US v. Paul Dorsey
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cr-00468-PJM-13,8:12-cv-02998-PJM Copies to all parties and the district court. [999588798]. Mailed to: Paul Dorsey. [14-6440]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6440
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL DEWAYNE DORSEY, a/k/a Little Dorsey,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:09-cr-00468-PJM-13; 8:12-cv-02998-PJM)
Submitted:
May 18, 2015
Decided:
May 22, 2015
Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, and vacated
unpublished per curiam opinion.
and
remanded
in
part
by
Paul Dewayne Dorsey, Appellant Pro Se.
Joseph Ronald Baldwin,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Paul
Dewayne
Dorsey
appeals
the
district
court’s
order
denying relief on his motion construed as one under both 18
U.S.C.
§
3582(c)
(2012),
and
28
U.S.C.
§ 2255
(2012).
We
granted a certificate of appealability on the issue of whether
Dorsey is entitled to re-sentencing due to the vacatur of one of
his
state
sentence.
court
convictions
used
to
enhance
his
federal
Having reviewed the parties’ briefs and the record on
appeal, we vacate in part and remand as to this issue but affirm
the denial of relief under § 3582(c).
Dorsey pled guilty in June 2010 to conspiracy to distribute
and possess with intent to distribute 50 grams or more of crack
cocaine, 21 U.S.C. § 846 (2012), and being a felon in possession
of a firearm, 18 U.S.C. § 922(g) (2012).
The parties stipulated
in the plea agreement that Dorsey’s base offense level was 30.
However, Dorsey’s base offense level was reduced to 26 based on
changes to the Sentencing Guidelines applicable to crack cocaine
offenses that went into effect prior to Dorsey’s sentencing.
His total offense level was 25.
Dorsey’s criminal history score was determined to be VI,
based on 13 criminal history points.
The resulting Guidelines
range was 110 to 137 months of imprisonment.
a 137-month sentence.
The court imposed
We dismissed Dorsey’s appeal based on the
2
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waiver in his plea agreement.
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See United States v. Dorsey, No.
11-4962 (4th Cir. July 5, 2012) (unpublished order).
In September 2012, the District Court for Calvert County
invalidated
one
of
Dorsey’s
challenged
prior
convictions.
Dorsey then filed the underlying motion seeking re-sentencing as
a Criminal History Category V offender. 1
Dorsey also claimed
that the district court failed to sentence him in accordance
with the Fair Sentencing Act.
Construing Dorsey’s first claim
under § 2255 and his Fair Sentencing Act claim under § 3582, the
district court denied relief.
his
assertions,
Sentencing Act.
Dorsey
was
The court found that, contrary to
in
fact
sentenced
under
the
Fair
The court also found that, even though the
invalidated state conviction would result in a Criminal History
Category of V, not VI, Dorsey was nevertheless not entitled to
relief.
Moreover,
the
court
concluded
that
it
would
have
imposed the same sentence whether Dorsey was a Category V or VI
offender. 2
Dorsey appealed.
1
Dorsey’s § 2255 motion was timely filed.
States v. Jones, 758 F.3d 579 (2014).
2
See United
The maximum sentence for a base offense level of 25 and a
Criminal History Category V would have been 125 months’
imprisonment.
Therefore, in order to sentence Dorsey to 137
months as a Category V offender, the district court would have
had to depart upward from the applicable Guidelines range.
3
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The
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Supreme
Court
has
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held
that,
if
a
defendant
“is
successful in attacking [his] state sentences, he may then apply
for
reopening
sentences.”
of
any
federal
sentence
enhanced
by
the
state
Custis v. United States, 511 U.S. 485, 497 (1994).
Later, in Daniels v. United States, 532 U.S. 374, 382 (2001),
the Supreme Court noted that if a challenge to an underlying
conviction is successful in state court, “the defendant may then
apply for reopening of his federal sentence,” but added that if
the prior conviction is no longer open to direct or collateral
attack
in
its
own
right,
then
the
federal
nothing more about his sentence enhancement.
United States, 544 U.S. 295
prisoner
can
do
And, in Johnson v.
(2005), the Court added that the
one-year limitation period begins to run when the petitioner
receives
notice
of
the
order
vacating
the
prior
conviction,
“provided that he has sought it with due diligence in state
court after entry of judgment in the federal case in which the
sentence was enhanced.”
Applying
enhancements
these
based
Id. at 296.
cases,
on
we
have
previous
concluded
that
convictions
sentence
should
be
reconsidered if those previous convictions are later vacated.
See United States v. Gadsen, 332 F.3d 224, 228 (4th Cir. 2003)
(noting
that
a
federal
sentence
defendant
once
he
may
apply
has
4
for
a
reopening
successfully
of
his
challenged
the
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underlying conviction). 3
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Specifically, if a defendant “succeeds
in a future collateral proceeding in overturning his [state]
conviction, federal law enables him then to seek review of any
federal sentence that was enhanced due to his state conviction.”
United States v. Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996);
see also United States v. Pettiford, 612 F.3d 270 (4th Cir.
2010) (noting that “vacatur alone does not entitle a petitioner
to habeas relief”; the district court must determine whether
petitioner’s sentence is rendered unlawful on one of the grounds
specified in § 2255 before setting aside a sentence); United
States v. Hairston, 754 F.3d 258, 262 (4th Cir. 2014) (holding
that §
2255
motion
seeking
resentencing
based
on
vacatur
of
state conviction was not successive because the facts relied on
“did not exist when the numerically first motion was filed and
adjudicated”).
On the basis of these authorities, we find that
Dorsey is entitled to relief and remand for re-sentencing.
The
Government
calculation
of
his
argues
that
sentence
is
Dorsey’s
not
challenge
cognizable
in
a
to
§
the
2255
proceeding, citing United States v. Pregent, 190 F.3d 279 (4th
1999).
In
Pregent,
this
court
3
held
that
“[b]arring
Gadsen noted that Custis, Daniels, and Johnson apply
“whether the sentence enhancement was imposed because of the
ACCA or because of the Sentencing Guidelines.” Gadsen, 332 F.3d
at 228 n. 3 (internal quotations and citation omitted).
5
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extraordinary circumstances . . . an error in the application of
the
Sentencing
proceeding.”
Guidelines
Here,
cannot
unlike
in
be
raised
in
Pregent,
the
a
§
2255
Guidelines
calculation was not erroneous at the time Dorsey was sentenced.
Rather, Dorsey’s Guidelines calculation was not affected until
his state conviction was later vacated.
Cf. United States v.
Foote, ___ F.3d ___, 2015 WL 1883538 (4th Cir. Apr. 27, 2015) at
*1, *10 (“Neither Appellant’s federal offense of conviction nor
his state convictions qualifying him as a career offender have
been vacated” . . . . “[I]t is clear that ‘miscarriages of
justice’
in
the
post-conviction
context
are
grounded
in
the
notion of actual innocence, and Appellant has not been proven
‘actually innocent’ of any of his prior convictions.”), petition
for cert. filed, ___ U.S.L.W ___ (U.S. May 18, 2015) (No. 149792).
Accordingly, we vacate Dorsey’s sentence and remand for resentencing using a Criminal History Category V.
With respect to
Dorsey’s claim regarding application of the Fair Sentencing Act,
the district court was correct—he was, in fact, sentenced under
the FSA.
Therefore, we affirm as to this claim. 4
4
In his informal brief, Dorsey also raises, for the first
time, several ineffective assistance claims.
Because he failed
to present these claims in the district court, we need not
consider them at this time. See Muth v. United States, 1 F.3d
(Continued)
6
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We dispense with oral argument because the facts and legal
contentions
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
246, 250 (4th Cir. 1993) (stating that arguments raised
first time on appeal generally will not be considered).
7
for
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