                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 18a0249p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 JEREMY SNIDER,                                           ┐
                                  Petitioner-Appellant,   │
                                                          │
                                                           >       No. 16-6607
        v.                                                │
                                                          │
                                                          │
 UNITED STATES OF AMERICA,                                │
                                  Respondent-Appellee.    │
                                                          ┘

                          Appeal from the United States District Court
                       for the Western District of Tennessee at Jackson.
             Nos. 1:06-cr-10005-1; 1:11-cv-01174—James D. Todd, District Judge.

                              Decided and Filed: November 9, 2018

                Before: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.

                                       _________________

                                            COUNSEL

ON BRIEF: Dennis G. Terez, Beachwood, Ohio, for Appellant. Jerry Kitchen, UNITED
STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

    SUHRHEINRICH, J., delivered the opinion of the court in which BUSH, J., joined.
MOORE, J. (pp. 13–23), delivered a separate dissenting opinion.
                                       _________________

                                            OPINION
                                       _________________

       SUHRHEINRICH, Circuit Judge.            Petitioner Jeremy Snider (“Snider”) appeals the
district court’s denial of his petition for collateral relief under 28 U.S.C. § 2255. Snider contends
that this court’s en banc ruling in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc),
cert. granted, 138 S. Ct. 1592 (Apr. 23, 2018)—holding that a conviction for Tennessee
 No. 16-6607                                  Snider v. United States                                         Page 2


aggravated burglary under TENN. CODE ANN § 39-14-403, is not a “violent felony” for purposes
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)—requires us to vacate his
sentence as a career offender under advisory sentencing guidelines range, U.S.S.G. § 4B1.1(a),
because it is also not a “crime of violence.” For the following reasons, we affirm the denial of
Snider’s motion to vacate his sentence.

                                                           I.

                                                          A.

         Between 1992 and 2006, Snider committed assorted crimes, including four convictions
under Tennessee’s aggravated burglary statute, TENN. CODE ANN. § 39-14-403. As the district
court put it at sentencing, “[y]ou basically, Mr. Snider, have been a one-man crime wave.” On
November 2, 2006, he was charged with conspiracy to manufacture methamphetamine, in
violation of 21 U.S.C. § 846; manufacturing and attempting to manufacture over 50 grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; possessing equipment,
chemicals, products, and materials that may be used to manufacture methamphetamine, in
violation of 21 U.S.C. § 843(a)(6); possessing a firearm after being convicted of a felony, in
violation of 18 U.S.C.§ 922(g); possessing a stolen firearm, in violation of 18 U.S.C. § 922(j);
and possessing a firearm during and in relation to a drug-trafficking crime, in violation of
18 U.S.C. § 924(c). On July 6, 2007, a jury convicted him on all counts.

         Snider’s presentence report recommended an adjusted offense level of 34 under the U.S.
Sentencing Guidelines Manual § 4B1.1(b)(B), because Snider qualified as a career criminal
offender based on three Tennessee aggravated burglary convictions deemed crimes of violence.
The guidelines define a career offender as having at least two prior felony convictions for crimes
of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a). At the time of Snider’s
sentencing, “crime of violence” was defined to include “burglary of a dwelling.” U.S.S.G.
§ 4B1.2(a) (Nov. 1, 2007).1


         1The  full definition included any felony that “(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a) (Nov.1, 2007). The Sentencing Commission has since removed “burglary of a dwelling” from
 No. 16-6607                              Snider v. United States                                     Page 3


        The presentence report relied (erroneously it turns out) on three burglaries committed in
1995. In March 1995, Snider broke into three different residences on three different dates,
March 19, 20, and 21. He was arrested for all three burglaries on the same day, April 19, 1995,
and pleaded guilty to all three crimes on the same day, May 22, 1995.                     Id. Although the
presentence report did not rely upon it in its calculation of the career offender designation, it also
listed an additional qualifying Tennessee aggravated burglary conviction.

        With the career offender designation, Snider’s guidelines range was 360 months to life.
(citing U.S.S.G. § 4B1.1(c)(3)). The presentence report noted that Snider’s adjusted offense
level after application of the various sentencing enhancements would have been the same in any
event. However, without the career offender designation, based on Snider’s criminal history
score of 17, which established a criminal history category of VI, Snider’s resulting advisory
guidelines range was 262 to 327 months, plus 60 months consecutive.

        Snider did not object to the classification of his prior convictions as crimes of violence in
his sentencing memorandum or at the sentencing hearing. Snider asked for a sentence above the
statutorily-mandated ten-year minimum, but “substantially less” than the 360 months suggested
by the guidelines.

        In considering the 18 U.S.C. § 3553 sentencing factors, the district court described the
instant crime as “very serious” and “involving the manufacture of a poison, along with firearms,
fleeing from police, putting police officers at risk during the flight.” The court noted that
Snider’s life of crime began at age 15 (he was 30 at the time of sentencing), that he had twenty-
four convictions listed in his presentence report, and that these included “serious burglary and
theft convictions” as well as “drug convictions.” The district court rejected Snider’s request for a
below-guidelines sentence, but sentenced him to the low end of the advisory guidelines range,
with a total sentence of 300 months on the first five counts and the required 60-month
consecutive sentence on count six.




the list of enumerated crimes of violence in § 4B1.2(a)(2). See U.S.S.G. Supp. to App. C., Amdt. 798 (eff. date
Aug. 1, 2016).
 No. 16-6607                               Snider v. United States                                     Page 4


        On direct appeal, Snider raised one issue—he successfully argued that count six of the
indictment mixed elements of two distinct offenses created by 18 U.S.C. § 924(c)(1)(A), and the
jury instructions did not cure this flaw. See United States v. Snider, 379 F. App’x 430 (6th Cir.
2010). On remand, the district court dismissed the § 924(c) charge, and reimposed the original
sentence on counts one through five, for a total sentence of 300 months.

                                                       B.

        On June 16, 2011, Snider filed a timely pro se motion under 28 U.S.C. § 2255, raising
four issues. On February 2, 2012, the district court directed the government to reply to Snider’s
first claim—that he received ineffective assistance of counsel at sentencing because counsel
failed to object to his designation as a career criminal “on the ground that his three convictions
for aggravated robbery were not committed ‘on occasions different from one another’”—and
denied relief on the three remaining claims.2 In response, the government argued that even if
Snider’s three prior aggravated burglary convictions should only collectively count as one crime
of violence, Snider still qualified as a career offender because he had an additional qualifying
conviction listed in the presentence report; that the ineffective assistance of counsel issue was not
fairly raised in Snider’s motion; and that there was no evidence of ineffective assistance of
counsel because Snider did not suffer any prejudice as a result of his attorney’s failure to object
to sentencing based on U.S.S.G. § 4A1.1(a)(2).

        On September 23, 2013, Snider filed a pro se motion to supplement his § 2255 motion
based on Alleyne v. United States, 570 U.S. 99, 108 (2013) (holding that any fact that increases
the mandatory minimum sentence for a crime is an “element” rather than a sentencing factor and
must be submitted to a jury) and Descamps v. United States, 570 U.S. 254, 260 (2013) (holding
that the modified categorical approach cannot be used to determine the nature of a prior
conviction under the ACCA when the crime of conviction has indivisible elements).                            On
November 14, 2013, the district court granted the motion to supplement and denied relief on the


        2The   district court noted that, although the presentence report used the 2006 version of the Sentencing
Guidelines, U.S.S.G. § 4A1.1 was amended by Amendment 709 to clarify that “[i]f there is no intervening arrest,
prior sentences are counted separately unless . . . the sentences were imposed on the same day.” U.S.S.G. App C
Amend. 709 took effect on November 1, 2007, prior to Snider’s April 18, 2008 sentencing.
 No. 16-6607                                 Snider v. United States                                         Page 5


first and supplemental claims. The court agreed with the government that although the three
aggravated burglaries should have been counted as only a single predicate, Snider was properly
classified as a career offender based on the additional aggravated burglary conviction listed in
the presentence report but not specifically designated as a predicate offense. The court failed to
see the relevance of Alleyne and Descamps and concluded that Snider was not entitled to relief
on the supplemental issue presented. Moreover, it stated that “this Court is bound by the Sixth
Circuit’s holding in Nance that ‘Tennessee aggravated burglary represents a generic burglary[.]”
Thus, the district court determined that none of the issues raised in Snider’s § 2255 motion had
merit and further declined to issue a certificate of appealability.

         On December 16, 2013, Snider filed a pro se motion for reconsideration under Fed. R.
Civ. P. 59(e), arguing in part that the district court erred in denying relief under Descamps.3
On September 9, 2016, the district court denied the motion:

                Snider . . . reiterates his argument, based on the decision in Descamps, that
         he was not properly sentenced as a career offender. He contends that the offense
         of aggravated burglary under Tennessee law is not categorically a crime of
         violence under the Career Offender guideline, U.S.S.G. § 4B1.1(a) because it is
         not a “generic” burglary. That argument is without merit. As the Court noted in
         the order denying the § 2255 motion, the Sixth Circuit held, in United States v.
         Nance, 481 F.3d 882, 887-88 (6th Cir. 2007), that “Tennessee aggravated
         burglary represents a generic burglary capable of constituting a violent felony for
         ACCA purposes.” . . . Even after the decision in Johnson v. United States, 135 S.
         Ct. 2551 (2015) [holding that an increased sentence under the residual clause of
         the ACCA violated the constitutional due process], the Sixth Circuit reaffirmed
         the holding in Nance. See United States v. Priddy, 808 F.3d 676, 684 (6th Cir.
         2015).

         On May 16, 2017, this court granted a certificate of appealability, stating that “reasonable
jurists would find it debatable whether the district court erred in denying Snider’s claims that he
was incorrectly classified as a career offender and that he received ineffective assistance of
counsel.” We also appointed counsel.

         3Snider      also filed pro se several motions to supplement the motion for reconsideration. In the final one,
filed on July 11, 2016, Snider argued for reconsideration in light of Mathis v. United States, 136 S. Ct. 2243 (2016),
as well as “in light of new developments regarding the Sixth Circuit Court of Appeals granting en banc for United
States v. Stitt . . . to determine Tennesse(s) [sic] aggravated burglary statute which is overbroad.” He also requested
that counsel be appointed.
 No. 16-6607                           Snider v. United States                               Page 6


                                                 II.

       Legal conclusions in a habeas corpus petition are reviewed de novo. Cradler v. United
States, 891 F.3d 659, 664 (6th Cir. 2018).

       Snider argues that we should vacate the district court’s order denying his § 2255 motion
because the district court relied on law that has since been overruled in our en banc decision in
Stitt. Relatedly, he argues that because of ineffective assistance of counsel, he was incorrectly
assessed as a career offender under the Sentencing Guidelines. The government has several
responses: First, that Snider’s reliance on Stitt is misplaced because Stitt dealt with the definition
of generic burglary in the ACCA, and Snider’s sentence is based on the advisory sentencing
guidelines.   So, Snider has forfeited his argument on appeal.         Second, that Snider cannot
challenge an advisory guidelines calculation on collateral review.              Third, that Snider
procedurally defaulted his claim by failing to raise it during sentencing, and he cannot show
cause and prejudice to excuse his default. Fourth, that Snider received effective assistance from
his sentencing counsel and suffered no prejudice.

                                                 A.

       In Stitt, the en banc court held that because Tennessee’s aggravated burglary statute is
both broader than the generic form of burglary and indivisible, such a conviction does not
categorically qualify as “violent felony” under the ACCA, 18 U.S.C. § 924(e). Stitt, 860 F.3d at
857. In the process, Stitt overruled United States v. Nance, 481 F.3d 882 (6th Cir. 2007), which
held that Tennessee’s aggravated-burglary statute matched the ACCA’s definition of generic
burglary, and abrogated United States v. Priddy, 808 F.3d 676 (6th Cir. 2015) (applying Nance).
Stitt, 860 F.3d at 861.

       Snider claims that we must vacate the district court’s order because the lower court relied
on Nance when it denied his § 2255 motion and Stitt has overruled Nance. The government
responds that because Snider’s sentence was based on U.S.S.G. § 4B1.1, not the ACCA, Stitt is
not directly on point, and Snider’s guidelines calculation challenge is somehow forfeited. See
Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005) (failing to raise an
argument on appeal constitutes a forfeiture of the argument on appeal); see also United States v.
 No. 16-6607                          Snider v. United States                              Page 7


Blair-Torbett, 230 F. App’x 483, 490 (6th Cir. 2007) (stating that an objection made on appeal
that differs from the one made at sentencing is reviewed for plain error).

       We agree with the government’s assertion that Snider would have come somewhat closer
to the mark had he cited Mathis v. United States, 136 S. Ct. 2243 (2016), and United States v.
Ozier, 796 F.3d 597 (6th Cir. 2015), both of which were decided by the time of this appeal.
Ozier held that the Tennessee aggravated burglary statute is broader than “burglary of a
dwelling,” under U.S.S.G. § 4B1.2(a)(2), Ozier, 796 F.3d at 600-02, and Mathis clarified that the
statute is not divisible, Mathis, 136 S. Ct. at 2251 n.1 (abrogating Ozier’s conclusion to the
contrary). Thus, after Mathis, the Tennessee aggravated burglary statute is indivisible and, per
Ozier, broader than the guidelines definition of “burglary of a dwelling.”

       To be fair, it must be acknowledged that this court has repeatedly equated the definition
of “violent felony” under the ACCA “to the parallel determination of whether a prior conviction
constitutes a ‘crime of violence’ under USSG § 4B1.2(a),” United States v. Bartee, 529 F.3d
357, 359 (6th Cir. 2008) (citing inter alia, United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.
1995)); United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013) (“we analyze a crime of
violence under the career-offender guideline just as we do a ‘violent felony’ under the
[ACCA]”); United States v. Johnson, 707 F.3d 655, 659 n.2 (6th Cir. 2013) (“A ‘crime of
violence’ under the career-offender provision is interpreted identically to a ‘violent felony’ under
ACCA.”) (citation omitted), and, one year prior to Snider’s sentencing in April 2008, we held
that “Tennessee aggravated burglary represents a generic burglary capable of constituting a
violent felony for ACCA purposes.” Nance, 481 F.3d at 888. Moreover, in granting the
certificate of appealability, we relied on ACCA authority, including Stitt:

       At the time Snider was sentenced, a crime of violence was defined, among other
       things, as any offense punishable by imprisonment of more than one year that is
       arson, burglary of a dwelling, extortion, or involves the use of explosives. USSG
       § 4B1.2(a)(2) (2010). While we have held that Tennessee’s aggravated burglary
       statute constitutes a crime of violence under the enumerated-offenses clause,
       United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015), we recently granted en
       banc review in another case to reconsider whether Tennessee’s aggravated-
       burglary statute qualifies as generic burglary. . . . Because it is unclear whether
       Snider’s aggravated-burglary convictions constitute crimes of violence,
       reasonable jurists could debate the district court’s resolution of these claims.
 No. 16-6607                          Snider v. United States                              Page 8


ECF 8-2, p.2-3. Because we have consistently intermingled our own precedent regarding the wo
provisions, and we are free to affirm the district court for any reason supported by the record, see
Clark v. United States, 764 F.3d 653, 660-61 (6th Cir. 2014), we decline to dismiss Snider’s first
claim on this basis.

                                                B.

       Snider’s non-constitutional challenge to his advisory guidelines range suffers from a
greater defect: it is not cognizable under § 2255. The statute authorizes postconviction relief
only when a sentence “was imposed in violation of the Constitution or laws of the United States,
or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .”
28 U.S.C. § 2255(a). Thus, § 2255 claims that do not assert a constitutional or jurisdictional
error are generally cognizable only if they involved “a fundamental defect which inherently
results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974)
(internal quotation marks and citation omitted). This standard is met only by “exceptional
circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.”
Hill v. United States, 368 U.S. 424, 428 (1962) (internal quotation marks and citation omitted).
In other words, not “every asserted error of law can be raised on a § 2255 motion.” Davis,
417 U.S. at 346; see United States v. Addonizio, 442 U.S. 178, 185 (1979); see also United States
v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001) (“Courts have generally declined to collaterally
review sentences that fall within the statutory maximum.”). The statutory maximum for a
violation of 21 U.S.C. § 846 is forty years. See 21 U.S.C. § 841(b)(1)(B)(viii).

       Although the Supreme Court has not addressed whether an advisory, non-constitutional
Sentencing Guidelines case could reach such exceptional levels, see Hawkins v. United States,
706 F.3d 820, 829 (7th Cir. 2013) (Rovner, J. dissenting), opinion supplemented on denial of
reh’g, 724 F.3d 915, it has provided certain guideposts. At one end is Davis, which held that §
2255 relief is available for someone whose conviction is based on conduct that is later
determined to be non-criminal. Davis, 417 U.S. at 346-47. In this situation, “[t]here can be no
room for doubt that such a circumstance inherently results in a complete miscarriage of justice
and presents exceptional circumstances that justify collateral relief under § 2255.” Id. (internal
 No. 16-6607                          Snider v. United States                              Page 9


quotation marks and alteration omitted). At the other end of the spectrum, the Supreme Court
has held on several occasions that a district court’s failure to follow procedural rules is not
tantamount to a complete miscarriage of justice absent prejudice to the defendant. See, e.g.,
Peguero v. United States, 526 U.S. 23, 24 (1999) (district court’s failure to inform the defendant
of the right to appeal was not cognizable under § 2255 where the defendant knew about the
right); United States v. Timmreck, 441 U.S. 780, 784-85 (1979) (collateral relief not available for
failure to mention special parole term at Rule 11 hearing); Hill v. United States, 368 U.S. 424,
429 (1962) (sentencing judge’s failure to ask the defendant if he wanted to speak at his
sentencing hearing was not an error of constitutional magnitude cognizable under § 2255).

       “Between these limits—punishment for conduct later rendered non-criminal on one end
and non-prejudicial procedural errors on the other—” lies Addonizio. United States v. Foote,
784 F.3d 931, 937 (4th Cir. 2015). Addonizio held that post-sentencing changes in Parole
Commission policies that extended the federal prisoner’s sentence beyond the sentencing judge’s
expectation did not create a cognizable § 2255 claim because the sentence imposed by the
district court was “within the statutory limits; and the proceeding was not infected with any error
of fact or law of the ‘fundamental’ character that renders the entire proceeding irregular and
invalid.” Addonizio, 442 U.S. at 186. Unlike the decision in Davis, which involved “a change in
the substantive law that established the conduct for which petitioner had been convicted and
sentenced was lawful,” the petitioner’s challenge in Addonizio “did not affect the lawfulness of
the judgment itself—then or now.” Id. at 186-87.

       In Foote, a case very similar to our own, the Fourth Circuit relied on Addonizio in
concluding that the defendant-appellant did not have a cognizable § 2255 claim based on a
misapplication of a subsequently-nullified career offender designation. Foote, 784 F.3d at 943.
The Foote defendant was convicted of distributing crack cocaine and classified as a career
offender based on two prior North Carolina convictions for possession with intent to sell cocaine.
Id. at 932-33. After an intervening change in law, one of his prior drug offenses no longer
qualified as a predicate “controlled substance offense” under the career offender guideline, so the
defendant sought resentencing via a § 2255 motion. Id. at 934-35. The Fourth Circuit held that
“sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is
 No. 16-6607                                Snider v. United States                                     Page 10


later invalidated does not meet” the “remarkably high bar” for § 2255 relief. Id. at 936.4 The
Foote court observed that the Supreme Court has found a “miscarriage of justice” only if it
appears that the petitioner is “actually innocent” of the underlying crime.                      Id. at 940-41.
Furthermore, under the advisory guidelines scheme, a career offender designation is, unlike a
statute, only “one part of a series of guidelines meant to guide the district court to the proper
sentence,” from which district courts are free to vary. Id. at 941 (emphasis in original). The
Foote court therefore concluded that a mistaken career offender designation is not a
“fundamental defect that inherently results in a complete miscarriage of justice.” Id. at 940, 942-
43.

        Like the petitioner in Foote, Snider alleges that an intervening change in the law rendered
his career offender designation erroneous. Snider does not allege that he is innocent of the
charged offense or the underlying predicate offenses. He does not rely on any constitutionally
prohibited factors. Snider was sentenced under an advisory guidelines scheme, and the district
court applied the 18 U.S.C. § 3553(a) factors at sentencing. Although the career designation
may have affected the ultimate sentence imposed, “it did not affect the lawfulness of the
[sentence] itself—then or now.” Addonizio, 442 U.S. at 187; see also Gibbs v. United States,
655 F.3d 473, 479 (6th Cir. 2011) (“A challenge to the sentencing court’s guidelines calculation .
. . only challenges the legal process used to sentence a defendant and does not raise an argument
that the defendant is ineligible for the sentence she received.”). Therefore, like the petitioner in
Foote, Snider is not entitled to § 2255 relief.

        In short, no “exceptional circumstances” justify issuance of the writ in this case,
especially because, without the career offender designation, Snider’s adjusted offense level after
the application of various sentencing enhancements was also 34, resulting in an advisory
guidelines range of 262 to 327 months. See Peugh v. United States, 569 U.S. 530, 536 (2013)


        4Also    like the defendant in Foote, Snider has 17 criminal history points without the career offender
provision. See Foote, 784 F.3d at 933 n.1 Unlike the Foote defendant, whose advisory guidelines range jumped
from 151-188 months to 262-327 months with the career offender designation, id. at 933, the sentence Snider
received was within the sentencing advisory guidelines range unenhanced by the career offender status. Cf. Sun
Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc) (holding that the defendant’s 360-month sentence
imposed under a career offender designation was not imposed in excess of statutory authority; noting that the
petitioner’s sentence was within the sentencing range had the career offender status not been applied).
 No. 16-6607                                 Snider v. United States                                      Page 11


(noting that the Sentencing Guidelines “should be the starting point and the initial benchmark”;
holding that a retrospective increase in an applicable guidelines range created a constitutional ex
post facto violation). Snider’s 300-month sentence is within the middle of that range, which
cannot be plausibly characterized as a “fundamental defect which inherently results in a
complete miscarriage of justice.” Davis, 417 U.S. at 346 (internal quotation marks and citation
omitted).       Snider’s misapplication-of-an-advisory-guidelines-range claim is therefore not
cognizable under § 2255.

          We note that, although not without dissent, every other court of appeals to have looked at
the issue has agreed that a defendant cannot use a § 2255 motion to vindicate non-constitutional
challenges to advisory guideline calculations.                See Foote, 784 F.3d at 939 (“[T]here is no
decision left standing in any circuit whereby a challenge to one’s change in career offender
status, originally determined correctly under the advisory Guidelines, is cognizable on collateral
review.     However, we cannot ignore that these decisions are extremely close and deeply
divided.”); Spencer v. United States, 773 F.3d 1132, 1144 (11th Cir. 2014) (en banc); Hawkins,
706 F.3d at 824-25.5

                                                         C.

          Snider also has a free-standing ineffective assistance of counsel claim, which is
cognizable under § 2255. See Massaro v. United States, 538 U.S. 500, 508-09 (2003). But to
prevail, Snider must demonstrate (1) that counsel’s representation at sentencing fell below an
objective standard of reasonableness and (2) that a reasonable probability exists that, but for his


          5As the government notes in its brief, courts disagree whether errors in calculating a mandatory guidelines
range (i.e. where a defendant was sentenced before Booker) are cognizable under § 2255. Compare Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (not cognizable), with United States v. Doe, 810 F.3d
132, 159 (3d Cir. 2015) (is cognizable), and Narvaez v. United States, 674 F.3d 621, 627-29 (7th Cir. 2011) (same).
The same is true regarding whether a defendant can use the savings clause of § 2255(e) and 28 U.S.C. § 2241 to
challenge a mandatory guidelines enhancement when the defendant is foreclosed from bringing a successive § 2255
petition. Compare Gilbert v. United States, 640 F.3d 1293, 1307-12 (11th Cir. 2011) (en banc) (holding that
mandatory career offender error is not redressable under § 2241); and In re Bradford, 660 F.3d 226, 230 (5th Cir.
2011) (same); with Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir. 2016) (holding that it is redressable); and Brown
v. Caraway, 719 F.3d 583, 587 (7th Cir. 2013) (same). Also, some courts have found guidelines claims cognizable
where the predicate conviction supporting the guidelines enhancement was later vacated. See, e.g., Cuevas v. United
States, 778 F.3d 267, 271-72 (1st Cir. 2015); see also Johnson v. United States, 544 U.S. 295, 303 (2005). But none
of those scenarios are before us.
 No. 16-6607                          Snider v. United States                             Page 12


attorney’s unprofessional representation, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). We assess counsel’s performance based
on “counsel’s perspective at the time,” id. at 689, “considering all the circumstances,” id. at 688,
rather than “in the harsh light of hindsight,” Bell v. Cone, 535 U.S. 685, 702 (2002); Strickland,
466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). We
have repeatedly held that counsel is not ineffective for failing to predict developments in the law,
unless they were clearly foreshadowed by existing decisions. Thompson v. Warden, Belmont
Corr. Inst. 598 F.3d 281, 288 (6th Cir. 2010) (collecting cases); United States v. Freeman, 679 F.
App’x 450, 453 (6th Cir. 2017). As explained above, given the holdings in Nance, 481 F.3d at
888 (Tennessee aggravated burglary constituted a violent felony under the ACCA), and Arnold,
58 F.3d at 1121 (a crime of violence under the career offender provision is interpreted identically
to a violent felony under the ACCA), trial counsel was not ineffective for failing to foresee that
this court would subsequently shift gears years later and eventually decide that (1) the Tennessee
aggravated burglary statute is not generic and (2) does not state a crime of violence under the
ACCA, let alone the career offender provision (which it still hasn’t explicitly done). Stated
differently, counsel could have reasonably concluded in 2008 that such a challenge would be
unsuccessful. Thus, counsel did not provide constitutionally deficient performance because she
failed to assert in 2008 that Snider’s Tennessee aggravated burglary convictions are not crimes of
violence under U.S.S.G. § 4B.1.

       Absent cause, we need not consider prejudice.

                                                D.

       Finally, because both of Snider’s claims on the merits fail, we need not address the
government’s procedural default argument.

                                                III.

       For these reasons, the judgment of the district court denying Snider’s § 2255 motion is
AFFIRMED.
 No. 16-6607                          Snider v. United States                             Page 13


                                       _________________

                                            DISSENT
                                       _________________

       KAREN NELSON MOORE, Circuit Judge, dissenting. The majority holds today that
Snider’s advisory guideline claim is not cognizable under § 2255 because he was “sentenced
under an advisory guidelines scheme,” his career offender designation did not affect the
“lawfulness” of his sentence, and his guideline range would have been the same absent the career
offender designation. Op. at 10–11. Because I believe there are instances in which, despite
being sentenced under the advisory guidelines, a defendant who has been incorrectly designated
as a career offender may still bring a claim under § 2255, I respectfully dissent.

                                   I. LEGAL FRAMEWORK

       Under 28 U.S.C. § 2255, a prisoner may collaterally attack his sentence on four grounds:
(1) “the sentence was imposed in violation of the Constitution or laws of the United States”;
(2) “the court was without jurisdiction to impose such sentence”; (3) “the sentence was in excess
of the maximum authorized by law”; or (4) the sentence “is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a); see also Hill v. United States, 368 U.S. 424, 426–27 (1962).

       Although the language of § 2255 provides for collateral relief when a sentence generally
“is otherwise subject to collateral attack,” in a number of opinions (primarily from the 1960s and
1970s), the Supreme Court has circumscribed the scope of these motions. Specifically, when a
§ 2255 claim does not assert a constitutional or jurisdictional error, the Court has stated that the
claim is generally not cognizable unless the error involves “a fundamental defect which
inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333,
346 (1974) (internal quotation marks omitted). In Davis, the Supreme Court determined that
when a defendant’s conviction no longer constituted a crime, he was entitled to collateral relief
under § 2255.     Id. at 346–47.      Additionally, the Court has found that non-prejudicial
“procedural” errors are not the type of “exceptional circumstances,” Hill, 368 U.S. at 428,
warranting relief under § 2255. See Peguero v. United States, 526 U.S. 23, 24 (1999) (failing to
inform the defendant of his right to appeal where the defendant nonetheless knew of his right);
 No. 16-6607                          Snider v. United States                             Page 14


United States v. Addonizio, 442 U.S. 178, 186–87 (1979) (determining a claim based on a later
updated parole regulation was non-cognizable when the regulation interfered only with the
sentencing court’s subjective expectation of the time the petitioner would spend in prison);
United States v. Timmreck, 441 U.S. 780, 784–85 (1979) (finding noncognizable a formal
violation of Federal Rule of Criminal Procedure 11 at a guilty plea hearing); Hill, 368 U.S. at
429 (finding noncognizable the failure to ask if the counseled defendant wanted to speak at his
sentencing hearing).

       As applied to miscalculations of the advisory career offender guidelines, however, the
reasoning and holdings of these cases are distinguishable.        Although these cases establish
“miscarriage of justice” as the applicable standard for non-jurisdictional or non-constitutional
§ 2255 motions, the holdings are limited and do not suggest that defendants who have incorrectly
been designated as career offenders under the advisory guidelines may never bring § 2255
motions.

       First, Hill, Timmreck, and Peguero all considered narrow, procedural errors which did not
cause the defendant any prejudice. See Davis, 417 U.S. at 346 (noting that in Hill the Court had
held collateral relief was not available based on a failure to follow a formal requirement “in the
absence of any indication that the defendant was prejudiced by the asserted technical error”);
Peguero, 526 U.S. at 24 (“We hold that a district court’s failure to advise the defendant of his
right to appeal [did] not entitle him to habeas relief if he knew of his right and hence suffered no
prejudice from the omission.”); Timmreck, 441 U.S. at 784 (finding no cognizable claim when
the defendant was aware of his rights and would not have acted differently even if the particular
procedural rule had been followed). None of these cases considered instances in which, due to a
clear legal error at sentencing, a criminal defendant was sentenced to significantly increased
prison time, thus establishing the necessary prejudice. See, e.g., Spencer v. United States,
773 F.3d 1132, 1148 (11th Cir. 2014) (Wilson, J., dissenting) (arguing the defendant should be
permitted to bring his § 2255 claim and noting the defendant had clearly shown he had been
prejudiced by the sentencing guideline error as the judge explained that, absent the career
offender enhancement, the defendant would be looking at half the prison time); Hawkins v.
United States, 706 F.3d 820, 821 (7th Cir. 2013) (explaining that that without the enhancement,
 No. 16-6607                            Snider v. United States                             Page 15


the defendant’s range was between 15 and 30 months and that with the designation, the guideline
range jumped to 151 to 188 months); id. at 827 (Rovner, J., dissenting) (noting this enhancement
was prejudicial to the petitioner).

       Second, as the Court noted in Hill, Timmreck, and Peguero, the determination of whether
a certain error constitutes a “miscarriage of justice” is largely fact specific. See Hill, 368 U.S. at
429 (“Whether § 2255 relief would be available if a violation of Rule 32(a) occurred in the
context of other aggravating circumstances is a question we . . . do not consider.” (emphasis
added)); see also Peguero, 526 U.S. at 27, 29 (noting “[a] violation of Rule 32(a)(2), however,
does not entitle a defendant to collateral relief in all circumstances” and determining the
defendant was not prejudiced when he had independent knowledge of his right to appeal
(emphasis added)); Timmreck, 441 U.S. at 784–85 (determining it was “unnecessary to consider
whether § 2255 relief would be available if a violation of Rule 11 occurred in the context of
other aggravating circumstances”). Outside these specific instances (i.e., without additional
“aggravating circumstances”), the Court in Hill, Timmreck, and Peguero expressed no opinion as
to whether other, more significant, sentencing errors could constitute a miscarriage of justice.
Indeed, by engaging in a more fact intensive examination, the Court endorsed a limited, rather
than broader, cognizability analysis.

       The Court’s decision in Addonizio is similarly narrow. Specifically, the Court examined
whether “[t]he claimed error here––that the judge was incorrect in his assumptions about the
future course of parole proceedings––does not meet any of the established standards of collateral
attack.” 442 U.S. at 186. In that limited context, the Court concluded “there is no basis for
enlarging the grounds for collateral attack to include claims based not on any objectively
ascertainable error but on the frustration of the subjective intent of the sentencing judge.” Id. at
187 (emphasis added); see also Spencer, 773 F.3d at 1165 (Rosenbaum, J., dissenting)
(“Addonizio holds only that a lawful sentence that is imposed because of a judge’s incorrect
subjective expectation of the actual amount of time that a defendant will serve in prison under
the judge’s sentence—and only from a sentencing judge’s frustrated subjective intent—does not
result in a complete miscarriage of justice and is not cognizable under § 2255.”). Unlike the
 No. 16-6607                                 Snider v. United States                                      Page 16


subjective frustration at issue in Addonizio, an incorrect career offender designation under the
advisory guidelines is clearly based on an “objectively ascertainable error.”

        The fact that the ultimate sentence imposed in Addonizio “did not affect the lawfulness of
the judgment itself––then or now” was not wholly determinative of the petitioner’s ability to
bring the claim. 442 U.S. at 187. Although the Court determined that the sentence in Addonizio
was not unlawful, it nonetheless went on to consider whether, despite the lawfulness of the
sentence, the defendant could still receive relief under § 2255. Id. at 187–90 (discussing why the
subjective intent of a judge cannot form the basis of a cognizable § 2255 claim). Such an
examination would be unnecessary if the Court had adopted a per se rule that all “lawful”
sentences, such as an incorrect advisory career offender designation, are incapable of collateral
attack. See Spencer, 773 F.3d at 1147 (Wilson, J., dissenting); see also Johnson v. United States,
544 U.S. 295, 298 (2005) (implicitly recognizing a § 2255 claim when the sentence imposed was
“lawful” at the time and became subject to collateral attack only after the predicate offenses were
vacated by the state court in a separate proceeding).

        Finally, case law in this Circuit does not preclude all advisory career offender guideline
claims under § 2255. For instance, in Gibbs v. United States, we held that a criminal defendant
could not look to guideline miscalculations to excuse a procedurally defaulted claim based on
“actual innocence.”        655 F.3d 473, 478 (6th Cir. 2011).                 Although the court ultimately
determined that mistakes in sentencing guidelines did not rise to the level of “actual innocence”
required to excuse the defendant’s procedural default, in part because the guidelines are
advisory, the court was not presented with the question I consider today: whether, despite the
advisory nature of the guidelines, a clear miscalculation can ever create a miscarriage of justice
under § 2255. Consequently, the reasoning of Gibbs is similarly limited as the cases noted
above.1



        1In   the majority’s discussion of United States v. Foote, 784 F.3d 931 (4th Cir. 2015), the majority quotes
Foote’s conclusion that the Supreme Court has found a “miscarriage of justice” only if the petitioner was “actually
innocent” of the underlying crime. Op. at 10. However, this ignores the Court’s opinion in Johnson v. United
States, in which the Court implicitly recognized a claim for relief under § 2255 when the defendant’s predicate state
offenses were vacated not because he was “actually innocent” of them but because he had not sufficiently waived
his right to counsel. 544 U.S. 295, 301 (2005).
 No. 16-6607                            Snider v. United States                               Page 17


        Similarly, our Circuit has expressly recognized that sentencing errors may constitute
“miscarriages of justice,” despite producing sentences below the statutory maximum. See Hill v.
Masters, 836 F.3d 591, 596–97, 600 (6th Cir. 2016) (determining that a prisoner’s sentence
could constitute a “miscarriage of justice” warranting a 28 U.S.C. § 2241 petition, even though
the defendant’s pre-Booker sentence was below the statutory maximum); Oliver v. United States,
90 F.3d 177, 179 (6th Cir. 1996) (implicitly recognizing a § 2255 claim regarding a pre-Booker
sentence when the court examined the merits of the defendant’s sentencing claim). Similarly, in
United States v. Behrens, the defendant’s § 2255 claim was cognizable when, despite being
sentenced below the statutory maximum, neither the defendant nor his attorney were present at
the defendant’s final sentencing hearing, in violation of Federal Rule of Criminal Procedure
32(a). 375 U.S. 162, 163–66 (1963). This was true despite the fact that, when the defendant was
sentenced in the 1960s, there were no mandatory guidelines and sentences were firmly within the
discretion of the district court. See Beckles v. United States, 137 S. Ct. 886, 893 (2017) (noting
that before the guidelines became mandatory, “Congress historically permitted district courts
wide discretion to decide whether the offender should be incarcerated and for how long”
(internal quotation marks omitted)); see also Spencer, 773 F.3d at 1158 (Jordan, J., dissenting)
(“The Supreme Court in Behrens, therefore, used § 2255 to set aside a sentence below the
statutory maximum (i.e., a sentence the majority would characterize as ‘lawful’) for a non-
constitutional violation (i.e., the violation of a federal rule).”). Finally, a rule which dictates that
a sentence may be challenged under § 2255 only if it exceeds the statutory maximum would
ignore the plain language of 28 U.S.C. § 2255, which permits a defendant to challenge his
sentence by asserting, among other things, that the sentence was “in excess of the maximum
authorized by law” or was “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

        Because I conclude that neither the Supreme Court nor previous cases in this Circuit
categorically preclude advisory career offender guideline claims under § 2255, I now consider
whether, in certain circumstances, a defendant’s erroneous designation as a career offender under
the advisory guidelines can create a miscarriage of justice. I conclude it can.
 No. 16-6607                              Snider v. United States                                  Page 18


                  II. COGNIZABILITY OF CAREER OFFENDER CLAIMS

         The proper scope of § 2255 has produced closely divided resolutions in our fellow
Circuits. Although four Circuits have determined that defendants may not collaterally attack
their advisory guideline sentences under § 2255, three of those opinions were heavily contested.
See Spencer, 773 F.3d at 1135, 1145, 1149, 1156, 1164 (five to four decision); Hawkins v.
United States, 706 F.3d at 825 (J. Rovner, dissenting in a three-judge panel); Sun Bear v. United
States, 644 F.3d 700, 701, 707 (8th Cir. 2011) (six to five decision); see also United States v.
Foote, 784 F.3d 931, 939 (4th Cir. 2015) (“[W]e cannot ignore that these decisions are extremely
close and deeply divided.”). Moreover, two of the cases––Spencer and Sun Bear––were decided
en banc after a previous panel had granted the defendant relief under § 2255. See Spencer v.
United States, 727 F.3d 1076, 1087–88 (11th Cir. 2013); Sun Bear v. United States, 611 F.3d
925, 930–32 (8th Cir. 2010).           I concur with the reasoning articulated in these carefully
considered dissents, as well as the case law of this court and the Supreme Court, in my analysis
today.

A. Johnson v. United States

         Similar to the paths taken by the four dissenting judges in Spencer, I begin by examining
the Supreme Court’s decision in Johnson v. United States, 544 U.S. 295 (2005).2 In Johnson, the
Court considered the appropriate statute of limitations for a prisoner attempting to attack his
sentence collaterally after the predicate state offenses underlying his sentence enhancements
were vacated by the state court. Id. at 298. Noting that the Court’s precedent assumes “that a
defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier
conviction is vacated,” id. at 303, the Court implicitly recognized the validity of a § 2255 claim
when the defendant’s enhanced sentence was later shown to be in error. Id.; see also Spencer,
773 F.3d at 1168 n.2 (Rosenbaum, J., dissenting) (“[I]f Johnson’s claim of Sentencing
Guidelines error were not cognizable on a § 2255 petition, the . . . Court’s opinion . . . would be
dicta . . . because it would never be necessary to determine [the appropriate statute of limitations]


         2Although the majority here does not address Johnson at length, I believe Johnson offers an important
foundation from which to examine the type of claim that Snider attempts to raise.
 No. 16-6607                          Snider v. United States                             Page 19


if a challenge to the application of career-offender status under the Sentencing Guidelines were
not cognizable.”).

       Although other courts have used the reasoning of Johnson to distinguish guideline claims
based on vacatur of the predicate crime with an advisory guideline calculation error, see, e.g.,
Foote, 784 F.3d at 936 n.5; Spencer, 773 F.3d at 1143, I do not believe such a distinction is
meritorious or just. As Judge Beverly Martin succinctly put it:

       [i]t seems to me to draw an arbitrary line to say (on the one hand) that a prisoner
       may use § 2255 to collaterally attack his career offender status if that prior
       conviction has been vacated . . . but not (on the other) if that same prior
       conviction was never a qualifying conviction in the first place––in light of an
       authoritative statutory interpretation by the Supreme Court.

Spencer, 773 F.3d at 1153 (Martin, J., dissenting) (internal citation omitted). In both cases, it is
clear that the individual is not, in fact, a career offender. See id. (arguing that individuals who
have been incorrectly designated as career offenders may be more deserving of § 2255 relief
because, unlike Johnson, their designation as career offenders was incorrect the day they were
sentenced). Furthermore, although in one scenario the predicate offense is now legally non-
existent, resentencing courts would be incapable of using the predicate offense for either
defendant to designate him as a career offender. See Spencer, 773 F.3d at 1160 (Jordan, J.,
dissenting) (“Under either scenario, the pertinent prior conviction cannot lawfully be used to
establish career offender status, and the sentence imposed constitutes a miscarriage of justice.”).
In short, neither offense would constitute a “predicate offense” on resentencing. And although
there may be a distinction between factual innocence (for example the vacatur of a conviction)
and legal innocence (statutory reinterpretation of the sentencing guidelines), “this distinction is
nowhere found in § 2255.” Id. at 1153 (Martin, J., dissenting). Consequently, not only does
Johnson suggest that generally sentencing errors may be cognizable under § 2255, but also, the
logical extension of its reasoning supports the proposition that inaccurate career-offender
designations can be similar in kind to the error in Johnson, and, therefore, cognizable under
§ 2255.
 No. 16-6607                          Snider v. United States                             Page 20


B. Controlling Authority of the Guidelines

       The majority suggests that, because the guidelines are now “advisory” and cannot dictate
a certain sentence, misapplication of them in Snider’s case is not a sufficiently extreme injustice
to form the basis of a § 2255 claim. I believe that in certain scenarios, such a characterization is
largely speculative and completely unresponsive to the reality of federal sentencing today.

       First, although the guidelines are advisory following Booker, they often still have an
outsized impact on criminal sentencings. Specifically, the guidelines remain “the starting point
and the initial benchmark” for sentencing, Gall v. United States, 552 U.S. 38, 49 (2007), and thus
constitute the “lodestar” for sentencing judges, Molina-Martinez v. United States, 136 S. Ct.
1338, 1346 (2016). Because district courts “must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing process,” Molina-Martinez, 136 S. Ct. at
1345 (quoting Peugh v. United States, 569 U.S. 530, 541 (2013)), “[i]n most cases, it is the range
set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that
specifies the number of years a defendant will spend in prison,” Beckles v. United States, 137 S.
Ct. 886, 900 (2017) (Sotomayor, J., dissenting). Thus, when “the judge uses the sentencing
range as the beginning point to explain the decision to deviate from it, then the Guidelines are in
a real sense the basis for the sentence.” Molina-Martinez, 136 S. Ct. at 1345 (quoting Peugh,
569 U.S. at 542); see also Beckles, 137 S. Ct. at 901 (Sotomayor, J., dissenting) (explaining a
defendant “must take the range as the starting point for his request” for a sentencing deviation);
Hawkins, 706 F.3d at 826–27 (Rovner, J., dissenting); Spencer, 773 F.3d at 1161 (Jordan, J.,
dissenting) (“We routinely tell district courts that we ordinarily expect a sentence within the
Sentencing Guidelines to be reasonable, and it is folly to pretend that such pronouncements do
not have an impact on sentencing decisions in the trenches.” (internal citation omitted)). As the
Supreme Court has noted, “[i]n most cases district courts continue to impose either within-
Guidelines sentences or sentences that depart downward from the Guidelines on the
Government’s motion.” Molina-Martinez, 136 S. Ct. at 1346 (internal quotation marks omitted).
Consequently, the Supreme Court has recognized that, on direct review, an incorrect guideline
calculation can generally impact a defendant’s “substantial rights for purposes of obtaining relief
 No. 16-6607                           Snider v. United States                             Page 21


under” plain-error review, even if the sentence was within the correct guideline range. Id. at
1349; accord United States v. Susany, 893 F.3d 364, 368 (6th Cir. 2018).

       This impact is particularly relevant to individuals designated as career offenders, as “[t]he
imposition of the career offender status brand[s criminal defendants] as . . . malefactor[s]
deserving of far greater punishment than that usually meted out for an otherwise similarly
situated individual . . . . No amount of evidence in mitigation or extenuation could erase that
branding.” Narvaez v. United States, 674 F.3d 621, 629 (7th Cir. 2011); see also Beckles, 137 S.
Ct. at 900 n.1 (Sotomayor, J., dissenting) (noting that when lower courts ordered resentences
based on the (at the time) inapplicability of the residual clause of the career offender guidelines,
sentences were usually much lower); Molina-Martinez, 136 S. Ct. at 1346 (noting that “[i]n less
than 20% of cases since 2007 have district courts imposed above- or below-Guidelines sentences
absent a Government motion” (internal quotation marks omitted)). Requiring a defendant who,
based on an unequivocal change in the law, is no longer a “career offender” nonetheless to carry
that designation often creates very real and cognizable consequences. See, e.g., Spencer, 773
F.3d at 1148 (Wilson, J., dissenting) (noting the defendant clearly showed he had been
prejudiced by the guideline error as the district judge made clear that, absent the enhancement,
the defendant would be looking at half the prison time); Hawkins, 706 F.3d at 821 (explaining
that without the enhancement, the defendant’s range was between 15 and 30 months and that
with the designation, the guideline range jumped to 151 to 188 months).

       Furthermore, although some courts have determined that advisory calculation claims are
not cognizable because the defendant would be sentenced to the same original sentence, see, e.g.,
Spencer, 773 F.3d at 1143, I do not believe this possibility means they are automatically
excluded from relief under § 2255. Specifically, to rely on the possibility that an offender might
be resentenced to the same sentence previously imposed is too speculative a consideration to
determine whether all career-offender guideline claims are cognizable. See Spencer, 773 F.3d at
1178 (Rosenbaum, J., dissenting) (“[A]ttempting to divine any sentence imposed on resentencing
. . . constitutes pure speculation.”); Hawkins, 706 F.3d at 826 (Rovner, J., dissenting) (“[T]o
assume that the same sentence would have been imposed in the absence of the career offender
provision . . . is frail conjecture that evinces in itself an arbitrary disregard of the petitioner’s
 No. 16-6607                            Snider v. United States                            Page 22


right to liberty.” (quoting Narvaez, 674 F.3d at 629)). This is particularly true since, as Judge
Robin Rosenbaum noted in Spencer, the defendant in Johnson could also have been given the
same sentence on remand, as the court likely could have considered the vacated state-court
convictions independently because Johnson had not been found actually innocent of those
crimes.     Spencer, 773 F.3d at 1177 (Rosenbaum, J., dissenting).           Conversely, given the
importance of the sentencing guidelines for career offenders particularly, there is evidence
suggesting that individuals granted § 2255 relief will be resentenced to a lower guideline range,
thus enabling them to advocate for sentences from a more appropriate starting point.             See
Beckles, 137 S. Ct. at 900 n.1 (Sotomayor, J., dissenting) (noting that in resentencings under the
career-offender guidelines most defendants received lower sentences). Thus, although I do not
believe the mere distinction between mandatory and advisory guidelines should automatically
doom advisory guideline claims brought under § 2255, in any case the advisory guidelines have
an extraordinary impact and in certain scenarios the same “miscarriages of justice” may occur
with advisory guideline errors if left uncorrected as with mandatory guideline errors. See Hill,
836 F.3d at 596–97, 600 (determining that a prisoner’s mandatory-guideline sentence could
constitute a “miscarriage of justice” warranting a 28 U.S.C. § 2241 petition); Narvaez, 674 F.3d
at 623 (concluding that an improperly calculated pre-Booker sentence could form the basis of a
cognizable § 2255 claim).

C. Justice and Finality

          Finally, I briefly note that a decision which holds that § 2255 claims based on career-
offender guideline miscalculations are categorically unavailable would undermine the
expectation of justice and fairness that all individuals are entitled to have in the criminal justice
system and, furthermore, would not support the concerns of finality often used to justify such an
exclusion. See, e.g., Hawkins v. United States, 724 F.3d 915, 918 (7th Cir. 2013) (“Judicial
systems that ignore the importance of finality invite unreasonable delay in the disposition of
cases.”).

          The justification of finality is generally predicated on four considerations: “(1) to build
confidence in the integrity of the judicial system; (2) to minimize administrative costs and delay;
(3) to avoid spoliation of evidence; and (4) to honor comity.” Gilbert v. United States, 640 F.3d
 No. 16-6607                          Snider v. United States                            Page 23


1293, 1334 (11th Cir. 2011) (Martin, J., dissenting). I do not believe these factors apply in such
a way as to bar all individuals from relief under § 2255. For instance, in a case in which a
defendant was incorrectly designated as a career offender based on later-determined judicial
error, the “integrity of the judicial system” would hardly be supported by requiring that
defendant to remain in prison, particularly if he has consistently (and correctly) argued as to the
inapplicability of the enhancement. See Spencer, 773 F.3d at 1154 (Martin, J., dissenting); Sun
Bear, 644 F.3d at 712 (Melloy, J., dissenting) (“[D]enying relief does not build confidence in our
court system because this looks to the world like a court refusing to acknowledge or make
amends for its own mistake.” (quoting Gilbert, 640 F.3d at 1334 (Martin, J., dissenting))).
Similarly, because these cases present purely legal questions (whether an individual is a “career
offender” under the guidelines), there is no concern that evidence will have been lost or
destroyed; in most cases, the defendant will still be guilty and his criminal history will remain
the same. See Spencer, 773 F.3d at 1154 (Martin, J., dissenting). And because these cases
involve federal sentencing statutes and guidelines, “[t]he contrary result dictated by the
majority’s holding promotes finality at the expense of justice in a situation where, unlike most
AEDPA cases, there are no concerns of comity or federalism.” Sun Bear, 644 F.3d at 707
(Melloy, J., dissenting). Finally, in cases where the career-offender enhancement has drastically
increased an individual’s sentence, administrative costs are hardly saved by incarcerating the
defendant for more time than he would otherwise be required to serve. Spencer, 773 F.3d at
1154 (Martin, J., dissenting). As Judge James Hill eloquently noted in his dissent in Gilbert v.
United States, “I recognize that without finality there can be no justice. But it is equally true
that, without justice, finality is nothing more than a bureaucratic achievement.” 640 F.3d at
1337.

        For all the reasons stated above, I do not believe that all advisory guideline claims are
non-cognizable under § 2255; rather, I conclude that there are plausible scenarios in which a
defendant’s incorrect designation as a career offender under the advisory guidelines would
necessarily create a “fundamental miscarriage of justice.” Consequently, I respectfully dissent.
