PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 1 9
- 6200

QUENTIN ROBERT BRASWELL , Petitioner

- Appellant ,

v. DONNA M. SMITH , Respondent

- Appellee

.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:18

- hc

- 02085

- BO)
Argued : January 28, 2020 Decided: March 4, 2020

Before DIAZ , THACKER , and QUATTLEBAUM , Circuit Judges.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined

.

ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Evan Rikhye, OFFICE OF THE UNITED STATES ATTO RNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May

- Parker, Assista nt United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.2 THACKER, Circuit Judge : In United States v. Wheeler , this court set forth a four part test to determine whether an individual can seek relief from an erroneous sentence in a 28 U.S.C. § 2241 habeas
corpus petition via the “savings clause” of 28 U.S.C. § 2255 (e) . 886 F.3d 415 (4th Cir. 2018). The savings clause provides that a court may entertain a traditional § 2241 petition
if the peti tioner can demonstrate a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” Id . at 419 (quoting § 2255(e))

. I n order for a petitioner to meet this standard, he must demonstrate: (1) at the time of sentencing, settled law of this circuit or the Supreme Court e stablished the legality of the sentence; (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to me et the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect. Id . at 429 (the “ Wheeler test”).
In this case , Quentin Braswell (“Appellant”) appeals from the district court’s denial of his § 2241 petition, which he sought to file v ia the savings clause . The district court reasoned that Appellant could not meet the second prong of the Wheeler test because Appell ant filed his first § 2255 motion after the applicable change in settled substantive law , even though that § 2255 motion was resolved before that change in law was deemed to apply retroactively on collateral review

. We reverse. In applying the second Wheeler prong, we look to the time of the “retroactive change in law,” i.e., the combination of the change in law and its retroactivity.3 886 F.3d at 429. Thus, f or the reasons that follow, in the unique circumstance where the change in settled substanti ve law occurred before a petitioner filed his or her first § 2255 motion, but such change was deemed retroactive after the resolution of the petitioner’s first § 2255 motion, the petitioner satisfies the second prong of Wheeler

. We remand for proceedings consistent with this opinion.
I. On July 9, 2009, a federal grand jury in the Eastern District of North Carolina indicted Appellant on gun and drug charges. The Government filed an Information of Prior Convictions for Enhancemen t of Sentence pursuant to 21 U.S.C. § 851 (the “Information”) , which stated that Appellant was subject to an enhanced sentence based on a 1997 North Carolina conviction for possession with intent to sell cocaine (the “1997 Conviction”) . The
I nformation al leged that th e 1997 C onviction was a “felony drug offense[]” that subjected Appellant to an enhanced sentence pursuant to 21 U.S.C. § 841(b). 1 J.A. 21. 2

1 At the time Appellant was charged, convicted, and sentenced, § 841(b) provide d that “any person who violates [§ 841(a) for possession or distribution of drugs involving five grams or more of crack cocaine ] ” and “commits such violation after a prior conviction for a felony drug offense has become final . . . shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment.” 21 U.S.C. § 841(b)(1)(B) (2009). In the absence of a prior felony dr ug offense, the term of imprisonment “may not be less than 5 years and not more than 40 years.” Id

. “Felony drug offense” was, and still is , defined as “an offense that is punishable by imprisonment for more than one year under any law

. . . of a State.” 21 U.S.C. § 802(44).

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.4 On September 11, 2009, the grand jury returned a superseding indictment charging Appellant with two counts of distribution of five grams or more of crack cocaine and aiding and abetting pursuant to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts One and Tw o); one count of possession with the intent to distribute a quantity of cocaine pursuant to § 841(a)(1) (Count Three); one count of possession of firearms in furtherance of a drug trafficking crime pursuant to 18 U.S.C. § 924(c)(1)(A) (Count Four); and pos session of firearms by a felon pursuant to 18 U.S.C. § 922(g)(1) (Count Five). Appellant pled guilty to Counts Two and Four of the superseding indictment on November 4, 2009. Appellant’s sentencing hearing took place on May 10, 2010 . Because of the Infor mation, the statutory range to which Appellant was subjected on Count Two was ten years to life imprisonment, to be followed by a term of supervised release of eight years.
See 21 U.S.C. § 841(b)(1)(B) (2009). Absent the Information, Braswell’s statutory sentencing range on Count Two would have been five to 40 years, and his term of supervised release would have been four years. See id

. At sentencing, the district court accepted the Presentence Investigation R eport, which designated Appellant as a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines ( the “Guidelines”)

. 3 Appellant’s resulting advisory Guidelines
range was 262 to 327 months of imprisonment on Count Two, and a consecutiv e sentence

3 The career offender enhancement applies when a defendant has two or more prior felony convictions of either a “controlled sub stance offense” or “crime of violence,” each of which was “punishable by imprisonment for a term exceeding one year.” U.S.S.G. § § 4B1.1(a), 4B1.2(a) , (b) (2009)

.5 of 60 months of imprisonment on Count Four, for a total of 322 to 387 months , plus eight years of supervised release. The district court sentenced Appellant to 262 months on Count Two, and 60 months on Count Four, for a total of 322 months. On March 18, 2011, t his court affirmed Appellant’s conviction and dismissed his challenge to his sentence based on
the appellate waiver in his plea agreement

. See United States v. Braswell , 418 F. App’x 195, 196 (4th Cir. 2011). On August 17, 2011, f ive months after Appellant’s direct appeal proceedings ended, this court held that , in considering whether North Carolina drug convictions a re “ felony drug offense [ s ] ” pursuant to 21 U.S.C. § 802(44) , the Government c an not rely on a hypothetical maximum term o f imprisonment to determine if the crime was punishable by “imprisonment for more than one year.” United States v. Simmons , 649 F.3d 237 , 239 (4th Cir. 2011) (en banc) (quoting § 802(44)) (hereinafter “ Simmons ”) . R ather, the sentencing court “may only consider the maximum possible sentence that the particular defendant could have received

. ” Wheeler , 886 F.3d at 420 (discussing Simmons ) (emphasis in original) ( internal quotation marks omitted)

. On March 10, 2012, Appellan t moved to vacate his sentence pursuant to § 2255 . He argued that he should not have been deemed a career offender because, based on Simmons , Appellant did not “have a predicate offense.” J.A. 88

. In response, t he Government “concede[d] that , as a result of Simmons , [Appellant’s 1997 C onviction ] is not punishable by more than one year imprisonment, and therefore he lacks the necessary predicates for career offender status.” Id. at 10 1

– 0 2. The Government also “concede[d] that, as a result of Simmons , th[e] [1997] [C] onviction could not form the basis for a § 851 enhancement.6 The statutory punishment range on Count Two therefore should have been 5 years to 40 years, not 10 years to life. However, the sentence actually imposed on Count Two

-- 262 months

-- was still within the correct statutory range.” Id . at 103 n.1.
O n February 19, 2013, the district court adopted the magistrate judge’s
recommendation and dismiss ed the § 2255 motion . This recommendation was based on three grounds : (1) Appellant was barred from challenging his sentence by the waiver in his plea agreement; (2) even if the 1997 C onviction was no longer a qualifying prior offense for a career offender enhancement, Appellant was nonetheless sentenced within the unenhan ced statutory maximum of 40 years and thus, his § 2255 claim was “ not cognizable and should be dismissed” ; and (3) Simmons had not been deemed r etroactive on collateral review. J.A. 124. Six months later , on August 21, 2013, this court held that Simmons applied retroactively on collateral review. See United States v. Miller , 735 F.3d 141 , 147 (4th Cir. 2013). After Simmons , Appellant filed at least one other § 2255 motion, arguing that
Simmons “would prevent [Appellant’s] [1997 C onviction] from being used to support a 21 U.S.C. § 851 [Information] because [Appellant’s] prior drug convictions were not punishable by a term of imprisonment exceeding one year.” J.A. 163

– 64 (filed Nov. 21, 2016) (emphases omitted) . The district court denied the motion because Appellant did not seek the proper authorization from this court to file a successive § 2255 petition

. This court decided United States v. Wheeler on March 28, 2018 , developing a test for petitioners seeking to file a § 2241 petition. In that case, Gerald Wheeler attempted to use § 2241 via the savings clause of § 2255(e) to challenge the use of his prior North7 Carolina drug conviction for a § 851 sentencing enhancement. While his petition was pending, this court decided Mil ler . Unlike Appellant, Wheeler filed his first § 2255 motion before Simmons was decided, not after. Based on Wheeler , o n April 11 , 2018, Appellant filed a pro se § 2241 petition for writ of habeas corpus

. On January 29, 2019, the district court dismissed the petition. The district court concluded that Appellant could not meet the second prong of Wheeler and pass through the savings clause because “ Wheeler requires both the substantive law to change and for that change to be retroactive subsequent to petitioner’s first § 2255 motion.” J.A. 236. Thus, the district court concluded, because “the substantive law set forth in
Simmons changed prior to [Appellant’s] § 2255 , ” he could not satisfy prong two

. The di strict court also explained in a footnote that Appellant’s Simmons claim was barred by
the waiver in his plea agreement . Appellant timely noted this appeal.
II. We review legal issues concerning the savings clause of § 2255(e) de novo. See United States v. Wheeler, 886 F.3d 415 , 422 (4th Cir. 2018).
III.
A. The Wheeler Test Again, t he Wheeler test provides that a petitioner can pass through the savings clause if: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner’s direct appeal and first § 22558 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gat ekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect. United States v. Wheeler , 886 F.3d 415, 429 (4th Cir. 2018)

. “ [T] he savings clause requirements are jurisdictional , ” id . at 426, so we independently examine whether all four prongs of the Wheeler test are met. See United States v. Urutyan , 564 F.3d 679, 684 (4th Cir. 2009) (a federal court is “obliged to satisfy [itself] of subject

- matter jurisdiction”).
1. Prong One The first Wheeler prong requires that, “at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence.” 886 F.3d at 429. Appellant easily satisfies this prong because in May 2010, the Simmons panel decision had been v acated and the en banc decision had not yet been issued . T he then

- prevailing decision of United States v. Harp held, “[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], . . . we

co nsider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” 406 F.3d 242, 246 (2005) (emphasis in original). A defendant theoretically could have received a sentence of more than one year in prison for t he 1997 Conviction ; thus, it was a prior offense that could validly enhance Appellant’s sentence pursuant to § 841(b) and § 851

.9 2. Prong Two

a . The second prong of Wheeler requires , “ [S] ubsequent to the prisoner’s direct appeal and first § 2255 motion, the

. . . settled substantive law changed and was deemed to apply retroactively on collateral review .” 886 F.3d at 429. As to prong two , the district court concluded: [Appellant] is unabl e to establish prong two of Wheeler because Simmons was issued before [he] pursued his first § 2255 motion. In fact, [Appellant] unsuccessfully raised a Simmons claim in his first § 2255 motion. Although Simmons was made retroactively applicable to cases on collateral review subsequent to the denial of [Appellant’s] § 2255 motion, Wheeler requires both the substantive law to change and for that change to be retroactive subsequent to [Appellant’s] first § 2255 motion. Because the substantive law set forth in Simmons changed prior to [Appellant’s] § 2255, he cannot satisfy Wheeler

. J.A. 236 (citations omitted). Appellant’s direct appeal concluded in March 2011; the Simmons en banc decision was issued in August 2011; Appellant’s first § 2255 was filed in March 2012 and his first § 2255 proceedings ended in February 2013; and Simmons was made retroactive in Miller six months later, in August 2013. Appellant argues that, even though the “settled substantive law” did not change (i.e., the Simmons en banc decision was not issu ed) “subsequent to the prisoner’s . . . first § 2255 motion,” Wheeler , 886 F.3d at 429, “the date of retroactivity

-- not the date of the substantive change in law

-- is the controlling consideration in determining whether the second prong is met

. ” Appellant’s Br. 21. The10 Government, in contrast, asks us to read prong two literally and in isolation from the rest of the opinion. b

. Although prong two c ould be read literally such that the change in settled law and
the retroact ivity determination should both occur after the first § 2255 motion, the Wheeler

test should not be interpreted so rigidly. Wheeler did not address the unique situation at hand, where the first § 2255 motion was filed between the change in substantive law and the declaration of its retroactivity. In considering these rare facts, we look to the entire ty of the Wheeler opinion and conclude that , in order for a petitioner to satisfy prong two, the combination o f the change in settled substantive law and its retroactivity must occur after the first § 2255 motion has been resolved

. i. Wheeler demonstrates that the change in settled substantive law and retroactivity determination work together as a package deal. T he change in settled substantive law “must have been made retroactive on collateral review. Otherwise, the prisoner would not be able to ‘test the legality of his detention’ in a § 2241 proceeding , which is the ultimate goal of the savings clause .” Whe eler , 886 F.3d at 429 (quoting 28 U.S.C. § 2255(e)). We explained that on prong two, we look to the “retroactive change in law” as one moment in time. Id

. For example, w hen discussing whether Wheeler met prong two, we explained: [T]he en banc Simmons d ecision, which abrogated Harp , was decided August 17, 2011, and was made retroactive on collateral review by Miller on August 21, 2013. This all occurred after Appellant’s direct appeal, filed March 2008, and his first § 2255, filed June 2010. Although App ellant actually11 raised a Simmons type claim in his first § 2255 on ineffective assistance of counsel grounds, the Simmons en banc decision itself could not have been invoked at that time because it did not exist. Id . at 429

– 30 (emphasis supplied). Therefore, because the retroactivity determination

occur r ed after the first chance Appellant had to “invoke[]” the change in settled law in a § 2255 motion , § 2255 remain ed “inadequate or ineffective” to test the legality of his detention. Furthermore, p rong four of Wheeler demonstrates that the date of retroactivity is the trigger for savings clause relief. That requirement states, “due to this retroactive change [ in settled law ] , the sentence now presents an error sufficiently grave to be deemed a fund amental defect.” 886 F.3d at 429 (emphasis supplied). It is the retroactive change, not just the change, in settled law that renders the sentence fundamentally defective. ii. Appellant’s reading of prong two also furthers the purpose and policy behind the Wheeler opinion. Wheeler could not receive the benefit of Simmons because it “did not exist.” 886 F.2d at 430. Here, Appellant could not receive the benefit of Simmons because it was not applicable retroactively on collateral review. In fact, the legal landscape existing at the time of Appellant’s first § 2255 motion all but foreclosed this possibility. See Carachuri

- Rosendo v. Holder , 560 U.S. 563, 575

– 76 (2010) ( in holding that defendant’s second Texas offense of simple drug possession was not an “aggravated felony , ” rejecting the “hypothetical approach” to prior convictions where “all conduct punishable as a felony” would be treated as “the equivalent of a convictio n of a felony” (internal quotation marks12 omitted) )

. But see United States v. Powell , 691 F.3d 554, 560 (4th Cir. 2012) (holding that Carachuri

- Rosendo is not retroactive on collateral review). In this case and Wheeler , the petitioners in their first § 22 55 motions could not rely upon the change in substantive law to correct their fundamental sentencing errors; thus, such motions were inadequate and ineffective to test the legality of their detention. To hold otherwise would strip all meaning and purpose from § 2241 and Wheeler itself. “[T]he privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law.” Boumediene v. Bush , 553 U.S. 723, 779 (2008) (emphasis supplied) (internal quotation marks omitted) . Accepting the Government’s inflexible reading of prong two of the Wheeler test would deny relief to Appellant merely because he could cite

to Simmons in his first § 2255 motion , even though the state of the law at the time precluded him from using it in his favor. This is not a meaningful opportunity.

c. In support of a literal and isolated reading of prong two, the Government posits ,

“ T he use of the word ‘and’ as opposed to ‘o r’ is significant.” Gov’t’s Br. 1 7

. It also contends , “[T] here was no settled Fourth Circuit barrier or other barrier under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), to the Fourth Circuit’s making a retroactivity determination on [Appellant’s] first § 2255 motion,” and therefore, “the absence of a holding of retroactivity at the time of a § 2255 motion would not present the kind of ‘exceptional circumstance [] ’ that would require a § 2241 to step in and take the13 place of § 2255.” Id . at 18 ( quoting Wheeler , 886 F.3d at 428 ) (citation omitted)

. We reject these arguments

. First, the Government believes it is significant that the Wheeler test contains “and” rather than “or.” But if the test used the word “or,” prong two would state: “subsequent to the prisoner’s direct appeal and first § 2255 motion, the aforementioned settled substantive law changed [ or ] was deemed to apply retroactivel y on collateral review.” 886 F.3d at 429. This argument misses the point. No party is contending that prong two should be read in the disjunctive. Indeed, this reading would completely eliminate the retroactivity requirement altogether

. Second , the G overnment maintains that this court could have deemed Simmons retroactive during the proceedings on Appellant’s first § 2255 motion , and therefore, Appellant does not present an “exceptional circumstance” worthy of habeas relief

. But the same can be said for Wheeler himself. When Wheeler filed his first § 2255 motion before
Simmons , he raised a Simmons

- like argument. T his court could have decided, as it did in
Simmons , that the method of analyzing North Carolina prior felony convictions was erroneous, and Wheeler would have received relief. Besides, t his argument also misses the point. We explained in Wheeler that the purpose of traditional habeas relief was to “rem edy statutory, as well as constitutional, claims presenting . . . exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is present.” 886 F.3d at 428 (internal quotation marks omitted). Further, “if we held that a prisoner was foreclosed from seeking collateral relief from a fundamentally defective sentence, and ‘ through no fault of his own, has no source14 of redress, ’ this purpose would remain unfulfilled.” Id . ( quoting In re Jones , 226 F.3d 328, 333 n.2 (4th Cir. 2000)) ( emphasis omitted). Thus, Appellant, like Wheeler, presents an exceptional circumstance

-- at the time of his first § 2255 motion, he was foreclosed from collateral relief because Simmons was inaccessible to him. If we adopted the Government’s

con trary view, we would in essence punish Appellant for being too diligent or for submitting his petition to an efficient court. If Appellant had waited longer to file his first § 2255 motion, or if the district court had processed his case more slowly, his claims could have been successful. For these reasons, Appellant has satisfied prong two of the Wheeler test. 3

. Prong Three Prong three of the Wheeler test provides that the prisoner must be “unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions.” 886 F.3d at 429. Appellant easily meets this requirement because he is invoking Simmons , which is not a rule of constitutiona l law made retroactive by the Supreme Court on collateral review.
See § 2255(h)(2).
4. Prong Four Finally, Wheeler prong four requires that “due to th[e] retroactive change [in settled substantive law], the sentence now presents an error sufficiently grav e to be deemed a fundamental defect.” 886 F.3d at 429. The Government concedes that Appellant satisfies15 prong four under Wheeler , but it t akes issue with Wheeler ’s established holding that an increase in a mandatory minimum is a fundamental defect. In both Wheeler and this case, the mandatory minimum was increased from five to

ten years. And in Wheeler , we specifically rejected the argument (which the Government attempts to rehash here) that “any sentence that falls at or below the statutory maximum does not present a fundamental defect.” 886 F.3d at 432. W e explained, “An increase in the congressionally mandated sentencing floor implicates separation of powers principles and due process rights fundamental to our justice system.” Id . at 430. The defect is fundamental because it “wrongly prevent[s] [the sentencing court] from exercising the proper range of [its] sentencing discretion.” Lester v. Flournoy , 909 F.3d 708, 713 ( 4th Cir. 2018) (discussing Wheeler prong four). B ecause Appellant’s manda tory minimum was erroneously increased, according to Wheeler , his sentence “presents an error sufficiently grave to be deemed a fundamental defect.” 886 F.3d at 433. Therefore, Appellant satisfies prong four as well. We make clear, however, that Appellan t’s satisfaction of prong four is based on the increase in his mandatory minimum, not on his career offender designation. As we stated
in United States v. Foote , a “fundamental defect or a complete miscarriage of justice” has not occurred where the petitioner was sentenced as a career offender “ under an advisory Guidelines scheme.” 784 F.3d 931, 932, 941 (4th Cir. 2015). But see Lester , 909 F.3d at 716 (holding that the petitioner was entitled to proceed pursuant to § 2241 on his claim that he had been improperly sentenced as a career offender under the Guidelines when they

were mandatory )

. Here, Appellant was deemed a career offender under an advisory16 Guidelines scheme; thus, to the extent Appellant bases his Wheeler claim on his career offender designation , he does not satisfy prong four

. B. Plea Agreement Waiver The district court noted that Appellant’s § 2241 petition is barred by the waiver in his plea agreement, which stated in relevant part: The Defendant agrees . . . [t]o waive all rights conferred by 18 U.S.C. § 3742 to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post

conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appea l or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant’s guilty plea . The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law. J.A. 241 (sealed) (emphasis supplied) . On direct appeal, this court found the waiver to be knowing and voluntary. See United States v. Braswell , 418 F. App’x 195, 196 (4th Cir. 2011). However, this Court will not enforce an otherwise valid waiver if “ to do so would result in a miscarriage of justice ,” United States v. Adams , 814 F.3d 178, 182 (4th Cir. 2016) , or where there is an “illegal sentence . . . involv[ing] fundamental issues,” United States v. Cop eland , 707 F.3d 522, 530 (4th Cir. 2013) (alteration and internal quotation marks omitted)

. But see United States v. Archie , 771 F.3d 217, 223 (4th Cir. 2014) (“[W]e . . . decline[] to enforce a valid appeal waiver only where the sentencing court violated a17 fundamental constitutional or statutory right that was firmly established at the time of sentencing .” (emphasis supplied)). Although a heading in the Government’s brief states that the district court “did not err in determining that the waiver in his plea agreement effectively bars [Appellant] from challenging his sentence,” Gov’t’s Br. 18, it fails to develop this argument. Rather, t he Government concedes that Wheeler renders the plea agreement waiver invalid as to Appellant’s § 2241 petition

. S ee id. at 19 n.4 (“ Although [] this argument is now foreclosed by Wheeler , the United States believes that the waiver in the plea agreement signed by [Appellant] remains valid.” (emphasis supplied)). In the entirety of its response brief, and even during oral argument, the Government fail ed to invoke the waiver or claim that the appeal should be dismissed based thereon under current law . Rather, it argues that an increase in a mandatory minimum sentence is not a fundamental defect resulting in a miscarriage of justice. As the Government also acknowledges, however, this argument is wholly foreclosed by Wheeler . Th erefore , we decline to hold that Appellant is foreclosed from bringing this § 2241 petition based on the Government’s enforcement of the waiver in his plea agreement. See United States v. Brock , 211 F.3d 88, 90 (4th Cir. 2000) (declining to address plea agreement waiver issue where “the Governmen t expressly elected not to argue waiver”) ; see also United States v. Poindexter , 492 F.3d 263, 271 (4th Cir. 2007) (noting the government can elect not to enforce an appeal waiver and instead contest the merits of a defendant’s argument).18 IV. For these r easons, we reverse the dismissal of Appellant’s § 2241 petition, and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED