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A defendant whose sentence was illegally enhanced for a prior conviction cannot challenge the sentence in a 2255 motion to vacate because he failed to challenge the enhancement in a direct appeal from his sentence

In U.S. v Mckay, the defendant pled guilty to a federal drug crime, charging him with possession with intent to distribute cocaine base (crack cocaine.) His pre-sentence report classified him as a career offender under the sentencing guidelines §4B1.1. McKay qualified as a career offender if he had two prior felony convictions for either: (1) a controlled substance offense or (2) a crime of violence. One of McKay’s was selling a controlled substance. The other was for carrying a concealed weapon, which at the time counted as a crime of violence. After his sentence was imposed, he did not appeal his sentence of 262 months (21 years, 10 months.)

Over two years after his sentence, the Supreme Court decided U.S. v. Begay which held that a D.U.I. conviction is not a “violent felony” under the Armed Career Criminal Act. Following that decision the Eleventh Circuit decided U.S. v. Archer which held that in light of Begay, it would have to find that carrying a concealed weapon is not a crime of violence.

Following the Archer decision, McKay filed a motion to vacate his sentence pursuant to 28 U.S.C. §2255 arguing that pursuant to Begay and Archer, his sentence was incorrectly enhanced. McKay argued that his conviction for carrying a concealed firearm no longer qualified as a crime of violence and should not have been sentenced as a career offender. The court of appeals found that the actual innocence exception does not apply to excuse his default. Under the procedural default rule of §2255, a defendant must raise a challenge to a conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a 2255 motion. McKay’s problem was that he did not raise the issue of whether his conviction for carrying a concealed weapon was a crime of violence in a direct appeal from his sentencing. For that reason, he had procedurally defaulted on his 2255 sentencing claim.

The exceptions for the procedural default are “cause and prejudice” or “actual innocence.” McKay could not show “cause” for failing to raise the issue on direct appeal. The “actual innocence” exception applies if he can show he is actually innocent of either the crime of conviction itself or in a capital sentencing context, of the sentence itself. The appellate court noted that the Supreme Court has only applied the “actual innocence” of sentencing exception to death penalty cases.

Though some circuits have held that the actual innocence of sentence exception does apply to the noncapital sentencing context, the Eleventh Circuit declined to follow those circuits. In either case, the court decided that the actual innocence exception could not apply because McKay’s claim of innocence was a legal innocence rather than factual claim of innocence. To apply the actual innocence exception in a noncapital sentencing context, the defendant must show he is factually innocent of the underlying crime that serves as the predicate for the enhancement. McKay can only show his legal innocence: that the prior conviction is not legally a crime of violence. The appellate court would not apply a legal innocence exception to a 2255 motion in the case of procedural default.

When a person is convicted and sentenced for a federal crime in Miami, a criminal defense attorney may file a motion to vacate a sentence or conviction after the appeal process is completed. There are many procedural hurdles with post convictions motions to vacate a sentence. This case is an example of one of the procedural problems facing a person who wants to challenge their sentence after the appeal process is over.