                                    PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 13-6956


STONEY LESTER,

                   Petitioner − Appellant,

             v.

J.V. FLOURNOY, Warden of FCI Jesup,

                   Respondent – Appellee.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:12-cv-00681-LO-JFA)


Argued: October 30, 2018                                Decided: November 30, 2018


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which
Judge Duncan and Judge Keenan joined.


ARGUED: Bradley Nelson Garcia, O’MELVENY & MYERS LLP, Washington, D.C.,
for Appellant. Michael Alan Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Jonathan D. Hacker, Kathryn E. Tarbert,
Rakesh Kilaru, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Leslie
R. Caldwell, Assistant Attorney General, Brian A. Benczkowski, Assistant Attorney
General, David A. O’Neil, Acting Deputy Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney
General, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Dana J. Boente, Acting United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.




                                     2
DIAZ, Circuit Judge:

       In 2004, after pleading guilty to selling crack cocaine to a government informant,

Stoney Lester was sentenced to almost 22 years in prison. Lester received that sentence

because he was designated a career offender under the then-mandatory Sentencing

Guidelines. Later precedent, however, established that this designation was wrong and

that, as a result, Lester’s sentence should have been up to 11 years shorter. Lester sought

relief through habeas corpus, but the district court denied his petition. Because our recent

decision in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), permits Lester’s

challenge, we vacate and remand.



                                             I.

       Lester pled guilty to a single count of possession with intent to distribute crack

cocaine in violation of 21 U.S.C. § 841. Under the Sentencing Guidelines, which at that

time were mandatory, Lester was deemed a career offender and subject to a sentencing

enhancement. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1 (2004). This

enhancement depended on a past conviction for a “crime of violence,” namely Lester’s

1990 Georgia conviction for walkaway escape. With the enhancement, the guidelines

range was 262–327 months in prison. Without the enhancement, however, Lester’s

Guidelines range would have been 121–151 months. The statutory maximum sentence was

40 years. See 21 U.S.C. § 841(b)(1)(B). Lester received a sentence of 262 months (a bit

under 22 years), right at the bottom of the required Guidelines range.



                                             3
       Lester appealed, unsuccessfully, and filed a motion to vacate his sentence under 28

U.S.C. § 2255, which was denied. In those proceedings Lester couldn’t successfully

challenge his classification as a career offender because, under then-controlling precedent,

walkaway escape under Georgia law was a crime of violence. See United States v. Gay,

251 F.3d 950, 954–55 (11th Cir. 2001). 1 As the years passed by, however, the law changed

in two important ways. First, the Supreme Court stripped the Sentencing Guidelines of

legal force and made them purely advisory. United States v. Booker, 543 U.S. 220, 245

(2005). Second, it ruled that the generic crime of failing to report to a prison was not a

crime of violence, Chambers v. United States, 555 U.S. 122, 127–28 (2009), which led

courts to hold that the escape offense Lester committed was not a crime of violence either.

See United States v. Clay, 627 F.3d 959, 969 (4th Cir. 2010) (collecting circuit cases);

United States v. Lee, 586 F.3d 859, 874 (11th Cir. 2009).

       These new precedents in hand, Lester sought habeas relief in the U.S. District Court

for the Eastern District of Virginia in 2012. In his petition, he contended that his escape

offense was not a crime of violence, that he thus wasn’t subject to the career offender

enhancement, and that his 262-month sentence was therefore unlawful because it exceeded

the then-mandatory Guidelines range of 121–151 months.




       1
        Lester was sentenced in the Middle District of Georgia, so the Eleventh Circuit’s
precedents governed the legality of his sentence back then. But he filed his current petition
in the Eastern District of Virginia because that’s where he was confined at the time. See
28 U.S.C. § 2241(a).

                                             4
         Because Lester had already filed a petition under 28 U.S.C. § 2255, the ordinary

recourse for federal prisoners seeking postconviction relief, he couldn’t bring his challenge

under that statute. Instead, he filed under 28 U.S.C. § 2241, a catchall habeas statute,

arguing that such petitions are allowed, pursuant to § 2255’s so-called “savings clause,”

when the latter statute is “inadequate or ineffective to test the legality of [one’s] detention.”

See id. § 2255(e). But the district court rejected this argument, reasoning that the savings

clause didn’t allow challenges based on Sentencing Guidelines errors, at least when the

petitioner’s sentence, like Lester’s, still fell below the statutory maximum.

         Lester appealed.



                                               II.

         That was in 2013. Since then, Lester’s appeal has been held in abeyance while our

court decided three potentially relevant cases: Whiteside v. United States, 775 F.3d 180

(4th Cir. 2014) (en banc), United States v. Surratt, 797 F.3d 240 (4th Cir. 2015), vacated

& dismissed as moot, 855 F.3d 218 (4th Cir. 2017) (en banc), and Wheeler, 886 F.3d 415.

But now, with Wheeler shining light on the issues before us, we consider whether Lester

may challenge his sentence via the savings clause of 28 U.S.C. § 2255. This is a question

of law that we review de novo. United States v. Foote, 784 F.3d 931, 935–36 (4th Cir.

2015).

         Section 2255 allows federal prisoners to challenge the legality of their confinement

by petitioning the court where they were sentenced. 28 U.S.C. § 2255(a). But once the

prisoner has filed one unsuccessful § 2255 motion, as Lester has, he may not file another

                                               5
except under very limited circumstances.          Specifically, before filing a “second or

successive” petition, the prisoner must first receive permission from the court of appeals

by showing either “newly discovered evidence” proving he was not guilty of his offense or

that a new, previously unavailable rule of constitutional law made retroactive on collateral

review by the Supreme Court entitles him to relief. Id. § 2255(h)(1)–(2). These restrictions

are referred to as the “gatekeeping provisions” of § 2255. Crucially, they don’t allow a

second petition for new statutory constructions.

       The gatekeeping provisions bar most federal prisoners from taking a second bite at

the habeas apple. But not completely. In limited circumstances, courts including ours have

said that a prisoner otherwise unable to file a second or successive § 2255 petition may

instead seek relief under 28 U.S.C. § 2241. See, e.g., In re Jones, 226 F.3d 328, 333–34

(4th Cir. 2000); In re Davenport, 147 F.3d 605, 610–12 (7th Cir. 1998). That’s because

§ 2255, while generally blocking habeas petitions by federal prisoners outside that statute,

permits such petitions when it appears that § 2255 “is inadequate or ineffective to test the

legality of [the prisoner’s] detention.” 28 U.S.C. § 2255(e). This clause is commonly

referred to as the “savings clause” as it arguably saves § 2255 from unconstitutionally

suspending habeas corpus. See Reyes-Requena v. United States, 243 F.3d 893, 901 n.19

(5th Cir. 2001) (citing Swain v. Pressley, 430 U.S. 372, 381 (1977)). 2


       2
         Not all circuits agree that § 2255’s savings clause authorizes successive motions
otherwise barred by that statute. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1090–91 (11th Cir. 2017) (en banc); Prost v. Anderson, 636 F.3d 578, 588–
89 (10th Cir. 2011) (“[T]he savings clause is satisfied so long as a petitioner could’ve raised
his argument in an initial § 2255 motion.”).

                                              6
       We have held that § 2255’s savings clause applies when, after a prisoner’s first

§ 2255 motion, “the substantive law changed such that the conduct of which the prisoner

was convicted is deemed not to be criminal.” Jones, 226 F.3d at 333–34. When a prisoner

in that situation is barred by the gatekeeping provisions from filing a second § 2255 motion,

we have said § 2255 is “inadequate or ineffective to test the legality of [his] conviction”

and allowed a petition under § 2241. Id. at 334.

       More recently, in Wheeler, we ruled that a prisoner may use § 2255’s savings clause

to challenge not just an unlawful conviction, but also a defective sentence. In that case,

Gerard Wheeler was sentenced to ten years for involvement in a drug conspiracy. Wheeler,

886 F.3d at 419. That sentence was the minimum required by statute because the district

court determined that Wheeler’s prior North Carolina conviction for cocaine possession

was a “felony drug offense.” Id. (quoting 21 U.S.C. § 841(b)(1)(B)). Without the

enhancement for the North Carolina conviction, however, Wheeler’s statutory sentencing

range would have been between five and 40 years. Id. at 419–20.

       After Wheeler was sentenced and had exhausted his direct appeals, we decided

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Under this new

precedent, Wheeler’s North Carolina conviction no longer qualified as a felony drug

offense, so the ten-year mandatory minimum would not apply. Wheeler, 886 F.3d at 421.

Wheeler thus sought to challenge his allegedly erroneous sentence, but he had already filed

one unsuccessful § 2255 motion, and the gatekeeping provisions barred a second as

Simmons was not a constitutional decision.



                                             7
       Nevertheless, we allowed Wheeler’s petition under § 2241 to proceed. We held that

the savings clause could be used to challenge sentences, reasoning that the statutory

language of the savings clause speaks of the legality of one’s “detention,” not simply one’s

“conviction” or “offense.” Id. at 427–28; see 28 U.S.C. § 2255(e). We also noted that the

Supreme Court has “long recognized a right to traditional habeas corpus relief based on an

illegally extended sentence.” Wheeler, 886 F.3d at 428 (citing Nelson v. Campbell, 541

U.S. 637, 643 (2004)).

       We then outlined when the savings clause may be used to challenge erroneous

sentences. Specifically, we said, § 2255 is inadequate and ineffective to test the legality of

a sentence if the following four conditions are met:

       (1) at the time of sentencing, settled law of this circuit or the Supreme Court
       established the legality of the sentence;

       (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the
       aforementioned settled substantive law changed and was deemed to apply
       retroactively on collateral review;

       (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2)
       for second or successive motions; and

       (4) due to this retroactive change, the sentence now presents an error
       sufficiently grave to be deemed a fundamental defect.

Id. at 429 (paragraph breaks added).

       Finding that Wheeler satisfied all four conditions, we allowed him to challenge his

sentence. Id. at 429–30.




                                              8
                                           III.

       The question before us is whether Lester, like Wheeler, can use the savings clause

to challenge his sentence. We must decide, in short, how Wheeler applies in Lester’s case.

       Nobody disagrees that the first three Wheeler requirements are satisfied. First,

Lester’s sentence was legal at the time. When Lester was sentenced in June 2004, settled

precedent established that his past conviction for walkaway escape was a “crime of

violence.” With this prior crime of violence (plus an old controlled substance offense

irrelevant to this appeal), Lester was deemed a “career offender,” subjecting him to an

enhanced sentencing range. See U.S.S.G. § 4B1.1(a)–(b). Second, well after Lester’s

direct appeal and § 2255 motion, the substantive law changed. After the Supreme Court

decided Chambers in 2009, both the Eleventh and Fourth Circuits ruled that Lester’s prior

offense is not a crime of violence. Clay, 627 F.3d at 969; Lee, 586 F.3d at 874. The

government hasn’t disputed that this new authority applies retroactively on collateral

review. Cf. Narvaez v. United States, 674 F.3d 621, 623 (7th Cir. 2011) (holding that

Chambers applies retroactively). Third, Lester can’t satisfy the gatekeeping provisions of

§ 2255. No new evidence suggests he’s actually innocent of the federal drug charges he

was imprisoned for, and Chambers is a decision of statutory interpretation, not

constitutional law.

       The only dispute, then, is whether this case meets the fourth Wheeler requirement—

whether Lester’s misclassification as a career offender, which increased his mandatory

Guidelines range from a maximum of 151 months to a minimum of 262, is an “error



                                            9
sufficiently grave to be deemed a fundamental defect.”         Wheeler, 886 F.3d at 429.

Applying the holding and reasoning of Wheeler, we conclude that it is.

                                            A.

       In Wheeler, we addressed whether an erroneous increase in the petitioner’s

mandatory minimum from five to ten years made his sentence fundamentally defective. Id.

at 430. We said it did because an “increase in the congressionally mandated sentencing

floor implicates separation of powers principles and due process rights fundamental to our

justice system.” Id. Specifically, we found the petitioner’s sentence fundamentally

defective because the district court was wrongly prevented from exercising the proper

range of his sentencing discretion.

       We reached this conclusion primarily by relying on two Supreme Court cases. First,

we observed that in Hicks v. Oklahoma, 447 U.S. 343 (1980), the Supreme Court found a

Fourteenth Amendment violation where a jury imposed a 40-year mandatory sentence

under a habitual offender statute that was later struck down. Without the enhancement, the

jury could have imposed a sentence as low as ten years. Id. at 346. The Supreme Court,

we noted, held that Hicks had a “substantial and legitimate expectation that he would be

deprived of his liberty only to the extent determined by the sentencing body in the exercise

of its statutory discretion.” Wheeler, 886 F.3d at 430 (brackets omitted) (quoting Hicks,

447 U.S. at 346). We observed that likewise in Wheeler’s case, without the enhancement

“the district court’s statutory discretion would have been expanded by a much lower

mandatory minimum.” Id. at 431.



                                            10
       Second, we discussed United States v. Tucker, 404 U.S. 443 (1972). In that case the

Supreme Court vacated a 25-year sentence that the judge had clearly based on two prior

convictions that were later ruled constitutionally invalid. Id. at 444–45, 448–49. The Court

explained that the sentence was not “imposed in the informed discretion of a trial judge”

but instead rested upon “misinformation of constitutional magnitude” and “assumptions

concerning [the defendant’s] criminal record which were materially untrue.” Id. at 447

(quoting Townsend v. Burke, 334 U.S. 736, 741 (1948)). We reasoned that Wheeler’s

sentence was similarly defective: the district court assumed his prior conviction was

sufficient to double his statutory minimum when in fact it was not. Wheeler, 886 F.3d at

431.

       Turning to our own precedent, we noted that we have previously described incorrect

sentencing benchmarks as fundamentally problematic because they create “the mistaken

impression that the district court had no discretion to vary downward from the low end of

the defendant’s range.” Id. (brackets omitted) (quoting United States v. Newbold, 791 F.3d

455, 460 n.6 (4th Cir. 2015) (citing Hicks, 447 U.S. at 346)). Given this fundamental

problem with an incorrect sentencing range, we rejected the notion that Wheeler’s sentence

was immune to challenge because he could have received the same ten-year sentence even

with the correct mandatory minimum. “[S]uch an arbitrary disregard of the petitioner’s

right to liberty,” we said, quoting Hicks, “is a denial of due process of law.” Id. at 431–32

(quoting 447 U.S. at 346).

       We also rejected the argument that any sentence below Wheeler’s 40-year statutory

maximum cannot be fundamentally defective, relying on two out-of-circuit cases. We

                                             11
noted that the Sixth and Seventh Circuits have held that a federal prisoner may use the

savings clause “to challenge the misapplication of the career offender Guideline, at least

where . . . the defendant was sentenced in the pre-Booker era,” even though the sentence

was below the statutory maximum. Id. at 432 (quoting Brown v. Caraway, 719 F.3d 583,

588 (7th Cir. 2013)); id. at 433 (discussing Hill v. Masters, 836 F.3d 591, 599 (6th Cir.

2016)). In both those cases, the petitioners—just like Lester—were erroneously subject to

career offender enhancements that substantially increased their sentencing ranges under

the then-mandatory Guidelines. See Hill, 836 F.3d at 593; Brown, 719 F.3d at 585. Both

courts, we noted, thus “recognize[d] the fundamental significance of a proper sentencing

range.” Wheeler, 866 F.3d at 433. Accordingly, we agreed with their view that a

sentencing error “need not result in a sentence that exceeds statutory limits in order to be a

fundamental defect.” Id.

                                              B.

       Lester argues that his sentence is fundamentally defective because, like Wheeler’s,

it was the product of an erroneous increase to his mandatory sentencing range. He says he

therefore should be allowed to challenge it under § 2241 via the savings clause. Under

Wheeler, we must agree.

       As the preceding discussion of Wheeler makes clear, in that case, we found that

Wheeler’s sentence suffered the same fundamental defect as the sentence in Hicks. A

defendant has a due process right to be “deprived of his liberty only to the extent

determined by the [trier of fact] in the exercise of its statutory discretion,” Hicks, 447 U.S.

at 346, but, because of an interpretive error, Wheeler was denied that right. And we

                                              12
suggested that incorrectly applied sentencing benchmarks are fundamentally problematic

because they wrongly cabin the district court’s discretion to impose a lower sentence when

the facts of the crime warrant it.

         Those problems are present in Lester’s case, but more so. Wheeler’s erroneous

sentencing enhancement raised the floor of the district court’s sentencing discretion from

five to ten years. Yet even without the erroneous enhancement, the court could still have

given Wheeler the same ten-year sentence. Lester’s sentence, in contrast, fell well outside

the district court’s proper range of sentencing discretion. Because of Lester’s erroneous

designation as a career offender, the court was required by statute to impose a sentence

between 262 and 327 months. See 18 U.S.C. § 3553(b)(1) (requiring courts to impose

Guidelines sentences), invalidated by Booker, 543 U.S. at 245. Without the enhancement,

though, the court would have been bound to issue a sentence within the 121–151 months

range.    Lester’s 262-month sentence, then, is more than nine years longer than the

maximum sentence that the court rightfully had discretion to order. By Wheeler’s logic,

this sentence is fundamentally defective.

         Our conclusion that Lester may collaterally attack his sentence also follows from

Wheeler’s discussion of two cases allowing challenges by petitioners in Lester’s very

predicament. In both Hill and Brown, the Sixth and Seventh Circuits allowed petitioners

sentenced within erroneous Guidelines ranges pre-Booker to challenge their sentences

under § 2241 via the savings clause. We cited these cases to reject the government’s

contention that any sentence falling below the statutory maximum is per se lawful and thus

immune from savings clause challenge. Our discussion of those cases, however, would

                                            13
have made little sense if we did not agree with their basic holding—that a sentence is

fundamentally defective when it exceeds the mandatory Guidelines range that, according

to later retroactive precedent, should have applied.

       For these reasons, we conclude that the sentencing error in Lester’s case is

“sufficiently grave to be deemed a fundamental defect.” Wheeler, 886 F.3d at 429.

                                                  C.

       The government offers two main arguments why Lester’s sentence is not

fundamentally defective such that he may not proceed via § 2255’s savings clause. We

find neither persuasive.

       First, the government urges that Wheeler doesn’t control here because, in that case,

the petitioner was sentenced pursuant to an erroneous statutory enhancement whereas

Lester’s range was mandated by the Sentencing Guidelines.            Unlike statutes, the

government contends, the Guidelines don’t establish the maximum and minimum lawful

sentences for crimes. See Mistretta v. United States, 488 U.S. 361, 396 (1989). Thus, it

argues, the separation-of-powers reasons for treating statutory mandatory minimum

sentences as fundamental defects do not translate to mandatory Guideline errors.

       The problem with the government’s argument, however, is that Wheeler was not

primarily a separation-of-powers case. To be sure, our opinion in Wheeler stated general

separation-of-powers principles applicable to sentencing. See 886 F.3d at 430 (“In the

federal system, ‘defining crimes and fixing penalties are legislative, not judicial,

functions.’” (quoting United States v. Evans, 333 U.S. 483, 486 (1948))). But we didn’t

find Wheeler’s sentence fundamentally defective because the court lacked authority from

                                             14
Congress to impose it. Nor could we, given that Wheeler’s ten-year sentence fell well

within the correct statutory range of 5–40 years. Rather, Wheeler turned on the notion that

a defendant has a due process right to have the trier of fact “exercise . . . its statutory

discretion” when imposing a sentence. Hicks, 447 U.S. at 346. The government can’t

dispute that Lester’s right to this appropriate exercise of discretion was denied here because

his erroneous designation as a career offender produced a statutorily required sentencing

range much higher than the correct range.

       The government’s second argument is that United States v. Foote, and not Wheeler,

applies here. In Foote, we said a prisoner couldn’t challenge a trial court’s misapplication

of the advisory Guidelines under § 2255. 784 F.3d at 932. The government is correct that

in Foote, we distinguished a misapplied career offender enhancement from fundamental

defects such as “sentences issued ‘in excess of the maximum authorized by law.’” Id. at

942 (quoting 28 U.S.C. § 2255(a)). But crucial to our analysis in Foote was that the

petitioner, unlike Lester, was sentenced after Booker had rendered the Guidelines purely

advisory. Because the Guidelines lacked legal force, we explained, an erroneous advisory

Guidelines classification was unlike a violation of a statute or constitutional provision. Id.

at 942; see Wheeler, 886 F.3d at 432 n.9 (distinguishing Foote).

       Foote undoubtedly would bar Lester’s petition had he been sentenced under the

advisory Guidelines. But Foote simply doesn’t apply to a petitioner sentenced in the pre-

Booker era. Indeed, we denied the petitioner’s claim in Foote partly on the grounds that,

because he was sentenced under the advisory Guidelines, the district court not only had

discretion to decide whether the Guidelines sentence was justified, but in fact was required

                                             15
to do so. Foote, 784 F.3d at 941–42; see 18 U.S.C. § 3553(a) (requiring individualized

analysis of sentencing factors). That discretion is precisely what the district court lacked

at Lester’s sentencing because, at that time, the Guidelines were mandatory.

       We also reject the idea, floated here and there by the government, that because a

district court theoretically could depart from the Guidelines even when they were

mandatory, the due process concerns in Wheeler are misplaced. Departures were allowed

only when the court found aggravating or mitigating circumstances “not adequately taken

into consideration by the Sentencing Commission” in writing the Guidelines. 18 U.S.C.

§ 3553(b)(1). As the Supreme Court explained in Booker, “[i]n most cases, as a matter of

law, the Commission will have adequately taken all relevant factors into account, and no

departure will be legally permissible.” 543 U.S. at 234. In other words, in most cases—

and doubtless in a “run-of-the-mill drug case” like Lester’s—the district court had no

discretion to deviate from the Guidelines. See id. at 235.

       In short, we find the government’s attempts to skirt Wheeler unpersuasive. And this

is so even as we are mindful that the savings clause should provide only the tightest

alleyway to relief. Section 2255 is not “inadequate or ineffective” just because the prisoner

can’t successfully challenge his sentence under that provision. As we have said before,

interpreting the savings clause coextensively with § 2255 would “effectively nullify the

gatekeeping provisions” that Congress carefully wrote into that statute. Jones, 226 F.3d at

333.

       However, our analysis is governed by Wheeler, and we find no meaningful

distinction to support a different result in this case. Where, as here, an erroneous career

                                             16
offender designation raises a defendant’s mandatory prison term from a maximum of 12 ½

years to a minimum of almost 22, the resulting sentence is fundamentally defective.



                                              IV.

       Because Lester satisfies all four Wheeler requirements, we hold that 28 U.S.C.

§ 2255 is inadequate and ineffective to test the legality of his detention and that his petition

under 28 U.S.C. § 2241 should be heard on the merits. We therefore vacate the district

court’s judgment and remand the case for further proceedings consistent with this opinion.



                                                               VACATED AND REMANDED




                                              17
