CLD-021 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 17-2269

___________ UNITED STATES OF AMERICA

v. CHAZZIO RUTHERFORD, Appellant

___________________ _________________ On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Crim. No. 2-09-cr-00257-001) District Judge: Honorable Arthur J. Schwab

___________________ _________________ Submitted for Possible Summary Action Pursuant to Third Circu it LAR 27.4 and I.O.P. 10.6 November 1, 2018 Before: CHAGARES, RESTREPO and SCIRICA, Circuit Judges (Opinion filed: December 20, 2018)

_________ OPINION *

_________ PER CURIAM

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Chazzio Rutherford appeals from an order of the United States District Court for the Western District of Pennsylvania, whic h denied his petition f iled under 28 U.S.C. § 2241, and from the subsequent order denying his motion to clarify and reconsider. We will summarily affirm the Di strict Court’s judgment. I. In 2011, Rutherford pleaded guilty to federal drug crimes and firearm violations and was classified as a caree r offender, due to two prior co nvictions for possession with intent to deliver heroin, in violatio n of 35 Pa. Stat. An n. § 780-113(a)(30). 1 His sentencing range under the United States Sent encing Guidelines wa s calculated to be 292-365 months’ imprisonment, but the Distri ct Court granted a motion for a downward departure and variance, sentencing him to a total of 180 months’ imprisonment. Rutherford did not appeal. In April 2017, Rutherford filed a motion “under secti on[s] 2241, 1651, and 2255, or Title 28 United States Code.” In it, he claimed that if the categorical approach is properly applied, as clarified in Moncrieffe v. Holder, 569 U.S. 184 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), then his Pennsylvania convictions do not qualify as “controlled substance offens es” for purposes of the fe deral sentencing guidelines’ career offender enhancement, s ee U.S.S.G. § 4B1.1. Ruth erford argued, among other things, that “delivery” under Pennsylvania law is broader th an the conduct included in the

1 “[A] defendant qualifies for a career-offende r enhancement under the Guidelines if he or she ‘has at least two prior felony convictio ns of . . . a controlled substance offense.’” United States v. Glass, 904 F.3d 319, 321 (3d Ci r. 2018) (quoting U.S. S.G. § 4B1.1(a)).3 Guidelines’ definition of “cont rolled substance offense.” Rutherford conceded that his motion was untimely if construed as a § 2255 motion, but argued that he should be able to raise his claim under § 2241 or the All Writs Act because he is “actually innocent” of the career offender designation. The Government filed a response in oppositi on, to which Rutherford filed a reply. The District Court agreed with the Govern ment that Rutherford ’s § 2255 motion was untimely filed and that he co uld not use § 2241 because § 2255 was not “inadequate or ineffective.” Quoting our de cision in Gardner v. Warden Lewisburg USP, 845 F.3d 99, 102-03 (3d Cir. 2017), the Distri ct Court stated that Ruthe rford did not show “something more”—something beyond his in ability to meet the filing requ irements of § 2255. The Court also noted, in a footnote, that in Unite d States v. Henderson, 841 F.3d 623 (3d Cir. 2016), cert. denied, 138 S. Ct. 210 (2017), we had recently “r ejected a similar, though not identical, Mathis-based challe nge to Pennsylvania’s Controlled Substances Act as it relates to the sentencing enhancement un der the Armed Career Criminal Act.” Rutherford then filed a motion to clarify or reconsider, which the District Court denied. Rutherford timely appealed. To the extent that Rutherfo rd’s filing was properly co nstrued as a motion under 28 U.S.C. § 2255, we have already denied his a pplication for a certificate of appealability, as “[j]urists of reason wo uld not debate the District Cour t’s conclusion that Rutherford’s petition, construed as a motion under 28 U.S. C. § 2255, was untimely.” Order entered December 18, 2017. In cons idering Rutherford’s filing as a possible petition under 28 U.S.C. § 2241, we stayed the appeal pending a decision in Un ited States v. Glass, C.A.4 No. 16-2906. After entering a decision in Gla ss, see United States v. Glass, 904 F.3d 319 (3d Cir.), reh’g denied, (3d Cir. Sept. 28, 2018), we lifted the stay in this appeal and asked the parties to comment on whether su mmary action was appropriate and how the decision in Glass affects this appeal. We ha ve reviewed the partie s’ responses and have determined that summary affirmance is warra nted. See Third Circ uit L.A.R. 27.4 and I.O.P. 10.6. II. We now consider whether Ru therford’s motion could be properly considered as a habeas corpus petition un der § 2241. We have held that “under the explicit terms of 28 U.S.C. § 2255, unless a § 2255 motion would be ‘inadequate or ineffective,’ a habeas corpus petition under § 2241 cannot be entertaine d by the court.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curi am) (quoting § 2255(e)). One narrow and rarely applied exception is when “an intervening change in statutory interpretation runs the risk that an individual was convicted of conduct that is not a crime, and that change in the law applies retroactiv ely in cases on collateral review.” See Bruce v. Warden, Lewisburg USP, 8 68 F.3d 170, 179 (3d Cir. 2017 ) (citing In re Dorsainvil, 119 F.3d 245, 251- 52 (3d Cir. 1997)). We have not decided whether § 2241 is appr opriate for bringing a claim that one is “innocent” of career offender status. See ge nerally United States v. Doe, 810 F.3d 132, 160-61 (3d Cir. 2015). We need not make that determination here, because even assuming that § 2241 is the proper vehicle fo r challenging one’s career offender status, Rutherford’s challenge fails on the merits.5 Rutherford’s argument, like th at of the defendant in Glass, is that his conviction under § 78-113(a)(30) is not categorically a “controlled substance offense” under § 4B1.2 of the sentencing guidelines, because there is a mismatch be tween the elements of § 780- 113(a)(30) and the definition in § 4B1.2. Both argued that § 780–113(a)(30) is categorically broader than the analogous Guidelines elements, because it prohibits “delivery” of a controlled substance, wh ich could include a mere offer to sell. 2 Glass and Rutherford both cited United St ates v. Hinkle, 832 F.3d 569, 575-76 (5th Cir. 2016), cert. denied, 138 S. Ct. 1453 (2018 ), in which the court held that because the Texas statute in question criminalized “delivery, ” which included a mere offer to sell the drug, the Texas statute “swept beyond § 4B1.2( b).” See Glass, 904 F.3d at 322. However, we rejected Glass’s argument “that a mere offer to se ll drugs is impliedly included in § 780- 113(a)(30).” Id. We stated that we were “confident concluding that § 780-113(a)(30) is not broader than the Guidelines’ definition of a ‘controlled substance offense.’” Glass, 904 F.3d at 323. Rutherford argues that our decision in Gl ass does not foreclose relief in his case, because he has another argumen t: one can violate the Penns ylvania statute by delivering a “device,” and that Pennsylvania defines the wo rd “device” in ways that such an offense

2 Section 780-113(a)(30) prohibits “the manufac ture, delivery, or possession with intent to manufacture or deliver, a controlled substan ce . . . or knowingly cr eating, delivering or possessing with intent to de liver, a counterfeit controlled substance.” Section 4B1.2 defines a controlled substance offense as “the manufacture, import, export, distribution, or dispensing of a controlled substance,” or a conviction of posse ssion “with intent to manufacture, import, export, distribute or di spense.” U.S.S.G. § 4B1.2(b). Notably, § 4B1.2 does not include the term “delivery.”6 could not be prosecuted under federal law. Fi rst, Rutherford did not raise this argument in the District Court, so it is waived. See Zi ccardi v. City of Phila., 288 F.3d 57, 65 (3d Cir. 2002). But even if he had raised it, it is irrelevant. Rutherford was convicted of possession with intent to deliv er a controlled substance, not delivery of a “device.” In sum, as the District Court concluded, Rutherford has not shown that he can use § 2255’s safety valve. Thus, we will summaril y affirm the Court’s decision to the extent that Rutherford sought to proceed under § 2241.