source: Caselaw Access Project

author: WILKINSON, Circuit Judge, DIANA GRIBBON MOTZ, WYNN, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raymond Roger SURRATT, Jr., Defendant-Appellant. Steven Harris Goldblatt, Court-Assigned Amicus Counsel, National Association of Criminal Defense Lawyers; Douglas A. Berman, Professor, Amici Supporting Appellant.
    No. 14-6851
    United States Court of Appeals, Fourth Circuit.
    Argued: March 23, 2016
    Decided: April 21, 2017

      ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Michael R. Dreeben, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Steven Harris Goldblatt, GEORGETOWN. UNIVERSITY LAW CENTER, Washington, D.C., as Court-Assigned Amicus Counsel. Erika L. Maley, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae. ON BRIEF: Ross Hall Richardson, Executive Director, Charlotte, North Carolina, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Scott A.C. Meisler, Assistant to the Solicitor General, Nina Goodman, Lena Hughes, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Anne M. Tompkins, United States Attorney, Jill Westmoreland Rose, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Ruthanne M. Deutsch, Shon Hopwood, Supervising Attorneys, Utsav Gupta, William Hornbeck, Meredith Wood, Ryan W. Cooke, Courtney A. Elgart, Elizabeth Sebesky, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Court-Assigned Amicus Counsel. Douglas A. Berman, Professor of Law, THE OHIO STATE UNIVERSITY, Columbus, Ohio; Jeffrey T. Green, Kimberly A. Leaman, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae.
    Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, TRAXLER, KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges.
   ORDER

By order dated February 14, 2017, the court directed the parties to address the impact of the President’s commutation of Appellant Surratt’s sentence and, in particular, the questions of mootness and jurisdiction. Upon consideration of the responses to the court’s order, the court finds this appeal to be moot.

The appeal is, accordingly, dismissed as moot.

Entered at the direction of Chief Judge Gregory for the Court.

WILKINSON, Circuit Judge,

concurring:

Surratt has received the relief from life imprisonment he was seeking in this case and more. He is also no longer serving a judicially imposed sentence, but a presi-dentially commuted one. The President’s commutation order simply closes the judicial door. Absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.

It matters not whether we believe the commutation was too lenient or not lenient enough. We are simply without power to inject ourselves into the lawful act of a coordinate branch of government — one that Surratt willingly agreed to — and supersede a presidential pardon or commutation with a contravening order of our own. After all, “[i]t would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought.” Schick v. Reed, 419 U.S. 256, 267, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974). Surratt “cannot complain if the law executes the choice he has made,” id. at 265, 95 S.Ct. 379 (quoting Ex parte Wells, 59 U.S. 18 How. 307, 315, 15 L.Ed. 421 (1855)), even if my dissenting colleague thinks he made a “bad bargain” by accepting the commuted sentence, id. at 259, 95 S.Ct. 379.

My dissenting colleague’s unwillingness to find moot even this clear-cut a case points to a broader problem affecting our criminal justice system. Insofar as I can detect, there is no such thing as finality in my dissenting colleague’s view. Indeed, the principle of finality is not even paid the lip service that presages disregard. Some reason is somehow always found for a case to go on and on and on. To so freely revisit final judgments, as my dissenting colleague would, is to embark on a course that is so vague and so open-ended as to render criminal judgments entirely provisional and good for one day only.

While my dissenting colleague alleges that Surratt’s initial sentence was “unlawful,” it was indisputably lawful when entered and the correctness of the sentence has divided judges ever since. Let it be said that strict sentences always make for hard cases. It is not for pleasure that the system imposes them. But Surratt had been convicted time and time again for drug-related offenses — including distributional felonies — under federal and state law. The President had every right to calibrate his commutation with these considerations in mind, bringing this saga to an end, both merciful and firm.

DIANA GRIBBON MOTZ,

concurring:

I concur in the court’s order dismissing this case as moot. Throughout this difficult litigation, the Government has conducted itself in a most admirable manner, offering us candid and insightful assistance. Even my dissenting colleague acknowledges that the Government acted “[cjommendably” in agreeing that Surratt was entitled to relief regarding his original sentence. I do not read the Government’s recent letter regarding mootness to present any departure from its previous commendable assistance to us.

WYNN, Circuit Judge,

dissenting from dismissal:

Thomas Jefferson wrote that “the most sacred of the duties of a government is to do equal and impartial justice to all its citizens.” Those words impart that all citizens, no matter their plight in life, should be accorded justice in our court system. Today’s perfunctory dismissal of Petitioner Raymond Surratt, Jr.’s 10-year effort to obtain a fair and impartial disposition of his case in the federal courts is, if not an outright injustice, at least an abandonment of fairness.

It began when we incorrectly construed 21 U.S.C. § 841(b)(1), the statute pursuant to which Petitioner was sentenced, and thereby subjected Petitioner to a mandatory life sentence, when Congress had established a far shorter mandatory minimum. Then, when Petitioner, with the government’s support, sought collateral relief on grounds that his unlawful life sentence constituted a fundamental defect of constitutional dimension, we actively appointed independent counsel to argue that Petitioner should spend his life in prison. Apparently unsatisfied with the executive branch’s conclusion that Petitioner’s sentence was sufficiently unjust to warrant resentencing, we then allowed Petitioner’s appeal to go unresolved for years, while Petitioner remained incarcerated under his unlawful life sentence.

And when, in the face of our delay, the President commuted Petitioner’s sentence — partially remedying the error— we, without prompting or request by either party, but actively on our own, suggested to the government that Petitioner’s action was moot. The government got the message, arguing in response to our prompting that (1) Petitioner’s collateral attack is moot and (2) there is no “fundamental defect” in Petitioner’s sentence that warrants collateral relief.

So today, my good colleagues dismiss Petitioner’s action as moot. But if we were to accord Petitioner the relief that even the government concedes is fair by vacating Petitioner’s sentence and remanding for resentencing, Petitioner would likely be released because his time-served exceeds the upper end of his now-applicable Guidelines range. None of us disputes that. And, even under his commuted sentence, today’s dismissal of Petitioner’s action as moot means Petitioner will remain in prison for, at a minimum, several more years. None of us disputes that. It should therefore follow that the disposition of Petitioner’s appeal will likely determine whether Petitioner remains in prison or is released — meaning that Petitioner’s action is not moot because he retains a decidedly “concrete interest” in the resolution of his case. Chafin v. Chafin, 568 U.S. 165, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013). None of us can dispute that.

Nonetheless, at least by the expression of one of my colleagues, the majority dismisses Petitioner’s action as moot on the theory that the President’s commutation of Petitioner’s concededly incorrect sentence renders his action a nonjusticiable political question because Petitioner is now serving an executive, as opposed to judicial, sentence. But while the Constitution vests the President with broad pardon and commutation authority, neither it nor the case law establishes that “[t]he President’s commutation order simply closes the judicial door,” as my colleague asserts. Ante at 219. Indeed, the President has no authority to impose a sentence on any citizen; she can only exercise the authority to pardon or commute an existing judicial sentence. And any part of that judicial sentence that remains after commutation remains a sentence imposed by the judiciary, not the executive branch of government. Simply put, the synergism that my colleague seeks to establish that “the whole is greater than the sum of its parts,” may have been apropos in science for Aristotle, but it has no application in law. To the contrary, the part of the sentence that remains after commutation is part of a judicial sentence, not a newly created executive sentence.

My colleague also emphasizes Petitioner’s acceptance of the commutation as grounds for dismissal, stating that it is not our job to question the “bad bargain” Petitioner may have chosen in accepting the commuted sentence. Ante at 220 (quoting Schick, 419 U.S. at 259, 95 S.Ct. 379). But Petitioner had no more than the choice that Thomas Hobson gave to his customers — take it or leave it. In the face of our inaction, Petitioner didn’t face a “bad bargain” — it was his “only bargain.” That much is evident because when Petitioner accepted the President’s commutation, it had been more than 10 months since his case was argued before our Court sitting en banc. Yet, we can, as may be seen in the future, render en banc decisions in cases of far great complexity with head-snapping speed.

Finally, my good colleague maintains that we are “simply without power to inject ourselves into the lawful act of a coordinate branch of government” — the President’s commutation of Petitioner’s sentence. Ante at 219. But we had no difficulty “injecting]” ourselves into the executive branch’s lawful act of concluding that Petitioner should be resentenced. On the contrary, we appointed independent counsel .to argue against the executive branch’s position and then gave the executive branch no deference.

Neither the facts nor the law support this continuing denial of a lawful punishment for Petitioner. With great respect, I must dissent.

I.

In 2005, Petitioner pled guilty to conspiracy to possess with intent to distribute more than 50 grams (1.76 ounces), but less than 150 grams (5.29 ounces), of crack cocaine in violation of the Controlled Substances Act, 21 U.S.C. §§ 841(b)(1), 846. Before sentencing, the government filed an information with Petitioner’s criminal history, which listed three previous North Carolina drug-related convictions. Because Petitioner had conspired to distribute more than 50 grams of crack, Section 841(b)(1)(A) governed his sentence. Id. § 841(b)(1)(A) (2002). Under that provision, Petitioner faced a mandatory minimum term of life imprisonment without release if two or more of those prior convictions constituted “felony drug offenses.” Id. If Petitioner had committed one prior “felony drug offense,” he would have faced a mandatory minimum term of 20 years’ imprisonment. Id. At the time of Petitioner’s conviction, Section 841(b)(1) subjected a drug trafficker dealing in crack cocaine, like Petitioner, to the same mandatory minimum sentence as one dealing in 100 times more powder cocaine. Id. § 841(b)(1)(A), (B). As a result of that 100-to-1 powder-to-crack quantity ratio, if Petitioner had distributed powder cocaine, as opposed to crack cocaine, he would not have faced the mandatory minimum and would have been subject to a statutory maximum of 20 years’ imprisonment. Id. § 841(b)(1)(C).

At the time of Petitioner’s sentencing, we had held that a North Carolina drug conviction qualified as a “felony drug offense” for purposes of Section 841(b)(1) if “the maximum aggravated sentence that [the state court] could [have] imposed for that crime upon a defendant with the worst possible criminal history” exceeded one year. United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (emphasis omitted), overruled by United States v. Simmons, 649 F.3d 237, 247 (4th Cir. 2011). Under Harp, all three of Petitioner’s prior convictions constituted felony drug offenses. His mandatory sentence was, therefore, lifetime imprisonment. Expressing disdain for the harsh result that Harp imposed in Petitioner’s case, United States District Judge Robert J. Conrad, Jr. stated that lifetime imprisonment was an “unjust sentence” because Petitioner did not “deserve[] a sentence of life imprisonment” for his crime. J.A. 276. Nevertheless, bound by Harp, and “with a great deal of discomfort,” Judge Conrad sentenced Petitioner to life imprisonment in October 2005. Id.

Five years later, in August 2010, Congress enacted the Fair Sentencing Act, which amended Section 841(b)(1) to reduce the disparity between sentences for powder and crack cocaine offenses. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). In particular, the statute increased to 280 grams (9.88 ounces) the quantity threshold for subjecting crack offenders to the more severe punishments set forth in Section 841(b)(1)(A), thereby reducing the powder-to-crack quantity ratio to 17.9-to-l. 21 U.S.C. § 841(b)(1)(A), (B) (2016). The amendment, which remains in effect, responded to both public and judicial outcry regarding the “disproportionate and unjust effect” of the 100-to-l powder-to-crack quantity ratio on crack offenders, who were disproportionately minorities. See Kimbrough v. United States, 552 U.S. 85, 93, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); see also Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 2328-29, 183 L.Ed.2d 250 (2012) (“[T]he public had come to understand sentences embodying the 100-to-l ratio as reflecting unjustified race-based differences.”); William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 Ariz. L. Rev. 1233, 1266-68 (1996) (explaining that implementation of the 100-to-l ratio led to significantly higher incarceration rates for black and Hispanic offenders relative to white offenders and significantly longer sentences for black offenders relative to white offenders). The Fair Sentencing Act applies retroactively, meaning that the statute’s “more lenient mandatory minimums apply to offenders whose unlawful conduct took place before, but whose sentencing took place after, the date [the Fair Sentencing] Act took effect.” Dorsey, 132 S.Ct. at 2330.

Had the powder-to-crack quantity ratio established by the Fair Sentencing Act been in effect at the time of his conviction, Petitioner would have been sentenced under Section 841(b)(1)(B), rather than Section 841(b)(1)(A), because of the Fair Sentencing Act’s revised quantity threshold for receiving the higher mandatory minimums set forth in Section 841(b)(1)(A). 21 U.S.C. § 841(b)(1)(A), (B). Under Section 841(b)(1)(B), Petitioner would face a mandatory minimum term of 10 years’ imprisonment if at least one of his prior convictions constituted a “felony drug offense.” 21 U.S.C. § 841(b)(1)(B).

On August 17, 2011, on en banc review, we expressly overruled Harp in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), holding that courts may not look to hypothetical enhancements of prior state drug convictions to evaluate permissible terms of imprisonment under the Controlled Substances Act when the state court never made recidivist or aggravation findings necessary to expose the defendant to such enhancements. 649 F.3d at 243-44. In particular, we held that, when used as a predicate for federal sentencing purposes, the North Carolina Structured Sentencing Act creates separate offenses that allow for separate maximum punishments. Id. at 247. Like the Fair Sentencing Act, Simmons applies retroactively. Miller v. United States, 735 F.3d 141,147 (4th Cir. 2013) (“Simmons announced a new substantive rule that is retroactive on collateral review.”). Petitioner and the government agree that, under Simmons, only one of Petitioner’s prior convictions constituted a “felony drug offense” for purposes of Section 84.1(b)(1). And there is no dispute that—as a result of the Fair Sentencing Act, Simmons, and their retroactive application — if Petitioner is resentenced, he will face a mandatory minimum of 120 months’ imprisonment and an advisory Guidelines range of 120 to 137 months’ imprisonment.

In August 2012, Petitioner filed a successive habeas petition under 28 U.S.C. §§ 2241 and 2255 seeking relief from his sentence. In particular, Petitioner asserted that, in light of Simmons, his sentence rested on an improper construction of Section 841(b)(1). Commendably, as acknowledged by another of my colleagues, the government agreed that Petitioner was entitled to relief under Section 2241 and supported resentencing. Surratt v. United States, No. 3:12-CV-513, 2014 WL 2013328, at *4-7 (W.D.N.C. May 16, 2014). Nonetheless, the district court concluded that Petitioner could not seek to set aside his sentence. Id. at *5. In reaching this conclusion, the district court explained that Petitioner could not avail himself of Section 2255’s “savings clause,” which permits a court to entertain a successive petition under Section 2241 if it “appears that the remedy [available under Section 2255] is inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e), because we had limited the availability of relief under the savings clause to “situations in which a subsequent change in law makes [a] petitioner’s conduct ‘non-criminal,’” Surratt, 2014 WL 2013328, at *5 (citing In re Jones, 226 F.3d 328 (4th Cir. 2000)). Simmons did not call into question the validity of Petitioner’s conviction, and therefore the district court reasoned that Petitioner could not seek relief under the savings clause. Surratt, 2014 WL 2013328, at *5.

We agreed, thereby rejecting the government’s argument that Petitioner was entitled to relief under Section 2241. United States v. Surratt, 797 F.3d 240, 253 (4th Cir. 2015), reh’g en banc granted, United States v. Surratt, No.14-6851 (Dec. 2, 2015). In dissent, Judge (now Chief Judge) Gregory argued that Petitioner was entitled to seek relief under Section 2241 because his “erroneous life sentence” constituted “a fundamental defect of constitutional proportions.” Id. at 271 (Gregory, J., dissenting). In particular, Judge Gregory explained that an erroneous mandatory minimum sentence infringes on a defendant’s right under the Due Process Clause “to ‘be deprived of his liberty only to the extent determined by the [trier of fact] in the exercise of its statutory discretion,’ ” id. at 273 (quoting Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980)), and usurps Congress’s constitutional responsibility for “defining crimes and fixing penalties,” id. (quoting United States v. Evans, 333 U.S. 483, 486, 68 S.Ct. 634, 92 L.Ed. 823 (1948)).

Petitioner moved for rehearing en banc, which we granted, thereby vacating the panel opinion. On March 23, 2016, we reheard argument on Petitioner’s appeal, and the government continued to argue that Petitioner was entitled to invoke Section 2255’s savings clause and thereby seek relief under Section 2241. See Gov. Supp. Br. at 13 (“An erroneously imposed mandatory minimum sentence is the type of fundamental defect cognizable under the savings clause.”).

On January 19, 2017 — nearly 10 months after the rehearing en banc, and still without a decision from us — the President commuted Petitioner’s life sentence to a 200-month term of imprisonment. Petitioner’s commutation was part of a broader effort by the President to commute the sentences of inmates sentenced in accordance with the severe mandatory mínimums and unjust powder-to-crack quantity ratio applicable under the earlier version of Section 841(b)(1). Sari Horwitz, Obama Grants Final 330 Commutations to Nonviolent Drug Offenders, Wash. Post (Jan. 19, 2017), https://www.washingtonpost.com/ world/national-security/obama-grants-final-330-eommutations-to-nonviolent-drug-offenders/2017/01/19/41506468-de5d-11e6-918c-99ede3c8cafa_story.html?utm_term=. de835df4el64; Ann E. Marimow, N.C. Man Serving Life for Nonviolent Crime Among Hundreds Granted Early Release, Wash. Post (Jan. 25, 2017), https://www. washingtonpost.com/local/public-safety/nc-man-wrongly-given-life-sentence-is-among-hundreds-granted-early-release/2017/01/25/ f4959cd8-e311-11e6-a453-19ec4b3d09ba_ story.html?utm_term=.54519ebcc5c8; Charlie Savage, Obama Commutes Sentences for 8 in Crack Cocaine Cases, N.Y. Times, Dec. 19, 2013, at A1.

At the time of his commutation, Petitioner had served approximately 140 months of his life sentence. The President’s Grant of Commutation “condition[ed] the grant of commutation ... on [Petitioner] enrolling in the [Residential Drug Abuse Program (“RDAP”) ] by written agreement, as evidenced by [Petitioner’s signing, within 14 days of [his] receipt of a certified copy of this document, a receipt verifying his ... acceptance of the commutation granted with all of its conditions, including enrollment in RDAP.” United States v. Surratt, No. 14-6851, 855 F.3d 218, 2017 WL 1423296 (4th Cir. 2017), ECF No. 136, at 8. A letter delivered to Petitioner on January 26, 2017, stated that the commutation was “conditioned on [Petitioner’s] enrollment in the [RDAP], which would then be provided to [him] at an appropriate time before [his] prison sentence expires.” Id.. at 224, 2017 WL 1423296 at *5. Neither the Grant of Commutation nor the letter discussed the action pending before us, let alone conditioned the commutation on its dismissal. That same day, Petitioner signed the letter, and thereby “accepted] and agreefd] to its conditions, including [his] enrollment in [RDAP].” Id. The government has not provided evidence that it has, in fact, enrolled Petitioner in RDAP, nor has the government formally represented that all conditions of the commutation have been satisfied.

Soon after Petitioner accepted the commutation, we sua sponte asked the parties to address whether the commutation mooted Petitioner’s collateral attack on his sentence. Apparently, our request arose from taking judicial notice of the news reports of the President’s action, because neither party supplemented the record before us to provide information on the commutation. Nonetheless, in response to our sua sponte request, the government argues that Petitioner’s action is now moot. Notably — although the government previously took the position that Petitioner was entitled to relief under Section 2241 — in its brief addressing mootness, the government now argues that “[t]here is no ‘fundamental defect’ in [Petitioner’s current sentence, see In re Jones, 226 F.3d 328, 333 n.3 (4th Cir 2000), and the district court would therefore lack jurisdiction to consider his habeas petition under the savings clause in Section 2255(e).” Letter from Jill Westmoreland Rose, U.S. Attorney, to Patricia S. Connor, Clerk, U.S. Court of Appeals for the Fourth Circuit, at 3 n.1 (Feb. 21, 2017), United States v. Surratt, No. 14-6851 (4th Cir.) (“Gov. Resp.”). The government’s statement that Petitioner’s “current sentence” suffers from “no ‘fundamental defect,’ ” id. (emphasis added), indicates that the government still has not abandoned its position — held throughout this litigation — that Petitioner’s original sentence is unlawful.

II.

A.

The mootness doctrine derives from the Constitution’s limitation on federal judicial authority to “Cases” and “Controversies.” U.S. Const. art. III, § 2; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). “The mootness doctrine ... constitutes a relatively weak constraint on federal judicial power: ‘A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’ ” United States v. Springer, 715 F.3d 535, 540 (4th Cir. 2013) (quoting Knox v. Serv. Errups. Int’l Union, Local 100, 567 U.S. 298, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012)). Accordingly, “[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Knox, 132 S.Ct. at 2287 (emphasis added).

Here, there is no dispute that if we vacate Petitioner’s commuted sentence and remand for resentencing, Petitioner will likely face a sentence shorter than that imposed by the commutation. In particular, whereas the President commuted Petitioner’s life sentence to 200 months’ imprisonment, Petitioner’s applicable Guidelines range is 120 to 137 months, less than his time-served. Accordingly, Petitioner has a continuing “concrete interest” — namely, his liberty — in having us vacate his current sentence and remand for resentencing under the applicable Guidelines. We and other courts have found arguably substantially less significant interests adequate to preclude mootness. See, e.g., Townes v. Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (holding that the petitioner’s release from prison did not moot his collateral challenge to his sentence because a favorable appellate decision could “affect the length of his parole”); Richards v. United States, 212 F.2d 453, 454 (D.C. Cir. 1954) (holding that defendant’s collateral challenge to the lower end of his sentencing range was not moot, even though defendant had already served more than that lower end, because “there is some possibility” that having a longer minimum sentence “may in some indirect way affect him adversely in the future”).

I am not alone in my view that an injustice continues by declaring this matter now moot. Indeed, the Seventh Circuit, the only circuit that appears to have squarely addressed the issue, refused to find mootness in analogous circumstances, holding that a petitioner may collaterally challenge his original sentence, notwithstanding that the challenged sentence was commuted during the course of litigating that collateral challenge, when the commuted sentence exceeds the mandatory minimum the petitioner would face if he prevailed on his collateral challenge. See Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir. 2006); Madej v. Briley, 371 F.3d 898, 899 (7th Cir. 2004). In Simpson, for example, after the petitioner filed a habeas petition challenging his death sentence, the Governor of Illinois commuted the petitioner’s sentence from death to life imprisonment without parole. 458 F.3d at 595. Like the government does here, the State argued that the commutation rendered the petitioner’s collateral challenge to his sentence nonjusticiable, and therefore moot, because of the petitioner’s decreased sentence and “the executive nature of his confinement.” Id. The Seventh Circuit rejected both arguments, explaining that because the petitioner would face a mandatory minimum of 20 years’ imprisonment if he prevailed on his collateral attack, as opposed to the life sentence imposed by the Governor, “it [wa]s possible for [the petitioner] to obtain relief, and his sentencing claims [we]re not moot.” Id. Put differently, “[a] full remedy for the constitutional shortcoming at the original sentencing hearing entails allowing [the petitioner] to seek that lower sentence now.” Id. (second alteration in original) (quoting Madej, 371 F.3d at 899).

Like in Simpson and Madej, the error in Petitioner’s original sentence was of constitutional dimension, as it raised serious separation-of-powers and due process concerns by infringing on Congress’s authority to define crimes and punishments, see United States v. Newbold, 791 F.3d 455, 460 (4th Cir. 2015), and depriving the sentencing judge of the opportunity to exercise his discretion to impose a just punishment, see Hicks, 447 U.S. at 346, 100 S.Ct. 2227. Also like in Simpson and Madej, the President commuted Petitioner’s sentence after Petitioner filed a collateral challenge to that sentence. And, like in Simpson and Madej, because Petitioner’s conviction under Section 841(b)(1) subjects him, in the event of resentencing, to a mandatory minimum sentence of 120 months’ imprisonment — substantially less than the 200-month term imposed by the President — on remand Petitioner can “seek a term lower than the ... sentence that the [President] substituted for the [sentence of life imprisonment].” Madej, 371 F.3d at 899. Accordingly, Petitioner’s challenge is not moot, and he is entitled to seek resentencing.

B.

The government nevertheless argues that Petitioner’s appeal is moot for four reasons. First, it maintains that “a federal court has no power to alter a sentence that results from an exercise of the President’s pardon power.” Gov. Resp. at 4; see also id. (“Given this plenary power vested in the President, no other branch may alter the effect of a presidential pardon”). Second, it asserts that the Supreme Court’s decision in Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), requires dismissal of Petitioner’s action. Third, the government maintains that the action is. moot because Petitioner is no longer serving the same sentence as that which" is the subject of his habeas challenge. Finally, the government suggests that by accepting the commutation, Petitioner waived or forfeited his right to collaterally attack his sentence. I disagree.

1.

The government maintains that federal courts are without power to review a commuted sentence. Gov. Resp. at 4; see ante at 219. To be sure, the Constitution vests the President with broad pardon and commutation authority. But neither the Constitution nor the ease law establish that “[t]he President’s commutation order simply closes the judicial door,” as my colleague asserts. Ante at 219. On the contrary, the Supreme Court has long held that, in commuting an inmate’s sentence, the President may not impose “conditions which ... in themselves offend the Constitution.” Schick, 419 U.S. at 264, 95 S.Ct. 379; see also id. at 266, 95 S.Ct. 379 (explaining that the Constitution authorizes the President to impose, in commuting a sentence, “conditions which are in themselves constitutionally unobjectionable”). To that end, in deciding whether to grant commutations or in imposing conditions on commutations, the President may not, for example, engage in invidious discrimination. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 292, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (Stevens, J., concurring in part and dissenting part) (“[N]o one would contend that a [chief executive] could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency.”). Likewise, the President must exercise his commutation authority in accordance with separation-of-powers principles, and therefore may not impose sentences or conditions divorced from those established by Congress, which is constitutionally responsible for “defining crimes and fixing penalties.” Evans, 333 U.S. at 486, 68 S.Ct. 634; cf. United States v. Libby, 495 F.Supp.2d 49, 55 (D.D.C. 2007) (“[I]t is certainly conceivable that the President, through the exercise of his commutation power, could encroach upon the authority or functions of one of the coordinate branches in a manner that would impermissibly ‘offend the Constitution.’ ” (quoting Schick, 419 U.S. at 266, 95 S.Ct. 379)).

Our sister circuits also have recognized that the President’s exercise of his pardon and commutation power does not preclude the beneficiary of the pardon or commutation from lodging a collateral attack against his or her underlying conviction. For example, the First Circuit held that a presidential pardon granted after a petitioner files for relief from his conviction under Section 2255 does not moot the collateral challenge because a “pardon[ ] does not relieve [the petitioner] from all the disabilities of a conviction.” Robson v. United States, 526 F.2d 1145, 1147 (1st Cir. 1975). The Ninth Circuit reached a substantially similar result in United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980). There, the petitioner filed a habeas petition challenging her conviction for bank robbery on grounds that she was denied effective assistance of counsel and due process of law. Hearst, 638 F.2d at 1193. While the petition was pending, the President commuted the petitioner’s sentence and she was released. Id. at 1192 & n.1. Nonetheless, the Ninth Circuit held that the commutation of the petitioner’s sentence did not render her habeas action moot. Id. (“Although [the petitioner] is no longer in federal custody, this case is not moot. The district court on remand will have the power under § 2255 to vacate [her] conviction, if it finds such relief appropriate.” (citation omitted)). And, most relevantly, the Seventh Circuit has recognized that a petitioner may proceed with collaterally challenging a subsequently commuted sentence when, as here, the commuted sentence exceeds the mandatory minimum for the offense. See supra Part II.A (citing Simpson, 458 F.3d at 595; Madej, 371 F.3d at 899).

Accordingly, contrary to the government’s unsupported assertion, federal courts are not categorically precluded from collaterally reviewing sentences imposed under the President’s Article II, section 2 powers, and the length of those sentences, in particular. Rather, the relevant question is whether collateral review is appropriate in this case.

Here, against his own discomfort regarding the appropriate sentence for Petitioner’s offense, Judge Conrad sentenced Petitioner to a term of life imprisonment based on what we later found in Simmons to be an error attributable to our decision in Harp. Yet, despite the retroactive application of Simmons and the Fair Sentencing Act, Petitioner is currently serving a sentence that exceeds his applicable Guidelines range. In such circumstances, the separation-of-powers concerns that animate the application of the political question doctrine to presidential pardons and commutations must give way to the judiciary’s independent — and compelling — interest in remedying its errors. That is particularly true when the President’s commutation was targeted at correcting an independent injustice — here, the statutory sentencing framework for crack offenses that Congress and the President have since concluded was unjust and racially biased — attributable to the political branches. “[I]f the Great Writ, which has always been ‘a bulwark against convictions that violate fundamental fairness,’ Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 71 L.Ed.2d 788 (1982), is to mean anything at all,” Petitioner should be able to pursue collateral relief in such circumstances. Surratt, 797 F.3d at 270 (Gregory, J., dissenting) (internal quotation’ marks omitted).

2.

The government also argues, incorrectly, that the Supreme Court’s Schick decision requires dismissal of Petitioner’s collateral attack on his sentence. In 1954, a court martial convicted the petitioner, Schick, of murdering an eight-year-old girl. 419 U.S. at 257, 95 S.Ct. 879. The petitioner — who was serving overseas in the United States Army at the time of the murder—was sentenced to death under Article 118 of the Uniform Code of Military Justice (“UCMJ”). Id. Pursuant to then-applicable law, the case was then forwarded to President Eisenhower for final review and approval of the petitioner’s death sentence. Id. at 257-58, 95 S.Ct. 379. In 1960, President Eisenhower commuted the petitioner’s sentence to a term of life imprisonment on the condition that Petitioner was “barred parole at any time” and dishonorably discharged him from the military. Id. at 258, 95 S.Ct. 379. As a result, the petitioner was transferred from military custody to the Federal Penitentiary at Lewisburg, Pennsylvania, where he began serving his newly instituted life sentence. Id.

Twelve years later, in 1972, the Supreme Court ruled that the death penalty violated the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The petitioner then filed a habeas petition seeking to set aside the no-parole condition of his commuted sentence. Arguing that Furman’s abolition of the death penalty rendered his original death sentence invalid, the petitioner sought resentencing to a term of life with the possibility of parole, the alternative punishment provided for his crime under the UCMJ. Schick, 419 U.S. at 258-59, 95 S.Ct. 379. Rejecting this argument, the Supreme Court ruled that the no-parole condition was lawful when the President imposed it and that Furman did not alter the condition’s “validity.” Id. at 268, 95 S.Ct. 379.

Schick—which does not mention mootness or -justiciability, the theories upon which the government seeks dismissal — is readily distinguishable. As an initial matter, the military justice proceedings giving rise to Schick were meaningfully distinct from the Article III proceedings that gave rise to Petitioner’s conviction and sentence. Notably, because the Constitution expressly vests Congress — and not the federal courts — with authority over military justice matters, courts have long recognized that the availability of ha-beas review of military justice matters is unusually narrow. See, e.g., Burns v. Wilson, 346 U.S. 137, 139—41, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); see also Schlesinger v. Councilman, 420 U.S. 738, 746-48, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). By contrast, Petitioner’s original sentence was imposed by a federal district court applying our precedent (later deemed incorrect), giving the judiciary an institutional interest in remedying that unlawful sentence—an interest not present in Schick.

Additionally, the petitioner in Schick filed his collateral challenge to his sentence more than 10 years after his sentence was commuted. By contrast, Petitioner filed his habeas petition years before the President commuted his sentence. And whereas the petitioner in Schick was not serving his death sentence when Furman abolished the death penalty, Petitioner was serving his mandatory life sentence when we decided Simmons and made that sentence unlawful. The Schick Court found these distinctions meaningful, emphasizing that the “petitioner’s death sentence was not pending in 1972 because it had long since been commuted” and, therefore, that it was not “‘unfair’ that he be treated differently from persons whose death sentences were pending at the time that Furman was decided.” Id. at 259, 268, 95 S.Ct. 379. Accordingly, contrary to the government’s position, Schick contemplates that inmates, like Petitioner, whose sentences were unlawful at the time they lodged their collateral attack and at the time the President commuted their sentence, should be “treated differently” than inmates, like Schick, whose sentences were lawful when the President offered a commutation.

3.

Third, the government argues that Petitioner’s collateral challenge is moot because he is no longer serving the sentence that is the subject of his habeas petition. Yet in commuting a sentence, “the executive has superimposed its mind upon the judgment of the court; but the sentence remains, nevertheless, the judgment of the court, and, not of the executive, and is subject to the regulations of law respecting its enforcement.” Duehay v. Thompson, 223 F. 305, 307-08 (9th Cir. 1915) (emphasis added); see also, e.g., Ricks v. State, 882 S.W.2d 387, 391 (Tenn. Crim. App. 1994) (“[A] commutation affirms the sentence imposed by the jury or the trial court — it simply modifies this sentence.”); Application of White, 166 Misc. 481, 2 N.Y.S.2d 582, 586 (N.Y. Ct. Cl. 1938) (“[T]he commutation is an affirmance of it [the sentence], with a modification.” (internal quotation marks omitted)). Accordingly, Petitioner is still serving his original, unlawful judicial sentence, although “only the unremitted portion of the original sentence may be enforced.” White, 2 N.Y.S.2d at 586.

And even if a commuted sentence did displace an earlier sentence, Petitioner would be entitled to relief because, unlike in Schick, the President determined the duration of the term of Petitioner’s commuted sentence against the backdrop of his original, concededly incorrect, sentence. In particular, the President may have concluded that the 200-month term was appropriate because the district court (wrongly, as we now know) found that Petitioner previously had committed three “felony drug offenses” and therefore deserved harsher punishment. That Petitioner’s commuted sentence exceeds the Guidelines range that was applicable to him at the time of his commutation suggests as much. Because we cannot be sure that Petitioner’s unlawful original sentence did not taint his commuted sentence, Petitioner suffers a continuing injury from that original sentence, an injury that this we can remedy by vacating Petitioner’s commuted sentence and remanding for resen-tencing.

Even if Petitioner’s original sentence did not taint his commuted sentence, the commutation does not foreclose the possibility that Petitioner will be held under his original sentence in the future. When an executive attaches a condition to a pardon or commutation, the pardon or commutation becomes void if the condition is breached. See, e.g., Vitale v. Hunter, 206 F.2d 826, 829 (10th Cir. 1953); Pippin v. Johnson, 192 Ga. 450, 15 S.E.2d 712, 713 (1941); People ex rel. Madigan v. Snyder, 208 Ill.2d 457, 281 Ill.Dec. 581, 804 N.E.2d 546, 557 (2004); Crooks v. Sanders, 123 S.C. 28, 115 S.E. 760, 761 (1922). Vitale is illustrative. There, the President commuted the defendant’s sentence on the condition that the defendant leave the United States and not return. 206 F.2d at 828. Law enforcement officers subsequently found the defendant in the United States and returned him to prison to serve the remainder of his original sentence. Id. The defendant sought habeas relief, which the court, denied, explaining that when the defendant violated the terms of his commutation, “the commutation thereupon became null and void.” Id. at 829 (emphasis added).

Here, the President conditioned Petitioner’s commutation on his enrollment in a drug rehabilitation program. The materials provided to us by the government regarding Petitioner’s commutation do not establish whether the government has in fact enrolled Petitioner in RDAP. If Petitioner fails to satisfy that condition — or if the government takes the position that Petitioner failed to satisfy that condition, and Petitioner is barred from filing a successive petition to challenge the government’s conclusion on that point — his commutation will be “null and void,” and he will serve out his unlawful life sentence. Id. This possibility, “however small,” is sufficient to give Petitioner a “concrete interest” in having us vacate that original sentence and remand for resentencing. Knox, 132 S.Ct. at 2287. Indeed, to the extent enrollment in RDAP is a condition precedent to the President’s commutation taking effect, Petitioner may still be serving his unlawful mandatory life sentence because the government has not provided us with any evidence of Petitioner’s enrollment in RDAP.

4.

Finally, the government maintains that Petitioner’s action is moot because “[b]y accepting the commutation and its conditions, [Petitioner] ‘substituted ... a lesser punishment than the law [had] imposed upon him, and he cannot complain if the law executes the choice he has made.’” Gov. Resp. at 5 (second and third alterations in original) (quoting Ex parte Wells, 59 U.S. 307, 315, 18 How. 307, 15 L.Ed. 421 (1855)). Put differently, the government argues that, by accepting the commutation, Petitioner implicitly forfeited or waived his right to collaterally challenge his original sentence, notwithstanding that the errors in his original sentence may have, and likely did, taint his commuted sentence. See supra Part II.B.3.

A conditional commutation, like the commutation the President offered to Petitioner, is a private contract between the President and the individual to whom it is tendered. United States v. Wilson, 32 U.S. 150, 161, 7 Pet. 150, 8 L.Ed. 640 (1833) (Marshall, J.); Annotation, Conditional Pardon, 60 A.L.R. 1410 (“[A] conditional pardon is, in form and substance, a contract between the executive ... and the person to whom it is granted.”). To be valid, there must be both “delivery” and “acceptance.” Wilson, 32 U.S. at 161. Acceptance of a conditional commutation is required because “the condition may be more objectionable than the punishment inflicted by the judgment.” Id. A conditional commutation, therefore, is somewhat akin to a plea agreement — in return for receiving a reduced sentence, the individual receiving the commutation agrees to abide by the conditions of the commutation.

The Supreme Court has long disfavored the inferred or implicit waiver of rights, particularly constitutional rights, in plea agreements or otherwise. See Estelle v. Williams, 425 U.S. 501, 515, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (Powell, J., concurring). To that end, a defendant may waive the right to appeal a sentence only “when the waiver was knowingly and voluntarily made.” United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Likewise, “the right to attack a sentence collaterally may be waived so long as the waiver is knowing and voluntary.” United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).

Here, the President’s Grant of Clemency did not expressly condition the commutation of Petitioner’s original sentence on his waiver of his right to collaterally attack that sentence. Likewise, the Grant of Clemency did not require that Petitioner dismiss the instant case as a condition of the commutation. There also is no evidence that, before accepting the President’s offer of commutation, Petitioner was informed that if he accepted the commutation he would be waiving his right to continue to pursue his challenge to his original sentence and, therefore, foregoing the opportunity to obtain an even shorter sentence than that imposed by the President.

In such circumstances, Petitioner could not have knowingly and voluntarily accepted a waiver of his right to collaterally challenge his sentence as a condition of his commutation. Cf. United States v. Ortiz-Garcia, 665 F.3d 279, 284-85 (1st Cir. 2011) (holding that defendant did not knowingly and voluntarily waive his right to appeal when defendant was not “informed ... of the ramifications of the waiver”); United States v. Kebreau, 316 Fed.Appx. 220, 221 (4th Cir. 2008) (holding that defendant’s “plea was not knowing and voluntary because the district court failed to adequately advise him of the mandatory minimum sentence he faced”). Indeed, had Petitioner known that he was waiving his right to collaterally challenge his original sentence — and thereby obtain resentencing under the now-applicable Guidelines, which offered the prospect of an even shorter sentence than that offered by the President — he may have rejected the President’s commutation on grounds that it included conditions “more objectionable than the punishment inflicted by the judgment.” Wilson, 32 U.S. at 161.

IV.

Petitioner’s life sentence resulted from an acknowledged error by us and a sentencing law that Congress — at the public’s behest — concluded was unjust and racially biased. The President’s commutation of Petitioner’s sentence, which was intended to address the unjust sentencing framework established by the previous version of Section 841(b)(1), provided Petitioner with only partial relief. But Petitioner’s commuted sentence, which the President determined against the backdrop of Petitioner’s unlawful original sentence, still exceeds the now-applicable Guidelines range. Notwithstanding its responsibility for (1) Petitioner’s unlawful sentence and (2) forcing Petitioner to decide whether to accept the President’s commutation without the benefit of a decision from us on the viability of his collateral challenge, the majority dismisses Petitioner’s appeal as moot. But “[t]he underlying purpose of [Section] 2255 is to remove the possibility of the survival of an injustice beyond trial and appeal.” United States v. Lewis, 392 F.2d 440, 443-44 (4th Cir. 1968). It is our duty, therefore, to fully remedy Petitioner’s unlawful sentence.

V.

In declaring this matter now moot, after years of delay, we do little to enhance the public’s confidence and trust in the integrity of the judicial process. The sentence that' Raymond Surratt, Jr., a nonviolent drug offender, continues to serve remains a judicial sentence, not a newly created executive sentence. His challenge to that sentence is not moot, and we should no longer delay justice to Mr. Surratt or others like him.

With due regard for my colleagues, I most respectfully dissent.

      . Recall that until we requested briefing regarding whether Petitioner's commutation mooted this action, the government supported resentencing Petitioner, meaning that there was no "concrete” adversity between the parties. There is some irony that, to resolve the lack of concrete adversity between Petitioner and the government, we appointed independent counsel to argue that Petitioner should remain in prison for the rest of his life, yet the majority now dismisses Petitioner’s action on mootness grounds, notwithstanding that we can still provide Petitioner meaningful relief — namely, his release from prison.

      . Wells does not address,- much less support, the government’s mootness argument. At issue in Wells was whether Article II, section 2 empowers the President to grant conditional pardons. 59 U.S. at 309. Wells did not address whether, by accepting a commutation, an individual implicitly waives the right to pursue an ongoing collateral challenge to his original sentence that would provide him relief beyond that offered by the President's conditional commutation — the question at issue here.

      . Schick's statement that “[i]t would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought,” 419 U.S. at 267, 95 S.Ct. 379, does not undermine this analysis. In particular, when the President commuted the sentence of the petitioner in Schick, the death sentence was constitutional and the petitioner did not have a pending collateral challenge. By contrast, Petitioner’s commutation was granted after his original sentence was deemed unlawful and during the pendency of his collateral' challenge to that sentence. Accordingly, Schick did not address whether, by accepting a conditional commutation, the individual to whom the 'commutation is tendered implicitly consents to dismissal of a pending challenge to the sentence that the President commuted, even when the commutation is not expressly conditioned on the dismissal of such challenge — the question at issue here.


author: GREGORY, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Philip SWABY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Philip Swaby, Defendant-Appellant.
    No. 15-7616, No. 15-7621
    United States Court of Appeals, Fourth Circuit.
    Argued: December 7, 2016
    Decided: April 24, 2017

      ARGUED: Bradley Nelson Garcia, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jeremy Maltby, David K. Roberts, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
    .Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
   GREGORY, Chief Judge:

Philip Swaby brings a Sixth Amendment ineffective assistance of counsel challenge to his conviction, which led to his deportation as an aggravated felon. While Swaby’s counsel provided deficient performance, the district court determined that the deficient performance did not prejudice his defense because the court corrected his counsel’s deficiencies. For the reasons below, we reverse the district court’s dismissal, grant Swaby’s habeas petition, and remand for further proceedings.

I.

A.

Philip Swaby is a citizen of Jamaica, and had been a lawful permanent resident of the United States since June 6, 2001. He is married to a U.S. resident, has two daughters who are U.S. citizens, and acts as a father to his wife’s daughter from a prior marriage.

On November 10, 2011, Swaby and his then-girlfriend, now-wife, Ms. Robinson, were indicted for trafficking in counterfeit goods under 18 U.S.C. § 2320 and conspiracy to traffic in counterfeit goods. According to the indictment, Swaby and Robinson sold counterfeit merchandise from a store called Fashion Trendz. They had counterfeit purses, handbags, and other merchandise; counterfeit labels for expensive brand names; and generic merchandise bearing no labels.

Peter Ward served as Swaby’s appointed counsel. Ward immediately recognized that “immigration status would be a significant consideration” for Swaby, who had a green card and intended to apply for U.S. citizenship. J.A. 147. And from the beginning of the representation, Swaby “[wa]s concerned and ha[d] always been concerned about his immigration status.” J.A. 83.

Under federal immigration law, any alien convicted of an “aggravated felony” is deportable. 8 U.S.C. § 1227(a)(iii). Aliens rendered deportable because of an aggravated felony are ineligible for asylum or cancellation of removal. Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 1682, 185 L.Ed.2d 727 (2013). Indeed, deportation is so likely for those convicted of an aggravated felony that it is akin to “mandatory deportation.” United States v. Akinsade, 686 F.3d 248, 254 (4th Cir. 2012). One such aggravated felony that triggers mandatory deportation is an offense involving counterfeiting for which the term of imprisonment is greater than one year. 8 U.S.C. § 1101(a)(43)(R). A second aggravated felony is one that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i).

Recognizing that he lacked expertise in immigration law, Ward contacted Mary Ann Berlin, an immigration lawyer, for advice. He sent her a copy of Swaby’s indictment and the relevant criminal statute.

Berlin immediately recognized that Swa-by needed to avoid conviction of an aggravated felony. She first advised Ward that Swaby’s sentence must be under one year in order to avoid categorization as an aggravated felony. When looking at the criminal counterfeiting statute, she saw that 18 U.S.C. § 2320(a)(2) prohibited trafficking of counterfeit merchandise “the use of which is likely ... to deceive.” Conversely, § 2320(a)(1) lacked any “deceit” or “fraud” language, and thus would not be an aggravated felony for immigration purposes under 8 U.S.C. § 1101(a)(43)(M)(i). She advised Ward accordingly, and based on this advice Ward negotiated a plea agreement where Swaby would plead guilty to 18 U.S.C. § 2320(a)(1) and agree to pay $14,220 in restitution. His sentence was 364 days long.

Unfortunately, Berlin had looked at an amended version of § 2320(a)(1) that did not apply to Swaby’s case. Based on the version of the statute applicable to Swa-by’s case, 18 U.S.C. § 2320(a)(l)’s language included deception. As a result, Swaby unknowingly pleaded to an aggravated felony that rendered him automatically deportable.

Swaby’s plea agreement bore the broad warning about immigration consequences that is common to many plea agreements:

By pleading guilty, the Defendant will also be giving up certain valuable civil rights and may be subject to deportation or other loss of immigration status.... [CJonviction for a broad range of crimes can lead to adverse immigration consequences, including automatic removal from the United States.... Defendant understands that no one, including his attorney or the Court, can predict with certainty the effect of a conviction on immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any potential immigration consequences.

J.A. 34. And at Swaby’s plea hearing, the district court recited the warning commonly heard at such proceedings: “You should understand that, by pleading guilty this afternoon, you may be essentially doing something that will lead to your deportation or removal from the United States.” J.A. 49. The district court also referenced potential removal from the United States when informing Swaby of the many collateral consequences Swaby may endure because he pleaded to a felony charge. J.A. 60-61.

Ward emphasized to the court that he consulted with Berlin about the plea agree-merit’s immigration consequences, and that “the factors in the plea were arrived [at]” based on those discussions. J.A. 64-65. While neither Ward nor the district court could guarantee Swaby’s immigration consequences, the district court warned Swa-by of merely the “risk” of deportation. J.A. 66. Neither Ward nor the district court informed Swaby that he was pleading to a crime that rendered him automatically de-portable.

Swaby pleaded guilty and was sentenced to 364 days of incarceration, $14,220 in restitution payment, and three years of supervised release. But soon after Swaby was released from prison, the Department of Homeland Security lodged an immigration detainer against him and planned to deport him because he had pleaded to an aggravated felony.

B.

While detained, Swaby filed a petition for a writ of coram nobis on March 20, 2015. He alleged that he received ineffective assistance of counsel during his criminal proceedings, in violation of the Sixth Amendment. The district court found that Ward’s reliance on an inapplicable version of the statute and reassurance that pleading guilty to § 2320(a)(1) would reduce Swaby’s risk of deportation was clearly wrong. J.A. 121. And Ward’s error constituted deficient performance. But the district court found that Ward’s deficient performance did not prejudice Swaby’s proceedings because the court warned Swaby that his guilty plea could lead to his deportation, and thus remedied any misunderstanding that might have resulted from Ward’s deficient performance. J.A. 123-24. As a result, the district court denied Swaby’s coram nobis petition.

Swaby next filed a § 2255 habeas petition on September 9, 2015, alleging the same constitutional violation. See J.A. 127. The district court treated this petition like a second coram nobis petition because, although Swaby was still detained for immigration purposes, Swaby was no longer incarcerated and therefore no longer “in custody.” J.A. 134 & n.2. For the same reasons as explained in the coram nobis petition, the district court denied habeas relief. Swaby filed a timely notice of appeal from this denial.

II.

On appeal, the government argues that we lack jurisdiction over Swaby’s claim. According to the government, Swaby’s co-ram nobis petition should have been treated like a § 2255 habeas petition because he was in custody at the time of filing. As a result, the government believes that we lack jurisdiction over Swaby’s titled § 2255 habeas petition because it is an improper successive petition, and that we lack jurisdiction over Swaby’s first petition because Swaby has not requested a certificate of appealability.

A writ of coram nobis is an exceptional remedy that may be granted only when a fundamental error has occurred and no other available remedy exists. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). Here, habeas was in fact available to Swaby. As a result, Swaby could seek relief only through a habeas petition, and not through a coram nobis petition.

The parties dispute whether ha-beas was available to Swaby, because the case law is unclear if an individual under supervised release is still “in custody” after deportation. But an applicant need only be “ ‘in custody’ when the application for habeas corpus is filed.” Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). And “[a] prisoner on supervised release is considered to be ‘in custody’ for the purposes of a § 2255 motion.” United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999). Here, Swaby was in the United States, under supervised release and detained by immigration authorities, when he filed both of his petitions. Thus, he was in custody, and habeas was available to Swa-by when he filed his coram nobis petition. As a result, we view Swaby’s first petition as an invalid coram nobis petition, and his titled habeas petition as a valid habeas petition for which Swaby has filed a notice of appeal.

Swaby correctly notes that we are authorized to treat his timely notice of appeal as a request for a certificate of appealability. A certificate of appealability may only be issued when the applicant “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has rejected the applicant’s constitutional claim on the merits, an appellate court may issue a certificate of appealability if the applicant “demonstrate[s] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). For the reasons below, we find that reasonable jurists would find the district court’s decision ’on Swaby’s Sixth Amendment claim debatable or wrong. As a result, we issue a certificate of appealability, and therefore have jurisdiction over Swa-by’s petition.

III.

. We next turn to the merits of Swa-by’s Sixth Amendment claim. We review a district court’s denial of habeas relief de novo. Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012).

To prevail on an ineffective assistance of counsel claim under the Sixth Amendment, Swaby must show both that (1) his counsel was professionally unreasonable and (2) his counsel’s deficient performance prejudiced Swaby’s defense. Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). These are often called the “deficient performance” and “prejudice” prongs of a Strickland inquiry.

A.

We first turn to the deficient performance prong. Counsel’s failure to advise a client about “succinct, clear, and explicit” immigration consequences for a conviction is constitutionally deficient performance under the Sixth Amendment. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla v. Kentucky, Padilla’s counsel did not inform Padilla that he was pleading to an aggravated felony that rendered him categorically de-portable. Id. at 368-69, 130 S.Ct. 1473. And while immigration consequences can be complex, Padilla’s counsel could have de termined that Padilla’s crime was an aggravated felony “simply from reading the text of the statute.” Id. at 368, 130 S.Ct. 1473. His failure to do so, and his “false assurance” that the conviction would not result in Padilla’s removal from the country, easily constituted deficient performance.

Swaby’s circumstances here are identical to Padilla’s, and similarly demonstrate deficient performance. Like Padilla’s counsel, Ward failed to inform Swaby that, under the plea agreement, Swaby would be pleading to an aggravated felony that would render him categorically deportable. Like the error in Padilla, Ward only needed to read the correct version of the statute to determine that the crime was an aggravated felony. And like the false assurances Padilla’s counsel made, Ward structured the plea agreement to avoid an aggravated felony and advised Swaby that the plea agreement presented only a risk, but not a certainty, of deportation.

Effective representation by counsel requires that counsel provide correct advice when the deportation consequences are clear. See id. at 369, 130 S.Ct. 1473. Ward’s error — in providing Berlin with the incorrect statute, failing to read the statute to verify Berlin’s advice, or both— constitutes deficient performance under the Sixth Amendment.

B.

Swaby must also show that Ward’s deficient performance prejudiced Swaby’s defense. But a defendant cannot show prejudice if the district court corrects the misadvice and the defendant understands the correction. United States v. Akinsade, 686 F.3d 248, 253 (4th Cir. 2012). Here, the parties dispute whether the district court’s general warnings cured Ward’s deficient performance. We hold that the court’s warnings, which were general and referenced only a vague “risk” or possibility of deportation, do not.

In United States v. Akinsade, this Court found that the district court’s general warnings of a risk of deportation did not correct the counsel’s deficient performance. There, Akinsade pleaded guilty to one count of embezzlement after relying on his counsel’s erroneous advice that the offense would not render him deportable. Id. at 250. At the plea colloquy, the district court reviewed the potential collateral consequences to Akinsade if he pleaded guilty to a felony, including the risk that he “could be deported.” Id. This Court recognized that a “careful explanation” specifically correcting the misadvice may cure any prejudice the misadvice might have caused. Id. at 253-54. But a “general and equivocal admonishment” about merely the risk of deportation is insufficient to cure counsel’s erroneous advice that the defendant’s crime would not render him categorically deportable. Id. at 254. And in Akinsade, the district court’s vague warning about only a risk of deportation failed to inform Akinsade that he faced likely mandatory deportation by pleading to an aggravated felony. Id. Thus, the court’s general and equivocal instruction did not cure counsel’s deficient performance because Aldnsade could not have known at the plea colloquy that his plea was for an aggravated felony that led to categorical deportation.

Swaby’s case is identical to Akin-sade’s. Like in Akinsade, Swaby only received general and equivocal admonishments about a risk of deportation. Neither Ward nor the district court informed Swa-by that he was pleading to an aggravated felony rendering him categorically deport-able. The court’s general, nonspecific warning that Swaby may face immigration consequences and may be deported could not cure Ward’s deficient performance.

C.

Having established that Swaby satisfies the deficient performance prong and that the district court’s warning did not cure the deficient performance, we next turn to the prejudice prong of the Strickland inquiry. A defendant satisfies this prong by showing that his counsel’s deficient performance prejudiced his defense by “affect[ing] the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). A defendant is prejudiced if “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. Our sister circuits have also, we believe correctly, recognized that a defendant is prejudiced if there is a reasonable probability that the defendant could have negotiated a plea agreement that did not affect his immigration status. United States v. Rodriguez-Vega, 797 F.3d 781, 788-89 (9th Cir. 2015); Kovacs v. United States, 744 F.3d 44, 52-53 (2d Cir. 2014). We first conclude that Swaby has shown a reasonable probability that he could have negotiated a plea agreement that avoided immigration consequences. We next conclude that Swaby has shown a reasonable probability that he would have gone to trial rather than accept the plea agreement if he were aware of the agreement’s immigration consequences. As a result, Swaby satisfies the prejudice prong of the Strickland analysis.

1.

We first examine whether Swaby has demonstrated a reasonable likelihood that he could have negotiated a plea agreement that avoided immigration consequences. The Second and Ninth Circuits have adopted the same metric by which to make this assessment, and we adopt this standard.

In Kovacs v. United States, the Second Circuit reviewed an immigrant’s coram no-bis petition seeking vacatur of his guilty plea because his attorney erroneously informed him that the crime to which he pleaded guilty was not a deportable offense. 744 F.3d 44, 49-50 (2d Cir. 2014). After concluding that Kovacs satisfied the deficient performance prong, the court turned to the prejudice inquiry. The court held that a defendant was prejudiced if, “but for counsel’s unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status.” Id. at 52. To make this showing, Kovacs had to demonstrate both his resolute intent to structure a plea agreement that avoided immigration consequences, and a reasonable probability “that the prosecution would have accepted, and the court would have approved, a deal that had no adverse effect on [Kovacs’s] immigration status.” Id.

The Second Circuit found that Kovacs made this showing. It was apparent that Kovacs had a “single-minded focus” in the plea negotiations on avoiding immigration consequences. His attorney and the government also settled on the criminal charge during plea negotiations “for the sole reason that [the attorney] believed it would not impair Kovacs’ immigration status.” Id. at 53. These facts demonstrated a reasonable probability that the prosecution and the court would have accepted a different plea agreement that would not render Kovacs deportable. Id.

In United States v. Rodriguez-Vega, the Ninth Circuit adopted the Second Circuit’s reasoning. It initially determined that a defendant could show a reasonable probability of negotiating a better plea agreement by identifying cases where the government allowed a defendant who committed a similar crime to plead to a lesser, non-deportable offense. 797 F.3d at 788. But it further stated that “[a] petitioner may also demonstrate a reasonable probability [of negotiating a better plea] by showing that she settled on a charge in' a purposeful áttempt to avoid an adverse effect on her immigration status.” Id. at 789. Citing Kovacs, the Ninth Circuit found that" Rodriguez-Vega made this showing: Rodriguez-Vega rejected an initial plea bargain, and then accepted a later bargain only after a particular removal provision was deleted and she had been advised that she was less likely to be deported for a misdemeanor than a felony. Id.

Here, Swaby’s negotiations displayed a similarly single-minded focus and similar acquiescence by the government. As a result, Swaby has demonstrated a reasonable likelihood that he would have negotiated for, and the government would have been amenable to, a plea agreement that had no immigration consequences.. Like the counsel in Kovacs and Rodriguez-Vela, Ward was aware of Swaby’s immigration concerns from the outset of the case and structured the plea agreement with the sole purpose of avoiding immigration consequences. J.A. 149-51. After receiving advice from Berlin, Ward requested several changes aimed at avoiding Swaby’s immigration consequences, including pleading to a different charge, reducing the sentence to 364 days, and incorporating edits that removed fraud and deception language from the stipulation of facts. And the government accepted all of Ward’s requests, except for Ward’s request to reduce Swaby’s crime to “aiding and abetting.” J.A. 164. Swaby’s single-minded focus in structuring the plea agreement to avoid immigration consequences, and the government’s acquiescence to Ward’s many modifications, demonstrate that Swaby had a reasonable likelihood of successfully negotiating a plea agreement that avoided categorical deportation.

Ward asserts that the government would not have acquiesced to a plea agreement with under $10,000 in losses because he had asked the prosecution “in further conversations” to reduce the loss amount below $10,000 and was rejected. J.A. 151. But none of his plea negotiations in the record indicate that he raised the issue. J.A. 158-64. And because Ward believed the plea agreement lacked language about fraud or deceit, Ward could not have been on notice that the loss amount rendered Swaby’s crime an aggravated felony. Given the government’s flexibility in Ward’s other, similarly aimed requests, it is reasonably likely that the government may have agreed to a loss amount below $10,000 in exchange for other concessions had Ward known the full importance of the loss amount. This is especially true when even the government’s initial communications stated that the plea agreement would seek a loss amount between $10,000 and $30,000, and the ultimate plea agreement, resulted in only $14,220 in restitution.

For these reasons, Swaby has demonstrated a reasonable likelihood that, but for his counsel’s erroneous advice, he could have negotiated a different plea agreement. As a result, Ward’s deficient performance prejudiced Swaby’s defense.

2.

Swaby alternatively can demonstrate prejudice by showing a reasonable likelihood that, absent his counsel’s error, he would have gone to trial instead. To determine Swaby’s reasonable likelihood of going to trial, we must look to the strength of the state’s case “inasmuch as a reasonable defendant would surely take it into account.” Ostrander v. Green, 46 F.3d 347, 356 (4th Cir. 1995), overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996). But likelihood of acquittal at trial is not the only factor a defendant considers, especially when the offered plea carries considerable collateral consequences. For example, this Court has found prejudice when the defendant “had significant familial ties to the United States and thus would reasonably risk going to trial instead of pleading guilty and facing certain deportation.” Akinsade, 686 F.3d at 255. And a defendant facing deportation may go to trial for a crime involving fraud or deceit, despite overwhelming evidence of guilt, in order to assert that the crime’s estimated loss was less than $10,000. See id. at 255-56.

In Akinsade, Akinsade’s guilty plea to one count of embezzlement by a bank employee of $16,400 was an aggravated felony because it was a crime involving fraud or deceit with a loss amount of more than $10,000. Had he known about the consequences of his guilty plea, Akinsade and his attorney assert that Akinsade would have gone to trial to dispute the alleged loss amount, and to argue that the loss amount attributable to his crime was less than $10,000. Such a choice “is rational,” and this Court noted that it “cannot conclude that a reasonable defendant in Akin-sade’s shoes” would have acted differently. Id. at 256.

Swaby’s case is indistinguishable. Similar to Akinsade, Swaby alleges in a sworn affidavit submitted with his coram nobis petition that he would have gone to trial rather than plead guilty in order to avoid deportation. He specifically alleges that he would have contested the loss amount, J.A. 101, which he asserts were rough estimates made during plea negotiations and based on overly inflated values of brand marks unattached to merchandise. And even more than Akinsade, Swaby has long familial ties to the United States, including a wife and children. It is rational that a person in his situation, with such strong connections to this country, would rather risk a trial to reduce the loss amount than plead guilty and accept the certainty of deportation.

The government asserts that no reasonable person in Swaby’s position would have gone to trial because, based on the government’s evidence, Swaby likely would have been convicted and found guilty of a loss amount greater than $10,000. But the prejudice prong does not require a defendant to show that going to trial would have been the best objective strategy or even an attractive option. It merely requires the defendant to show a reasonable likelihood that a person in the defendant’s shoes would have chosen to go to trial. The decision does not need to be optimal and does not need to ensure acquittal; it only needs to be rational.

Here, Swaby is a husband, a father, and had been a resident of the United States since 2001. It is not only reasonably likely, it is unsurprising that Swaby, had he known the true consequences of his guilty plea, would have taken any chance, no matter how slim, to avoid deportation by going to trial than accept mandatory deportation from his family and resident country. And here, Swaby’s likelihood of success was not minimal. See, e.g., Lee v. United States, 825 F.3d 311, 313-14 (6th Cir. 2016) (describing, in examining Strickland’s prejudice prong, circuit split on whether immigrant-defendant’s desire to throw a “Hail Mary,” like a hope for jury nullification, at trial in hopes of avoiding deportation is a rational decision that amounts to prejudice), cert. granted, — U.S. -, 137 S.Ct. 614, 196 L.Ed.2d 490 (2016). Therefore, Ward’s deficient performance prejudiced Swaby’s defense because there was a reasonable likelihood he would have gone to trial.

IV.

For these reasons, Swaby’s Sixth Amendment right to effective counsel was violated during his criminal proceedings.

We reverse the district court s denial of habeas relief, vacate Swaby’s conviction, and remand for further proceedings consistent with this opinion.

REVERSED, VACATED, AND REMANDED.

      . It is unclear from the record whether Ward sent Berlin an erroneous version of the statute. But regardless, it is clear that Ward never checked Berlin’s advice against the correct version of the statute.

      . When an inmate is released from custody, a-habeas petition may become moot. But here, the collateral immigration consequences Swa-by continues to suffer from because of his federal felony conviction ensure his case is not moot. See Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

      . Like the district court was, we may treat Swaby’s coram nobis petition like a habeas petition. See, e.g., Castro v. United States, 540 U.S. 375, 381, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (noting that federal courts are free to recharacterize a litigant's postconviction motion to avoid unnecessary dismissal, avoid inappropriately stringent application of formal labeling requirements, or better express the motion’s legal basis). But we do not have to, especially here where Swaby has filed, received a final judgment on, and timely appealed a habeas petition on the same issue.

      .The district court treated Swaby’s habeas petition like a second coram nobis petition and adopted much of the district court’s analysis in Swaby’s original coram nobis petition. Yet the district court’s coram nobis analysis is identical to an analysis used for habeas petitions. Cf. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996) (“Because of the similarities between coram nobis proceedings and § 2255 proceedings, the § 2255 procedure often is applied by analogy in coram nobis cases.”). The district court received a habeas petition, reviewed the petition like a habeas petition, and denied the petition. Therefore, we view the district court’s disposition as a dismissal of a habeas petition on the merits.

      . The government asserts that Swaby had no chance of reducing the loss amount below $10,000 at trial. In addition to defending its estimates, including an estimate of $8,804 by Coach for the number of counterfeit items seized, the government asserts that a single counterfeit mark has the value of an authentic product. Thus, the 2,000 recovered counterfeit marks must value more than $10,000. Appellee Br. 28 (citing J.A. 106). But it is unclear how counterfeit marks, unattached to any merchandise and therefore lacking any authentic comparator, can be assessed for lost value. Cf., e.g., United States v. Cone, 714 F.3d 197 (4th Cir. 2013) (mentioning unattached brand marks but determining only whether particular products were counterfeit); United States v. Habegger, 370 F.3d 441 (4th Cir. 2004) (mentioning unattached brand marks but only discussing counterfeit charges for counterfeit socks and T-shirts); Chanel, Inc. v. Banks, No. WDQ-09-845, 2011 WL 121700 (D. Md. Jan. 13, 2011) (unreported) (calculating, in civil suit, statutory damages based on each counterfeit mark per type of goods sold).

      . The Sixth Circuit characterizes this Court’s Akinsade decision as one holding that a "Hail Mary” thrown at trial is not rational. But we have never so held.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lamar Richard LEE, Defendant-Appellant.
    No. 15-6099
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: April 25, 2017

      ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Sean E. Andrussier, Daniel Dris-coll, Student, Will Fox, Student, Ryan Weiss, Student, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
    Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.
   GREGORY, Chief Judge:

This Court issued a certificate of appeal-ability (“COA”) in this matter to permit Appellant Lamar Richard Lee, a federal prisoner, to challenge the district court’s denial of his motion under 28 U.S.C. § 2255. After holding this case in abeyance pending the Supreme Court’s decision in Beckles v. United States, — U.S. -, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), we now affirm the district court’s judgment.

On March 18, 2013, Lee pled guilty to three counts of possession with intent to distribute cocaine, cocaine base, and heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Prior to sentencing, the U.S. Probation Office prepared a presentence report (“PSR”) finding that, because of Lee’s 2008 Virginia convictions for unlawful wounding and for possession of cocaine with intent to distribute, he qualified for a sentence enhancement as a “career offender” under U.S. Sentencing Guidelines § 4B1.1. Lee’s trial counsel made no objections to the sentencing factors in the PSR. On June 14, 2013, the district court sentenced Lee as a career offender and imposed an enhanced sentence of 188 months’ imprisonment.

Lee appealed his sentence, in part to challenge the reasonableness of his sentence. This Court affirmed the sentence, concluding that “the district court accurately calculated the applicable Guidelines range and did not commit procedural error when sentencing Lee.” United States v. Lee, 559 Fed.Appx. 251, 252 (4th Cir. 2014). Lee later filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Lee asserted that his trial counsel was constitutionally ineffective because, during the sentencing hearing, his counsel failed to challenge the district court’s determination of his career offender status. Lee specifically argued that his unlawful wounding conviction did not qualify as a “crime of violence” under § 4B1.2 of the Guidelines. The district court denied Lee’s motion and concluded that Lee’s counsel was not ineffective because the unlawful wounding conviction did in fact qualify as a crime of violence under the residual clause of § 4B1.2(a)(2).

On January 20, 2015, Lee timely noted this appeal, but the district court declined to issue a COA. On February 24, 2015, Lee filed a motion for a COA, asserting for the first time that the residual clause in § 4B1.2(a)(2) may be unconstitutionally vague. On June 26, 2015, the Supreme Court in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), held that the nearly identical residual clause in the violent felony definition of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. On August 31, 2015, this Court granted Lee’s motion and issued a COA regarding whether Johnson rendered the district court’s conclusion debatable. ECF No. 21.

As a threshold matter, Lee argues that this case should not be limited to his ineffective assistance of counsel claim, maintaining that “[blecause Johnson was decided while this case was pending, this Court has the authority to review a freestanding claim for relief based on that intervening change in law.” Reply Br. at 1. The government contends that Lee forfeited any vagueness challenge to the residual clause in § 4B 1.2(a)(2) by failing to include such a claim in his § 2255 motion. We need not resolve this procedural issue, however, for it is now clear that even if Lee could overcome the government’s assertion of forfeiture, his claim challenging a provision of the Guidelines as unconstitutionally vague would nonetheless fail on the merits.

Recently, the Supreme Court concluded that the Guidelines are not subject to a vagueness challenge under the Due Process Clause. Beckles, 137 S.Ct. at 892. The Court reasoned that unlike the ACCA’s residual clause, which fixed the permissible range of sentences for certain defendants, the Guidelines “merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.” Id. The Court observed that before the Guidelines were created, its cases never suggested that a statute conferring discretion to a district court to select a sentence within a statutory range could be successfully challenged as vague, even when that discretion was unfettered. Id. at 892-93. The Court surmised that “[i]f a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be.” Id. at 894. Further, the Guidelines “do not implicate the twin concerns underlying vagueness doctrine — providing notice and preventing arbitrary enforcement.” Id. As such, the Guidelines are not amenable to a vagueness challenge. Id.

In short, Johnson’s vagueness holding does not apply to the residual clause in § 4B1.2(a)(2). See id. at 892. Accordingly, the Court concludes that the district court did not err by determining that Lee’s unlawful wounding conviction qualified as a crime of violence under the residual clause.

For the foregoing reasons, the district court’s judgment is-

AFFIRMED.

      . At the time Lee was sentenced, § 4B 1.2(a) of the Guidelines, in relevant part, defined a crime of violence as an offense that "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. Sentencing Guidelines Manual § 4B 1.2(a)(2) (U.S. Sentencing Comm’n 2013) (emphasis added). The italicized language is referred to as the residual clause.

      . The residual clause in the ACCA defines a violent felony as a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).

      .The COA also stated that "[(implicit in this issue is whether Johnson applies retroactively to cases on collateral review.” Several months after this Court issued the COA, the Supreme Court in Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016), explicitly held that Johnson has a retroactive effect in cases on collateral review.