     Case: 17-50989      Document: 00515440588         Page: 1    Date Filed: 06/04/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                              FILED
                                      No. 17-50989                          June 4, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO RODRIGUEZ-CASTRO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:16-CV-255


Before JOLLY, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Francisco Rodriguez-Castro, federal inmate # 56468-280, appeals the
district court’s denial of his motion to vacate his sentence under 28 U.S.C.
§ 2255. We affirm.
                    FACTS AND PROCEDURAL HISTORY
       Rodriguez-Castro pleaded guilty to conspiracy to possess with intent to
distribute fifty grams or more of methamphetamine. Pursuant to his plea,
Rodriguez-Castro agreed to an appeal waiver, including a waiver of his right


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 17-50989

to challenge his conviction in a collateral proceeding, but reserved the right to
raise claims of ineffective assistance of counsel and prosecutorial misconduct.
Relying on the presentence report, the district court sentenced Rodriguez-
Castro as a career offender under U.S.S.G. § 4B1.1 based on his prior drug
convictions. 1 The career offender designation produced an advisory sentencing
guidelines range of 262 to 327 months.                   Without the career offender
designation, Rodriguez-Castro’s sentencing guidelines range would have been
135 to 168 months. The court sentenced Rodriguez-Castro to 262 months and
five years of supervised release, a sentence at the bottom of the range for career
offenders and well below the statutory maximum sentence of life
imprisonment.
       On direct appeal, Rodriguez-Castro’s counsel moved for leave to
withdraw and filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), asserting that there was no non-frivolous issue for appeal and that
the government intended to enforce the appeal waiver. This court granted
counsel’s motion to withdraw and dismissed the appeal on April 20, 2016. See
United States v. Rodriguez-Castro, 646 F. App’x 361, 361-62 (5th Cir. 2016).
       On June 23, 2016, the United States Supreme Court decided Mathis v.
United States, 136 S. Ct. 2243 (2016), which clarified the rules courts use to
determine whether state criminal statutes fall within generic categories
created by federal law. Id. at 2256-57. In subsequent decisions, our court has
applied Mathis to conclude that convictions under TEXAS HEALTH &
SAFETY CODE § 481.112(a) are not “controlled substance offense[s]” under

       1 Under U.S.S.G. § 4B1.1, courts apply the career offender sentencing enhancement
to certain defendants who have “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” Id. Here, one of Rodriguez-Castro’s two predicate
convictions was a federal offense for possessing with intent to distribute cocaine and cocaine
base. The other predicate conviction arose under TEXAS HEALTH & SAFETY CODE §
481.112(a), which provides that an offense is committed “if [a] person knowingly
manufactures, delivers, or possesses with intent to deliver a controlled substance.” Id.


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U.S.S.G. § 4B1.1. United States v. Hinkle, 832 F.3d 569, 576–77 (5th Cir.
2016); United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017).
      On June 30, 2016, which was within the ninety-day time-period for
petitioning the Supreme Court for a writ of certiorari on direct appeal,
Rodriguez-Castro filed a pro se motion under 28 U.S.C. § 2255 challenging his
career offender designation. Rodriguez-Castro also unsuccessfully moved the
district court for appointment of counsel. Through counsel obtained on his
own, Rodriguez-Castro’s motion was later amended to assert that the district
court erred in designating him as a career offender because his prior Texas
drug offense no longer qualified as a predicate controlled substance offense
under Mathis and Hinkle, and that counsel was ineffective for failing to object
to the use of the Texas offense in support of the guidelines career offender
designation. The district court denied Rodriguez-Castro’s motion and denied
a certificate of appealability (COA).
      This court subsequently granted a COA on the issue of whether the
“miscarriage of justice” exception under United States v. Vaughn, 955 F.2d 367
(5th Cir. 1992), applies in light of the unique timing of the various events of
Rodriguez-Castro’s case. Id. At 368 (“Relief under . . . § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice.”); see also Conley v. United States, 137 S. Ct.
153 (2016).
                          STANDARD OF REVIEW
      In considering the denial of relief under § 2255, this court reviews the
district court’s factual findings for clear error and questions of law de novo.
See United States v. Williamson, 183 F.3d 458, 461 (5th 1999).




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                                 DISCUSSION
      Nonconstitutional claims are only cognizable under § 2255 if they stem
from injuries “that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.” Vaughn, 955 F.2d at
368. In his § 2255 proceeding, Rodriguez-Castro raised a nonconstitutional
claim by challenging his sentencing as a career offender under the advisory
Sentencing Guidelines based on cases, including Mathis, that issued after we
dismissed his direct appeal as frivolous. Even if Rodriguez-Castro could not
have asserted his instant challenge to the district court’s application of the
Sentencing Guidelines on direct appeal, he has not shown that his career
offender designation raises a cognizable claim of a fundamental defect
resulting in a complete miscarriage of justice. See United States v. Capua, 656
F.2d 1033, 1037 (5th Cir. Unit A 1981); see also United States v. Cervantes, 132
F.3d 1106, 1109 (5th Cir. 1998).       Rodriguez-Castro received a 262-month
sentence, which is below the statutory maximum term of life imprisonment.
Even if he is no longer a career offender under the Guidelines, which are
advisory, see United States v. Clay, 787 F.3d 328, 331 (5th Cir. 2015), he has
not shown that his sentence is unlawful or was invalid at the time it was
entered, see United States v. Addonizio, 442 U.S. 178, 185-87 (1979); United
States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994); Dozier v. U.S. Dist. Court for
Northern Dist. of Florida, 656 F.2d 990, 992 (5th Cir. Unit B 1981); see also
§ 2255(a).
      Furthermore, although Mathis issued within the ninety-day period for
seeking a writ of certiorari after the dismissal of Rodriguez-Castro’s direct
appeal, and although Rodriguez-Castro sought and was denied counsel during
that ninety-day period, he had no right to counsel to file a petition for a writ of
certiorari. See Wainwright v. Torna, 455 U.S. 586, 586 (1982). Moreover, he



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elected not to petition, pro se, for a writ. Thus, as to the timing of his direct
appeal and his efforts to obtain counsel while his direct appeal was still viable,
Rodriguez-Castro has not shown any purported violation much less a violation
rising to the level of a complete miscarriage of justice. See Capua, 656 F.2d at
1037.
        To the extent that Rodriguez-Castro seeks to raise an independent claim
of ineffective assistance of counsel, it is beyond the scope of the issue on which
his COA was granted. See United States v. White, 307 F.3d 336, 339 n.1 (5th
Cir. 2002). In any event, counsel does not have a duty to anticipate changes in
the law or to raise claims that this court has rejected. See United States v.
Fields, 565 F.3d 290, 294-95 (5th Cir. 2009).
        For these reasons, the district court’s judgment denying Rodriguez-
Castro’s Amended Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 is
AFFIRMED.




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