United States of America v. Derick Fallin, a/k/a Black

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7702
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERICK FALLIN, a/k/a Black,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, Senior District Judge. (1:11-cr-00353-RDB-1; 1:20-cv-01348-RDB)
Argued: May 4, 2022 Decided: July 14, 2022
Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which
Judge Motz and Judge Wynn joined.
ARGUED: Shawn Hogbin, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW,
Morgantown, West Virginia, for Appellant. Jonathan Scott Tsuei, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Lawrence D. Rosenberg, Washington, D.C., Stephen C. Scott, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. Erek L. Barron, United States Attorney, Baltimore,
Maryland, David I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Chief Judge:
Derick Fallin challenges his designation as a career criminal offender on the theory
that United States v. Davis, 139 S. Ct. 2319 (2019), invalidated the residual clause of the
United States Sentencing Guidelines (U.S.S.G) (“Sentencing Guidelines”), § 4B1.2(a)(2).
Because the Supreme Court, in Beckles v. United States, 137 S. Ct. 886 (2017), held that
§ 4B1.2(a)(2) is not subject to a same constitutional Due Process Clause challenge as the
one raised in Davis, Fallin’s argument is foreclosed. Moreover, because Fallin has not
articulated an alternative basis for challenging the constitutionality of the § 4B1.2(a)(2)’s
residual clause, his petition is denied. Accordingly, the district court’s judgment is
affirmed.
I.
From the mid-1990s until the late-2000s, Fallin, along with his co-conspirators,
operated a large drug trafficking organization which distributed large quantities of heroin,
cocaine, and marijuana. In 2008, Fallin learned that Wayne England and Calvin Sanders
robbed approximately $250,000 from one of Fallin’s stash houses. As a result, Fallin
conspired to murder England and Sanders and placed bounties on them. Though members
of Fallin’s drug organization tried to kill England and Sanders, they failed. Later, police
officers discovered that one of the victims was found to be shot fifteen times but survived.
On June 28, 2011, Fallin was named in an eleven-count indictment charging him
with multiple drug, racketeering, and conspiracy offenses. On May 22, 2012, Fallin pled
guilty to Conspiracy to Participate in Racketeering Enterprise, in violation of 18 U.S.C.

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§ 1962(d) (Count One), and Conspiracy to Commit Murder, in violation of 18 U.S.C.
§ 1959 (a)(5) (Count Two). On August 20, 2012, the district court designated Fallin a
career offender and calculated his final offense level as 36 and criminal history of VI.
Fallin’s advisory Sentencing Guideline range was 324 to 405 months. In all, the district
court sentenced Fallin to a total term of 180 months’ imprisonment, consisting of 180
months on Count One and 120 months on Count Two, to run concurrently. Fallin did not
directly appeal his sentence.
Later, Fallin filed several Motions to Vacate under 28 U.S.C. § 2255, but they were all
voluntarily withdrawn or dismissed.1 Most recently, and at issue in this appeal, on June 1,
2020, Fallin filed a § 2255 motion alleging that (1) his designation as a career offender was
improper because his conspiracy offenses no longer qualify as “crimes of violence” or
“controlled substance offenses” in light of Davis, and (2) that the district court erred in
calculating his points-based criminal history score and category in light of the “Recency 2 pt.
provision being removed and the career offender status being invalidate[d].” J.A. 106–10. On
October 26, 2020, the district court denied Fallin’s motion on grounds that Davis does not
impact Fallin’s convictions because his career offender designation “is not subject to the Due
Process vagueness challenge he advances.” J.A. 130.
1 Fallin filed his first § 2255 motion on August 9, 2013, which he voluntarily
withdrew. See J.A. 72–79. Then, Fallin filed another § 2255 motion on June 15, 2016,
which he also voluntarily dismissed. See J.A. 80–83. On October 17, 2017, this Court
denied Fallin’s motion for authorization to file a second or successive § 2255 motion
because Fallin’s prior motions to vacate under § 2255 were dismissed without prejudice.
J.A. 7. So, on November 13, 2017, Fallin filed a third § 2255 motion, J.A. 84–97, which
was voluntarily dismissed again.

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Fallin timely appealed and we review the district court’s denial of his § 2255 motion
de novo. United States v. Jones, 914 F. 3d. 893, 899 (4th Cir. 2019).2
II.
We begin with a discussion of the residual clauses found in the Sentencing
Guidelines and those in the in the criminal code, which the Supreme Court has invalidated.
Pursuant to U.S.S.G. § 4B1.1 (the “Career Offender Guideline”), a defendant is a
career offender if:
(1) the defendant was at least eighteen years old at the time the defendant
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) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. At the time that Fallin was sentenced in 2012, “crime of violence” was
defined as:
any offense under federal or state law, punishable by imprisonment for a term
exceeding one year that—
(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a) (2012) (emphasis added). The clause beginning with “or otherwise”
is known as the residual clause.
2 Fallin § 2255’s motion is timely. Since he withdrew or voluntarily dismissed his
previous § 2255 motions, the present § 2255 motion is his first. Because Fallin’s § 2255
motion is premised on the Davis decision, decided on June 24, 2019, and because he filed
his motion on June 19, 2020, his motion is timely. Also, the government waived any
challenge to the timeliness of Fallin’s § 2255 motion.

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The Armed Career Criminal Act of 1984 (“ACCA”) also contains a similarly
worded residual clause and applies a fifteen-year mandatory minimum sentence for a
defendant convicted of possession of a firearm after three prior convictions “for a violent
felony or a serious drug offense or both.” 18 U.S.C. § 924(e)(1). The ACCA defined a
violent felony as:
any crime punishable by imprisonment for a term exceeding one year [. . .]
that—
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another [the “force clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives, [the
“enumerated clause”] or otherwise involves conduct that presents a serious
potential risk of physical injury to another [the “residual clause”].
18 U.S.C. § 924(e)(2)(B) (emphasis added). On June 26, 2015, the Supreme Court held
that “imposing an increased sentence under the residual clause of the [ACCA] violates the
Constitution’s guarantee of due process.” United States v. Johnson, 576 U.S. 591, 606
(2015). The Supreme Court reasoned that § 924(e)(2)(B) required judges to imagine the
kind of conduct that would qualify under the residual clause in a typical case. Id. at 597.
This process, however, was untethered to actual elements or facts of the defendant’s case
and lead to unpredictable results. Accordingly, the residual clause violated the Due Process
Clause which prohibits the government from “taking away someone’s life, liberty, or
property under a criminal law so vague that it fails to give ordinary people fair notice of
the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id.
Then, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court also
invalidated the similarly worded residual clause found in 18 U.S.C. § 16 because it was
unconstitutionally vague as it required judges to use a categorical approach that obligated

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them to “‘imagine’ an ‘idealized ordinary case of the crime’—or otherwise put, the court
had to identify the ‘kind of conduct the ordinary case of a crime involves.’” Dimaya, 138
S. Ct. at 1213–14 (quoting Johnson, 576 U.S. at 597 (reasoning that the residual clause was
unconstitutionally vague because it “ties the judicial assessment of risk to a judicially
imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements.”)).3 As
noted by the Supreme Court in Johnson, and adopted by Dimaya, these residual clauses
required judges to use a categorical approach that “combin[ed] indeterminacy about how
to measure the risk posed by a crime with indeterminacy about how much risk it takes for
the crime to qualify as a violent felony, [which, thus…] produce[s] more unpredictability
and arbitrariness than the Due Process Clause tolerates.” Johnson, 576 U.S. at 598. Such
“unpredictability and arbitrariness,” implicates the “twin constitutional pillars of due
process and separation of powers.” Davis, 139 S. Ct. at 2325.
After Johnson and Dimaya, we held that a similarly worded residual clause in
§ 924(c)(3)(B) was also unconstitutionally vague and violated the Due Process Clause.
United States v. Simms, 914 F.3d 229, 236 (4th Cir. 2019). Then, in United States v. Davis,
the Supreme Court, agreed with Simms, and held that the similarly worded residual clause
of § 924(c)(3)(B) was unconstitutionally vague. 139 S. Ct. at 2336. Consistent with
Johnson and Dimaya, Davis clarified that the residual clause in § 924(c)(3)(B) was also
unconstitutionally vague because it required judges to use a categorical approach to
3 Dimaya held that Johnson also rendered the residual clause contained in 18 U.S.C.
§ 16(b)’s definition of a “crime of violence” unconstitutionally vague. Following Johnson
and Davis, we clarified that “the new rule in Davis applies retroactively to cases on
collateral review.” In re Thomas, 988 F.3d 783, 789 (4th Cir. 2021).

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determine whether a petitioner’s offense qualified as a violent felony or crime of violence.
See Davis, 139 S. Ct. at 2329. To save § 924(c)(3)(B)’s residual clause from being stricken
down as unconstitutionally vague, the Government offered a case-specific approach that
asked judges to examine the defendant’s actual conduct in the predicate offense. However,
the Supreme Court rejected this approach because § 924(c)(3)(B)’s residual clause was
“nearly identical” to the one found in § 924(e)(2)(B) and § 16(b), which Johnson and
Dimaya found as unconstitutionally vague because it undoubtably required courts to use a
categorical approach. Davis, 139 S. Ct. at 2327. Moreover, § 924(c)(3)(B) language and
legislative history evidenced that Congress mandated judges to use the same categorical
approach which was problematic in Johnson and Dimaya.
III.
A.
Fallin first argues that because Davis held that the residual clause in § 924(c)(3)(B)
raised concerns of “constitutional dimension,” 139 S. Ct. at 2327, the similarly worded
residual clause in § 4B1.2(a)(2) (2012) is also unconstitutional and, thus, “was always
invalid at the time of his sentence,” see Opening Br. at 18–19. Accordingly, Fallin argues
that he is entitled to § 2255 relief because the district court “extraordinar[ily] mis[applied]”
the Career Offender Guideline in his case. Opening Br. at 23–24 (citing United States v.
Newbold, 791 F.3d 455, 459 (4th Cir. 2015)).
In denying Fallin’s § 2255 motion, the district court reasoned that Davis was not
applicable “because [Fallin] was neither charged with, nor convicted of, a § 924(c) offense,

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and because [the] career offender designations are not subject to vagueness challenges.”
J.A. 130. Furthermore, the district court reasoned that the Supreme Court, in Beckles
clarified that a Due Process Clause vagueness challenge could not be brought against the
residual clause in § 4B1.2(a)(2). J.A. 116–17. Following Beckles, we also held that the
Supreme Court foreclosed any Due Process Clause vagueness challenge to a defendant’s
Career Offender Guideline designation based on the residual clause. See United States v.
Davis, 684 F. App’x 317, 318–19 (4th Cir. 2017) (unpublished, per curiam); see also
United States v. Brown, 868 F.3d 297, 304 (4th Cir. 2017) (holding that, pursuant to
Beckles, Johnson did not create a right allowing petitioner to challenge the residual clause
in the Sentencing Guidelines and, so, petitioner’s habeas petition was untimely).
Here, Fallin critically misreads Davis. Namely, neither Davis nor Johnson extend as
far as Fallin would like because he was not convicted under §§ 924(e), (c)(3)(B), or 16(b),
and the Supreme Court has not invalidated the residual clause of the Sentencing Guidelines.
On the contrary, in Beckles, the Supreme Court held that, unlike Johnson, “[t]he residual
clause in § 4B1.2(a)(2) [] is not void for vagueness.” Beckles, 137 S. Ct. at 892. In Beckles,
the petitioner made a similar argument as Fallin does here. Id. at 891–92. In response, the
Supreme Court explained that it “has invalidated two kinds of criminal laws as ‘void for
vagueness’: laws that define criminal offenses and laws that fix the permissible sentences
for criminal offenses.” Beckles, 137 S. Ct. at 892 (emphasis in original). Thus, Beckles
distinguished between the Sentencing Guidelines which “do not fix the permissible range of
sentences,” id. at 892, with § 924(c)(3)(B) which statutorily determines a sentencing
minimum and range that would deprive the petitioner of their liberty in violation of the Due

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Process Clause. That is, because the Sentencing Guidelines “merely guide the district courts’
discretion[,] [they] . . . are not amenable to a vagueness challenge” as they “do not implicate
the twin concerns underlying [the] vagueness doctrine—providing notice and preventing
arbitrary enforcement.” Beckles, 137 S. Ct. at 894. Following Beckles, we rejected a similar
argument that Fallin makes today. See United States v. Mack, 855 F.3d 581, 584–85 (4th
Cir. 2017) (rejecting petitioner’s argument that because Johnson held that the residual clause
in § 924(e)(2)(B)(ii) was unconstitutionally vague, the Sentencing Guidelines similarly
worded residual clause in § 4B1.2(a)(2) is also vague).
Fallin tries to sidestep Beckles by recasting Davis as standing for the proposition
that “an erroneous Guidelines classification is comparable to a violation of a statute or
constitutional provision” and that “Davis created the blueprint for defendants to assert
residual clause challenges based on violations of constitutional dimensions.” Opening Br.
at 26–28 (emphasis in original). Fallin’s understanding of Davis misses the mark. As
noted above, the Supreme Court held that the residual clause in § 924(e)(2)(B) was
unconstitutionally vague because it required that judges conduct a categorical analysis
which generated unpredictable and arbitrary outcomes that contravened the Due Process
Clause. However, Davis does not stand for the proposition that all residual clauses,
specifically those in the Sentencing Guidelines, are subject to the same constitutional

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defect. Indeed, Beckles clarified that Johnson, and by extension Davis, cannot be used to
invalidate § 4B1.2(a)(2)’s residual clause on the same grounds.4
At best, Fallin cites to one district court which held “that a straightforward
application of Johnson dictates that a sentence enhanced under §§ 4B1.1 and 4B1.2(a)(2)
of the career-offender guideline during the pre-Booker period when the Guidelines were
mandatory, violates the Due Process clause.” United States v. Meadows, 394 F. Supp. 3d
674, 679 (W.D. Tex. 2019). However, Meadows applied Johnson’s reasoning to a
defendant who was sentenced before Booker, when the guidelines included a provision that
made them mandatory and, thus, implicated the due process concerns articulated by the
Supreme Court in Johnson. See United States v. Booker, 543 U.S. 220, 233 (2005)
(recognizing that “[t]he Guidelines as written, however, are not advisory; they are
mandatory and binding on all judges” and striking the provision making the Guidelines
mandatory). In her concurrence, Justice Sotomayor noted that the majority in Beckles “at
4 On August 1, 2016, the Sentencing Commission removed the residual clause at
§ 4B1.2(a)(2) and cited to the Supreme Court’s decision in United States v. Johnson, 576
U.S. 591 (2015). See U.S.S.G. amendment 798 (eff. Aug. 1, 2016) (stating that “[t]he
Commission determined that the residual clause at § 4B1.2 implicates many of the same
concerns cited by the Supreme Court in Johnson, and, as a matter of policy, amends
§ 4B1.2(a)(2) to strike the clause.”). As noted by the Sentencing Commission, following
Johnson some sister circuits found that the residual clause in § 4B1.2(a)(2) was
unconstitutional for vagueness. See, e.g., United States v. Townsend, 638 F. App’x 172,
177–78 (3d Cir. 2015); United States v. Harbin, 610 F. App’x 562 (6th Cir. 2015); United
States v. Taylor, 803 F.3d 931 (8th Cir. 2015); United States v. Madrid, 805 F.3d 1204,
1211 (10th Cir. 2015). On the other hand, other sister circuits found that Johnson was
inapplicable to the § 4B1.2(a)(2). Then, Beckles settled this circuit split and agreed with
our sister circuits that a vagueness challenge could not be brought against § 4B1.2(a)(2).
See United States v. Wilson, 622 F. App’x 393, 405 (5th Cir. 2015); United States v.
Matchett, 802 F.3d 1185 (11th Cir. 2015).

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least leaves open the question whether defendants sentenced ... during the period in which
the Guidelines did fix the permissible range of sentences ... may mount vagueness attacks
on their sentences.” Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring in the
judgment); see also Brown, 868 F.3d at 309–11 (Gregory, C.J., dissenting and noting that
because the pre-Booker mandatory Sentencing Guidelines’ identically worded residual
clause fixed the sentences for defendants, this residual clause would also violate the due
process clause under Johnson); Moore v. United States, 871 F.3d 72, 83 (1st Cir. 2017)
(recognizing that “[w]hat Beckles left open ... was a question of statutory interpretation
concerning how mandatory the [Sentencing Reform Act] made the guidelines before
Booker.”).5
Still, Fallin asks us to bypass the Supreme Court by arguing that Beckles does not
“render the advisory Guidelines immune from constitutional scrutiny altogether.” Reply Br.
at 5. While this is true, Fallin has not advanced any non-Due Process Clause constitutional
5 Several sister circuits have concluded similarly as this court did in Brown, 868
F.3d 297. See Nunez v. United States, 954 F.3d 465 (2d Cir. 2020); United States v. Green,
898 F.3d 315 (3d Cir. 2018); United States v. London, 937 F.3d 502 (5th Cir. 2019); Raybon
v. United States, 867 F.3d 625 (6th Cir. 2017); Russo v. United States, 902 F.3d 880 (8th
Cir. 2018); United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018); United States v.
Greer, 881 F.3d 1241, 1248 (10th Cir. 2018). However, other sister circuits have held that
Beckles may not foreclose a challenge to the Sentencing Guidelines’ residual clause for
pre-Booker defendants. See Shea v. United States, 976 F.3d 63, 69 (1st Cir. 2020)
(concluding that “Johnson establishes beyond reasonable debate that the pre-Booker
Guidelines’ residual clause was too vague to constitutionally enhance a defendant’s
sentence”); Cross v. United States, 892 F.3d 288, 304 (7th Cir. 2018) (“We take the Court
at its word: the Beckles opinion applies only to the guidelines as they have been since
2005, not to the pre-Booker mandatory regime.”); United States v. Arrington, 4 F.4th 162,
171 (D.C. Cir. 2021) (remanding for the district court to consider whether a pre-Booker
Sentencing Guideline residual clause is invalidated by Johnson).

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challenges. On the contrary, in his reply brief, Fallin maintains that the “heart of [his]
argument[], is that his improper career-offender designation raises ‘a fundamental defect of
constitutional dimensions’ under Davis.” Reply Br. at 6. Again, Fallin has not clarified what
constitutional grounds he hinges his argument on other than those articulated in Davis.6
Though it is possible that the Supreme Court may invalidate the residual clause in the pre-
2016 Sentencing Guidelines, we are not there today, and, thus, we are bound by Beckles.
Because the timeliness of Fallin’s § 2255 petition was premised on the applicability
of Davis to his case, his habeas petition no longer meets the gatekeeping requirements of
28 U.S.C. § 2255(f)(3), and is, thus, untimely. In re Jones, 226 F.3d 328, 333–34 (4th Cir.
2000). Still, for the sake of completeness, we will examine Fallin’s remaining argument
that he raised on appeal.7
B.
Second, Fallin argues that the district court failed to employ the categorical
approach to determine whether his previous offenses qualified as crimes of violence for
6 Indeed, he clarifies he “is challenging his career-offender designation that was
always incorrect, because the residual clause at issue violated [his] due process rights as
clarified by Davis, and his conspiracy offenses are not crimes of violence as made clear when
analyzed under the traditional categorical approach.” Reply Br. at 11 (emphasis added).
7 For the first time on appeal, Fallin argues that his 1980 bank robbery conviction
was “never a prior felony offense that could be at play for his career-offender designation
[because] [h]e finished his sentence in 1994 [and] [t]hat 18-year time difference between
the completion of his bank robbery incarceration and his [2012] guilty plea precludes
consideration of his bank robbery offense as one of his two prior felonies.” Opening Br.
at 19–20. We need not consider this argument because it was waived as it was not raised
on direct appeal, and he has not shown any changes in law or fact that prevented him from
raising it on direct appeal. See 28 U.S.C. § 2255(f).

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purposes of the career offender enhancement. J.A. 98–102. Accordingly, he argues that
had the district court applied the categorical approach, it would have determined that his
career offender designation “was always invalid at the time of his sentence” because his
RICO and murder conspiracy convictions, under §§ 1962(d) and 1959(a)(5), “were never
crimes of violence.” Opening. Br. at 19 (emphasis in original). Thus, Fallin argues that
his designation as a career offender is a miscarriage of justice. J.A. 109; see also Reply
Br. at 2.
It is well-established that district courts must employ a categorical approach to
determine whether a conviction qualifies as a predicate offense under the Sentencing
Guidelines. United States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009); see also United States
v. Mack, 855 F.3d 581, 585–86 (4th Cir. 2017) (clarifying that courts must first establish
the “generic” definition of the Guidelines-enumerated offense, from prior cases [. . . and,]
[t]hen [] decide whether the state offense is a “categorical match” to the generic offense”);
United States v. Mathis, 932 F.3d 242, 264–67 (4th Cir. 2019) (applying the categorical
approach to determine whether two violent crimes in aid of racketeering [VICAR] offenses
predicated on violations of Virginia law qualified as crimes of violence under § 924(c)’s
force clause).
In McCollum, we applied the categorical approach and held that for purposes of the
career offender enhancement in § 4B1.2(a)(2), “§ 1959(a)(5) is not categorically a crime
of violence because conspiracy under that provision is, in fact, broader than generic
conspiracy, and precedent directs that we consider the inchoate crime of conspiracy and its
object independently.” United States v. McCollum, 885 F.3d 300, 303 (4th Cir. 2018).

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Specifically, we clarified that because § 1959(a)(5) does not require an overt act, and
conspiracy under the Sentencing Guidelines does require an overt act, conspiracy under
§ 1959(a) was categorically broader than generic conspiracy. Id.
Similarly, in Simmons, we held that “a RICO conspiracy [under § 1962(d)], even when
denominated as ‘aggravated,’ does not categorically qualify as a ‘crime of violence’” under
the force clause of § 924(c)(3). United States v. Simmons, 11 F.4th 239, 248 (4th Cir. 2021).
Simmons determined that because an aggravated RICO conspiracy offense can be completed
“without using, attempting to use, or threatening to use physical force, [] an aggravated RICO
conspiracy is not categorically a crime of violence.” Id. at 260.
Even if Fallin is correct that his conspiracy convictions no longer qualify as crimes
of violence for purposes of the Career Offender Guideline, to correct this sentencing error,
Fallin must establish that his sentencing error amounts to “a fundamental defect which
inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S.
333, 343 (1974). As we held in United States v. Foote, 784 F.3d 931 (4th Cir. 2015), a
career-offender enhancement that is later invalidated by case law is not a miscarriage of
justice because it “would be remiss to place an erroneous Guidelines classification under
an advisory scheme in the same category as violation of a statute or constitutional
provision.” Id. at 942; see also United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.
1999) (holding that “misapplication of the sentencing guidelines does not amount to a
miscarriage of justice.”). In Foote, this court held that we would not correct the district
court’s misapplication of the career offender guideline because (1) the challenge involved
no claim of actual innocence, (2) the Guidelines are advisory, (3) district courts are free to

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deviate from Guideline enhancements, and (4) Foote’s sentence did not exceed the
statutory maximum. Foote, 784 F.3d at 940–41.
Fallin argues that Foote is inapplicable because the Supreme Court in Johnson and
Davis invalidated the residual clause in § 924(c)(3) as unconstitutional, and thus, the
district court’s sentencing error amounts to a fundamental miscarriage of justice that this
court must correct. As mentioned above, Fallin’s constitutional argument is foreclosed by
Beckles. Moreover, there is no alternative constitutional challenge that Fallin has
articulated to invalidate the Sentencing Guidelines’ residual clause.
On the contrary, Fallin’s case falls squarely in Foote’s limitations. Here, the district
court sentenced Fallin to a below-guideline range of 180 months—well outside his
advisory guideline range of 324 to 405 months. So, even if the district court erred by not
applying the categorical approach, there is no “miscarriage of justice” because the district
court did not follow the guidelines. Even more, and as noted by the district court, if Fallin
were not designated a career offender, he would now receive a criminal history of IV,
instead of VI, and his advisory guideline range would now be 262 to 327 months, which is
still more than the 180-month sentence that he received. See J.A. 131.
IV.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.

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