                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6037


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DEMETRIUS TYRONE GARDNER,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (1:07-cr-00028-jpj-pms-1; 1:09-cv-80154)


Submitted:   February 17, 2011            Decided:   March 21, 2011


Before WILKINSON, KING, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Demetrius Tyrone Gardner, Appellant Pro Se. Zachary T. Lee,
Assistant United States Attorney, Abingdon, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Demetrius Tyrone Gardner seeks to appeal the district

court’s order purporting to deny him relief on his 28 U.S.C.A.

§ 2255 (West Supp. 2010) motion.      He also moves to remand the

matter to the district court. 1

          In his § 2255 motion before the district court, which

was filed with the assistance of counsel, Gardner argued that

his prior Virginia conviction for taking indecent liberties with

a minor was improperly used to enhance his sentence as a career

offender under U.S.S.G. § 4B1.1.      Gardner relied on the Supreme

Court’s decision in Begay v. United States, 553 U.S. 137 (2008),

decided while his direct criminal appeal was pending before this

Court.

          The district court’s order addressing Gardner’s § 2255

motion declined to determine whether Begay rendered Gardner’s

sentence unlawful. 2   Instead, the district court reasoned that


     1
       Gardner’s motion to remand includes his “emergency motion
under local appellate rule 27(e) and IOP 34.1 seeking review of
motion to amend or to supplement [his] original § 2255 petition
under Fed. R. Civ. P.[] Rule 15(a)-(c)[.]”
     2
       The issue of whether Gardner’s prior Virginia conviction
was a proper predicate conviction under U.S.S.G. § 4B1.1 is
perhaps a difficult question. Indeed, this Court recently voted
to rehear en banc the case of United States v. Vann, 620 F.3d
431 (4th Cir. 2010), in which a majority of the original panel
held that the North Carolina offense of taking indecent
liberties with a child was a “crime of violence” for purposes of
the Armed Career Criminal Act. Nonetheless, a determination of
(Continued)
                                  2
Gardner was not entitled to relief because his sentence was not

“unlawful.”      That is, the district court reasoned that even if

Gardner    was   not       a    career        offender   (i.e.,          even   if    the   prior

Virginia offense was not a predicate offense for purposes of

U.S.S.G.    §    4B1.1),            the   sentence       of    360       months      was    still

appropriate      under         18     U.S.C.     §    3553(a).            Additionally,        the

district    court      noted          that,    even   without        the    career     offender

enhancement, Gardner’s advisory guideline range would have been

324 months to 405 months.                      The 360-month sentence was within

that guideline range and thus not unlawful, according to the

district court.

            Although the district court’s order states that it is

denying Gardner’s § 2255 motion, its reasoning could also be

interpreted,     for       practical          purposes,       as    essentially        granting

§ 2255 relief, vacating Gardner’s sentence and imposing a new

sentence,    albeit        the        same     sentence.           See    United     States     v.

Hadden, 475 F.3d 652, 661 & nn. 8-9, 664 (4th Cir. 2007) (if the

judgment    in   a     §       2255    motion     has    the       “practical        effect”    of




whether Gardner’s sentence is “unlawful” seems to require
resolution of this difficult question.     Cf. United States v.
Pettiford, 612 F.3d 270, 277-78 (4th Cir. 2010) (the first step
in addressing a § 2255 motion is “to determine whether the
prisoner has met his burden of showing that “his sentence is
unlawful on one of the specified grounds”). Only then could the
district court impose a new sentence. See id.



                                                 3
vacating the original sentence and imposing a new sentence, even

one   that      is    the       same    as    the     original       sentence,            then     a

certificate of appealability is not required).                                    Under such an

interpretation,            no     certificate        of    appealability                would     be

required       because      Gardner     would       essentially          be       appealing      the

imposition of a new sentence. See Hadden, 475 F.3d at 661 n.8.

If,   however,       the    district     court’s       order       was       in    fact    a    true

denial    of    the   pending       §   2255       motion,    then       a    certificate         of

appealability would be required for him to appeal to this Court.

See 28 U.S.C. § 2253(c)(1) (2006).

               Because      the    proper      interpretation            of       the     district

court’s order is unclear to this Court, we vacate the district

court’s    judgment         and    remand     to    give     the    district            court    the

opportunity to clarify whether it was in fact imposing a new

sentence.        In    particular,           assuming      there     are          no    procedural

hurdles to addressing such a claim, 3 the district court should

address whether Begay renders Gardner’s sentence improper.                                       We

express no opinion on this issue.




      3
       On appeal, the government raises the question of whether
Gardner has procedurally defaulted his Begay-based claim by
failing to raise it in his direct criminal appeal, a question
not addressed by the district court’s order in Gardner’s § 2255
proceedings. We express no opinion as to whether Gardner may be
able to establish cause and prejudice for his failure based on
his appellate counsel’s failure to raise the claim.



                                               4
           The     judgment   of    the     district     court   is    therefore

vacated    and    remanded    for   proceedings        consistent     with   this

opinion.         Gardner’s    pending       motions     are   denied     without

prejudice.

                                                         VACATED AND REMANDED




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