claims brought under

§ 2255, the Supreme Court’s decisions have defined the limits of

the    cognizability        spectrum.               In     Davis,     for    example,         the

petitioner      was     convicted     of       failure      to   report      for      induction

pursuant to Selective Service regulations.                          See 417 U.S. at 336.

While his appeal was pending, the court of appeals reversed a

conviction      based     on   facts       “virtually         identical          to   those    in

[Davis’s] case.”          Id. at 339.            Davis filed a § 2255 petition,

arguing that the intervening case required his conviction to be

set aside.          See id. at 340.              The Government argued that his

claim was not cognizable in a § 2255 collateral proceeding.                                   The

Court held that Davis’s “conviction and punishment are for an

                                               13
act that the law does not make criminal.                   There can be no room

for   doubt      that   such     a   circumstance    inherently   results     in   a

complete        miscarriage      of    justice      and   presents    exceptional

circumstances that justify collateral relief under § 2255.”                      Id.

at 346-47 (internal alterations and quotation marks omitted).

Thus, from Davis we know that someone who is convicted based on

conduct     that     is    later      rendered   non-criminal     can    bring     a

cognizable § 2255 claim. 5

              On the other end of the spectrum, however, the Supreme

Court     has    held     that   a    district   court’s    failure     to   follow

procedural rules does not amount to a complete miscarriage of

justice where there is no evidence the defendant was prejudiced.

See Peguero v. United States, 526 U.S. 23, 24 (1999) (holding

that a district court’s failure to inform defendant of the right

to appeal, where defendant knew of the right, was not a basis

for § 2255 relief); United States v. Timmreck, 441 U.S. 780, 785


      5
       Amicus also cites Johnson v. United States, 544 U.S. 295
(2005).    See Amicus Br. 14.       While Johnson declared, “a
defendant given a sentence enhanced for a prior conviction is
entitled to a reduction if the earlier conviction is vacated,”
we are reluctant to give Johnson the weight amicus requests.
Id. at 303. For one thing, Johnson was decided on timeliness --
not cognizability -- grounds, and for another, the above-quoted
statement was mentioned in the context of assumptions made by
previous Court decisions.    In any event, even attributing the
weight to Johnson that amicus requests, it merely reinforces the
notion that cognizability is an easier question if an earlier
conviction is actually vacated, which did not occur here.



                                          14
(1979) (same, where district court failed to mention a special

parole term at Rule 11 hearing); Hill, 368 U.S. at 429 (same,

where   sentencing    judge     failed    to    ask   a   defendant        if    he   had

anything to say at his sentencing hearing).

                                         B.

            Between these limits -- punishment for conduct later

rendered non-criminal on one end and non-prejudicial procedural

errors on the other -- the Supreme Court has also held that a

petitioner’s § 2255 claim that post-sentencing changes in Parole

Commission policies prolonged his imprisonment beyond the period

of time intended by the sentencing judge was not cognizable.

See United States v. Addonizio, 442 U.S. 178, 190 (1979).                             The

Court   explained     that    because     the     sentence       imposed        by    the

district    court    was   “within     the     statutory        limits,”        and   the

proceedings were not “infected with any error of fact or law of

the ‘fundamental’ character,” the claim was not appropriate for

§ 2255 review.        Id. at 186.         The Court distinguished Davis,

explaining that Davis involved “a change in the substantive law

that established that the conduct for which petitioner had been

convicted   and     sentenced    was     lawful.”         Id.    at   186-87.          In

contrast,   the     challenge    in    Addonizio      was   “not      of    the       same

character”: while it may have affected “the way in which the

court’s judgment and sentence would be performed,” “it did not



                                         15
affect the lawfulness of the judgment itself -- then or now.”

Id. at 187.

               Also on the spectrum lie decisions from three of our

sister     circuits        that     have          addressed       cognizability             arguments

strikingly      similar      to        the    one       with    which     we     are       presented.

These circuits have yielded nationally consistent yet internally

divided outcomes.

                                                   1.

               First, the Seventh Circuit considered the petition of

Narvaez,       who   was    deemed           to    have        committed       two     “crimes      of

violence,” and therefore was designated a career offender.                                         See

Narvaez v. United States, 674 F.3d 621, 624 (7th Cir. 2011). Due

to   his    designation,          the        Guidelines          range     for       his    sentence

increased from 100-125 months to 151-188 months.                                     See id.        But

post-sentencing,           the    Supreme          Court        decided     Begay       v.       United

States, 553 U.S. 137 (2008), and Chambers v. United States, 555

U.S. 122 (2009), which removed Narvaez’s previous convictions

from the “crime of violence” realm.                              The court held that the

career offender designation and resulting increase in sentencing

range    was    akin   to        the    conviction         in     Davis,       explaining,         “to

increase, dramatically, the point of departure for his sentence

is certainly as serious as the most grievous misinformation that

has been the basis for granting habeas relief [by the Supreme

Court].”         Narvaez,         674    F.3d        at    629.          However,          the    court

                                                   16
emphasized that “at the time of Mr. Narvaez’s sentencing, the

Guidelines were mandatory.         The imposition of a career offender

status     therefore   increased    the    sentencing   range   the   district

court was authorized to employ.”              Id. at 628-29 (emphasis in

original).

             The Seventh Circuit recently held, however, that under

an    advisory      Guidelines    scheme,    a   similar   claim      was   not

cognizable.       See Hawkins v. United States, 706 F.3d 820 (7th

Cir. 2013).      There, the court explained,

             Narvaez, as our opinion emphasized, unlike
             Hawkins,   had   been  sentenced when  the
             guidelines were mandatory. . . . Before
             [United States v. ]Booker[, 543 U.S. 220
             (2005)], the guidelines were the practical
             equivalent of a statute.

             . . . .

             The first step in sentencing -- calculating
             the guidelines range correctly -- was not
             changed by Booker.     But the step is less
             important now that the guidelines, including
             the career offender guideline, are merely
             advisory and the sentencing judge, being
             forbidden to presume the reasonableness of a
             guideline sentence, must make an independent
             determination   of    whether   a    guideline
             sentence would comport with the sentencing
             standard set forth in 18 U.S.C. § 3553(a).
             That   is  a   critical   difference   between
             Narvaez and the present case . . . .

Id.   at   822-23    (citations    omitted).     The    Hawkins   court     also

emphasized the importance of finality:

             There is a difference between reversing an
             error on appeal and correcting the error

                                      17
            years later.      An erroneous computation of
            an    advisory     guidelines     sentence    is
            reversible    (unless   harmless)    on   direct
            appeal;    it   doesn’t    follow    that   it’s
            reversible years later in a postconviction
            proceeding. . . .

            An error in the interpretation of a merely
            advisory guideline is less serious [than
            sentence    that   exceeds    the  statutory
            maximum].    Given the interest in finality,
            it is not a proper basis for voiding a
            punishment lawful when imposed.

Id. at 824.      For these reasons, Hawkins’s sentence was not a

“miscarriage of justice that can be collaterally attacked.”            Id.

at   825   (internal   quotation   marks   omitted).     Therefore,    the

takeaway from the Seventh Circuit is that if a career offender

defendant is sentenced below the statutory maximum post-Booker,

his post-conviction challenge to the career offender status is

not cognizable.

                                    2.

            The Eleventh Circuit reached a similar conclusion.         In

Spencer v. United States, a three-judge panel initially held

that   a   petitioner’s   post-conviction    challenge   to   his   career

offender designation was cognizable, explaining, “categorization

as a career offender is not merely a formal requirement of a

criminal procedural rule.      The Guidelines are the heart of the

substantive law of federal sentencing.”          727 F.3d 1076, 1087

(11th Cir. 2013), reh’g en banc granted, opinion vacated (Mar.

7, 2014).    The panel relied on the Supreme Court’s recent Peugh

                                    18
v.     United        States     decision,       wherein       the     Court     dubbed     the

Guidelines the “lodestone of sentencing” and held that a post-

conviction increase in the Guidelines range can create an ex

post    facto        problem     for        those    committing       crimes     under     the

previously lower range.                See 133 S. Ct. 2072, 2084 (2013).

             On       rehearing        en    banc,     however,       the   Spencer      panel

decision was overturned.                See Spencer v. United States, 773 F.3d

1132    (11th        Cir.     2014)    (en    banc).         The     majority    explained,

“Spencer     cannot         collaterally       attack       his     sentence    based    on   a

misapplication of the advisory guidelines.                            Spencer’s sentence

falls below the statutory maximum, and his prior [qualifying]

conviction . . . has not been vacated.                            Spencer’s sentence was

and remains lawful.”                  Id. at 1135 (emphasis supplied).                     The

dissent, joined by three judges, countered, “the fact that a

sentence        is     deemed     ‘lawful’           does     not     prohibit     us     from

determining that a complete miscarriage of justice has occurred

on collateral review.”                Id. at 1145 (Wilson, J., dissenting).

                                                3.

             Finally, the Eighth Circuit held in a panel decision

that    a   post-conviction            change       that     invalidates       one’s    career

offender status was cognizable on collateral review.                                   See Sun

Bear v. United States, 611 F.3d 925 (8th Cir. 2010), reh’g en

banc    granted,        opinion       vacated       (Sept.    27,    2010).       The    panel

reasoned,

                                                19
           [W]e [have] held that ordinary questions of
           sentencing guideline interpretation falling
           short   of  the   “miscarriage  of   justice”
           standard do not present a proper section
           2255 claim.    However, Sun Bear’s claim is
           more than a run-of-the-mill claim that the
           district court misapplied the sentencing
           guidelines.   This case is based on a post-
           conviction change in the law that renders
           unlawful the district court’s sentencing
           determination.   “There can be no room for
           doubt that such a circumstance inherently
           results in a complete miscarriage of justice
           and presents exceptional circumstances that
           justify collateral relief under § 2255.”

Id. at 930 (footnote, alterations, and some internal quotation

marks omitted) (quoting Davis, 417 U.S. at 346-47).

           But     like    the    Eleventh      Circuit,      the    Eighth    Circuit

overturned the panel decision on rehearing en banc.                            See Sun

Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc).

The   en   banc    majority       held    that    the    defendant’s         360-month

sentence handed down while the defendant was deemed a career

offender   “[wa]s        not   unlawful”       because   it    was     not     “imposed

without, or in excess of, statutory authority.”                         Id. at 705.

However, the court also noted that Sun Bear’s pre-enhancement

Guidelines range was 292-365 months, so the ultimate sentence

would have fallen within this range anyway.                     See id. (noting,

“the same 360–month sentence could be reimposed were Sun Bear

granted the § 2255 relief he requests”).

           In     sum,    there   is     no   decision   left       standing    in   any

circuit whereby a challenge to one’s change in career offender

                                          20
status,       originally     determined       correctly        under      the    advisory

Guidelines, is cognizable on collateral review.                              However, we

cannot    ignore      that   these      decisions      are     extremely        close    and

deeply divided.

                                             C.

              Turning      now    to    our       circuit,     we    have     held      that

“misapplication of the sentencing guidelines does not amount to

a miscarriage of justice.”               United States v. Mikalajunas, 186

F.3d   490,     495   (4th       Cir.   1999);      see   also      United      States    v.

Pregent, 190 F.3d 279, 283–84 (4th Cir. 1999).

              In United States v. Mikalajunas, the petitioner sought

collateral review based on a misapplication of the “physical

restraint” enhancement in the Guidelines.                      See 186 F.3d at 492;

U.S.S.G. § 3A1.3.            Like the case at hand, Mikalajunas argued

that     an     intervening         decision         rendered       the      enhancement

inapplicable to him.             See 186 F.3d at 492.            The court held that

a claim that the district court erred in enhancing one’s offense

level “is merely an allegation of ordinary misapplication of the

guidelines that does not amount to a miscarriage of justice.”

Id. at 496.

              Similarly,     in    United     States      v.   Pregent,      this     court

addressed       a   petitioner’s        18    U.S.C.      §    3583(e)       motion      for

reduction in his term of supervised release on the grounds that

the district court misapplied the Guidelines.                        See 190 F.3d at

                                             21
280.        Construing the motion as a § 2255 petition, the court

assumed       without         deciding   that        Pregent’s      motion     stated      a

cognizable claim under § 2255, but nonetheless explained,

               Barring extraordinary circumstances, . . .
               an   error   in   the   application  of   the
               Sentencing Guidelines cannot be raised in a
               § 2255 proceeding.     Section 2255 provides
               relief for cases in which “the sentence was
               in excess of the maximum authorized by law.”
               Thus, while § 2255 applies to violations of
               statutes establishing maximum sentences, it
               does not usually apply to errors in the
               application of the Sentencing Guidelines.

Id.    at    283-84.          The   court     then    dismissed      the    petition       as

untimely.         Id. at 284.

                                            III.

               Considering where this case falls on the cognizability

spectrum,      we      conclude     Appellant’s       career   offender      designation

was    not    a    fundamental       defect     that    inherently         results    in   a

complete miscarriage of justice.

                                               A.

               First, in the rare cases in which the Supreme Court

has    found      post-conviction        “miscarriages         of   justice”    to    have

occurred,         it    has     relied   on     the    actual       innocence    of     the

petitioner.            The federal conviction that brought Appellant to

court   in     the      first    place   and    the    state    convictions      used      to

enhance his sentence have not been invalidated or vacated; thus,




                                               22
it is difficult to place Appellant’s case within the ambit of

those decisions.

              For example, in the 28 U.S.C. § 2254 habeas context,

the   Supreme    Court     has   held   that      while      interests     in   finality

dictate that a court may not ordinarily reach the merits of a

successive or abusive habeas claim, there is an exception: if

failure to entertain the claim would result in a “fundamental

miscarriage[] of justice.”              Schlup v. Delo, 513 U.S. 298, 315

(1995) (internal quotation marks omitted).                     The Court noted that

the exception is based on the idea that “habeas corpus is, at

its   core,     an    equitable     remedy,”      but     it   explained        that    the

exception only applies to a “narrow class of cases” and should

“remain rare” and only applied in the “extraordinary case.”                             Id.

at 319, 315, 321 (internal quotation marks omitted); see also

Sawyer    v.    Whitley,     505    U.S.        333,    340    (1992)     (“[W]e       have

emphasized the narrow scope of the fundamental miscarriage of

justice   exception.”       (emphasis      supplied)).           As   a    result,      the

miscarriage          of   justice     exception         in     this       context       has

historically been “tied . . . to the petitioner’s innocence.”

Schlup, 513 U.S. at 321; see also United States v. MacDonald,

641 F.3d 596, 610-11 (4th Cir. 2011) (“[T]he exception for a

fundamental miscarriage of justice requires a showing that ‘a

constitutional violation probably has caused the conviction of

one innocent of the crime.’” (quoting McCleskey v. Zant, 499

                                           23
U.S. 467, 494 (1991)); Wolfe v. Johnson, 565 F.3d 140, 160 (4th

Cir. 2009) (“A proper showing of actual innocence is sufficient

to satisfy the miscarriage of justice requirement.” (internal

quotation marks omitted)).

              This is in accord with Davis, where the Supreme Court

concluded     that    Davis’s    habeas    claim         amounted    to     a    “complete

miscarriage of justice” because he claimed that his underlying

conviction was abrogated, i.e., he became actually innocent of

the crime.      See 417 U.S. at 346; see also id. at 344 (“[T]here

can be no doubt that the grounds for relief under § 2255 are

equivalent     to    those   encompassed       by    §    2254   [and]      §    2255   was

intended to mirror § 2254 in operative effect.”).

              The Supreme Court has extended the concept of actual

innocence     to     sentencing,    but    only      capital        sentencing.         In

Sawyer, the Court held that to excuse procedural default barring

a challenge to petitioner’s death sentence, the petitioner must

show “actual innocence” of death penalty eligibility by proving

“by clear and convincing evidence that, but for a constitutional

error,   no    reasonable       juror    would      have    found     the       petitioner

eligible for the death penalty under the applicable state law.”

505 U.S. at 336.

              Reading all of these cases together, it is clear that

“miscarriages       of   justice”   in    the    post-conviction            context     are

grounded in the notion of actual innocence, and Appellant has

                                          24
not    been    proven    “actually       innocent”        of   any   of     his   prior

convictions.      Furthermore, to the extent Appellant argues that

he    is   “actually    innocent”    of       being   a    career     offender,    the

Supreme Court has yet to stretch this Sawyer concept to non-

capital sentencing, and we will not do so here.

                                          B.

              Second, we are 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).           District courts must make an independent

determination that a Guidelines sentence, even one based on a

career offender designation, would “comport with the sentencing

standard set forth in 18 U.S.C. § 3553(a).”                       Hawkins v. United

States, 706 F.3d 820, 823 (7th Cir. 2013).                     District courts may

not    even     presume       that   a     within-Guidelines           sentence      is

reasonable.       See Nelson v. United States, 555 U.S. 350, 352

(2009) (“The Guidelines are not only not mandatory on sentencing

courts; they are also not to be presumed reasonable.” (emphases

in original)).         And a district court’s error in its sentencing

calculations      is      harmless       if     the       court      also     provided

justification for the sentence based on the § 3553(a) sentencing

factors.      See United States v. Evans, 526 F.3d 155, 165 (4th

                                          25
Cir.       2008)   (“[E]ven    assuming     the    district       court    erred    in

applying the Guideline departure provisions, [the defendant’s]

sentence, which is well-justified by [the] § 3553(a) factors, is

reasonable.”).         Thus,   even    if   we    vacate   and    remand    at     this

juncture, the same sentence could be legally imposed. 6

              Unlike a statute, the career offender provision is one

part of a series of guidelines meant to guide the district court

to the proper sentence.             District courts are free to vary from

the career-offender-based sentencing range, and we have affirmed

their decisions to do so.            See, e.g., United States v. Moreland,

437 F.3d 424, 436 (4th Cir. 2006), overruling on other grounds

recognized by United States v. Diosdado–Star, 630 F.3d 359 (4th

Cir. 2011) (“The district court here determined that sentencing

Moreland as a career offender would not comport with the goals

of     §    3553(a),   and     we    cannot      reject    this    conclusion       as

unreasonable.”).        We have also upheld significant variances by

district courts that were supported by their reliance on the

§ 3553(a) factors.           See, e.g., United States v. Smallwood, 525

F. App’x 239, 241 (4th Cir. 2013) (affirming sentence 333 months

above the top of the Guidelines range where the district court

       6
       Indeed, at Appellant’s Kimbrough re-sentencing, when given
a chance to vary downward based on the crack/powder disparity,
the district court declined to do so, sentencing Appellant to
the same 262-month sentence based on the § 3553(a) factors,
including his extensive criminal history.



                                          26
“discussed the § 3553(a) factors, first listing each factor and

then explaining how that factor related to [the defendant]’s

case”).

            On this point, amicus and Appellant rely heavily on

the Supreme Court’s decision in United States v. Peugh, 133 S.

Ct. 2072 (2013).           As explained above, Peugh held that the ex

post facto       clause    is    violated      when          a       defendant     is   sentenced

under    current    Guidelines         providing         a       higher     sentencing      range

than the Guidelines in effect at the time of the offense.                                      The

Court explained, “The federal system adopts procedural measures

intended to make the Guidelines the lodestone of sentencing.                                     A

retrospective increase in the Guidelines range applicable to a

defendant    creates      a     sufficient        risk       of       a   higher    sentence    to

constitute an ex post facto violation.”                               Id. at 2084 (emphasis

supplied).       But we know of no case where a “sufficient risk” of

prejudice    or    harm    has       risen   to     the      level        of   a   “fundamental

defect” resulting in a “complete miscarriage of justice.”                                  To do

so would impermissibly water down standards meant to be “narrow”

and “rare.”       Schlup, 513 U.S. at 299, 321.                           We thus decline to

give Peugh the weight Appellant attributes to it.

                                             C.

            Third, we are not persuaded that Appellant’s career

offender    designation         is    a    defect    of          a    “fundamental”      nature.

Courts    have     not    used       the   term     “fundamental”              lightly.        See

                                             27
Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (holding that a

constitutional        error       renders      a         criminal         punishment

“fundamentally [un]fair” if it deprives defendant of the “basic

protections    [without    which]    a    criminal   trial     cannot       reliably

serve its function as a vehicle for determination of guilt or

innocence” (internal quotation marks omitted)); United States v.

Ramirez-Castillo, 748 F.3d 205, 217 (4th Cir. 2014) (“The Sixth

Amendment’s jury trial guarantee, which includes, ‘as its most

important element, the right to have the jury, rather than the

judge, reach the requisite finding of guilty,’ is fundamental.”

(quoting Sullivan v. Louisiana, 508 U.S. 275, 277 (1993))).

            The language of § 2255(a) demonstrates that collateral

review is available for defects of a constitutional magnitude

and   other    defects    that    are     equally    fundamental,          such   as

sentences issued “in excess of the maximum authorized by law.”

28 U.S.C. § 2255(a).       However, Booker “stripped [the Guidelines]

of legal force” and made them advisory.              United States v. Dean,

604 F.3d 169, 173 (4th Cir. 2010).                 Because of this lack of

“legal     force,”   we   would     be    remiss    to    place     an     erroneous

Guidelines classification under an advisory scheme in the same

category as violation of a statute or constitutional provision.

See also Spencer, 773 F.3d at 1141 (“[N]o fundamental defect

occurs when a court erroneously sentences a prisoner as a career

offender    under    advisory    guidelines.”      (emphasis      in     original));

                                         28
cf. Mikalajunas, 186 F.3d at 495 (“[T]he scope of [collateral]

review of non-constitutional error is more limited than that of

constitutional error.”).

               Amicus        hints         that        because         the    career      offender

enhancement         was    the    result         of    a    congressional         directive,        it

should    be    entitled         to       more    weight         than     a    mere     Guidelines

provision crafted by the Sentencing Commission.                                 See Amicus Br.

18.      This argument is unfounded and was soundly rejected in

Spencer, wherein the court stated, “Spencer’s argument fails to

appreciate      the        advisory        nature          of    every       provision       of    the

guidelines.               Although          Congress            directed       the      Sentencing

Commission      to        create      a     guideline           for    career        offenders,     a

district       judge       cannot         treat       that      guideline       as     mandatory.”

Spencer,    773      F.3d    at     1141.             Therefore,        because      there    is    no

dispute that Appellant’s sentence did not exceed the statutory

maximum, his erroneous classification does not rise to the level

of a “fundamental” defect.

                                                  D.

              Finally, when it comes to errors in application of the

Guidelines, it is hard to fathom what the dividing line would be

between a fundamental defect and mere error, and Appellant does

not   offer     a    workable       one.          Appellant           first   contends       that    a

career offender designation “involves much more than a technical

Guidelines          error,       but,        considering               the     vastly-increased

                                                  29
sentence[]       resulting       from    the      improper      career       offender

designation,      constitute[s]     a    ‘miscarriage      of   justice’      by    any

commonsense definition.”           Appellant’s Br. 8-9.          But to draw the

line at career offender designations would be underinclusive.

It is possible that a career offender may not receive as vast an

increase as another defendant who, for example, simply received

an erroneous Guidelines enhancement.               Compare Sun Bear v. United

States,    644     F.3d    700,    702     (8th     Cir.     2011)    (defendant’s

sentencing range was 292 to 365 months without career offender

enhancement, and 360 to life with career offender enhancement;

defendant was sentenced to 360 months), with Mikalajunas, 186

F.3d at 497 (Murnaghan, J., dissenting) (defendant’s sentence

was   increased     by    more    than     four    years    based    on     incorrect

physical restraint enhancement).               Appellant does not demarcate

how vast a “vastly-increased sentence” must be to rise to the

level of a miscarriage of justice.

               On the other hand, to draw the line at any sentencing

error that increases the sentencing range of the defendant would

be overinclusive.         It would not only fly in the face of our

circuit precedent, see Mikalajunas, 186 F.3d at 496 (“[E]rrors

of guideline interpretation or application ordinarily fall short

of a miscarriage of justice”), but it would deal a wide-ranging

blow to the judicial system’s interest in finality, see United

States    v.    Addonizio,   442    U.S.    178,    184    (1979)    (“It    has,   of

                                         30
course, long been settled law that an error that may justify

reversal      on     direct    appeal    will     not     necessarily       support      a

collateral attack on a final judgment.                   The reasons for narrowly

limiting the grounds for collateral attack on final judgments

are well known and basic to our adversary system of justice.”

(footnotes omitted)).

                                           E.

              For all of these reasons, we believe this case falls

closer   on    the    spectrum      to   Addonizio       than    Davis.     Here,       the

district      court     sentenced        Appellant       “within     the      statutory

limits,”      and    while    the   career      offender    designation       may      have

affected the ultimate sentence imposed, “it did not affect the

lawfulness of the [sentence] itself -- then or now.”                          Addonizio

442 U.S. at 187.             Therefore, we are simply not presented with

“exceptional         circumstances       where     the     need    for     the    remedy

afforded by the writ of habeas corpus is apparent.”                              Hill v.

United States, 368 U.S. 424, 428 (1962).

              Our decision today does not come without frustration.

Appellant challenged his career offender designation at every

step, met all applicable deadlines (which was not the case in

Whiteside      and    myriad    decisions       across     the    country),      and    his

career offender designation increased dramatically his advisory

Guidelines range.            But we believe the guidance of the Supreme



                                           31
Court and Congress is clear and, in this situation, ties our

hands.

                                  IV.

          For   the   foregoing   reasons,   the   judgment    of   the

district court is

                                                              AFFIRMED.




                                  32
