BLD-194                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-4441
                                     ___________

                                 FRANK CUSANO,
                                             Appellant
                                       v.

                         UNITED STATES OF AMERICA
                     ____________________________________

                     Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 09-cv-04214)
                    District Judge: Honorable Jerome B. Simandle
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 13, 2010

      Before: McKEE, Chief Judge, RENDELL and CHAGARES, Circuit Judges

                                 (Filed: July 26, 2010)
                                      _________

                             OPINION OF THE COURT
                                   _________

PER CURIAM

      Frank Cusano appeals pro se from the District Court’s dismissal of his habeas

petition. We will summarily affirm. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
                                             I.

       Cusano admits that, in 2001, he arranged three sales of heroin by his “source” to

Gavin Holland. Holland later died of an overdose after using that heroin. The

Government, alleging that Cusano himself distributed the heroin, charged him in the

Southern District of New York with three felony counts of distribution or possession with

the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because

Holland died as a result, Cusano faced a minimum sentence of 20 years of imprisonment.

See 21 U.S.C. § 841(b)(1)(C).

       Cusano avoided that mandatory minimum sentence by pleading guilty to four

counts of using a “communications facility” (i.e., a cellular phone) in committing and

causing or facilitating a felony under the Controlled Substances Act in violation of 21

U.S.C. § 843(b). At his plea colloquy, Cusano admitted that he used his phone “in order

to commit a felony; namely, aiding and abetting the distribution of heroin.” He further

admitted that he spoke with Holland about buying heroin four times, that Holland asked

to be taken to Cusano’s source to buy heroin, and that Cusano agreed and “took him to

The Bronx where he then bought heroin.” Cusano and the Government agreed that

Cusano’s Sentencing Guidelines range, as limited by the statutory maximum sentence,

was 168 to 192 months of imprisonment. The trial court sentenced him to 168 months.

Cusano later filed a motion challenging his conviction under 28 U.S.C. § 2255 in the

Southern District of New York. That court denied it, the Second Circuit affirmed, and the



                                             2
Supreme Court denied certiorari.

       Cusano, now incarcerated within the District of New Jersey, then filed the habeas

petition at issue here under 28 U.S.C. § 2241. The District Court “denied” the petition for

lack of jurisdiction by order entered November 9, 2009. Cusano appeals.1

                                             II.

       Federal prisoners challenging the validity of their sentences generally must do so

by means of a § 2255 motion in the sentencing court (here, the Southern District of New

York). See 28 U.S.C. § 2255(e); Cradle, 290 F.3d at 538. We have recognized a narrow

exception permitting resort to § 2241 by “a prisoner who had no earlier opportunity to

challenge his conviction for a crime that an intervening change in substantive law may

negate[.]” In re Dorsainvil, 119 F.3d 254, 251 (3d Cir. 1997). In Dorsainvil, we

permitted resort to § 2241 because the Supreme Court’s decision in Bailey v. United

States, 516 U.S. 137 (1995), rendered after Dorsainvil already had filed a § 2255 motion,

interpreted his statute of conviction in a way that suggested he might be “imprisoned for

conduct that the Supreme Court has determined is not illegal.” Id. at 247. We

emphasized that the exception was a “narrow” one reserved for prisoner’s in Dorsainvil’s




  1
   We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A
certificate of appealability is not required to appeal the denial of Cusano’s putative § 2241
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). Our review of the
District Court’s legal conclusions is plenary. See Cradle v. United States ex rel. Miner,
290 F.3d 536, 538 (3d Cir. 2002).

                                             3
“uncommon” situation. Id. at 248.2

       In this case, Cusano relies on Dorsainvil and argues that he should be permitted to

challenge his conviction under § 2241 because the Supreme Court decriminalized the

conduct to which he pleaded guilty in Abuelhawa v. United States, — U.S. —, 129 S. Ct.

2102 (2009). The District Court denied the petition for lack of jurisdiction after

concluding that Cusano’s claim does not fit within Dorsainvil. We do not agree with the

District Court’s reasoning in all respects, but we agree with its ruling.

       In Abuelhawa, the Court held that a drug buyer who uses a telephone to make a

purchase that would constitute only a misdemeanor under 21 U.S.C. § 844(a) cannot be

deemed to “facilitate” the seller’s felony of distribution under 21 U.S.C. § 841(a), and

thus cannot be guilty of using a communications facility to “facilitate” a felony in

violation of § 843(b). See Abuelhawa, 129 S. Ct. at 2105-08. Cusano did not plead

merely to being a drug buyer, so the narrow holding of Abuelhawa does not apply to him.

       For the same reason, the Court’s two rationales do not apply to him either. First,

the Court explained that a drug buyer, merely by engaging in the transaction, does not




  2
   We have never squarely addressed whether a Dorsainvil-like challenge can be brought
under § 2241 within the district of confinement where, as here, the petitioner was
convicted in a different district. Cf. In re Nwanze, 242 F.3d 521, 524-27 (3d Cir. 2001)
(noting that the district of conviction and confinement were the same in Dorsainvil and
declining to issue writ of mandamus to prevent transfer of a § 2241 petition to the district
of conviction within the Fourth Circuit). We need not address that issue in this case
because, as explained below, Cusano’s challenge does not fit within Dorsainvil and thus
cannot be asserted under § 2241 in the first place.

                                              4
“facilitate” it as that term is commonly understood. See id. at 2105-06. Cusano, by

contrast, did not plead that he merely bought heroin from his source. Instead, he pleaded

to using his cellular phone to assist Holland in buying heroin (and, by necessary

implication, to assist his source in selling it). His actions thus constitute “facilitation.”

See id.

          Second, the Court concluded that treating a misdemeanor drug purchase as a

felony merely because the buyer used a cellular phone would be inconsistent with

Congress’s intent to treat simple possession more leniently than distribution. See id. at

2106-07. As the Court explained, by downgrading simple possession to a misdemeanor

and limiting § 843(b) to facilitation of felonies, “Congress meant to treat purchasing

drugs for personal use more leniently than the felony of distributing drugs, and to narrow

the scope of the communications provision [i.e., § 843(b)] to cover only those who

facilitate a drug felony.” Id. at 2107. Subjecting a buyer for personal use to the felony

provisions of § 843(b) merely because the buyer used a telephone would upset this

statutory balance. See id.

          Cusano, by contrast, did not plead to mere possession or any other conduct that the

Controlled Substances Act treats more leniently than distribution. Instead, he was

charged with the felony of distributing or possessing with the intent to distribute heroin in

violation of 21 U.S.C. §§ 841(a) and (b)(1)(C). He then specifically pleaded guilty to

using a cellular phone to facilitate the felony of distribution of heroin to Holland in



                                               5
violation of § 843(b). Abuelhawa does not render that conduct non-criminal.3

       Thus, we agree with the District Court that Cusano’s challenge under Abuelhawa

does not fit within the narrow Dorsainvil exception, that he is not permitted to raise that

challenge under § 2241 in the district of his confinement, and that the District Court thus

lacked jurisdiction to consider his petition. Accordingly, we will affirm. As the District

Court did, we note that our ruling is without prejudice to Cusano’s ability to seek to raise

this challenge by means of a second § 2255 motion in the Southern District of New York

or a § 2244 application in the Second Circuit. We express no opinion on the propriety of

any such attempt. Cusano’s motion for summary action is denied.




  3
    Abuelhawa means that Holland did not commit a § 843(b) felony merely because he
used a cellular phone to commit the § 844 misdemeanor of possessing heroin for his own
personal use, but it says nothing about Cusano’s conduct. Cusano appears to argue that
he should be deemed to have facilitated only Holland’s misdemeanor, and not his or his
source’s felony of distribution. Abuelhawa does not address that issue. In addition, we
note that Cusano argued in his § 2255 motion that his counsel rendered ineffective
assistance in advising him to plead guilty to § 843(b) felonies because he was guilty only
of the misdemeanor of simple possession. The Southern District of New York rejected
that argument, noting that Cusano specifically pleaded to “us[ing] a telephone to organize
and facilitate heroin purchases in knowing violation of the law” and that the Government
had “overwhelming evidence,” in the form of Cusano’s confession and otherwise, that
Cusano himself actually purchased heroin for redistribution. Cusano v. United States,
No. 05-cv-7177, 2007 WL 4142771, at *2-3 (S.D.N.Y. Nov. 16, 2007).

                                              6
