United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge
M. Druitt, a federal inmate, has filed a petition to vacate,
set aside or correct his sentence under 28 U.S.C. §
2255. ECF No. 49. The case has been stayed pending the
decision of the United States Supreme Court in Beckles v.
United States. No. 15-8544. ECF No. 65. The Supreme
Court has scheduled oral argument in Beckles for
November 28, 2016. Druitt seeks bond pending the Supreme
Court's decision in Beckles. contending that he
may overserve his sentence if Beckles is decided in
his favor and if he is subsequently resentenced within his
recalculated advisory guidelines range. ECF Nos. 66
and 70. The government opposes Druitt's request for bond.
ECF No. 68.
considering the briefs and hearing oral argument, the court
concludes that Druitt's request for bond must be DENIED.
First, the standard for release on bond pending habeas review
is a high one. "To prevail on a motion for release on
bail in a habeas case, the appellant must show that his
petition presents a substantial constitutional claim upon
which he has a high probability of success, and that
extraordinary circumstances warrant his release."
United States v. Perkins. 53 Fed.App'x 667, 669
(4th Cir. 2002)(citing Aronson v. May. 85
S.Ct. 3 (1964)).
under existing Fourth Circuit precedent, Druitt's status
as a career offender may not be cognizable on collateral
review. United States v. Foote, 784 F.3d 931, 936
(4th Cir. 2015). "[W]e are constrained to decide that
sentencing a defendant pursuant to advisory-Guidelines based
upon a career offender status that is later invalidated does
not meet [the] remarkably high bar of 'a fundamental
defect which inherently results in a complete miscarriage of
justice."' Id. (quoting Davis v. United
States, 417 U.S. 333, 346 (1974)). As with Druitt, Foote
was sentenced under an advisory sentencing guidelines scheme,
and the Fourth Circuit was "hesitant to declare that a
fundamental defect or complete miscarriage of justice has
occurred in a situation in which Appellant was (and on
remand, would again be) sentenced under an advisory
Guidelines scheme requiring individualized analysis of the
sentencing factors set forth in 18 U.S.C. §
3553(a)." Foote, 784 F.3d at 941 (emphasis in
original). Whether the holding in Foote will survive
the forthcoming decision in Beckles is yet to be
seen, but it remains binding precedent in this
argues that Foote is inapplicable to his
constitutional claim, arguing that Foote was limited
to allegations of non-constitutional and non-jurisdictional
errors. Druitt's distinction is well-taken as the Fourth
Circuit in Foote appears to carve out constitutional
claims from its general rule. "The Supreme Court has
interpreted this provision [§ 2255(a)] such that if the
alleged sentencing error is neither constitutional nor
jurisdictional, a district court lacks authority to review it
unless it amounts to a 'fundamental defect which
inherently results in a complete miscarriage of
justice.'" 784 F.3d at 936 (quoting Davis v.
United States, 417 U.S. 333, 346 (1974)). Regardless of
the reach of Foote, the simple fact remains that the
level of uncertainty surrounding the forthcoming decision in
Beckles precludes the court from concluding that
Druitt has met the high probability of success standard.
even if it is determined that the definition of a crime of
violence in previous versions of U.S.S.G. §
4B1.2(a)(2) is unconstitutionally vague and subject to
collateral review under an advisory guidelines system,
Druitt's sentence would remain statutorily authorized.
Druitt was convicted in 2007 of Possession with the Intent to
Distribute More than 50 Grams of Cocaine Base in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Due to
changes in the law following Druitt's sentencing,
distribution of that volume of cocaine base now bears a
penalty of 5 to 40 years under 21 U.S.C. § 841(b)(1)(B).
To be sure, subsequent amendments in the sentencing
guidelines regarding crack cocaine and drug penalties would
work in Druitt's favor to lower his advisory guidelines
range were he no longer found to be a career offender. Again,
however, given the uncertain state of the law pending
Beckles. the court concludes that Druitt cannot meet
the high probability of success standard. While Druitt argues
that he will have overserved a recalculated advisory
guidelines sentence, the court is not bound to impose a
guidelines sentence should he be resentenced. Rather, the
court would be required to resentence Druitt to a sentence
that is sufficient, but not greater than necessary, to comply
with the purposes set forth in 18 U.S.C. § 3553(a).
Druitt's criminal history does not suggest that he is a
good candidate for bond. Although only 26 at sentencing,
Druitt had amassed 10 criminal history points, including
felony convictions for drug and gun crimes.
end of the day, the court does not know how the Supreme Court
will rule in Beckles, and, at this juncture, Druitt
has not established a high probability of success or
extraordinary circumstances warranting his release on bond.
appropriate Order will be Dated this day.
 The court considered whether the
holding in Foote was undermined by the Fourth
Circuit's ruling in In re Hubbard, 825 F.3d 225
(4th Cir. 2016), where the court authorized a
successive § 2255 petition challenging the sentencing
court's career offender guidelines designation. The
circumstances facing the Fourth Circuit in Foote and
Hubbard bear a critical distinction borne out in the
decisions. Hubbard was sentenced before the Supreme
Court's decision in United States v. Booker. 543
U.S. 220 (2005), during a time when the sentencing guidelines
were mandatory. In Foote. the post-Booker
advisory nature of the guidelines played a significant role
in the court's decision to deny collateral review of a
career offender designation under an advisory guidelines
 The current version of the United
States Sentencing Commission Guidelines Manual no longer
includes the so-called residual clause similar to the
residual clause found unconstitutional in Johnson v.
United States. 135 S.Ct. 2551 (2015). In
Beckles, the Supreme Court is likely to decide
whether defendants akin to Druitt, who received enhanced
sentences as a result of the residual clause ...