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UNITED STATES DISTRICT COURT 

TONY CARZELL GREEN, 

Petitioner, 

v. 

WARDEN RICHARD IVES, 

FCI Sheridan, 

Respondent. 

McShane, Judge: 

DISTRICT OF OREGON 

Case No. 3:16-cv-00406-MC 

OPINION AND ORDER 

Petitioner, an inmate at the Federal Correctional Institution, Sheridan, brings this petition 

for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner alleges that the imposition of 

the career offender enhancement under the United States Sentencing Guidelines violated his 

rights under federal law. For the reasons explained below, the petition is denied. 

BACKGROUND 

Following a jury trial in 1998, petitioner was convicted of distribution and possession 

with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(l),(b). Petitioner had two 

prior drug convictions, including a Washington conviction for conspiracy to deliver a controlled 

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Case 3:16-cv-00406-MC Document 16 Filed 03/20/17 Page 1 of 6
substance in violation of Wash. Rev. Code§§ 69.50.401(1), 69.50.407. In light of his prior drug 

convictions, the district court found that petitioner qualified as a career offender under the 

Guidelines. See U.S.S.G. § 4Bl.1 (1997) (career offender includes a defendant whose instant 

offense is a felony crime of violence or felony controlled substance offense and who has two 

prior convictions for either felony crimes of violence or controlled substance offenses). Pursuant 

to § 4B1.1 of the Guidelines, petitioner's base offense level was 3 7 and his criminal history 

category was VI, resulting in a sentencing range of 360 months to life. The district court 

sentenced petitioner to 360 months' imprisonment. 

Petitioner appealed and the Ninth Circuit affirmed his convictions and sentence. United 

States v. Green, 198 F.3d 255 (9th Cir. 1999) (unpublished opinion). Petitioner subsequently 

filed a motion under 28 U.S.C. § 2255 and the motion was denied. Petitioner also moved for a 

reduction in sentence pursuant to 18 U.S.C. § 3582 and that motion was denied as well. 

Petitioner filed additional motions under seal requesting a reduction in sentence, and the district 

court denied the motions and instructed petitioner to refile them correctly. Petitioner did not do 

so. 

On March 4, 2016, petitioner filed the instant petition. 

DISCUSSION 

Petitioner seeks relief under 28 U.S.C. § 2241 and argues that his prior conspiracy 

conviction does not qualify as a predicate offense under § 4B1.1. Petitioner maintains that, under 

Washington sentencing provisions, his conviction for conspiracy to deliver a controlled 

substance is an "unranked" offense with a maximum sentencing range of only twelve months. 

See Wash. Rev. Code§ 9.94A.505(2)(b) ("If a standard sentence range has not been established 

for the offender's crime, the court shall impose a determinate sentence which may include not 

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Case 3:16-cv-00406-MC Document 16 Filed 03/20/17 Page 2 of 6
more than one year of confinement.. .. ") (formerly Wash. Rev. Code § 9.94A.120); see also State 

v. Heber, 67 Wash. App. 836, 837-38, 851 P.2d 734 (1992) ("conspiracy under RCW 69.50.407 

was an unranked offense with a standard [sentencing] range of not more than a year of 

confinement"). Consequently, petitioner argues that his prior conviction was not punishable by a 

term of imprisonment exceeding one year and could not serve as the basis for the Guidelines 

career offender enhancement. 

Generally, a federal prisoner who seeks to challenge the legality of his sentence must file 

a motion under 28 U.S.C. § 2255 rather than§ 2241. See Stephens v. Herrera, 464 F.3d 895, 897 

(9th Cir. 2006). ("The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive 

means by which a federal prisoner may test the legality of his detention, and that restrictions on 

the availability of a§ 2255 motion cannot be avoided through a petition under 28 U.S.C. § 

2241.") (citation omitted). Petitioner nonetheless argues that this Court may review his§ 2241 

petition under the "escape hatch" exception, because the remedy provided by§ 2255 is 

"inadequate or ineffective to test the legality of his detention." Id.; 28 U.S.C. § 2255(e). Pursuant 

to this exception, petitioner must make a claim of "actual innocence" and show that he has not 

had "'an unobstructed procedural shot' at presenting that claim." Stephens, 464 F.3d. at 898 

(citation omitted). 

Petitioner cannot make a claim of "actual innocence" in these circumstances. Petitioner 

does not argue or present evidence that he is factually innocent of either the federal offense or 

the predicate state offense. Marrero v. Ives, 682 F.3d 1190, 1192-93 (9th Cir. 2012). He does not 

argue that he was statutorily ineligible to receive a career offender enhancement such that his 

sentence exceeded the statutory maximum. Id. at 1194-95; see also Spencer v. United States, 773 

F.3d 1132, 1143 (I Ith Cir. 2014) (noting that misapplication of the career offender enhancement 

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under the Armed Career Criminal Act, unlike the Guidelines, "results in an a sentence that 

exceeds the statutory maximum"). Instead, petitioner argues that the sentencing court misapplied 

the Guidelines and imposed an incorrect sentence. In the Ninth Circuit, petitioner's claim is not 

recognized under § 2241. Marrero, 682 F .3d at 1195 ("the purely legal argument that a petitioner 

was wrongly classified as a career offender under the Sentencing Guidelines is not cognizable as 

a claim of actual innocence under the escape hatch"). Accordingly, petitioner does not assert a 

valid claim of "actual innocence" for the purposes of the § 2241 escape hatch. 

Regardless, petitioner cannot establish that he is entitled to relief. Under the career 

offender enhancement, a predicate offense includes a "prior felony conviction" of a "controlled 

substance offense." U.S.S.G. § 4Bl.l (1997). The Guidelines define "prior felony conviction" as 

a "conviction for an offense punishable by death or imprisonment for a term exceeding one year, 

regardless of whether such offense is specifically designated as a felony and regardless of the 

actual sentence imposed." Id. § 4B1.2, cmt. 1; see also id. § 4B1.2(b) (defining "controlled 

substance offense" as an "offense under federal or state law, punishable by imprisonment for a 

term exceeding one year, that prohibits the manufacture, import, export, distribution, or 

dispensing of a controlled substance"). Here, the Washington conspiracy statute provides that the 

maximum punishment for conspiracy may not exceed the maximum for the offense that was the 

object of the conspiracy. See Wash. Rev. Code§ 69.50.407 (conspiracy statute). Under the 

relevant Washington criminal statute, the maximum sentence for delivery of a controlled 

substance is ten years. Id. § 69.50.401(1),(2)(a) (controlled substance statute). Therefore, 

petitioner's prior conviction for conspiracy to deliver a controlled substance was punishable by a 

term exceeding one year and qualifies as a predicate offense. 

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Case 3:16-cv-00406-MC Document 16 Filed 03/20/17 Page 4 of 6
Petitioner maintains that instead of the criminal statute, this Court must look to the 

Washington sentencing provisions to determine whether his conspiracy conviction actually 

exposed him to a sentence in excess of one year. He argues that Washington's guidelines scheme 

makes the statutory maximum a fiction. After all, according to petitioner, a Washington judge 

operating under the state sentencing rules could not sentence petitioner to anything over a year. 

The Ninth Circuit, however, has squarely rejected this argument. See United States v. Crawford, 

520 F .3d 1072, 1080 (9th Cir. 2008). In so ruling, the Ninth Circuit affirmed its prior holding in 

United States v. Murillo that "the maximum sentence that makes a prior conviction under state 

law a predicate offense" is the "potential maximum sentence defined by the applicable state 

criminal statute, not the maximum sentence which could have been imposed against the 

particular defendant for his commission of that crime according to the state's sentencing 

guidelines." Id. (quoting United States v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005)). In other 

words, regardless of Washington sentencing guidelines, petitioner's prior offense of conviction 

was punishable by a term of imprisonment of up to ten years and qualified as a predicate offense 

under§ 4Bl.l. 

Petitioner nonetheless argues that Murillo was abrogated by the Supreme Court decisions 

in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Carachuri-Rosendo v. Holder, 560 U.S. 563 

(2010). There, the Supreme Court analyzed whether prior state drug convictions constituted 

convictions punishable as felony offenses under the federal Controlled Substances Act (CSA) in 

order to qualify as "aggravated" felonies under the federal Immigration and Nationality Act 

(INA). Moncrieffe, 133 S. Ct. at 1685 (to qualify as aggravated offense under the INA, "a state 

drug offense must meet two conditions: It must 'necessarily' proscribe conduct that is an offense 

under the CSA, and the CSA must 'necessarily' prescribe felony punishment for that conduct"); 

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Case 3:16-cv-00406-MC Document 16 Filed 03/20/17 Page 5 of 6
Carachuri-Rosendo, 560 U.S. at 581-82 (the "defendant must also have been actually convicted 

of a crime that is itself punishable as a felony under federal law" to qualify as an aggravated 

felony under the INA). In contrast, the career offender Guidelines provisions do not require 

"actual conviction" of an offense that is punishable as a felony under federal law; they require a 

prior conviction for a controlled substance offense punishable by a term exceeding one year. 

Absent Ninth Circuit authority to the contrary, Moncrieffe and Carachuri-Rosendo do not 

abrogate the holdings of Murillo and Crawford. 

Under Murillo and Crawford, this Court must look to the state criminal statute to 

determine whether a predicate offense under§ 4Bl.1 was punishable by a term exceeding one 

year. The criminal statute at issue provided a maximum sentence of ten years, and petitioner's 

prior conviction qualified as a predicate offense under the career offender provision of the 

Guidelines. 

CONCLUSION 

Petitioner's Petition for Writ of Habeas Corpus (#1) is DENIED. A Certificate of 

Appealability is denied on the basis that petitioner has not made a substantial showing of the 

denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). 

IT IS SO ORDERED. 

DATEDthis zo dayofMarch,2017. 

Michael McShane 

United States District Judge 

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