                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0222n.06

                                          No. 14-5406


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                    FILED
                                                                                Mar 23, 2015
ANTWONE MAURICE SHAW,                          )                            DEBORAH S. HUNT, Clerk
                                               )
       Petitioner-Appellant,                   )
                                               )
                                                   ON APPEAL FROM THE UNITED
v.                                             )
                                                   STATES DISTRICT COURT FOR THE
                                               )
                                                   WESTERN DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA,                      )
                                               )
                                                                     OPINION
       Respondent-Appellee.                    )
                                               )
                                               )



       BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge.*

       JANE B. STRANCH, Circuit Judge.             Antwone Shaw sought re-sentencing under

Dorsey v. United States, 132 S. Ct. 2321 (2012), by filing a motion to correct his sentence under

28 U.S.C. § 2255. Shaw argued that the Fair Sentencing Act (FSA) took effect before he was

sentenced, entitling him to the benefit of the five-year, not the ten-year, statutory minimum

sentence. Because applying the FSA’s lower statutory minimum would not have resulted in a

lower sentence for Shaw, we AFFIRM the district court’s denial of the § 2255 motion.

                                         I. BACKGROUND

       In late July 2010, Shaw entered a guilty plea to various drug trafficking offenses that

involved fifty grams or more of crack cocaine. Under the law at that time, Shaw faced a



       *
       The Honorable Pamela L. Reeves, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 14-5406
Shaw v. United States

statutory minimum sentence of ten years to life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii)

(effective April 15, 2009 to Aug. 2, 2010). As part of a plea agreement, the government agreed

not to seek further enhancement of the statutory minimum penalty under 21 U.S.C. § 851 based

on Shaw’s prior felony drug convictions. The government further agreed to recommend a three-

level reduction for acceptance of responsibility and a sentence of imprisonment at the low end of

the applicable guideline range, but not less than any mandatory minimum term of imprisonment

required by statute.

       One week after the district court accepted Shaw’s guilty plea, the FSA took effect.

Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010). In that legislation, Congress adjusted the

amounts of crack cocaine required to trigger certain statutory minimum sentences. The FSA

effectively lowered the statutory minimum sentence of imprisonment for drug crimes involving

fifty grams or more of crack cocaine from ten years to five years. 21 U.S.C. § 841(b)(1)(B)(iii)

(effective Aug. 3, 2010).

       In September 2010, before Shaw was sentenced, our court held that the FSA’s reduced

statutory minimum sentences did not apply to defendants who committed their crimes before, but

were sentenced after, the effective date of the FSA. United States v. Carradine, 621 F.3d 575,

580 (6th Cir. 2010). The Supreme Court later abrogated Carradine in 2012 when it ruled that

the FSA’s more lenient statutory penalties do apply to those defendants who were charged

before, but sentenced after, the effective date of the FSA. Dorsey, 132 S. Ct. at 2331; United

States v. Hogg, 723 F.3d 730, 732 (6th Cir. 2013) (recognizing that Dorsey abrogated

Carradine). When the district court sentenced Shaw on February 4, 2011, however, Dorsey had

not been decided and the court was bound by Carradine to apply the pre-FSA ten-year statutory

minimum sentence. The court granted Shaw the benefit of the lowered crack cocaine sentencing


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No. 14-5406
Shaw v. United States

guidelines, effective November 1, 2010, that were promulgated by the Sentencing Commission

on an emergency basis as directed by Congress in the FSA. The Presentence Report (PSR) set

Shaw’s total adjusted offense level at 25. With a criminal history category of IV, the advisory

guideline range was 84 to 105 months. By operation of USSG § 5G1.1(b), however, Shaw’s

“guideline sentence” became the higher statutory minimum term of 120 months of

imprisonment.1

       At the sentencing hearing, the government made an oral motion under 18 U.S.C.

§ 3553(e) to allow the court to depart below the statutory minimum sentence of 120 months to

reward Shaw for his substantial assistance. The government requested a sentence of 84 months

at the bottom of the guideline range, but it expressly declined to make a motion under USSG

§ 5K1.1 to allow the court to depart below 84 months. Citing the § 3553(a) factors, Shaw

requested a downward variance to 60 months of imprisonment to give him credit for time served

in state custody on a probation revocation sentence arising out of the same facts as the federal

charges.

       The district court characterized the government’s requested 84-month sentence as

“certainly a very reasonable recommendation,” R. 131 Page ID 477, but granted Shaw a 9-month

downward variance to give credit for time already served in state custody. The court imposed

the sentence of 75 months of imprisonment on each count, to run concurrently, followed by five

years of supervised release. The judgment was entered on February 14, 2011, and Shaw filed a




       1
         USSG § 5G1.1(b) provides: “Where a statutorily required minimum sentence is greater
than the maximum of the applicable guideline range, the statutorily required minimum sentence
shall be the guideline sentence.”
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No. 14-5406
Shaw v. United States

notice of appeal.2 He later voluntarily dismissed both his direct appeal and an appeal from the

district court’s denial of his motion for a reduced sentence under 18 U.S.C. § 3582(c)(2).

        In this § 2255 proceeding, Shaw again sought application of the FSA and a reduced

sentence. The district court reasoned that the only effect the FSA and Dorsey had on Shaw’s

sentencing was to lower the statutory minimum sentence from 120 months to 60 months. The

statutorily-required sentence of 60 months fell below the 75-month sentence the court actually

imposed. Because the FSA did not affect the legality of the sentence as originally imposed, the

district court denied Shaw’s § 2255 motion.3

                                         II. ANALYSIS

        When reviewing the denial of a § 2255 motion, we evaluate the district court’s legal

conclusions de novo and uphold its factual findings unless they are clearly erroneous. Howard v.

United States, 743 F.3d 459, 463 (6th Cir. 2014). The government does not dispute that § 2255

provides Shaw with a procedural mechanism to seek the benefits of Dorsey, see United States v.

Parker, 762 F.3d 801, 805 (8th Cir. 2014), but the government does not agree that Shaw is

entitled to any relief.

        An inmate in federal custody may attack his sentence collaterally if he can demonstrate

“that the sentence was imposed in violation of the Constitution or laws of the United States, or

that the court was without jurisdiction to impose such sentence, or that the sentence was in

excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28

U.S.C. § 2255(a). Under our precedent, “[a] motion brought under § 2255 must allege one of


        2
          Although Shaw agreed in his plea agreement to waive his right to direct appeal and to
file a § 2255 motion, the government has not sought to enforce Shaw’s waivers.
         3
          We take judicial notice that, on January 15, 2015, the district court further reduced
Shaw’s sentence under § 3582(c)(2) to 62 months of imprisonment, effective November 1, 2015,
based on a crack cocaine guideline recently lowered by the Sentencing Commission. R. 182.
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No. 14-5406
Shaw v. United States

three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence

imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to

render the entire proceeding invalid.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.

2001) (citing United States v. Addonizio, 442 U.S. 178, 185–86 (1979)).

         Shaw does not point us to any error of constitutional magnitude that occurred at his

sentencing hearing. He argued below that his sentence violated the Equal Protection Clause of

the Constitution, but he has not renewed that argument on appeal. He also does not contend that

his sentence was outside the statutory limits. Thus, to prevail under § 2255, Shaw must establish

that a fundamental error of fact or law rendered his entire sentencing proceeding invalid. He has

not carried his burden to make this showing.

         Most of the cases Shaw cites in support of his request for relief were decided in the

context of sentencing reduction motions filed under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10.

Those authorities do not apply here.       The only question we must address in this § 2255

proceeding is whether the district court’s application of the 120-month statutory minimum at the

original sentencing, rather than the FSA’s lower 60-month minimum, constituted a fundamental

defect in the sentencing that resulted in a complete miscarriage of justice or an egregious error in

violation of Shaw’s due process rights. See Wright v. United States, 182 F.3d 458, 463 (6th Cir.

1999).

         We conclude that no such fundamental error of fact or law occurred because our

Carradine holding required the district court to apply the 120-month statutory minimum that was

in effect at the time of the original sentencing in February 2011. Although Dorsey later clarified

that the FSA’s lower 60-month statutory minimum applied to Shaw, his sentence would

nonetheless remain the same, even applying the lower minimum penalty. A statutory minimum


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No. 14-5406
Shaw v. United States

sentence of 60 months lies below the bottom of Shaw’s guideline range of 84 to 105 months, and

the government declined to make a § 5K1.1 motion that would have allowed the court to depart

below the bottom of the guideline range for substantial assistance. To Shaw’s benefit, the

district court varied downward to impose a sentence of 75 months to grant Shaw credit for time

served in state custody. The FSA’s lower statutory minimum, even if applied, would have had

no effect on Shaw’s sentence. See United States v. Joiner, 727 F.3d 601, 607–08 (6th Cir. 2013)

(discussing cases where a statutory minimum below the defendant’s guideline range plays no

role in sentencing).

       Shaw contends that he is entitled to a sentencing reduction because the FSA effectively

lowered his guideline range. He reasons that, because the pre-FSA statutory minimum of

120 months was higher than the guideline range of 84 to 105 months, USSG § 5G1.1(b)(1)

increased his guideline sentence to 120 months. Then, when the FSA lowered the statutory

minimum from 120 months to 60 months, the FSA had the effect of lowering his guideline range

and now he should receive a sentencing reduction. This argument would be relevant if Shaw

were requesting a sentencing reduction under § 3582(c)(2). Under that statute, Shaw would have

to show that his “term of imprisonment [was] based on a sentencing range that has subsequently

been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Here, the issue for

resolution is whether Shaw can show a fundamental defect in his original sentencing that

requires § 2255 relief, and he has not done so.

                                      III. CONCLUSION

       The district court properly followed existing law when, at the original sentencing in

February 2011, it applied the pre-FSA statutory minimum of 120 months. Dorsey later clarified

that the FSA’s lower statutory minimum applied, but because that penalty was below Shaw’s


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Shaw v. United States

guideline range, it had no effect on his sentencing.        Shaw has not demonstrated that a

fundamental defect in his sentencing resulted in a complete miscarriage of justice or an egregious

error in violation of his due process rights. Accordingly, we AFFIRM the judgment of the

district court.




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