PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-7176

WILLIAM YOUNG,

Petitioner – Appellant, v.

B. M. ANTONELLI, Warden,

Respondent – Appellee.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Cameron McGowan Currie, Senior District Judge. (0:18-cv-1010-CMC)

Argued: October 26, 2020 Decided: December 10, 2020

Before WYNN, HARRIS, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Wynn and Judge Harris joined.

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, William K. Witherspoon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. QUATTLEBAUM, Circuit Judge:

The question before us is whether William Anthony Young is entitled to habeas

relief under

. Young seeks relief from his sentence—which was enhanced

based on the “death results” provision of the United States Sentencing Guidelines

(“Sentencing Guidelines” or “Guidelines”)—based on the Supreme Court’s decision in

Burrage v. United States,

(2014). Although Burrage interpreted the “death

results” provision of

(b)(1), Young contends the decision applies as well

to the “death results” Sentencing Guidelines provision at U.S.S.G. § 2D1.1(a)(1).

Accordingly, he argues he meets the four-part test for relief under § 2241 from our decision

in United States v. Wheeler,

(4th Cir. 2018). The district court determined it

lacked jurisdiction over Young’s petition, concluding that because Burrage had not

previously been applied to the Sentencing Guidelines, Young’s invocation of Burrage was

premature. We agree with the district court’s analysis. At the time of its decision, neither

the Supreme Court nor this Circuit had applied Burrage’s statutory interpretation to the

Sentencing Guidelines. But we now conclude that Burrage’s interpretation does, in fact,

apply to the “death results” provision of the Sentencing Guidelines, at least those in effect

prior to the Supreme Court’s decision in United States v. Booker,

(2005).

Thus, we vacate and remand for proceedings consistent with this opinion.

I.

Dana Parks died after using crack cocaine and heroin that she purchased from

Young. When Young was arrested, law enforcement discovered crack cocaine in his

2 possession. A federal grand jury then indicted Young for conspiring to possess with intent

to distribute and conspiring to distribute five grams or more of crack cocaine. See

(a)(1) and 846. The government filed an information pursuant to

notifying Young he was subject to enhanced penalties based on prior convictions for two

qualifying drug offenses.

Young pled guilty in August 2002. At the plea hearing, the government indicated

that it had not decided whether to charge Young in another indictment with the death of

the victim or whether to only use that circumstance to enhance his sentence. [J.A. 177–78.]

Later, at sentencing, the government acknowledged that there was an issue concerning the

application of the enhancement because the government’s pathologist was unable to

determine whether the death resulted from crack cocaine or heroin. [See J.A. 188–89.] But

as Young’s attorney also acknowledged at sentencing, despite that issue, the government

could likely obtain an indictment for both crack cocaine and heroin, for which Young

would face a mandatory life sentence if convicted. [J.A. 188–89.] For that reason, Young

appears to have waived his objection about the application of the enhancement. 1

Ultimately, the district court sentenced Young by applying the Sentencing Guidelines’

“death results” enhancement at U.S.S.G. § 2D1.1(a)(1). With a total offense level of 40

after reductions for acceptance of responsibility and a criminal history category of III,

1 The parties dispute the scope of the waiver. The district court declined to rule on the scope of the waiver because it determined it did not have jurisdiction. Therefore, we need not address that issue, leaving it for the district court on remand.

3 Young faced a sentencing range of 360 months to life imprisonment. 2 The district court

sentenced him to 360 months in May 2003.

Although Young did not directly appeal, he filed several unsuccessful

motions. He then filed a pro se petition for writ of habeas corpus under

in the District of South Carolina, arguing that his sentence was calculated

incorrectly in light of Burrage. B.M. Antonelli, the Warden of FCI Williamsburg, South

Carolina, (the “Warden”) moved to dismiss arguing that Young did not satisfy Wheeler’s

requirements because Burrage had not been made retroactive on collateral review.

Ultimately, the district court dismissed Young’s petition for lack of jurisdiction,

concluding that because Burrage has not been held to apply to the Sentencing Guidelines,

Young’s invocation of Burrage was premature under Wheeler.

II.

Whether Young may challenge his sentence under § 2241 is a question of law we

review de novo. Lester v. Flournoy,

(4th Cir. 2018). “As a threshold

matter, it is well established that defendants convicted in federal court are obliged to seek

habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera,

(4th Cir. 2010). But once a prisoner has filed one unsuccessful § 2255

motion, the circumstances under which the federal prisoner can file a “second or

2 At the time of sentencing, the statutory penalty for the charged offense was ten years to life imprisonment. See

(b)(1)(B) (Supp. 2002).

4 successive” petition are very limited. Lester,

. Under

(h),

a petitioner may file a successive § 2255 petition in the district court only if authorized by

the Court of Appeals. And obtaining that authorization requires a prima facia showing of

“newly discovered evidence that, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence that no reasonable

factfinder would have found the movant guilty of the offense; or a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.”

(h). The parties agree that Young can

satisfy neither of these two avenues for a successive § 2255 petition.

Despite that, Congress provided one exception to the general rule that federal

prisoners must seek habeas relief under § 2255. Under § 2255(e), the so-called “savings

clause,” a federal prisoner may seek a writ of habeas corpus under § 2241 if it “appears

that the [§ 2255] remedy by motion is inadequate or ineffective to test the legality of his

detention.”

(e); United States v. Poole,

(4th Cir. 2008).

In Wheeler, we developed a four-part test outlining when the savings clause may be used

to challenge “the length of a criminal sentence for an otherwise valid conviction.” Farkas

v. Butner,

(4th Cir. 2020); Lester,

(Wheeler “outlined

when the savings clause may be used to challenge erroneous sentences.”). There, we held

§ 2255 is inadequate and ineffective to test the legality of a sentence when:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence;

5 (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review;

(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and

(4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.

Wheeler,

(paragraph breaks added).

III.

Young argues on appeal that he meets all four Wheeler prongs. Thus, he contends

the district court erred in dismissing his petition. The Warden does not contest Young’s

ability to satisfy prongs 1, 3 and 4. 3 Instead, he argues Young cannot satisfy the second

prong. Any change in the substantive law does not apply to Young, according to the

Warden, because Burrage addressed a statutory provision, not a Guidelines enhancement.

We begin with Burrage. There, the Supreme Court addressed the Controlled

Substances Act’s 20-year mandatory minimum imposed on a defendant who unlawfully

distributed a Schedule I or II drug when “death or serious bodily injury results from the use

of such substance.” Burrage,

(quoting

(a)(1), (b)(1)(A)–

(C)). Specifically, the Court considered, on direct review, “whether the mandatory-

minimum provision applies when use of a covered drug supplied by the defendant

contributes to, but is not a but-for cause of, the victim’s death or injury.”

It concluded

3 Because the Warden does not challenge Young’s position on prongs 1,3 and 4, we restrict our analysis to prong 2. 6 that “at least where use of the drug distributed by the defendant is not an independently

sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable

under the penalty enhancement provision of

(b)(1)(C) unless such use is a

but-for cause of the death or injury.”

at 218–19. In so doing, the Court did not address

whether its decision applied retroactively or to the corollary enhancements found in the

Sentencing Guidelines at U.S.S.G. § 2D1.1(a)(1).

Although Burrage changed the law as to a statutory provision, it did not do so as to

the corollary Sentencing Guidelines. Nor has the Supreme Court or this Court done so

since. The absence of Supreme Court or Fourth Circuit authority on whether Burrage

applies to the “death results” Sentencing Guidelines is important to our Wheeler analysis.

To repeat, Wheeler’s second prong requires that “subsequent to the prisoner’s direct appeal

and first § 2255 motion, the aforementioned settled substantive law changed and was

deemed to apply retroactively on collateral review.” Wheeler,

. And “the

aforementioned settled substantive law,” that must have “changed” is explained in prong

one to be the “settled law of this circuit or the Supreme Court.”

If neither the Supreme

Court nor this Court had applied Burrage to the Guidelines, the district court could not

make that change on its own. Therefore, the district court correctly concluded that, at the

time of its decision, the invocation of Burrage to the Guidelines was premature.

But we are in a different position. And with this issue before us, we now examine

whether Burrage’s statutory interpretation applies to the “death results” Sentencing

Guidelines provision and whether it should be done retroactively on collateral review.

7 We first address the retroactivity question. The Warden’s position makes our

decision easy. He concedes that if applicable in the Guidelines context, Burrage would

apply retroactively on collateral review. 4 [J.A. 142 n.3.] With that concession, we need not

go any further.

Therefore, we next consider whether Burrage applies to the Guidelines. We

conclude that it does. For starters, the language of U.S.S.G. § 2D1.1 significantly parallels

the language of § 841(b)(1) that Burrage interpreted and that contains the statutory penalty

for Young’s charged offense. See United States v. Patterson,

, 144 n.5 (4th Cir.

1994) (“Section 2D1.1 also contains a sentence enhancement provision that parallels [21

U.S.C.] § 841(b)(1)(C) and applies when a defendant is convicted under § 841(b)(1)(C)

and death results from the use of controlled substances. U.S.S.G. § 2D1.1(a)(2)”). Section

841(b)(1) allows for an enhanced statutory sentence if a person commits a violation “after

4 The Fifth, Sixth, Seventh and Eighth Circuit Courts of Appeals have held that the rule is retroactive. See Harrington v. Ormond,

(6th Cir. 2018) (“It is also clear that Burrage is retroactive, as the Government commendably concedes. Substantive decisions that ‘narrow the scope of a criminal statute by interpreting its terms’ apply retroactively to cases on collateral review.” (citations omitted)); Santillana v. Upton,

(5th Cir. 2017) (“In sum, as a substantive decision narrowing the scope [of] a federal criminal statute, Burrage applies retroactively to cases on collateral review.”); Gaylord v. United States,

(7th Cir. 2016) (“[T]he government acknowledges that Burrage narrowed the scope of the ‘death results’ enhancement of § 841(b)(1)(C) and thus applies retroactively.”); Krieger v. United States,

, 497–99 (7th Cir. 2016) (collecting cases in which the Government conceded that Burrage announces a substantive rule that applies retroactively on collateral review); Ragland v. United States,

(8th Cir. 2015) (recognizing government’s concession that Burrage applies retroactively). Until today, we have not done so in a published decision.

8 a prior conviction for a felony drug offense . . . if death or serious bodily injury results from

the use of such substance . . . .”

(b)(1)(B) (Supp. 2002). And under the

2002 Guidelines in effect at the time of sentencing, U.S.S.G. § 2D1.1(a)(1) provided that

a base level of 43 applies “if the defendant is convicted under

(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or

(b)(1), (b)(2), or (b)(3), and the offense of

conviction establishes that death or serious bodily injury resulted from the use of the

substance and that the defendant committed the offense after one or more prior convictions

for a similar offense . . . .” U.S.S.G. § 2D1.1(a)(1) (2002).

Because of that parallel language, other courts have recognized that the Guidelines

and statute mirror each other in several key respects. “[B]oth the guideline provision and

the statute contemplate sentencing a defendant to a term of life imprisonment if he has

committed a controlled substance offense that resulted in death or serious bodily injury and

has a prior conviction.” United States v. Johnson,

(6th Cir. 2013) (noting

that “USSG § 2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute”).

We find the Sixth Circuit’s reasoning persuasive. We see no reason to treat the Guidelines

differently from the statute, especially since they were mandatory when applied to Young.

Further, although our Circuit has not previously addressed this issue, our decision

today is consistent with several of our other decisions. First, in Lester, the defendant was

deemed a career offender under the then-mandatory Sentencing Guidelines subjecting him

to a sentencing enhancement based on that classification. The question on appeal was

whether Lester could challenge his sentence under the savings clause of

by pursuing a petition under § 2241. In vacating his sentence and allowing a § 2241 petition

9 to be heard on the merits, we relied on Chambers v. United States,

(2009), where the Supreme Court held that a defendant’s prior offense did not qualify as a

violent felony under the Armed Career Criminal Act. Lester,

. We did so

even though Chambers involved a statute, the ACCA, while Lester’s sentence involved the

Guidelines. To be fair, while today we consider Wheeler’s second prong, Lester focused

on Wheeler’s fourth prong as there was no dispute about the first three. Even so, while

Lester does not control our decision, it is consistent with our views here.

Further, in In re Hubbard,

(4th Cir. 2016), we authorized a

successive § 2255 petition based on Johnson v. United States,

(2015),

concluding that Johnson applied retroactively. We also held that “although available

sentences are technically controlled by statute, the Sentencing Guidelines hardly represent

a mere suggestion to courts about the proper sentences defendants should receive.”

We

noted this was particularly the case when the petitioner was sentenced before the Supreme

Court’s Booker decision made the Sentencing Guidelines advisory.

While In re

Hubbard pre-dated Wheeler, it nevertheless applied the Supreme Court’s reasoning about

a statute to the Sentencing Guidelines. And like In re Hubbard, Young’s sentencing took

place before Booker so the Guidelines were mandatory.

We, therefore, conclude that Burrage’s statutory interpretation applies equally to

§ 2D1.1(a) of the Sentencing Guidelines in place prior to Booker.

10 IV.

For the above stated reasons, while we find no fault with the district court’s

dismissal of Young’s petition, based on our decision today, we vacate and remand for

further proceedings consistent with this opinion.

VACATED AND REMANDED

11