                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-7152


DEANGELO MARQUIS WHITESIDE,

                Petitioner - Appellant,

           v.

UNITED STATES OF AMERICA,

                Respondent - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00069-MR-1; 1:12-cv-00118-MR)


Argued:   January 29, 2014                  Decided:   April 8, 2014


Before WILKINSON and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated and remanded for resentencing by published opinion.
Judge Gregory wrote the majority opinion, in which Senior Judge
Davis joined.   Senior Judge Davis wrote a separate concurring
opinion, and Judge Wilkinson wrote a dissenting opinion.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.    Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.        ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.         Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
GREGORY, Circuit Judge:

      This case presents the question of whether a federal inmate

may use a 28 U.S.C. § 2255 motion to challenge a sentence that

was based on the career offender enhancement under the United

States Sentencing Guidelines when subsequent case law reveals

the enhancement to be inapplicable to him.              We find that he may,

and in doing so hold that the mistake results in a fundamental

miscarriage of justice that is cognizable on collateral review.

For   the   reasons     stated   below,    we   grant        a    certificate    of

appealability, vacate the petitioner’s sentence, and remand the

case for resentencing.




                                     I.

      The facts relevant to this appeal are brief and largely

undisputed.       In July 2009, the petitioner-appellant, Deangelo

Whiteside, was indicted on charges of possession with intent to

distribute at least 50 grams of crack cocaine, in violation of

21 U.S.C. § 841(a)(1).       Shortly thereafter, the government filed

an Information pursuant to 21 U.S.C. § 851 notifying Whiteside

that it intended to seek an enhanced penalty based on a 2002

North Carolina felony drug conviction.

      Whiteside    then   entered   into   a    plea    agreement       with    the

government.       The   agreement   acknowledged       the       possibility    that

Whiteside might be designated a career offender under U.S.S.G.
                                      2
§ 4B1.1.     It    also    contained   several     waivers    of     Whiteside’s

rights to challenge his conviction and sentence in an appeal or

collateral proceeding.        As discussed in more detail below, the

parties dispute whether these provisions bar Whiteside’s current

claim.

     Whiteside pled guilty to the offense in October 2009 and

the probation office began preparing a presentence report.                  The

probation officer concluded that Whiteside was responsible for

1,951.9    grams     of   powder   cocaine   and   468.3     grams    of   crack

cocaine, generating a base offense level of 32. 1              The probation

officer also determined that a 1999 North Carolina conviction

for felony possession with intent to sell and deliver cocaine,

along with the 2002 drug conviction, qualified Whiteside for the

career    offender    enhancement    under   § 4B1.1. 2      The     enhancement


     1
       The probation officer disagreed with the government’s
stipulation in the plea agreement that Whiteside would be held
responsible for more than 50 and less than 150 grams of crack
cocaine.
     2
        The career offender enhancement defines a “career
offender,” and provides that a defendant is such an offender if

     (1) [he] was at least eighteen years old at the time
     [he] committed the instant offense of conviction;
     (2) the instant offense of conviction is a felony that
     is either a crime of violence or a controlled
     substance offense; and (3) [he] has at least two prior
     felony convictions of either a crime of violence or a
     controlled substance offense.

U.S.S.G. § 4B1.1(a). For purposes of the enhancement, a “prior
felony conviction” includes “a prior . . . state conviction for
(Continued)
                                       3
raised Whiteside’s base offense level to 37 and his criminal

history category from V to VI.              After a three-level reduction

for    acceptance     of    responsibility,         Whiteside’s         Sentencing

Guidelines range was 262 to 327 months in prison.                   In light of

the   government’s     § 851     Information,      the   prior     felony       drug

convictions also subjected Whiteside to a mandatory minimum term

of imprisonment of twenty years.

      Prior    to   Whiteside’s      sentencing    hearing,   the       government

filed a § 5K1.1 motion seeking a downward departure based on the

petitioner’s substantial assistance.              The government recommended

that Whiteside receive a sentence based on a total offense level

of 32 and a criminal history category VI, which yielded a 210 to

262   month    Guidelines   range.      The   district   court      granted     the

government’s motion and, on July 9, 2010, sentenced Whiteside to

210 months’ imprisonment, a sentence below both his Guidelines

range and the twenty-year mandatory minimum.

      On August 17, 2011, this Court issued its en banc decision

in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).                       In

Simmons, we overruled circuit precedent and held that a North

Carolina      conviction    is   a    crime   punishable      by    a    term    of




an offense punishable by . . . imprisonment for a term exceeding
one year, regardless of whether such offense is specifically
designated as a felony.” Id. § 4B1.2 cmt. n.1.



                                        4
imprisonment           exceeding   one    year      only   when   the     defendant’s

particular criminal history and the nature of his offense so

warrant.       See id. at 247 & n.9.                It is undisputed that under

Simmons, Whiteside’s predicate convictions were not punishable

by more than a year in prison, and were he sentenced today he

would not be subject to either the career offender enhancement

or the twenty-year statutory minimum penalty.

       Whiteside argues that without those enhancements he would

have       faced   a    Guidelines    range    of    140   to   175    months    and   a

statutory term of ten years to life.                  Assuming the same downward

departure based on substantial assistance – eighty percent of

the low end of the Guidelines – Whiteside contends that his

sentence would have been 112 months, roughly eight years shorter

than the sentence he received.

       On May 18, 2012, Whiteside filed a 28 U.S.C. § 2255 motion

to vacate his sentence.              He argued that, in light of Simmons, he

did not qualify as a career offender and that he should be

resentenced        without     the     enhancement. 3       The       district   court

dismissed Whiteside’s motion to vacate, concluding that it was

untimely, that Whiteside waived his right to collaterally attack


       3
       Whiteside subsequently filed a supplement to his motion to
vacate, making the same arguments, but seeking, in the
alternative, relief under 28 U.S.C. § 2241, a writ of coram
nobis, and a writ of audita querela.



                                           5
his sentence in his plea agreement, and that he was not eligible

for   post-conviction        relief   because        he     received       a    sentence

beneath the statutory maximum.            The district court also declined

to issue a certificate of appealability.                  This appeal followed.



                                      II.

                                       A.

      We must first address whether Whiteside’s motion to vacate

is procedurally barred.            The first question on this point is

whether     Whiteside   in   his   plea       agreement     waived    his       right   to

collaterally attack his sentence.               We review this issue de novo.

See   United   States   v.    Copeland,        707   F.3d    522,    528       (4th   Cir.

2013).

      The relevant portions of Whiteside’s plea agreement are as

follows:

      20.    Defendant, in exchange for the concessions made
             by the United States in this plea agreement,
             waives all such rights to contest the conviction
             except for: (1) claims of ineffective assistance
             of counsel or (2) prosecutorial misconduct.
             Defendant also . . . knowingly and expressly
             waives all rights conferred by 18 U.S.C. § 3742
             or otherwise to appeal whatever sentence is
             imposed with the two exceptions set forth above.
             Defendant also reserves right to appeal ruling as
             to career offender pursuant to USSG § 4Bl.l.

      21.    Also, in exchange for the concessions made by the
             United States, defendant agrees that the United
             States preserves all its rights and duties with
             respect to appeal as set forth in 18 U.S.C.
             § 3742(b), while the defendant waives all rights

                                          6
            to appeal or collaterally attack the sentence of
            conviction with the two exceptions set forth
            above.

     The government contends that under these terms, Whiteside

waived    his    right      to    collaterally        attack     his    sentence    on   all

grounds    except       that     of   ineffective         assistance     of    counsel    or

prosecutorial          misconduct.             We    disagree,     finding       that    the

language of the plea agreement is ambiguous and does not clearly

specify which rights were waived.

     In     short,       the      paragraphs         quoted     above    contradict      one

another.        Paragraph 20 states that the defendant may challenge

his conviction only on the two grounds just mentioned.                             It goes

on to state that the defendant retains his right to appeal his

sentence     with       respect       to      the    career     offender      enhancement.

However, paragraph 21 then states that he may only challenge his

sentence (through either a direct appeal or § 2255 motion) on

ineffective          assistance       or      prosecutorial       misconduct       grounds.

This simply does not make sense.                     Either the parties intended to

limit the defendant’s right to challenge his sentence to two

grounds,    a        result      which     would      render     the    career     offender

reference       at    the     end     of      paragraph    20    superfluous,       or   the

statement       in     paragraph         21     limiting      Whiteside’s      rights    to

challenge his sentence to two grounds was a mistake and should

instead have cited three possible bases for a challenge.                             Either

reading is problematic, leaving it impossible to say exactly

                                                 7
which    rights       Whiteside      waived.        When     a     plea      agreement      is

unclear,    it    must    be    construed        against     the    government.            See

United States v. Jordan, 509 F.3d 191, 199-200 (4th Cir. 2007).

As such, we hold that Whiteside did not waive his right to

challenge       the    career     offender       enhancement           in   a     collateral

proceeding.

                                            B.

      We next consider whether Whiteside’s motion to vacate was

timely.     A § 2255 petitioner ordinarily has one year from the

date on which his conviction becomes final in order to file a

motion     to    vacate.          28    U.S.C.      § 2255(f(1).                Whiteside’s

conviction became final on August 17, 2010, but he did not file

his motion until May 18, 2012, well beyond the one-year period.

However,    the       statute   of     limitations      in       § 2255(f)(1)        may   be

equitably       tolled    in      certain       circumstances.               Specifically,

equitable tolling applies if the petitioner can show “‘(1) that

he has been pursuing his rights diligently, and (2) that some

extraordinary         circumstance      stood      in   his      way’       and   prevented

timely filing.”          Holland v. Florida, 560 U.S. 631, 649 (2010)

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).                             Relief

is limited to cases “where – due to circumstances external to

the party’s own conduct – it would be unconscionable to enforce

the   limitation       period     against    the    party        and    gross     injustice



                                            8
would result.”          United States v. Sosa, 364 F.3d 507, 512 (4th

Cir. 2004).

       As explained below, we find that the erroneous application

of the career offender enhancement worked a gross miscarriage of

justice.         We    also   hold   that       Whiteside      pursued    his    rights

diligently by filing his motion within a year of our decision in

Simmons and that extraordinary circumstances prevented him from

filing the motion earlier.             Our decision is based on the simple

fact that our case law prior to Simmons absolutely foreclosed

Whiteside’s current argument.               In United States v. Jones, 195

F.3d 205 (4th Cir. 1999), and then again in United States v.

Harp, 406 F.3d 242 (4th Cir. 2005), we rejected the arguments

that we later accepted in Simmons.                   Had Whiteside filed a habeas

petition prior to Simmons it would have been summarily denied on

the basis of these decisions, as was the case for numerous other

petitioners.          See, e.g., Robinson v. United States, No. 5:07-cv-

140, 2011 WL 676184 (E.D.N.C. Feb. 18, 2011); Jordan v. United

States,    No.    1:09-cv-816,       2010       WL   2347076     (M.D.N.C.      June   3,

2010).      We think this condition – the complete lack of any

chance at success – constitutes an “extraordinary circumstance”

that     warrants       equitable    considerations.             The    obstacle       was

clearly external to Whiteside – indeed, it was our incorrect

interpretation of which North Carolina convictions support the

career    offender       enhancement    that         prevented    him    from   seeking

                                            9
relief.         Once    this     was    corrected         and   Whiteside      had        an

opportunity      for    meaningful     review,      he    filed     his   motion     in    a

timely manner.         This is not a case of a petitioner who has slept

on   his   rights      and   later     seeks   relief        from    his     indolence;

instead,       once   Whiteside’s      right   to     review      obtained    any    real

significance, he acted.

     The government nevertheless contends that Whiteside should

have filed his petition prior to Simmons in spite of its sure

defeat.    In addition to simply having an air of absurdity about

it, this argument would lead to the perverse result of reading

the AEDPA’s time limitations to encourage inmates to flood the

courts with baseless petitions on the off chance that the law

might    one    day    change.     Further,      if      Whiteside    had    filed    his

petition prior to Simmons and it had been denied, his current

claim would possibly be barred as a successive petition.                              See

§ 2255(h). 4      Given the timing of Whiteside’s conviction and our

decision in Simmons, the result of the government’s position is

that at no point would Whiteside have been entitled to relief

     4
       We expressly do not decide whether the savings clause in
§ 2255(e) might justify relief from a Simmons sentencing error
through the filing of a § 2241 petition.      While we have not
previously “extended the reach of the savings clause to those
petitioners challenging only their sentence,” United States v.
Poole, 531 F.3d 263, 267 n.7, 274 (4th Cir. 2008), we note that
the Eleventh Circuit recently permitted a federal inmate to use
§ 2255(e) to bring a § 2241 petition challenging the legality of
his sentence. Bryant v. Warden, 738 F.3d 1253 (11th Cir. 2013).



                                          10
from an error that we consider to be a fundamental miscarriage

of justice.        We cannot accept such an outcome.

       Nor are we bound to.               We recognize that we previously held

that the futility of a petitioner’s claim does not constitute a

circumstance external to his control.                   Minter v. Beck, 230 F.3d

663,   666   (4th        Cir.    2000).      However,       our    decision         in   Minter

preceded the recent Supreme Court decision in Holland, which

adopted an expansive reading of the role of equity in habeas

cases.       In    Holland,        the    Supreme    Court       reviewed      an    Eleventh

Circuit rule holding that attorney negligence in failing to meet

a   filing   deadline        may    never    serve     as    a    basis   for       equitable

tolling absent a showing of bad faith or dishonesty on the part

of the attorney.           560 U.S. at 644.          The Court rejected this rule

as overly rigid.            Noting equity’s longstanding role in habeas

relief, the Court stated that principles of equitable tolling

are consistent with the “AEDPA’s basic purpose of eliminating

delays . . . without undermining basic habeas corpus principles

and by harmonizing the statute with prior law, under which a

petition’s        timeliness       was     always    determined       under         equitable

principles.”        Id. at 648.          In light of this, the Court held that

the AEDPA’s        statutes       of     limitations    “do[]      not    set       forth    ‘an

inflexible        rule    requiring       dismissal    whenever’         its    ‘clock       has

run.’”     Id. at 645 (quoting Day v. McDonough, 547 U.S. 198, 205

(2010)).      The        Court   further     explained       that,    while         courts    of

                                             11
equity are of course governed by “rules and precedents,” equity

also       requires    “flexibility”    and       the   avoidance      of   “mechanical

rules.”       Id. at 649-50 (internal quotation marks and citations

omitted); see also id. at 650 (courts must “exercise judgment in

light of prior precedent, but with awareness of the fact that

specific circumstances, often hard to predict in advance, could

warrant special treatment in an appropriate case”).

       Although Holland dealt with attorney misconduct, an issue

not before this Court, the decision’s broader point was that the

“exercise of a court’s equity powers . . . must be made on a

case-by-case basis . . . .”                Id. at 649-50; see also Jones v.

United      States,     689   F.3d   621,   626-28      (6th    Cir.    2012)     (citing

Holland       and     applying   equitable        tolling      where     inmate     filed

petition       within    three   months     of    Supreme      Court’s      decision   in

Begay v. United States, 553 U.S. 137 (2008), entitling him to

relief).       To the extent Minter created a bright-line rule that

futility       may     not    constitute     an    extraordinary         circumstance,

Holland requires that we at least apply such a rule on a case-

by-case basis. 5



       5
       Moreover, the factual differences in the cases aside, our
outcome is entirely consistent with Holland.        Indeed, the
circumstances here are arguably more compelling, given that
attorney errors are generally attributable to clients, see
Holland, 560 U.S. at 656 (Alito, J., concurring) (citation
omitted), while this case deals with our own error in
(Continued)
                                            12
       When examining the particular circumstances of Whiteside’s

case, we find that he satisfies the requirements necessary for

equitable tolling.             He has successfully demonstrated that his

sentence         amounted   to   a    fundamental      miscarriage     of    justice.

Correcting unjust incarcerations is the whole purpose of § 2255.

As   the    Supreme     Court    explained      in   Holland,   the    AEDPA’s     time

limitations do not foreclose this relief to all those who are

unable to meet the statute’s deadlines.                    Had Whiteside filed

within the one-year statute of limitations, he likely would have

been forced to suffer the injustice with no future chance at

relief.          The timing of our decisions should not be the sole

determinant of a petitioner’s access to justice.                        Whiteside’s

inability to obtain meaningful relief prior to our decision in

Simmons      is    an   extraordinary      circumstance     that      warrants     some

flexibility on our behalf in order “to accord all the relief

necessary to correct . . . particular injustices.”                       Id. at 650

(quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.

238,       248    (1944)). 6         Accordingly,     we   equitably        toll   the

limitations period and review Whiteside’s claim.




interpreting prior case law. There is no similar justification
for punishing a petitioner for our mistake.
       6
       Indeed, even the government recognizes that on a case-by-
case   basis,  Simmons  relief   should  be   afforded  to  some
(Continued)
                                           13
                                     III.

     Turning to the merits of the case, we are asked to decide

whether a petitioner may challenge his sentence on collateral

review based on an incorrect application of the career offender

enhancement.     Because   it   is    the   only    response   that   is   both

consistent with the realities of federal sentencing and just, we

answer yes.

     Section 2255 allows federal prisoners to move to set aside

sentences that are imposed “in violation of the Constitution or

laws of the United States.”          Thus, § 2255 relief is not limited

to constitutional errors.       See Davis v. United States, 417 U.S.

333, 345-56 (1974).        However, a non-constitutional error may

only serve as a basis for collateral attack when it involves “a

fundamental    defect   which   inherently         results   in   a   complete



petitioners notwithstanding limitations or appeal waivers.   See
Mungro v. United States, Nos. 5:11-cv-141-RLV & 5:04-cr-18-RLV-
CH-1, 2013 WL 6800822, at *6-*7 & n.3 (W.D.N.C. Dec. 23, 2013)
(granting § 2255 motion to vacate the prisoner's mandatory life
sentence on Simmons grounds, and noting that the government had
waived   “reliance  on   the  statute-of-limitations  defense”);
Sturvidant v. United States, Nos. 3:12-CV-66-FDW & 3:09-cr-39-
FDW-6, 2013 WL 6669025, at *1, *3 (W.D.N.C. Dec. 18, 2013)
(granting Simmons relief after government “declined to enforce”
the   defendant’s  plea-agreement   waiver  of   the   right  to
collaterally attack his sentence). As the government apparently
concluded in Mungro, we conclude that in this case “it would be
unconscionable to enforce the limitation period against the
[petitioner] and gross injustice would result” were we to do so.
Minter, 230 F.3d at 667 (quoting Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000) (§ 2254 case)).



                                      14
miscarriage of justice.”                  United States v. Addonizio, 442 U.S.

178, 185 (1979) (internal quotation marks omitted).                              The Supreme

Court has provided only the general contours of what constitutes

a complete miscarriage of justice.                          For example, in Hill v.

United States, 368 U.S. 424, 429 (1962), the Court reviewed a

sentencing judge’s failure to inform a defendant that he had the

right      to   speak       at    his      sentencing         hearing.             The      Court

characterized        this    mistake       as    a    mere    failure      to    follow        the

formal     requirements          of   a    rule,      and    held     that      it    did      not

constitute a basis for habeas relief.                        Id.; see also Peguero v.

United States, 526 U.S. 23 (1999) (failure to inform defendant

of   the   right     to     appeal     where      defendant        knew    of   the      right);

United     States    v.     Timmreck,       441      U.S.    780    (1979)      (failure        to

mention a special parole term at Rule 11 hearing).                              In contrast,

in Davis the Court held that a post-conviction change in the law

that    rendered     the     defendant’s         conduct      no    longer      criminal        is

correctable     on    collateral          review      because      “[t]here        can    be    no

doubt that such a circumstance inherently results in a complete

miscarriage     of    justice         . . . .”         417    U.S.    at     346     (internal

quotation marks omitted).

       Like a number of our sister circuits, we have held that

“ordinary misapplication of the guidelines does not amount to a

miscarriage of justice.”               United States v. Mikalajunas, 186 F.3d

490, 496 (4th Cir. 1999) (collecting cases); see also United

                                                15
States       v.   Pregent,     190    F.3d    279,     283-84    (4th     Cir.    1999).

However, we have not offered a considered explanation of what

constitutes        an   “ordinary”       Guidelines        error     as    opposed       to

something more fundamental.                  In Mikalajunas, we held that an

improper two-level enhancement for restraint of the victim did

not amount to a complete miscarriage of justice.                          186 F.3d at

496.        In    Pregent,     we    considered      whether    a    defendant     whose

criminal      history    had    been    wrongly       calculated     resulting      in    a

sentence four months too long was entitled to seek relief from

the supervised release portion of his sentence.                      190 F.3d at 283

& n.4.        Although we assumed that the error was cognizable on

collateral        review,      we    dismissed       the     defendant’s      claim      as

untimely.         We have not had occasion to address the specific

issue       presented   in   this     case:       whether      the   career      offender

enhancement        is   so   significant       that    its    improper     application

amounts to a fundamental miscarriage of justice. 7


        7
       Our friend in dissent accuses us of running “roughshod”
over circuit precedent.     This is demonstrably not the case.
Aside from the fact, explained below, that the career offender
enhancement is plainly not a run-of-the-mill guideline, the
dissent ignores the particulars of our prior cases.    In United
States v. Pettiford, 612 F.3d 270, 275 (4th Cir. 2010), the
petitioner filed a motion to vacate his Armed Career Criminal
Act enhanced sentence following a state court vacatur of two of
his predicate offenses.    We denied the motion because it was
undisputed that, following the vacatur, the petitioner still had
three remaining ACCA qualifying convictions in his record. Id.
at 276-77.   Thus, our statement regarding the availability of
collateral review to correct Guidelines errors was pure dicta.
(Continued)
                                             16
     Three    courts      of   appeals    have,     however,     confronted         this

precise question, albeit with differing results.                    In Sun Bear v.

United    States,   644    F.3d   700     (8th    Cir.   2011)     (en    banc),     the

Eighth    Circuit   considered      the    question      following       the   Supreme

Court’s    decision    in      Begay,     which    limited     the       category    of

defendants eligible for career offender status by narrowing the

definition of a crime of violence.                See 553 U.S. at 148. 8            Sun

Bear held that career offender status is an “ordinary question[]

of [G]uideline interpretation,” and that misapplication of this

status is not an error that results “in a complete miscarriage

of justice.”    644 F.3d at 704 (citation omitted). 9

     The     Seventh      Circuit       initially        reached     a      different

conclusion.    In Narvaez, the court held that because of changes



Likewise, as explained above, in Pregent we assumed that                            the
petitioner had stated a cognizable claim before dismissing                          his
petition as untimely.      190 F.3d at 284.      Moreover,                          the
petitioner in Pregent was arguing for the termination of                            the
supervised release portion of his sentence, a far cry from                          the
situation confronting Whiteside. Id. at 283.
     8
       The court first acknowledged that Begay set forth a
substantive rule that could be applied retroactively on
collateral appeal. We need not consider this preliminary issue
with respect to Simmons, since we have previously determined
that Simmons announced a substantive rule that may be raised in
a habeas proceeding. See Miller v. United States, 735 F.3d 141,
147 (4th Cir. 2013).
     9
       It is worth noting that the sentence imposed in Sun Bear
was within the Guidelines range applicable even in the absence
of the career offender enhancement. Id. at 705.



                                          17
to the law under Begay and Chambers v. United States, 555 U.S.

122 (2009), the defendant “never should have been classified as

a career offender and never should have been subjected to the

enhanced    punishment     reserved     for    such   repetitive    and   violent

offenders.”     Narvaez, 674 F.3d at 627 (emphasis omitted).                   The

court    deemed      the    resulting        career    offender     sentence      a

miscarriage     of    justice    even       though    it     fell   beneath    the

applicable statutory maximum.          Id. at 629.         The court explained:

      The imposition of the career offender status branded
      Mr. Narvaez as a malefactor deserving of far greater
      punishment than that usually meted out for an
      otherwise   similarly  situated  individual   who  had
      committed the same offense. It created a legal
      presumption that he was to be treated differently from
      other offenders because he belonged in a special
      category reserved for the violent and incorrigible.
      No amount of evidence in mitigation or extenuation
      could erase that branding or its effect on his
      sentence. His designation as a career offender simply
      took as unchallenged a premise that was not true and
      gave him no way of avoiding the consequences of that
      designation.

Id.

      Narvaez, however, dealt with a sentence issued prior to

United     States    v.    Booker,    543     U.S.    220    (2005),   when    the

Guidelines    remained      mandatory.         Shortly      after   the   Narvaez

decision, the Seventh Circuit limited its holding to sentences

issued under the mandatory Guidelines.                 See Hawkins v. United

States, 706 F.3d 820, 824 (7th Cir. 2013) supplemented on denial

of reh’g, 724 F.3d 915 (7th Cir. 2013), cert. denied, 134 S. Ct.


                                        18
1280 (Feb. 24, 2014).        In Hawkins, the court held that post-

Booker, Guidelines errors were “less serious,” and that as long

as the sentence imposed was beneath the statutory maximum it was

not subject to correction on collateral review.

     The Eleventh Circuit then reached the opposite conclusion

of both the Eighth and Seventh Circuits.                In a case that was

recently vacated pending rehearing en banc, Spencer v. United

States, 727 F.3d 1076, 1087 (11th Cir. 2013), vacated pending

reh’g en banc, (11th Cir. Mar. 7, 2014), the court stated that

an   erroneous      career   offender          enhancement   amounts     to   a

fundamental miscarriage of justice because “categorization as a

career offender is not merely a formal requirement of a criminal

procedural rule.”     This was true because, even post-Booker, “the

Guidelines   are    the   heart   of     the   substantive   law   of   federal

sentencing.”     Id. at 1087.         Central to the panel’s reasoning was

the Supreme Court’s recent decision in Peugh v. United States,

___ U.S. ___, 133 S. Ct. 2072 (2013).

     In Peugh, the Court held that retroactive application of a

Guideline    that   increases     a    defendant’s    applicable   Guidelines

range violates the Ex Post Facto Clause of the Constitution.

Id. at 2084.     In the process, the Court reaffirmed the important

role that the Guidelines play in sentences issued post-Booker.

The Court stated that the Guidelines remain “the lodestone of

sentencing,” id., and that “[t]he post-Booker federal sentencing

                                        19
scheme aims to achieve uniformity by ensuring that sentencing

decisions are anchored by the Guidelines . . . .”                  Id. at 2083

(emphasis added).        The Court also noted the requirement that

“‘district courts must begin their analysis with the Guidelines

and     remain     cognizant    of    them     throughout   the     sentencing

process.’”       Id. (quoting Gall v. United States, 552 U.S. 38, 50

n.6 (2007)).        The Court explained that this and other hurdles

“make the imposition of a non-Guidelines sentence less likely,”

id. at 2083-84, and that an increase in the Guidelines range

still creates a “significant risk of a higher sentence.”                  Id. at

2088.     In support, the Court cited Sentencing Commission data

showing that, absent a government motion for a variance, roughly

eighty percent of defendants since 2007 have received within-

Guidelines sentences.         Id. at 2084.

      Relying on the Supreme Court’s recent pronouncements and

citing     additional    statistical         data   concerning     the     career

offender     enhancement,      the   Spencer    panel   held,    “[w]e     cannot

pretend    that,    because    of    Booker,   career   offender    status    no

longer matters to sentence length.”             727 F.3d at 1088.        Instead,

“an erroneous career offender Guideline calculation, even though




                                        20
advisory,    . . .          can   amount      to     a    fundamental       defect    in    the

sentencing analysis.”              Id. at 1088-89. 10

       We agree with the Spencer panel’s reasoning and hold that

an    erroneous        application       of    the       career     offender     enhancement

amounts     to    a      fundamental          miscarriage           of    justice    that    is

cognizable on collateral review.                     By no rubric can the impact of

the career offender enhancement be considered “ordinary.”                                   The

Supreme Court has recognized that career offender status creates

“a    category         of     offender        subject          to     particularly      severe

punishment.”           Buford v. United States, 532 U.S. 59, 60 (2001).

And as cited in Spencer, Sentencing Commission data show the

continued impact of the enhancement on sentences administered

post-Booker.            For    example,       in     2012,      the      mean   sentence    for

criminal history category VI non-career offenders was 84 months

and   the   median       was      60   months.           For   career      offenders,   those

figures increased to a mean of 163 months and a median of 151

months.          For     drug      trafficking           offenses,        criminal    history

category VI non-career offenders received a mean sentence of 115




       10
        After Peugh, the panel in Hawkins released supplemental
opinions discussing Peugh’s impact on its case.   See 724 F.3d
915 (7th Cir. 2013). Disagreeing with the Eleventh Circuit, the
court upheld its earlier decision that the advisory nature of
the Guidelines prevented the petitioner from obtaining relief.
Id. at 916-17.



                                               21
months and a median of 96 months; those figures jumped to 154

months and 144 months respectively for career offenders.

        Whiteside’s      case    is   representative      of    the    enhancement’s

dramatic impact.         Absent the enhancement, he would have faced a

Guidelines range of 140 to 175 months; after it was applied, his

range skyrocketed to 262 to 327 months. 11                     The district court

eventually departed downward from this range to a period of 210

months;     but   that    is    exactly    the   point:        the    court   departed

downward from what was believed to be the applicable Guidelines

range      in   fashioning      the   ultimate     sentence.         The   Guidelines

range,      although      advisory,       retained     its      anchoring      effect

throughout Whiteside’s sentencing.                 It is just that the anchor

was     dropped    in    the    wrong     place.      The      Supreme     Court   has

recognized this effect, stating that “[e]ven if the sentencing

judge sees a reason to vary from the Guidelines, ‘if 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.’”                 Peugh, 133 S. Ct. at 2083

(quoting Freeman v. United States, 564 U.S. ___, ___, 131 S. Ct.

2685, 2692 (2011) (plurality opinion)) (emphasis in original).




      11
        These figures put aside consideration of the statutory
minimum penalty, which, of course, we also know was improperly
applied in light of Simmons.



                                           22
       In Whiteside’s case, had the district court begun with the

correct    range,        it   almost    certainly        would         have     imposed     a

different sentence.           Consider that if the court had employed the

same   twenty     percent      downward       departure     based        on    substantial

assistance,      Whiteside      would    have     received        a    sentence     of    112

months as compared to 210 months.                  And in the abstract, it is

highly unlikely that any defendant with a Guidelines range of

140 to 175 months who has been granted a § 5K1.1 motion for a

downward departure would receive a sentence 35 months in excess

of the high-end of that range.                  At the very least, the § 3553

factors supporting such an increase would be subject to rigorous

review under Gall on direct appeal.

       It is not by accident that the career offender enhancement

so significantly impacts defendants’ sentences.                          Unlike most of

the Guidelines, which are based on the policy calculations of

the    Sentencing    Commission,         the      career     offender          enhancement

derives from a congressional requirement.                         A statute provides

that    “[t]he    Commission       shall        assure     that       the      [G]uidelines

specify a sentence to a term of imprisonment at or near the

maximum    term     authorized”         for     those      who        qualify     for     the

enhancement.        28    U.S.C.   § 994(h).         Heeding          this     charge,    the

Commission      fashioned      strict     penalties        for        career    offenders:

their criminal history categories are automatically boosted to

VI, the highest possible rung, and their offense levels become

                                           23
tied to the statutory maximum penalty as opposed to the actual

conduct of conviction.              See U.S.S.G. § 4B1.1(b).                  Both factors

contributed       to        the    significant          increase        in        Whiteside’s

Guidelines range.

     Clearly then, the impact of the career offender enhancement

is far from ordinary.               It is certainly nothing like the two-

level enhancement for restraint of the victim which we rejected

as a source of habeas relief in Mikalajunas.                          That case presents

a far better example of a garden variety Guidelines adjustment

that,     while   possibly         having      an      impact    on     the       defendant’s

sentence, cannot be said to constitute a fundamental miscarriage

of   justice.          In    contrast,      an      enhancement        that       casts   the

defendant    as   a     hopeless        recidivist       worthy       of   the     strictest

possible    punishment,           and   that     has    the     effect       of    robbing   a

defendant of his freedom for some eight years, is fundamentally

different. 12

     The government is certainly correct in remarking that this

case does not present exactly the kind of error recognized by

     12
        The dissent faults us for failing to provide a “non-
arbitrary” line delimiting the types of sentencing errors that
constitute “extraordinary circumstances.”   Post at 47.    Given
the inherent folly of attempting to forecast the contours of
“extraordinary” events, our review is quite properly limited to
the case before us, and we decide only that when subsequent case
law makes manifestly clear that a petitioner was wrongly
designated a career offender he may challenge his sentence
through a § 2255 motion.



                                            24
the    Supreme       Court   in   Davis.        The   petitioner     in       Davis   was

convicted for actions later deemed not criminal.                         417 U.S. at

346.    The Court remarked that “[t]here can be no room for doubt

that    such     a    circumstance    inherently          results   in    a    complete

miscarriage of justice . . . .”                  Id. (internal quotation marks

and citation omitted).            We reached a similar result in applying

Simmons to vacate a felon-in-possession conviction in Miller.

Here, the instant conviction for which Whiteside was sentenced

remains     valid.           Regardless,        though,     Whiteside     is     almost

certainly serving time he would not be absent the enhancement.

The mere fact that he was properly convicted does not somehow

excuse an obviously legally erroneous sentence. 13


       13
        The dissent refuses to acknowledge the basic truth
underlying our decision: that Whiteside is not, and was not,
properly designated a career offender.     Our sentencing regime
prior to Simmons was overinclusive; it swept up defendants whose
criminal histories, when viewed individually – a general bugaboo
of the dissent – did not expose them to the enhancement.
Simmons corrected this mistake by directing district courts to
examine the specifics of the defendant’s predicate convictions.
Under this approach, there is no question Whiteside should not
have received the enhancement.       Simply because a criminal
defendant was at one point classified a career offender does not
mean that classification was ever correct.    Neither the Eighth
nor Seventh circuits had any trouble recognizing that by
narrowing the definition of the terms “crime of violence” and
“violent felony,” Begay and Chambers exposed “errors” in how the
Guidelines had been applied.    See Sun Bear, 644 F.3d at 704;
Hawkins, 706 F.3d at 823. The effect of Simmons on Whiteside’s
case is no different. This point is underscored by our decision
in Miller finding Simmons to have announced a new substantive
rule retroactive on collateral review.     735 F.3d at 147.   In
Miller, we recognized that by “alter[ing] ‘the class of persons
(Continued)
                                           25
       Nor does the fact that Whiteside was sentenced beneath the

applicable statutory maximum mitigate the mistake.                            Contrary to

the government’s contention, this fact alone does not make a

sentence      “lawful,”        for    several        reasons.          First,      such    a

conclusion     is   contrary         to    our    well-established          principles     of

appellate      review.           While           sentencing      review       is     highly

deferential, that “does not mean there is no review at all.”

United States v. Abu Ali, 528 F.3d 210, 268-69 (4th Cir. 2008).

“If    Gall   had     intended        to    dispense      with    any       semblance      of

meaningful     review,       there        would    have   been    no    need       for    the

decision      . . .     to     direct        district      courts       to     ‘correctly

calculat[e] the applicable Guidelines range.’”                          Id. at 265-66

(quoting Gall, 552 U.S. at 49).                   And when sentencing courts vary

from   the    Guidelines,       they       must    “consider     the    extent      of    the

deviation     and     ensure    that       the    justification        is    sufficiently




that the law punishes,’” Simmons had a dramatic impact on the
substantive rights of criminal defendants. Id. at 146 (quoting
Schriro v. Summerlin, 542 U.S. 348, 353 (2004)).       The Miller
court had no hesitation in overturning the petitioner’s
conviction – and his accompanying sentence of 72 months,
potentially less time than Whiteside is wrongly serving - even
though the conviction was originally consistent with controlling
precedent. Id. at 143, 147. Given the continued importance of
the Guidelines generally post-Booker, and the impact of the
career offender enhancement in particular, there is no reason,
in theory or in practice, to reach a different result here. At
the very least, there can be no honest question that Whiteside’s
designation as a career offender was in fact “erroneous.”



                                             26
compelling to support the degree of the variance.”                              Gall, 552

U.S. at 50.       We have demonstrated our willingness to vacate non-

Guidelines      sentences        that    are       unreasonable     in    light      of    the

district      court’s     explanations.             See,    e.g.,   United      States      v.

Engle, 592 F.3d 495, 505 (4th Cir. 2010); Abu Ali, 528 F.3d at

268-69.

       Of    course,     these    standards         are    utilized      only   on   direct

appeal.       But they highlight the rigor with which we view our

role   in     ensuring    that    each       and    every   defendant      sentenced       in

federal court receives a fair and reasonable sentence, to say

nothing of a lawful one.

       The    animating       principles       of    fundamental       justice       are   no

different here.         First, through no fault of his own, Whiteside’s

opportunity for such review did not arise until after the period

in which to file a direct appeal had lapsed.                              Had Whiteside

challenged      his    career     offender         status    on   direct    appeal,        his

argument would have been rejected by our pre-Simmons line of

cases.       See United States v. Harp, 406 F.3d 242 (4th Cir. 2005);

United States v. Jones, 195 F.3d 205 (4th Cir. 1999).                           He should

not    be    punished     –    and      we   mean     literally       punished,      as    in

additional time spent in federal prison, time which the law does

not countenance – for this fact.                    Acknowledging that a defendant

would likely be entitled to a vacated sentence on direct appeal

but not on a timely filed habeas motion simply due to the timing

                                              27
of   one    of       our   decisions       contributes         to    the     conclusion        that

denial of review operates a complete miscarriage of justice.

      Second, the Supreme Court just last year told us that the

advisory nature of the Guidelines does not cure the harm that

results      from      utilizing       an    incorrect         Guidelines          range       as   a

starting     point.          See     Peugh,       133   S.     Ct.     at       2086;    see   also

Spencer, 727 F.3d at 1087 (“The Seventh Circuit [in Hawkins] may

think      that      mistakenly      categorizing         a    defendant          as     a   career

offender became not very serious once Booker made the Guidelines

advisory, but the Supreme Court told us in June . . . that the

Guidelines are still ‘the lodestone of sentencing.’” (quoting

Peugh, 133 S. Ct. 2084)) (citation omitted).                                     In Peugh, the

Court ruled that retroactive application of a Guideline violates

the Constitution even when the vacated sentence is beneath the

statutory maximum.             The Court stated, “that a district court may

ultimately        sentence      a    given    defendant         outside         the     Guidelines

range does not deprive the Guidelines of force as the framework

for sentencing.”               Peugh, 133 S. Ct. 2076.                      And though Peugh

concerned        a    direct    appeal,      it     found      error       of    constitutional

magnitude,        indicating        that     the    mistake         also    would       have    been

correctable on collateral review.

      In addition to the continued vitality of the Guidelines in

an   advisory         system,       Peugh    also       drew    on     the       principles         of

fairness and justice that animate the Ex Post Facto Clause.                                     Id.

                                               28
at 2085 (“[T]he Clause also safeguards a fundamental fairness

interest . . . in having the government abide by the rules of

law it establishes to govern the circumstances under which it

can deprive a person of his or her liberty or life.” (internal

quotation marks and citation omitted) (ellipsis in original));

id. (“[The Clause] does not merely protect reliance interests.

It also reflects principles of fundamental justice.”).                 We find

that these principles map easily onto our analysis of whether

Whiteside was subject to a fundamental miscarriage of justice.

Because of the career offender enhancement, Whiteside’s sentence

is plainly at odds with what he would receive were he sentenced

today.      He is not a career offender, and he should not serve a

sentence that was based on his classification as one.              The mere

fact that his sentence was beneath the statutory maximum does

not somehow assuage this fundamental unfairness.

       In the face of this clear injustice, the government pleads

that   we   respect   -   with    something   approaching   sanctity    -    the

finality of sentencing decisions.             We agree that finality is an

important     consideration.       It   encourages   defendants   to    accept

their punishments and move forward with their lives; as well, it

minimizes     the   misuse   of    judicial    resources.     Perhaps       most

importantly, in cases involving victims, finality offers these

individuals some degree of peace of mind and a sense that their

suffering has not been forgotten.               But we do not agree that

                                        29
these considerations, to the extent that they apply here, can or

should     outweigh    the   plain      injustice    that   would    result   from

denying the petitioner what he seeks, which is only a chance to

be   sentenced      according     to    the    factors   that   everyone    agrees

should     apply.     Were   we    to    conclude    otherwise,      we   would   be

putting “bureaucratic achievement” ahead of our task of ensuring

that all those who come before us receive meaningful review of

their claims.         Gilbert v. United States, 641 F.3d 1293, 1337

(11th Cir. 2011) (Hill, J., dissenting).                 We are more than mere

gatekeepers.        Congress has given us the authority on collateral

review to relieve errors that amount to fundamental defects in

process     or   justice.         Erroneous      application    of    the   career

offender enhancement works such an injustice, and we will not

turn a blind eye to so obvious an error simply for the sake of

finality. 14


      14
        Unfortunately, our dissenting colleague sounds the alarm
that after today’s decision no criminal sentence is safe from
collateral attack. The dissent’s attempts to expand our holding
on our behalf could only result from its larger, misguided goal
of convincing the reader that habeas relief is somehow harmed by
its utilization. Somewhat amazingly, the dissent is explicit on
this point.    Post at 68.   With due respect to our colleague’s
views, habeas review is not merely a deterrent that fulfills its
purpose by its threatened use; criminal defendants are aided
only when it is employed.       The dissent would have its own
exaltation of the history of the Great Writ and § 2255 relief
contribute to the mechanism’s futility.      Accusing us of Whig
history, the dissent’s approach is rank with the fearful
mistrust    of   individualized   decision-making   inherent  to
traditional conservatism.    The suggestion that district courts
(Continued)
                                          30
       Because         we     find     that       Whiteside       suffered          a    fundamental

miscarriage of justice, we need not address his additional claim

that     the      error       violated        his        constitutional            rights       to    due

process.            We      have,     however,           considered         the     constitutional

question       to      the    extent     necessary          to    grant       a    certificate         of

appealability, which has yet to issue in this case.                                             See 28

U.S.C.       § 2255(c)          (permitting         issuance           of    a     certificate         of

appealability            only    where       petitioner          “has       made    a    substantial

showing      of       the    denial     of    a     constitutional           right”)        (emphasis

added).           A      certificate         of     appealability             may       issue    on    a

constitutional              question     that       is     “debatable.”              Miller-El         v.

Cockrell, 537 U.S. 322, 337, 338 (2003).                               We are satisfied that,

for    the     same         reasons     discussed          above        with       regard       to    the

fundamental defect/miscarriage of justice claim, it is at least

debatable         that       erroneous       application          of    the       career    offender

enhancement deprived Whiteside of his liberty in violation of




and future panels of this court cannot discern actual injustices
from less serious errors casts too critical an eye on the judges
throughout our circuit.   In short, we simply do not share the
view that the criminal justice system is somehow harmed when
defendants are sentenced according to a proper understanding and
application of the law.



                                                    31
his due process rights.          We therefore grant a certificate of

appealability. 15

                                       IV.

     For    the   reasons     stated    above,     we   hold    that    equitable

tolling    applies   to     Whiteside’s      claim.      We    also    hold   that

erroneous application of the career offender enhancement amounts

to a fundamental miscarriage of justice that can be corrected on

collateral review.        We grant a certificate of appealability,

vacate     Whiteside’s      sentence,        and   remand      the     case    for

resentencing.

                                  VACATED AND REMANDED FOR RESENTENCING




     15
        Although Whiteside fashioned his due process claim on the
Supreme Court’s decision in Hicks v. Oklahoma, 447 U.S. 343
(1980), we think any such claim more aptly derives from Simmons
itself.   For this reason, we need not address the government’s
position that the claim is barred by the non-retroactivity
doctrine of Teague v. Lane, 489 U.S. 288 (1989) (holding that
new rules of criminal procedure may not be raised in post-
conviction proceedings), since we have already held that Simmons
announced a substantive rule that is applicable on collateral
review. See Miller, 735 F.3d at 147.


                                       32
DAVIS, Senior Circuit Judge, concurring:

        I    am    pleased       to     join     Judge     Gregory’s           extraordinarily

compelling         opinion,       which    fully      responds           to     the    dissent’s

overwrought and formalistic protestations that our judgment here

presages an end to law as we know it. (Evidently, it is not

enough       simply       for    the     dissent      to     say    that        there       is   no

miscarriage of justice shown on this record.)

      The dissenting opinion is hopelessly pleased with itself.

This is not surprising, as it prostrates itself at the altar of

finality, draped in the sacred shroud of judicial restraint.

There is much that could be said about the dissenting opinion’s

paean to finality, but one can hardly say it more poignantly or

more persuasively than has Judge Rovner. See Hawkins v. United

States,      724        F.3d    915,    919-25    (7th     Cir.     2013)        (Rovner,        J.,

dissenting from the denial of rehearing), en banc reh’g denied,

725   F.3d        680    (7th    Cir.    2013)      (Rovner,       J.,    joined       by    Wood,

Williams, and Hamilton, JJ., dissenting from denial of rehearing

en banc).

      In any event, what’s remarkable is that, as viewed through

the     lens      of     our    good     friend’s     dissenting              opinion,      it   is

perfectly         fine    for    the    United      States    Department          of     Justice,

which       is    to     say    the    Executive      Branch,       to        bypass     supposed

reverence for finality on a case-by-case basis, through waivers

of limitations and other devices, see ante, Maj. op., n.6, but

                                               33
the Third Branch is duty-bound never to acknowledge instances in

which    law’s    interest    in    finality     must    give   way      to    competing

values rooted in our shared abhorrence of manifest injustice. To

devolve to the Executive Branch sole authority to identify a

cognizable        miscarriage       of      justice      amounts      to           judicial

abdication, not judicial restraint. Such an approach enjoys no

legitimate       place   in   our       scheme   of   institutional        checks        and

balances. The Third Branch’s transcendent role, in our enviable

but     imperfect    system        of    criminal     justice,      is        to    afford

protection from the loss of individual liberty resulting from

profoundly       erroneous    decision-making,          and   not   least          of   all,

erroneous decision-making by the Third Branch itself, as in this

very case.

      The dissenting opinion favors what’s “finished” over what’s

“right” and thereby blinks at a profound miscarriage of justice.

It is wrong to do so.




                                            34
WILKINSON, Circuit Judge, dissenting:

       Deangelo       Whiteside       was      properly       designated        a     career

offender in the course of his federal sentencing proceedings.

Now,   years    later,       the   majority       vacates      that   sentence.            In

invalidating         Whiteside’s       sentence,        the    majority     creates         a

circuit      split    over     whether      career-offender         designations          are

cognizable on collateral review, and ignores settled law as to

whether changes in circuit precedent can reset the statute of

limitations       for      post-conviction        review       of   federal         criminal

proceedings.

       The   majority       opinion    represents       a     dramatic   expansion         of

federal      collateral       review     that      is    unsupported       by       law    or

precedent.      It makes a shambles of the retroactivity doctrines

that    have    long       safeguarded      the    basic      finality    of        criminal

convictions.          It    disrupts     the     orderly      administration         of   our

criminal-justice system.

       If it were purely a matter of orderly administration, that

might be an arid basis on which to deny relief.                          But there was

no injustice done here.                Whiteside pled guilty to possession

with intent to distribute at least 50 grams of crack cocaine in

violation of 21 U.S.C. § 841(a)(1), and his two predicate felony

drug offenses plainly qualified him for career-offender status

under U.S.S.G. § 4B1.1, a status to which Whiteside did not

object.

                                            35
      None of these convictions has ever been invalidated.                          No

procedural or substantive irregularity ever marked the plea or

sentencing       proceedings.      In    short,       Whiteside     was    sentenced

according to the law as it existed at that time.                            Absent a

constitutional violation or miscarriage of justice, neither of

which is remotely present here, that is all a criminal defendant

can   ask   or    expect.      Moreover,      the    defendant     must    raise    the

petition in a timely manner, which Whiteside has failed to do.

      My colleagues attempt a basic restructuring of the purposes

of collateral review in not one, but two, respects.                        It is bad

enough that the majority envisions collateral proceedings as a

form of error correction intended, not so subtly, to supplant

direct review.          The comparative question the majority poses is

even worse.       It inquires whether yesterday’s result was the same

that would or should obtain today.                  To the contrary, collateral

review is what its name implies: whether the proceedings under

review conformed to law as it instructed at the time.                        If they

did, the rule of law was honored and upheld, and further inquiry

is impermissible.

      Because     any    other   disposition         of   this   case     would    open

concededly lawful proceedings to endless and untimely collateral

attack, I would affirm the district court’s dismissal of the

petition.        For    the   reasons   set    forth      below,   I    respectfully

dissent.

                                        36
                                        I.

     The majority opinion creates a square circuit conflict over

whether    allegedly       erroneous    career-offender     designations     in

particular, and what Sentencing Guidelines errors in general,

are cognizable on a 28 U.S.C. § 2255 petition for collateral

review.    On one side are the opinions of the Seventh and Eighth

Circuits holding challenges to career-offender designations not

cognizable.      See Hawkins v. United States, 706 F.3d 820, 823

(7th Cir. 2013), supplemented on denial of reh’g, 724 F.3d 915

(7th Cir. 2013), cert. denied, 82 U.S.L.W. 3308 (U.S. Feb. 24,

2014) (No. 13-538); Sun Bear v. United States, 644 F.3d 700,

705-06 (8th Cir. 2011) (en banc).                 On the other side are my

colleagues in the majority and, until recently, an opinion in

the Eleventh Circuit, see Spencer v. United States, 727 F.3d

1076, 1088-89 (11th Cir. 2013), vacated pending reh’g en banc,

(11th Cir. Mar. 7, 2014) (No. 10-10676).              As I see this dispute

as both a primary and threshold issue, I shall address it first.

     Like traditional habeas corpus, § 2255 “does not encompass

all claimed errors in conviction and sentencing.”               United States

v. Addonizio, 442 U.S. 178, 185 (1979).               A trial error that is

neither    constitutional     nor    jurisdictional    is   cognizable     under

§ 2255    only   if   it    constitutes      “a   fundamental   defect     which

inherently results in a complete miscarriage of justice, [or] an

omission    inconsistent      with     the   rudimentary    demands   of   fair

                                        37
procedure.”         Hill v. United States, 368 U.S. 424, 428 (1962).

Courts have consistently reaffirmed this principle since Hill.

See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 634 n.8 (1993);

United States v. Timmreck, 441 U.S. 780, 783-84 (1979); United

States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999).

         As    neither    Whiteside    nor    the    majority       claims     that    the

district court lacked jurisdiction when it sentenced him as a

career        offender,    Whiteside’s    claim      is    only    cognizable     if    it

alleges a constitutional error or a fundamental defect resulting

in a miscarriage of justice.                 Whiteside can satisfy neither of

these requirements.

                                            A.

         The    heart     of   collateral     review      is   the    correction        of

constitutional error.            In fact, a certificate of appealability,

which is necessary to appeal from a district court’s final order

in   a    § 2255       proceeding,    requires      the   petitioner      to    make    “a

substantial showing of the denial of a constitutional right.”

28   U.S.C.      § 2253(c)(2).         Whiteside     has    made     no   “substantial

showing” of the denial of a “constitutional right.”                       And even if

he had made such a showing, he could not possibly prevail on the

merits of his claim.

         The    only     colorable    constitutional        claim    even      plausibly

available to Whiteside is that he was denied due process in

violation of the Fifth Amendment.                   But there was no denial of

                                            38
due process here.            There is no claim of procedural irregularity

occurring       at    any    point   in     these       proceedings.         While   the

sentencing regime in force at the time of Whiteside’s sentencing

was later overturned in United States v. Simmons, 649 F.3d 237,

241 (4th Cir. 2011) (en banc), nothing in that case suggests

that Whiteside’s sentence failed to comply with the law in force

at the time the sentence was imposed.                    The method for analyzing

predicate state-court convictions applied in Whitside’s case had

been affirmed by numerous panels of this court.                             See, e.g.,

United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005); United

States v. Jones, 195 F.3d 205, 207 (4th Cir. 1999).                         Indeed, the

case     that    overturned       the     rule     in    force   at    the    time   of

Whiteside’s sentencing did not occur until August 2011, well

after Whiteside’s own case was finalized in August 2010.

       I thus cannot embrace the paradox that a manifestly lawful

criminal proceeding amounts to an unlawful deprivation of due

process.        Lawful one day, unlawful the next -– it makes no

sense.          The   doctrinal      hook        for    Whiteside’s     due     process

challenge, the Supreme Court’s decision in Hicks v. Oklahoma,

447 U.S. 343 (1980), provides no support for his claim.                               In

Hicks,    the    jury    imposed     a    mandatory-minimum         40-year    sentence

after being instructed that it was required to do so in light of

the    petitioner’s         two   prior    state       convictions.         Later,   the

Oklahoma    Court       of    Criminal     Appeals       declared     the    mandatory-

                                            39
minimum     law      unconstitutional           but     refused    to      vacate     the

petitioner’s sentence.          The Supreme Court reversed, finding that

the    petitioner’s     due    process     rights        were   violated       when   the

jury’s discretion to sentence below the mandatory-minimum 40-

year    term   was    improperly     limited,          even   though     the   sentence

imposed was beneath the statutory maximum.                      See Hicks, 447 U.S.

at 344-46.

       Hicks differs markedly from this case: the Hicks jury was

barred from exercising its full sentencing discretion, whereas

the    district      court    here   not        only    recognized      that    it    had

discretion to depart from the Guidelines range, but in fact did

so when it sentenced Whiteside to a below-Guidelines sentence.

This    distinction     makes     all    the      difference.           Whiteside     was

entitled to a sentence somewhere between the statutory minimum

and maximum, imposed after the Guidelines range was properly

calculated in accordance with the law that existed at the time.

This he received, and thus there is no violation of any sort

anywhere to be found.

       But even if Hicks could be bent and stretched to support

Whiteside’s due process claim, it would still be procedurally

unavailable to him.           Under Teague v. Lane, 489 U.S. 288 (1989),

a court may not apply a new rule of constitutional criminal

procedure      on    habeas    except      in     two     narrow     and    infrequent

instances: where the rule places conduct outside the scope of

                                           40
criminal      sanction,       see     Saffle       v.   Parks,     494    U.S.     484,       494

(1990),       or    constitutes        a     “‘watershed         rule[]       of    criminal

procedure’ implicating the fundamental fairness and accuracy of

the criminal proceeding,” id. at 495 (quoting Teague, 489 U.S.

at 311 (plurality opinion)); see also United States v. Martinez,

139 F.3d 412, 416 (4th Cir. 1998) (holding that Teague applies

to § 2255 petitions).

      Teague        insisted,       then,     that      retroactivity         doctrine     not

succumb to a severe case of presentism, where a decision later

in time not only becomes the law, but seeks to discredit all

that went before.            Thus, a rule is new for Teague purposes if it

was     not   “dictated       by     precedent          existing    at    the      time       the

defendant’s conviction became final.”                        Graham v. Collins, 506

U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at 301) (emphasis

and internal quotation marks omitted).                      A novel “application of

an old rule in a manner that was not dictated by precedent”

counts as a new rule for Teague purposes.                           Stringer v. Black,

503 U.S. 222, 228 (1992).

      Because        Hicks     does     not        apply   at    all     to     Whiteside’s

situation, let alone squarely address it, Whiteside’s attempt to

extend    Hicks      would    require        us    to   announce    and       retroactively

apply     a   new     rule     of     constitutional         criminal         procedure       on

collateral         review:    namely        that    a    criminal      defendant        has    a

constitutional        right     to     an    amended       sentence      based     on     later

                                              41
decisional law that calls into question an advisory Guidelines

calculation manifestly correct at the time it was imposed.                          This

case is thus very different from Miller v. United States, in

which we held that, under the retroactivity principles announced

in Schriro v. Summerlin, 542 U.S. 348 (2004), Simmons was a

substantive    rule   and    thus     applied       retroactively          where        the

petitioner’s    § 2255     petition       alleged     actual    innocence          of    a

conviction for firearm possession by a felon.                        735 F.3d 141,

145-47 (4th Cir. 2013).       Here, by contrast, Whiteside asks us to

announce a novel due process rule that is completely distinct

from Simmons itself.

       Furthermore, Whiteside’s proposed new rule would not fit in

either of the Teague exceptions.                It does not place any conduct

outside the reach of the criminal law.                Nor does it present the

exceedingly    rare   case     of     a        “watershed     rule    of     criminal

procedure,” since the procedural rule that Whiteside wants us to

announce is not “implicit in the concept of ordered liberty.”

Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401

U.S. 667, 693 (1971) (Harlan, J., concurring in the judgments in

part    and   dissenting     in     part))        (internal     quotation          marks

omitted).     Thus, Teague forbids the constitutional relief that

Whiteside seeks.

       Seeking to avoid Teague’s restrictions, the majority tries

to hang its constitutional case on Simmons itself and issue the

                                          42
certificate of appealability on that basis.                       See Maj. Op. at 31

& n.15.    But Simmons, even if declared retroactive by Miller, is

a   case     about       statutory        interpretation           --        namely     the

interpretation       of     federal        sentencing          law      --      not     the

Constitution.      Given that Hicks is far afield and that any rule

derived obliquely from it cannot possibly be made retroactive

under   Teague,    Whiteside       has    no    constitutional           claim    and   no

entitlement to a certificate of appealability.

                                          B.

     Given that Whiteside has no available constitutional claim,

the majority must show that, in light of Simmons, his sentence

is marred by a fundamental defect that resulted in a miscarriage

of justice.       This it cannot do.                 Although some questions of

federal    law    are     cognizable      on        § 2255,    advisory        Guidelines

determinations     are     not    except       in    the   most      extraordinary       of

circumstances.       This is not such a case, and underlying the

majority’s    attempt      to    find    Whiteside’s          claim     cognizable      are

three serious and pervasive errors.

     First, the majority refuses to recognize that, after United

States v. Booker, 543 U.S. 220 (2005), errors in calculating

Guidelines ranges are “less serious” than they were previously

because the ranges are no longer binding on sentencing judges.

Hawkins, 706 F.3d at 824.               The situation might be different if

the Guidelines were still mandatory.                    But those who fought for

                                          43
so long to escape the binding strictures of Guidelines sentences

cannot now complain that just because they influence sentencing

behavior they must be treated as binding law.              Far from binding,

they may not even be presumed reasonable.                See Gall v. United

States, 552 U.S. 38, 50 (2007).             The majority today refuses to

respect the major tradeoff of the post-Booker regime: now that

the    Guidelines    are   merely    advisory,   they    lack   the   force   of

binding law at the sentencing phase and thus the ability to

activate collateral review.           As Justice Sutherland observed, if

laws   are   not    “upheld   when   they   pinch   as   well   as    when   they

comfort, they may as well be abandoned.”                  Home Bldg. & Loan

Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J.,

dissenting).        The majority disregards this honored maxim and

seeks to have it both ways.

       That the Guidelines are advisory is no mere theoretical

point; on remand, the district court will be perfectly free to

impose the exact same sentence on Whiteside.              It is notable that

the district court granted Whiteside only a limited downward

departure    for    substantial      assistance,    a    departure    that    was

itself broadly discretionary.          See United States v. Pearce, 191

F.3d 488, 492 (4th Cir. 1999).              From a recommended Guidelines

range of 262 to 327 months, the district court departed by less

than 20 percent from the bottom of the Guidelines range.                      The

district court could have departed downward significantly more

                                       44
but    did   not,    strongly      suggesting         that      it    viewed    Whiteside’s

criminal record as serious and the Guidelines range as generally

appropriate.

       The scenarios spun by the majority on what might or might

not    happen       on     resentencing         are       nothing       more     than    rank

speculation.         The      majority    suggests         that       the   district     court

would likely be unable to satisfy 18 U.S.C. § 3553’s sentencing

factors and “rigorous review under Gall on direct appeal” if it

departed by 20 percent above the top of the newly calculated

Guidelines range of 140 to 175 months and imposed an identical

sentence of 210 months.             Maj. Op. at 23.              Quite apart from this

bald    attempt     to   put     the    hammer       to   the    district       court,   such

speculation ignores the “broad sentencing discretion” afforded

trial judges, Alleyne v. United States, 133 S. Ct. 2151, 2163

(2013), and the lengthy criminal record described in Whiteside’s

presentencing report that will be available for consideration on

resentencing.         Whiteside’s record includes, but is not limited

to, 10 controlled-substances offenses, 7 counts of assault with

a deadly weapon on a government officer, and additional counts

of    assault,    hit    and     run,    and    resisting         a    public    officer   --

convictions       that     Simmons      does        nothing     to     undermine.        This

lengthy      record      is      impossible          to    minimize,         since,      quite

independently       of     the   career-offender           designation,         Whiteside’s

extensive criminal history caused the presentencing report to

                                               45
recommend      a     criminal-history            category         of    V.       Thus,         the

assumption underlying the majority’s ruling -- that but for the

career-offender          enhancement         Whiteside      could      have   shaved          years

and years off his sentence -- is highly questionable.

      Second, the majority argues that, because the Guidelines

still    exert      a     substantial         influence      on    sentencing,           career-

offender designations are serious enough to be cognizable on

collateral review.               No one could deny that the Guidelines are

still    influential        even    after       Booker.       Mere      influence        on     the

ultimate      sentence,           however,       is        insufficient        to        warrant

correction under § 2255.                    See, e.g., Daniels v. United States,

532 U.S. 374, 376 (2001) (holding that § 2255 cannot generally

be   used    to     challenge       predicate        convictions        under    the          Armed

Career      Criminal       Act    of    1984);       Addonizio,        442    U.S.       at    190

(holding      that       § 2255        is     unavailable         to   prisoner          seeking

resentencing when post-sentencing changes in parole release-date

calculations allegedly increased effective sentence beyond that

which original sentencing judge intended); Mikalajunas, 186 F.3d

at   496     (holding       that       erroneous       sentencing        enhancement           for

restraint      of        victim    was        “ordinary      misapplication              of     the

[Guidelines] that does not amount to a miscarriage of justice”).

      The     majority       never      explains       how    the      reality      of        error

correction        customarily       reserved         for    direct     appeal       is    to     be

reconciled        with    the     broad      scope    it    now    proposes      for      § 2255

                                               46
review.        Nor     can       it,   since        there     is    no    clear        line     to

differentiate         why    this      Guidelines           calculation         is     open    to

collateral attack and others are not.                         The majority apparently

believes      that     career-offender              designations          are        “far     from

ordinary” and should be subject to challenge, Maj. Op. at 24,

but why stop there?              I cannot fathom.             The majority offers no

basis in law for its ruling, and the main reason given is that a

career-offender        designation           results    in    a    substantially            larger

prison term and “casts the defendant as a hopeless recidivist

worthy of the strictest possible punishment.”                             Id.        It is left

to the reader to divine why the application of such a penalty

constitutes “extraordinary circumstances” justifying collateral

review.       United States v. Pregent, 190 F.3d 279, 283 (4th Cir.

1999).     Every Guidelines calculation may affect the sentencing

range to a greater or lesser degree, and the majority does not

even hint at a non-arbitrary dividing line.                          Instead of a legal

principle, all we get is the majority’s pronunciamento along

with the irrelevant observation that Congress, as it had every

right    to    do,    outlined         the    contours       of    the        career-offender

enhancement for those whose extensive history of law-breaking

posed a continuing social threat.                   See Maj. Op. at 23.

     Finally, the majority confuses a change in law favorable to

a   defendant        with    a    fundamental          breakdown         in    procedure       or

justice.       As explained above, Whiteside’s sentence was imposed

                                               47
properly,     with      no     procedural          irregularities          or     substantive

errors.      Thus,      to     hold    that      Whiteside’s        situation       warrants

§ 2255    relief       implies       that   every        change     in     law     creates    a

manifest injustice no matter how lawful the prior proceeding.

But “[p]recedential decisions come pouring out of the federal

courts of appeals and the Supreme Court.”                         Hawkins, 706 F.3d at

824.     This ebb and flow of decisional law seldom implicates the

fundamental canons of justice.                      See Teague, 489 U.S. at 313

(noting that, because procedures falling under Teague’s second

exception    are       “so     central      to     an    accurate     determination          of

innocence    or       guilt,    we    believe       it    unlikely        that     many   such

components of basic due process have yet to emerge”).

       Rather than fundamental recastings of the foundations of

justice, most changes in law represent close and contestable

questions    on       which    capable      jurists       can     reasonably       disagree.

Simmons     is    a    case     in     point.           The      Simmons    panel,        which

incidentally included a former Supreme Court Justice, held that

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the basis for

the en banc majority’s decision, did not “compel[] a different

result” from the Harp regime for analyzing predicate state-court

convictions.          United States v. Simmons, 635 F.3d 140, 142 (4th

Cir. 2011), rev’d en banc, 649 F.3d 237 (4th Cir. 2011).                              The en

banc     decision      featured       opposing          views,     ably     and     earnestly

advanced.     Compare Simmons, 649 F.3d at 239 (Motz, J.), with id.

                                              48
at 250 (Duncan, J., dissenting), and id. (Agee, J., dissenting).

To say now that those on the losing side of the debate were

party    to    some    “miscarriage          of     justice”   requiring    collateral

relief, Hill, 368 U.S. at 428, disserves those whom I know my

friends in the majority hold in the highest esteem.

      To further say that a criminal defendant lawfully sentenced

prior to Simmons was the victim of some manifest injustice is to

adopt a naively Whig history of law as an unbroken march toward

progress and enlightenment, when in truth it is more often a

matter of fits and starts, of limitless gray areas, all bereft

of the guarantee that later attempts to reconcile public safety

with human liberty will necessarily be better than earlier ones.

The     majority’s         approach     to     retroactivity     also    ignores      the

analogous reality that plea bargains are contracts under which,

in    exchange       for     avoiding        the    uncertainties   of     trial,    the

defendant “assumes the risk of future changes in circumstances

in light of which [his] bargain may prove to have been a bad

one.”     United States v. Bownes, 405 F.3d 634, 636 (7th Cir.

2005).        This    assumed    risk        includes    the   forfeiture    of     later

advantageous legal developments.                    To say that a later change in

law should automatically make a plea agreement or, as here, a

lawful prior proceeding invalid is to render law provisional and

judgment advisory, good only until the inevitable next round.



                                               49
       Once we recognize that a favorable change in law does not

automatically render prior lawfully imposed sentences unjust, it

becomes       clear    why       collateral      review       is    a     poor    forum     for

correcting          sentencing       errors.            Unlike       with        ineffective-

assistance-of-counsel             claims,     sentencing           issues     can    usually,

even if not always, be effectively fixed on direct appeal.                                  The

majority’s invocation of the “rigor” with which appellate courts

review    sentences         on    direct   appeal       only   supports          this   point.

Maj.    Op.    at     27;   see    also    id.     at   23.        It    does     nothing    to

undermine       a     “basic      distinction       between         direct       review     and

collateral review”: that “an error that may justify reversal on

direct appeal will not necessarily support a collateral attack

on a final judgment.”             Addonizio, 442 U.S. at 184.

                                              C.

       In addition to being conceptually unsound, the majority’s

holding that Whiteside’s claim is cognizable under § 2255 leads

it to misread Supreme Court precedent and run roughshod over our

own.

       The     Supreme       Court    cases      upon     which         the   majority      and

Whiteside rely are in another room.                     In Peugh v. United States,

the Court held that the Ex Post Facto Clause forbids a district

court    from       using   Sentencing      Guidelines         promulgated          after   the

original offense to sentence a defendant if the later Guidelines

increase the recommended sentencing range.                              133 S. Ct. 2072,

                                              50
2084 (2013).        But Peugh is readily distinguishable.                First, it

deals with constitutional error.               Second, it deals with direct

appeal.      The standard for ex post facto challenges articulated

in a case like       Peugh –- that the change in law create merely “a

‘significant risk’ of a higher sentence,” Peugh, 133 S. Ct. at

2088 -- is substantially less demanding than the requirement of

a fundamental defect leading to a miscarriage of justice for

collateral     attack      on    non-constitutional      errors.        And   third,

there is no indication that the Supreme Court intended Peugh’s

holding to apply retroactively to already-final sentences such

as Whiteside’s.       See Hawkins, 724 F.3d at 916-18.

      Johnson v. United States, 544 U.S. 295 (2005), similarly

fails   to    support      Whiteside’s      position.        Johnson    dealt   with

§ 2255’s one-year statute of limitations.                    There, the Supreme

Court     stated    that    it     shared     the    petitioner’s      “preliminary

assumption that if he filed his § 2255 motion in time, he is

entitled to federal resentencing now that the State has vacated

one of the judgments supporting his enhanced sentence.”                       Id. at

302-03.      This assumption was irrelevant to the disposition of

the case, however, since the Court held that the § 2255 petition

at   issue    was   time-barred.         Id.    at    311.     Furthermore,      the

assumption was made in the context of the vacatur of predicate

state convictions; here, there is no question that Whiteside’s



                                         51
state convictions are still valid and that the district court

could, would, and should consider them on resentencing.

       Finally Davis v. United States, 417 U.S. 333 (1974), is

inapposite to this case.            In Davis, the Supreme Court held that

§ 2255    could     be     used    to    challenge     a   conviction       when   an

intervening       change    in    law    rendered    the   act   upon    which     the

conviction was based one “that the law does not make criminal.”

417 U.S. at 346.           Davis held: “There can be no room for doubt

that   such   a    circumstance         ‘inherently    results     in   a    complete

miscarriage        of       justice’       and       ‘present[s]        exceptional

circumstances’      that     justify     collateral     relief   under       § 2255.”

Id. at 346-47 (alteration in original).                    But nothing in Davis

suggests that its holding should extend to cases where, as here,

the intervening change in law did not undermine the underlying

convictions.       The difference is one of night and day.                  To say as

the majority does that “this case does not present exactly the

kind of error” at issue in Davis is an understatement, to put it

mildly.   Maj. Op. at 24.

       If the majority opinion distorts Supreme Court precedent,

it tramples our own.              Whiteside states that “[d]eciding this

case requires the Court to break new ground in this Circuit,” a

euphemistic way of inviting us to disregard our prior precedent.

Appellant’s Reply Br. at 27.



                                          52
       Sadly, the invitation has been accepted.                 We held in United

States       v.     Pregent,     “[b]arring     extraordinary          circumstances

. . . , an error in the application of the Sentencing Guidelines

cannot be raised in a § 2255 proceeding.”                    190 F.3d at 283-84;

see also United States v. Goines, 357 F.3d 469, 477 (4th Cir.

2004)    (“[Guidelines]         claims   ordinarily    are     not    cognizable     in

§ 2255       proceedings.”);      Mikalajunas,     186     F.3d       at   496   (“[A]

misapplication of the [Sentencing Guidelines] typically does not

constitute a miscarriage of justice.”).                   These cases all came

from the era in which the Sentencing Guidelines were virtually

mandatory.          Their teachings are all the more compelling in the

present       advisory     Guidelines       period.        For       if    Guidelines

calculations were not cognizable on collateral review in their

all-but-mandatory form prior to Booker, they certainly cannot be

cognizable in their new advisory status.

       Moreover, the holdings in the above cases stem from the

fact that § 2255 is designed for “cases in which ‘the sentence

was in excess of the maximum authorized by law.’” Pregent, 190

F.3d    at    284    (quoting    28   U.S.C.    § 2255(a)).          Here,   however,

Whiteside’s         career-offender      designation     did   not     increase     his

statutory maximum.         As Judge King recognized in United States v.

Powell,      because     career-offender       designations      do    not   lead    to

“sentences exceeding the applicable statutory maximum,” they are

thus not challengeable under § 2255.              691 F.3d 554, 563 n.2 (4th

                                          53
Cir. 2012) (King, J., dissenting in part and concurring in the

judgment in part).

      Similarly, in United States v. Pettiford, 612 F.3d 270 (4th

Cir. 2010), we ruled that there was no miscarriage of justice,

and   thus   no    remedy   available      under     § 2255,       for    a    prisoner

challenging       his   career-offender        sentence       when       two   of      the

underlying     predicate     convictions       had    been     vacated         but     the

career-offender designation was still supported by the remaining

convictions.       In that case, as here, the district court could

have imposed an identical sentence following vacatur.                                Thus,

there was “no evidence that [the petitioner’s] sentencing was

constitutionally        defective   or    flawed     in   a   fundamental            way.”

Pettiford, 612 F.3d at 278.

                                         II.

      In addition to being non-cognizable, Whiteside’s claim for

relief is time-barred.        28 U.S.C. § 2255(f) provides for a one-

year statute of limitations that is triggered by one of four

conditions, whichever occurs latest:

      (1) the date on         which      the   judgment       of   conviction
      becomes final;

      (2) the date on which the impediment to making                             a
      motion created by governmental action in violation                        of
      the Constitution or laws of the United States                             is
      removed, if the movant was prevented from making                           a
      motion by such governmental action;

      (3) the date on which the right asserted was initially
      recognized by the Supreme Court, if that right has

                                         54
       been newly recognized by the Supreme Court and made
       retroactively  applicable to  cases  on   collateral
       review; or

       (4) the date on which the facts supporting the claim
       or claims presented could have been discovered through
       the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4).

                                             A.

       Whiteside contends that his claim fits under (f)(4), and

that United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc), qualified as a new “fact” for purposes of that provision.

Whiteside’s suit is timely under this theory, since he filed

less than a year after Simmons was handed down.                             Although the

majority     does     not      adopt    Whiteside’s         statutory      argument,    an

explanation      of      the   statutory      scheme        is    still    necessary    to

illustrate    the      many     ways    in   which     the       majority’s      equitable

holding negates it.

       Whiteside      grounds     his    argument       on       the   Supreme      Court’s

decision in Johnson v. United States, 544 U.S. 295 (2005).                              In

Johnson, the defendant’s sentence in the original proceeding was

enhanced on the basis of a state conviction which was later

vacated.         Following       vacatur,         Johnson    sought       federal     post-

conviction relief, contending that his enhanced sentence was no

longer valid.         Johnson’s conviction had become final more than a

year    before     his     § 2255      petition      was     filed,       but   the   Court

concluded that the vacatur qualified as a new fact for purposes

                                             55
of (f)(4).         See Johnson, 544 U.S. at 300-02.                 As the Court

noted:

      We commonly speak of the “fact of a prior conviction,”
      and an order vacating a predicate conviction is spoken
      of as a fact just as sensibly as the order entering
      it. In either case, a claim of such a fact is subject
      to proof or disproof like any other factual issue.

Id. at 306-07 (citation omitted).

      Johnson      does      not    govern       Whiteside’s   claim.        Simmons

represented a change of law, not fact.                     The circuits to have

considered this type of issue have uniformly reached the same

conclusion.       See, e.g., Phillips v. United States, 734 F.3d 573,

580 (6th Cir. 2013); Sanchez v. United States, 318 F. App’x 801,

804   &   n.6    (11th    Cir.     2009)    (unpublished    per   curiam);    Lo   v.

Endicott, 506 F.3d 572, 575 (7th Cir. 2007); E.J.R.E. v. United

States, 453 F.3d 1094, 1098 (8th Cir. 2006); Shannon v. Newland,

410 F.3d 1083, 1088-89 (9th Cir. 2005); see also Minter v. Beck,

230   F.3d      663,   666   (4th    Cir.    2000)   (rejecting,   in   a    similar

context, defendant’s attempt to invoke a change in law outside

(f)(3)).

      Contrary to the vacatur at issue in Johnson, Simmons did

not directly alter Whiteside’s legal status as a prior state

offender.       See Lo, 506 F.3d at 575.             A conviction is a fact for

sentencing purposes, but a relevant legal rule is not.                      Simmons,

“unlike a predicate conviction, is a ruling exclusively within

the domain of the courts and is incapable of being proved or

                                            56
disproved.”        E.J.R.E.,      453     F.3d          at       1098.      This    point    is

illustrated by the simple observation that “[w]e would never

. . .    ask   a   jury   to    decide    whether            a    judicial    decision      had

indeed changed [the] law in the relevant way, nor would the

parties introduce evidence on the question.”                             Shannon, 410 F.3d

at 1089.       Indeed, if this change in law is a “fact,” then what

would not be?

      Instead of altering the factual landscape, Simmons merely

announced a generally applicable legal rule.                                But a decision

“establishing an abstract proposition of law arguably helpful to

the     petitioner’s      claim    does           not        constitute      the    ‘factual

predicate’ for that claim.”                  Id.         Decisions that update the

legal significance of certain facts without modifying them do

not qualify under (f)(4).              Simmons did precisely this: unlike a

vacatur     decision,      it     altered          the        legal      significance        of

Whiteside’s prior convictions without amending the convictions

themselves.        See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.

2000)     (“Time    begins      when     the       prisoner          knows    (or    through

diligence      could   discover)       the     important           facts,    not    when    the

prisoner recognizes their legal significance.”); see also United

States v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005).

      Whiteside’s (f)(4) argument fails for the additional reason

that it would effectively nullify (f)(3), which provides for

tolling in instances where the defendant’s claim is founded on a

                                             57
right      “newly      recognized     by    the    Supreme      Court    and       made

retroactively applicable to cases on collateral review.”                            28

U.S.C. § 2255(f)(3).           As the Eighth Circuit has reasoned:

      [The specific criteria enumerated in (f)(3) for
      tolling the limitations period] impliedly reject[] the
      notion that the creation of a new right by the Supreme
      Court that is not made retroactive to cases on
      collateral review, other rulings of law by the Supreme
      Court, and decisions taken from the courts of appeal
      in all instances, could trigger any of the limitations
      periods enumerated under § 2255.

E.J.R.E., 453 F.3d at 1098.

      If changes in law are cognizable under (f)(4), then (f)(3)

becomes superfluous because any claim brought under (f)(3) could

also be brought under (f)(4).                See Lo, 506 F.3d at 575.              “To

suggest,     as    [the   petitioner]      does,   that   any   decision      by   any

court on any issue could constitute a ‘factual predicate’ would

swallow up the specifically delineated limitations in” (f)(3).

Id.   at    576.       These   considerations      indicate     that    “subsequent

interpretations of the law can be the basis of delay in filing a

§ 2255 motion only in accordance with” (f)(3) -- not (f)(4).

Sun Bear v. United States, 644 F.3d 700, 702 n.5 (8th Cir. 2011)

(en     banc)      (internal     quotation      marks     omitted).        Notably,

Whiteside       does    not    even   attempt      to   argue   that    his    claim

satisfies the requirements specified in (f)(3).




                                           58
                                                B.

       Recognizing          the    speciousness        of        his   statutory     argument,

Whiteside asserts in the alternative -- in an argument embraced

by the majority -- that the statute of limitations should be

equitably tolled.            Equitable tolling of petitions for collateral

review is available only when a defendant demonstrates “(1) that

he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely

filing.”       Holland v. Florida, 560 U.S. 631, 649 (2010) (internal

quotation       marks        omitted).             Under     this        court’s    precedent,

equitable tolling is appropriate in those “rare instances where

-- due to circumstances external to the party’s own conduct --

it    would    be     unconscionable          to     enforce       the    limitation    period

against the party and gross injustice would result.”                                 Rouse v.

Lee,    339    F.3d        238,   246    (4th      Cir.     2003)      (quoting     Harris   v.

Hutchinson,          209    F.3d       325,   330     (4th        Cir.     2000))    (internal

quotation marks omitted); see also United States v. Sosa, 364

F.3d 507, 512 (4th Cir. 2004).

       Whiteside claims that he was prevented from timely filing

by the unfavorable precedent that would have governed his claim

had    he     sued    prior       to    Simmons.           The    standard     announced     in

Holland, however, focuses not on whether unfavorable precedent

would have rendered a timely claim futile, but on whether a

factor beyond the defendant’s control prevented him from filing

                                                59
within the limitations period at all.                    See Shannon, 410 F.3d at

1090.      Although       Simmons     plainly     made    a   collateral      attack     on

Whiteside’s sentence more plausible, nothing prevented Whiteside

from     filing     his     petition     within     the       one-year       statute    of

limitations.        See E.J.R.E., 453 F.3d at 1098.

       This court’s decision in Minter v. Beck confirms this line

of reasoning.           In that case, as here, the defendant’s claim

originally seemed foreclosed by extant precedent.                             After the

issuance       of   a     favorable     decision,        however,    he       sought    to

collaterally        attack      his     sentence,         invoking       a     provision

equivalent to (f)(2).            Minter contended that the newly issued

decision,      by    nullifying       the    unfavorable       precedent       that    had

previously barred his claim, served to remove an “impediment” to

filing.        After    rejecting     this    argument,       the   court     held     that

equitable tolling was inappropriate.                     Minter, 230 F.3d at 666-

67.      The   court      reasoned    that    unfavorable       precedent      may     have

rendered a timely claim unsuccessful, but did not actually bar

Minter     from     making    the     attempt.           As   the   court      observed,

“futility . . . is not a valid justification for filing an

untimely” petition.          Id. at 666.          Nothing in Holland undermines

this central holding.          The majority’s Orwellian declaration that

Minter establishes a “bright-line rule” that must be applied on

a “case-by-case basis” is contradictory at best, and scornful of

precedent at worst.          Maj. Op. at 12.

                                             60
       Tellingly, Whiteside makes no allegation that he was unable

to file in a timely fashion -- only that doing so would probably

have been unsuccessful in light of extant case law.                            Indeed, any

such allegation would be frivolous given the many defendants who

filed     suits       prior     to     Simmons      asserting          the     exact     same

substantive claim that Whiteside now raises, including of course

Simmons himself.            See, e.g., United States v. Brandon, 376 F.

App’x    343    (4th    Cir.     2010)     (unpublished          per    curiam);       United

States v. Summers, 361 F. App’x 539 (4th Cir. 2010) (unpublished

per curiam); United States v. Simmons, 340 F. App’x 141 (4th

Cir. 2009) (unpublished per curiam), vacated, 130 S. Ct. 3455

(2010).        These claims were not entirely meritless even under

then-existing         precedent:        the      Supreme        Court’s       decision     in

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and the Sixth

Circuit’s opinion in United States v. Pruitt, 545 F.3d 416 (6th

Cir.    2008),       both     strongly     foreshadowed          Simmons.        Equitable

tolling     should      not     be     applied      where,       as    here,     the     only

impediment to timely filing was the discouragement felt by the

petitioner on calculating his odds of success.

       Furthermore,         Whiteside      has     failed       to     demonstrate       that

“gross    injustice”        would      result      should       this    court    deny     his

request for equitable tolling and find his claim time-barred.

See    Green    v.     Johnson,      515    F.3d     290,       304    (4th    Cir.    2008)

(internal      quotation       marks     omitted).         As    explained      above     and

                                              61
contrary       to    the   majority’s        assertion,         see   Maj.     Op.       at    21,

Whiteside’s petition for collateral relief fails on the merits

for the simple reason that the claimed sentencing error involved

nothing more than a miscalculation of the advisory Guidelines

range.        Despite Whiteside’s contentions to the contrary, this

type of error does not represent “a fundamental defect which

inherently results in a complete miscarriage of justice.”                                     Hill

v.   United     States,        368    U.S.       424,   428     (1962).        For   similar

reasons, a dismissal of Whiteside’s claims on procedural grounds

also falls short of constituting a “gross injustice.”

      Finally,        as   several         circuits      have    noted,      it    is     quite

improper to use the doctrine of equitable tolling to circumvent

the express limitations contained in § 2255.                          See, e.g., Lo, 506

F.3d at 576.          Equitable tolling is instead intended to address

obstacles      to     filing    not       otherwise      governed     by   the     statutory

provisions.          Owens, 235 F.3d at 360.               In this case, Whiteside’s

statutory and equitable arguments both stem from the change in

law precipitated by Simmons.                      Changes in law are governed by

(f)(3),    which      lays     out    a    set    of    requirements       that    Whiteside

fails    to    satisfy.         To    permit      Whiteside      to   “succeed       on       this

recharacterized argument” would thus “usurp the congressionally

mandated limits on habeas petitions.”                     Lo, 506 F.3d at 576.

      In      this    case,    Simmons       came       down    roughly    a      year    after

Whiteside’s conviction became final.                      That may seem a short time

                                                 62
to the majority, but its equitable reasoning applies equally to

a long history of three, five, or even ten years, or whenever a

change in circuit decisional law or Guidelines interpretation

may     appear.        This   sort      of     reasoning     makes      a    mockery    of

Congress’s desire to have post-conviction petitions filed when

the evidence is not stale or missing altogether.

                                             III.

      It    has   often   been    noted       that    one    of   the   casualties      of

expanded      collateral      review          is    the     finality        of    criminal

convictions.       The majority pays the kind of lip service to this

value      that   is    typical      when      a    principle     is    about      to   be

disregarded.        See Maj. Op. at 29.                   In the majority’s eyes,

finality     is   an     empty    and        hollow   concept      with      no   meaning

comparable to a defendant’s rights to relitigation.                               But the

evisceration of the finality principles imposes costs, and many

of these costs are born by the judicial system.                         See McCleskey

v. Zant, 499 U.S. 467, 491 (1991); United States v. Addonizio,

442 U.S. 178, 184 n.11 (1979); Henry J. Friendly, Is Innocence

Irrelevant?       Collateral Attack on Criminal Judgments, 38 U. Chi.

L. Rev. 142, 148-49 (1970).

      As the Seventh Circuit emphasized in Hawkins, collateral

review of years-old proceedings ties up prosecutorial resources

that could otherwise be used to promptly resolve new criminal

cases.      See Hawkins v. United States, 706 F.3d 820, 824 (7th

                                             63
Cir. 2013), supplemented on denial of reh’g, 724 F.3d 915 (7th

Cir. 2013), cert. denied, 82 U.S.L.W. 3308 (U.S. Feb. 24, 2014)

(No. 13-538).             Furthermore, post-conviction petitioners occupy

the    time    of       defense       counsel       who    might    otherwise         turn   their

valuable but finite energies to a defense when it matters most:

at trial.          And the ultimate victims of this burdened system are

other litigants, civil and criminal, who find the courthouse

door    clogged          by     the     ever-rising         number       of     post-conviction

petitions.

       By undermining finality, expansive collateral review also

harms our criminal-justice system more broadly.                                 Because endless

collateral review keeps convictions and sentences in legal limbo

and    makes       it     more       doubtful       that    announced          punishment     will

actually      be    imposed,          it    eviscerates       the       deterrent      effect     of

criminal law.             See Teague v. Lane, 489 U.S. 288, 309 (1989)

(plurality opinion).                   For similar reasons, it reduces public

confidence in our criminal-justice system, see Addonizio, 442

U.S. at 184 n.11.                And it threatens to diminish the quality of

judging       in    the        first       instance,       since,       as     Professor     Bator

recognized         long       ago,    there    is    “nothing       more       subversive    of   a

judge’s       sense       of     responsibility,            of     the       inner    subjective

conscientiousness which is so essential a part of the difficult

and    subtle           art    of      judging      well,        than     an     indiscriminate

acceptance         of    the     notion      that    all    the     shots      will    always     be

                                                 64
called by someone else.”      Paul M. Bator, Finality in Criminal

Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.

Rev. 441, 451 (1963).

     Ultimately,     repetitious   litigation    under    the     guise    of

collateral   error   correction    “disparages   the     entire    criminal

justice system,” McCleksey, 499 U.S. at 492, by undermining a

key justification for the existence of final judgments: to give

all interested parties –- defendants, victims, and society alike

-- closure and a chance to move on and look forward rather than

back.   As Justice Harlan put it:

     At some point, the criminal process, if it is to
     function at all, must turn its attention from whether
     a man ought properly to be incarcerated to how he is
     to be treated once convicted.     If law, criminal or
     otherwise, is worth having and enforcing, it must at
     some time provide a definitive answer to the question
     litigants present or else it never provides an answer
     at all.   Surely it is an unpleasant task to strip a
     man of his freedom and subject him to institutional
     restraints. But this does not mean that in so doing,
     we should always be halting or tentative. No one, not
     criminal defendants, not the judicial system, not
     society as a whole is benefited by a judgment
     providing a man shall tentatively go to jail today,
     but tomorrow and every day thereafter his continued
     incarceration shall be subject to fresh litigation on
     issues already resolved.

Mackey v. United States, 401 U.S. 667, 690-91 (1971) (Harlan,

J., concurring in the judgments in part and dissenting in part).

     At the time Justice Jackson lamented the flood of post-

conviction petitions in Brown v. Allen, the federal courts heard

approximately 500 state-prisoner habeas petitions a year.                 344

                                   65
U.S.    443,     536       n.8    (1953)       (Jackson,         J.,       concurring          in      the

result).         In    recent      years,         they    have     heard     close        to    20,000

annually,       of    which      fewer       than       one-half      of    one       percent       have

succeeded.           Joseph L. Hoffmann & Nancy J. King, Justice, Too

Much    and     Too    Expensive,        N.Y.       Times,      Apr.       16,    2011,      at      WK8.

Ultimately, “no one in a position to observe the functioning of

our byzantine federal-habeas system can believe it an efficient

device for separating the truly deserving from the multitude of

prisoners pressing false claims.”                         McQuiggin v. Perkins, 133 S.

Ct. 1924, 1942-43 (2013) (Scalia, J., dissenting).

       Reasonable       people         may    disagree         over    the       proper    tradeoff

between      finality       and    error      correction,          but      it    is    not       up    to

judges to supplant Congress’s judgment on this point with their

own.     Above some constitutional crossbar, which most would agree

is     easily     cleared         by    our       current        system,         Congress           alone

possesses the power and responsibility to define the contours of

federal collateral review.                     And by Congress’s own terms, the

proper       focus    of    such       review       is    on     whether,        in    the      direct

proceedings, there was a “violation of the Constitution or laws

of     the    United        States.”              28     U.S.C.       § 2255(a).               Because

Whiteside’s          sentence      was       properly       imposed         according          to      the

undisputed       law       in    force       at     the    time,       there       was     no        such

violation.



                                                   66
       When the majority expands the scope of § 2255 in excess of

what Congress intended, or excuses Whiteside’s untimely petition

in clear violation of statutory requirements, it augments its

own    power    at    Congress’s      expense.       As   is   often    the     case    in

federal        post-conviction          review,     dissatisfaction          with      the

underlying provisions of the criminal law fuels expansion of

what    should       be   a    selectively    utilized    device      for    collateral

attack.      Whatever problems may exist in our substantive criminal

and sentencing regimes, reform is properly committed to Congress

via    its   constitutional         authority,     not    to   judges       through    the

backdoor of collateral review.

       Seldom has a court broken more china en route to a result.

Certificates         of       appealability,      doctrines     of     retroactivity,

statutes        of        limitation,     pertinent       precedents          are      all

disregarded.         Law is relegated to the margins.                All that need be

staked is one’s own claim to sole possession of the “truth” and

“right.”       Instead of respecting the limitations that Congress,

the Supreme Court, and our precedent have imposed on § 2255, the

majority conflates claims that are cognizable only on direct

appeal with the sort of fundamental defects that represent the

proper focus of § 2255.             The Supreme Court has warned against an

approach under which

       the writ would become a delayed motion for a new
       trial, renewed from time to time as the legal climate
       changed. . . .   Wise judicial administration of the

                                             67
      federal courts counsels against such [a] course, at
      least where the error does not trench on any
      constitutional rights of defendants nor involve the
      jurisdiction of the trial court.

Sunal v. Large, 332 U.S. 174, 182 (1947).

      The   majority’s         approach        devalues    collateral      review    by

transforming its nature.               The Great Writ, upon which § 2255 was

modeled, has earned its name not only because of its power, but

because, when used properly, it is used sparingly and to correct

certain fundamental infractions.                    Today, the majority renders

post-conviction         review        unrecognizable       as    compared    to     its

intended    role       at     the     Founding:     to    challenge   sentences      in

violation     of   a        court’s    “jurisdiction       or   detention     by    the

Executive without proper legal process.”                   McCleskey, 499 U.S. at

478 (internal citation omitted); see also Swain v. Pressley, 430

U.S. 372, 385-86 (1977) (Burger, C.J., concurring in part and

concurring in the judgment).

      The Great Writ stands for the fundamental proposition that

government too is subject to the given law.                     Here the government

observed the law; it is, sadly, a court that accords no meaning

to that fact.           How is it that requiring someone to serve a

sentence lawfully imposed and constitutionally rendered becomes

a “plain injustice” and a “fundamental unfairness”?                     Maj. Op. at

29.    This   path      vindicates        no    fundamental     liberty.     It     only

transforms collateral review into a double of direct review, a


                                               68
redundant mechanism for routine error correction, deployed to

unsettle   sentences   that   were    imposed   years   earlier   under

governing law, in accordance with unexceptionable procedure, and

by a sovereign acting in accordance with its sovereign duty to

protect citizens from those who repeatedly violate its criminal

laws.

     For the aforementioned reasons, and because I view this

decision as wholly wrong and deeply damaging to our criminal-

justice system, I respectfully dissent.




                                 69
