                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 15-1602
                    _____________

           UNITED STATES OF AMERICA

                           v.

        RAYMOND ANTHONY NAPOLITAN,
                               Appellant
               _____________

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
              (D.C. No. 2-11-cr-00146-001)
       District Judge: Honorable Mark R. Hornak
                    _____________

             Submitted: February 11, 2016

 Before: FUENTES, KRAUSE, and ROTH, Circuit Judges

             (Opinion filed: July 19, 2016)
                    _____________

AKIN ADEPOJU, ESQUIRE
RENEE PIETROPAOLO, ESQUIRE
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

Counsel for Appellant

DONOVAN J. COCAS, ESQUIRE
REBECCA R. HAYWOOD, ESQUIRE
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

Counsel for Appellee
                        _____________

                OPINION OF THE COURT
                    _____________

KRAUSE, Circuit Judge.

       Raymond Anthony Napolitan appeals his federal
criminal sentence for possession with intent to distribute five
hundred grams or more of cocaine on the ground that it was
substantively unreasonable for the District Court to run his
federal sentence consecutively to a separate state sentence
that Napolitan now claims is itself unconstitutional under
Alleyne v. United States, 133 S. Ct. 2151 (2013). Today we
join our sister Circuits in holding that a defendant may not
challenge the reasonableness of his federal sentence on appeal
via a collateral attack on a prior state sentence. Accordingly,
we will affirm the sentence imposed by the District Court.




                              2
 I.    Background

       Napolitan was arrested in 2007 after police discovered
nearly a kilogram of cocaine in his home in Farrell,
Pennsylvania, along with drug trafficking paraphernalia and a
series of firearms. In 2008, based on facts that came to light
as part of the drug bust, Napolitan was convicted of sexual
assault and simple assault in a bench trial in the Mercer
County Court of Common Pleas. Napolitan was then
sentenced in state court to five to ten years1 pursuant to a
then-operational Pennsylvania state law, 42 Pa. Cons. Stat.
§ 9712, that increased the mandatory minimum sentence for a
“crime of violence” when the sentencing judge determined by
a preponderance of the evidence that the perpetrator
possessed a firearm that was used to frighten the victim
during the commission of the offense. The Pennsylvania
Superior Court has since ruled en banc that this sentencing
regime is unconstitutional in light of Alleyne, which held that
whenever the existence of a particular fact serves to increase
a statutory minimum sentence as a matter of law, that fact
amounts to an “element” of the underlying crime that must be
proven to the factfinder beyond a reasonable doubt, Alleyne,
133 S. Ct. at 2158. Commonwealth v. Watley, 81 A.3d 108,

       1
         The Government avers that Napolitan was instead
sentenced to 66-132 months in state court. For purposes of
this appeal, we accept that Napolitan was sentenced under
state law “to a term of not less than 5 years nor more than 10
years on the crime of Sexual Assault,” as reflected in the trial
court judge’s January 9, 2009 opinion, which was “written
pursuant to Pennsylvania Rule of Appellate Procedure 1925
following [Napolitan’s] timely appeal from the denial of his
[motion for post-sentence relief].” App. 389, 391.




                               3
116-117 & n.4 (Pa. Super Ct. 2013) (en banc); see also
Commonwealth v. Valentine, 101 A.3d 801, 811 (Pa. Super
Ct. 2014), appeal denied 124 A.3d 209 (Pa. 2015);
Commonwealth v. Newman, 99 A.3d 86, 101 n.9 (Pa. Super
Ct. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).

        In 2011, a grand jury in the Western District of
Pennsylvania indicted Napolitan on two counts related to the
2007 drug bust: possession with intent to distribute five
hundred grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(ii), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i). A jury convicted Napolitan of the
drug possession charge,2 and he was initially sentenced to 78
months’ imprisonment, to run consecutively to his existing
state sentence. After Napolitan appealed his conviction to our
Court, requesting a new trial on the ground of alleged false
witness testimony, and the Government cross-appealed,
claiming the District Court should have applied certain
sentencing enhancements, we affirmed the conviction but
remanded for resentencing in consideration of the sentencing
enhancements at issue. United States v. Napolitan, 762 F.3d
297, 301, 307 (3d Cir. 2014).

      At resentencing, the District Court applied one of the
sentencing enhancements and entered a 90-month sentence
for the federal drug conviction. After considering the
arguments Napolitan now raises on appeal, the District Court

      2
        The firearm count was not submitted to the jury
because the District Court granted Napolitan’s motion for
judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29.




                              4
stated on the record that it was appropriate to run the federal
sentence consecutively to Napolitan’s state sentence because,
even though the offenses underlying both sentences arose in
the same general time frame, the state and federal crimes
were distinct.3

       Napolitan now appeals, arguing that the District
Court’s decision to run his two sentences consecutively was
substantively unreasonable. He urges—as he did at his
resentencing—that because his state sentence was calculated
under a statute that required an increase in the mandatory
minimum sentence based on a judge’s determination, by a
preponderance of the evidence, that Napolitan used a firearm
to intimidate his victim, his state sentence violated Alleyne.4

      3
         To the extent Napolitan suggests that the District
Court imposed the federal sentence consecutively in an effort
to “fully punish[]” Napolitan for the state and federal
convictions, Appellant’s Br. 24, he mischaracterizes the
record. The District Court simply applied U.S.S.G. § 5G1.3
in making its determination that the sentences for the two
temporally proximate but distinct offenses should run
consecutively; it did not state or imply that it was seeking to
“fully punish” Napolitan for both offenses in some general
sense outside of the discretion afforded to it by the
Guidelines. Indeed, the District Court explicitly rejected
Napolitan’s argument that, because both the state and federal
crimes arose in a similar time period, they were related and
thus more likely to warrant concurrent sentences under
§ 5G1.3, and Napolitan does not appear to challenge that
conclusion on appeal.
      4
        Napolitan’s argument rests on an assumption that, in
the context of a challenge to his federal sentence on direct




                              5
According to Napolitan, under a constitutional state
sentencing regime, his state sentence would have elapsed by
the time the federal sentence was handed down; thus,
Napolitan argues, he had been fully punished for his state
conviction at the time of his federal sentencing and a
concurrent federal sentence was therefore warranted. For the
reasons set forth below, we conclude the District Court did
not abuse its discretion in ordering Napolitan’s federal
sentence to be served consecutively to his state sentence.

II.   Jurisdiction and Standard of Review

        We have jurisdiction to review the propriety of a
federal sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We review the substantive reasonableness of a
District Court’s sentence—including its choice to run the
sentence consecutively to a state court sentence—for abuse of
discretion, overturning such a sentence “only where ‘no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the
district court provided.’” United States v. Freeman, 763 F.3d
322, 335 (3d Cir. 2014), cert. denied sub nom. Mark v. United
States, 135 S. Ct. 1189 (2015) and cert. denied, 135 S. Ct.
1467 (2015) (quoting United States v. Tomko, 562 F.3d 558,
568 (3d Cir. 2009) (en banc)); United States v. Gillette, 738
F.3d 63, 79 (3d Cir. 2013) (considering a challenge to the

appeal, Alleyne would apply retroactively to his state
sentence. But see United States v. Reyes, 755 F.3d 210, 212-
13 (3d Cir. 2014) (concluding Alleyne does not apply
retroactively to cases on collateral review); United States v.
Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (same).
Because we resolve this case on other grounds, we need not
address this issue.




                              6
substantive reasonableness of the consecutive nature of two
sentences).

III.   Discussion

       Napolitan acknowledges that the District Court “ha[s]
no authority to cure his illegal state sentence,” Appellant’s Br.
31, and thus that he may not on direct appeal contest the
validity of his state sentence. What he is arguing on appeal,
he contends, is something entirely different: that a federal
sentencing court necessarily abuses its discretion and imposes
a substantively unreasonable sentence if it runs a federal
sentence consecutively to an invalid state sentence. We find
the distinction Napolitan draws to be one without a difference
because his proposed rule is, in fact, premised on exactly the
type of collateral attack on his state sentence he insists he
does not seek—a claim properly raised in a habeas petition,
pursuant to 28 U.S.C. § 2254.

        In any event, the arguments for such a rule already
have been rejected by the Supreme Court. In Custis v. United
States, the Supreme Court held that, with the exception of two
circumstances, “a defendant in a federal sentencing
proceeding may [not] collaterally attack the validity of
previous state convictions that are used to enhance his
sentence.” 511 U.S. 485, 487 (1994). There, a defendant
sought to challenge the validity of past convictions that
played a role in his federal sentencing on the grounds that the
past convictions were obtained with unconstitutionally
ineffective assistance of counsel and in violation of his right
under Boykin v. Alabama, 395 U.S. 238 (1969), to knowingly
and voluntarily enter a guilty plea. Custis, 511 U.S. at 488.
The Supreme Court disagreed and held that a defendant may
challenge the propriety of a previous state conviction that




                               7
affects his current federal sentencing only where (1) he
alleges the “unique constitutional defect” that he was denied
the right to counsel under Gideon v. Wainwright, 372 U.S.
335 (1963), in the proceedings leading to such prior
conviction, or (2) the statute under which he is currently
being sentenced explicitly provides for the ability to
collaterally attack “prior convictions used for sentence
enhancement purposes.” Custis, 511 U.S. at 490-97; accord
United States v. Escobales, 218 F.3d 259, 261-263 (3d Cir.
2000) (recognizing no Custis exception (1) for an alleged
violation of a defendant’s right to a jury trial or (2) in the
language of the criminal history provisions of the U.S.
Sentencing Guidelines); United States v. Thomas, 42 F.3d
823, 824-25 (3d Cir. 1994) (applying Custis to bar a
defendant’s challenge to his federal sentence based on a
constitutional defect in a prior state conviction because he
alleged no Gideon violation and the applicable U.S.
Sentencing Guideline lacked statutory authorization for such
a challenge).

       In reaching its conclusion in Custis, the Supreme Court
sought to avoid condoning instances where, “[b]y challenging
[a] previous conviction, the defendant [asks] a district
court”—or here, an appellate court—“‘to deprive the state-
court judgment of its normal force and effect in a proceeding
that has an independent purpose other than to overturn the
prior judgment.’” 511 U.S. at 497 (quoting Parke v. Raley,
506 U.S. 20, 30 (1992)). Instead, the Court prescribed that
where a defendant believes his prior state convictions were
unlawful, the proper method of challenging such convictions
is either through direct appeal in the state court or through




                              8
federal habeas review.5 Id.; Escobales, 218 F.3d at 261; see
also Daniels v. United States, 532 U.S. 374, 381 (2001) (“Our
system affords a defendant convicted in state court numerous
opportunities to challenge the constitutionality of his
conviction. He may raise constitutional claims on direct
appeal, in postconviction proceedings available under state
law, and in a petition for a writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254 . . . .”).6 Only if a defendant “is

       5
         In July 2015, almost five months after the District
Court entered Napolitan’s federal sentence and nearly seven
years after the state court sentenced Napolitan for his state
conviction, Napolitan filed such a habeas petition alleging,
among other things, ineffective assistance of counsel in his
state proceedings and a due process violation for being
sentenced under a state statute later deemed unconstitutional.
Whatever the resolution of that petition, however, its
pendency does not bear on the validity of Napolitan’s claim
in this appeal that his federal sentence was substantively
unreasonable at the time it was imposed.
       6
         A plurality of the Supreme Court has recognized that
exceptions to the Custis rule may also exist in the 28 U.S.C.
§ 2254 or § 2255 context where “no channel of review was
actually available to a defendant with respect to a prior
conviction, due to no fault of his own,” Daniels, 532 U.S. at
383-84 (plurality opinion), such as in the case of newly
discovered evidence that comes to light after the “time for
direct or collateral review has expired” or a state court’s
refusal without justification “to rule on a constitutional claim
that has been properly presented to it,” Lackawanna Cty. Dist.
Att’y v. Coss, 532 U.S. 394, 405 (2001) (plurality opinion).
Neither circumstance is presented here, as Napolitan contends




                               9
successful in attacking these state sentences” through one of
the proper avenues, may he “then apply for reopening of any
federal sentence enhanced by the state sentences.” Custis,
511 U.S. at 497. The Court grounded its opinion in Custis in
the goals of “promoting finality of judgments,” ensuring
confidence in the integrity of the courts, advancing “the
orderly administration of justice,” and avoiding asking
sentencing courts “to rummage through frequently
nonexistent or difficult to obtain state-court transcripts or
records that may date from another era.” Id. at 496-97.

       Drawing on both the logic and language of Custis, we
see no reason why state sentences should not be accorded the
same respect and be subject to the same forms of substantive
review afforded to state convictions. To hold otherwise
would be to contravene Custis by allowing a defendant “to
deprive [a] state-court judgment of its normal force and
effect” by way of a direct appeal of his federal sentence—“a
proceeding that has an independent purpose other than to
overturn the prior judgment.” Id. at 497 (quoting Parke, 506
U.S. at 30). We therefore hold that an appellant may not
collaterally attack a state court sentence as part of a federal


that his state post-conviction collateral review counsel was
ineffective for failing to raise his claim based on Alleyne,
which was decided while his post-conviction collateral review
petition was pending. Thus, while Napolitan argues that “he
has no remedy” to cure his allegedly unconstitutional state
sentence, Appellant’s Br. 18, he does not now challenge his
state sentence based on newly discovered evidence nor allege
that the state courts have unjustifiably refused to rule on his
Alleyne claim.




                              10
sentencing challenge unless (1) he claims a Gideon violation,
or (2) the relevant federal statute or sentencing guideline
expressly authorizes a collateral attack.7

       Neither pertains here. Napolitan’s reliance on Alleyne
does not trigger the “unique constitutional defect” of a
Gideon violation. Id. at 496. Nor does Napolitan identify
any express authorization to support his collateral attack—
either in a statute or in the sentencing guidelines. On the
contrary, in ordering Napolitan’s federal sentence to run
consecutively to his state sentence, the District Court relied
upon U.S.S.G. § 5G1.3, which confers on a defendant no
express permission to challenge the legality of a prior
sentence, and by its terms affords sentencing courts broad
discretion to run multiple sentences for unrelated crimes
consecutively, concurrently, or partially concurrently.
Moreover, the Supreme Court has recognized that, as a
general matter, district courts may exercise their sound
discretion in choosing whether to run a federal sentence
consecutively to an existing state sentence. See Setser v.
United States, 132 S. Ct. 1463, 1468 (2012) (citing Oregon v.

      7
          While Custis only referenced the federal statute
under which a defendant is sentenced as a potential source of
authorization to collaterally attack a past conviction, we have
interpreted Custis to provide a route to launch such a
collateral attack if the federal sentencing guideline pertinent
to a defendant’s federal sentence confers such authorization,
as well. E.g., Escobales, 218 F.3d at 260; Thomas, 42 F.3d at
824. In extending Custis’s reach to prior state sentences, we
adhere to our prior interpretation that sentencing guidelines
could—in theory—offer an exception to the Custis rule.




                              11
Ice, 555 U.S. 160, 168-69 (2009)) (“Judges have long been
understood to have discretion to select whether the sentences
they impose will run concurrently or consecutively with
respect to other sentences . . . that have been imposed in other
proceedings, including state proceedings.”).

        Our extension today of the Custis rule to state
sentences leaves no room for Napolitan to appeal the
consecutive running of his federal sentence. For while
couched as a challenge to the substantive reasonableness of
his federal sentence, Napolitan’s claim boils down to the
argument that a sentencing court abuses its considerable
discretion to run sentences consecutively unless it
independently confirms the validity of an existing state
sentence—an approach that would require federal sentencing
courts to undertake collateral review of any allegedly illegal
state sentence and, upon a finding of constitutional defect, to
determine the permissible length of the state sentence and to
run a commensurate portion of the federal sentence
concurrently to the unexpired state sentence to offset any
unconstitutional time. Such a rule would not only amount to
a considerable constriction of district courts’ discretion as to
whether to run sentences concurrently or consecutively, but
also would be a cumbersome imposition on federal
sentencing and a clear repudiation of the finality typically
afforded to state court judgments—the very reasons the
Supreme Court rejected such a rule as applied to state
convictions in Custis, 511 U.S. at 496-97.

       No doubt for these reasons, every Court of Appeals to
have addressed the question has extended the precepts of
Custis to bar collateral attacks in federal sentencing appeals
against not only prior state convictions, but also prior state
sentences. In United States v. Saya, for example, the




                              12
defendant argued that he was improperly sentenced as a
“career offender” under U.S.S.G. § 4B1.1 based on two prior
Hawaii state law convictions. 247 F.3d 929, 939-40 (9th Cir.
2001). Citing to Custis, the Ninth Circuit rejected the
defendant’s attempt to “in effect . . . mount a collateral attack
on his prior state sentence,” determining instead that there is
“no reason why the Custis rule should not apply to collateral
attacks on prior state sentences.” Id. at 940 (emphasis in
original); see also United States v. Galvan, 453 F.3d 738, 741
(6th Cir. 2006) (concluding that “the district court at
sentencing need not collaterally review [a defendant’s] prior
sentences”);8 United States v. Warren, 335 F.3d 76, 77-79 (2d
Cir. 2003) (holding a defendant may not collaterally attack
the validity of a past federal “conviction or sentence” based
on Apprendi v. New Jersey, 520 U.S. 466 (2000), in
connection with a supervised release revocation proceeding).
We join these Courts of Appeals today.

IV.    Conclusion

      For the reasons stated above, we will affirm the
sentence imposed by the District Court.




       8
        While the Galvan court did not cite to Custis, it cited
to the decision of another Court of Appeals that did and
adopted the two exceptions to the Custis rule, thereby
tracking Custis in substance. Galvan, 453 F.3d at 741-42
(citing United States v. Mateo, 271 F.3d 11, 16 (1st Cir.
2001)).




                               13
