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. e du/thir dc ir c uit_2015/977PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 13

- 4447

_____________

UNITED STATES OF AMERICA

v.

EDWARD ROSS,

Appellant

_______________
On Appeal from the United States District Court
for the E astern District of Pennsylvania (D.C. No. 05

- c r

- 00 398

- 001 ) District Judge: Hon orable Gene E.K. Pratter

_______________
Argued
June 3 , 2015

Before: FISHER , JORDAN, and SHWARTZ

, Circuit

Judges

(Filed : September 15, 2015 )2 Will W. Sachse
Katherine U. Davis
Ellen L. Mossman
Dechert
2929 Arch Street
1 8 th Fl. , Cira Centre Philadelphia, PA 19104

John McClam (Law Student) (ARGUED) University of Pennsylvania School of Law
3400 Chestnut Street Philadelphia, PA 19104 Counsel for Appellant

E mily McKillip Floyd J. Miller Robert A. Zauzmer (ARGUED) Office of United States Attorney
615 Chestnut Street
S uite 1250 Philadelphia, PA 19106 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

.

Edward Ross appeals from the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his
criminal sentence. He asserts that his trial and appellate3 counsel rendered ineffective assistance to him when they
failed both to challenge a deficient jury instruction and to challenge the sufficiency of the evidence on one of his counts
of conviction . Because we conclude that he has not satisfied
a threshold requirement of section 2255, we will remand the
case to the District Court with dire ction s to dismiss the
motion

.

I. B ACKGROUND

A. F ACTUAL B ACKGROUND

Ross was a drug dealer in Chester, Pennsylvania.
Between March 25 and April 22 , 2004, an undercover detective made four purchases of co caine from him, and, on three of those occasions, surveillance officers watched Ross
leave a residence at 2115 Madison Street and drive directly to

a location agreed upon with the detective. The detective arranged a fifth cocaine purchase for April 23, 2004. Before
that purchase took place

, however, th e police obtained a warrant to search 2115 Madison Street. When police officers saw Ross leave the residence and get into his car, they

arr ested him in the driveway. The officers searched his car and found four bags of cocaine and a loaded Colt .38 calib er handgun.

After the arrest, the police executed the search warrant
for the residence. They discovered , among other things, a .2 5
caliber semi

- automatic handgun, and a loaded 9mm pistol. Originally, the 9mm pistol had been semi

- automatic, but the
fir ing pin had been replaced with a submachine gun firing pin
that enabled the gun to fire continuously. At Ross’s subsequent criminal trial, an expert from the Bureau of4 Alcohol, Tobacco, and Firearms testified that the 9mm pistol, as modified, met the defi nition of a machinegun set forth in 26 U.S.C. § 5845(b).

B. P ROCEDURAL H ISTORY

In March 2006, a federal grand jury returned a superseding indictment charging Ross with four counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (cou nts 1

- 4); possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U. S.C. § 841(a)(1) (count 5); carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (count 6); possession of a machine gun in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (B)(ii) (co unt 7); possession of a machine gun, in violation of 18 U.S.C. § 922(o) (count 8); and two counts of possession of a firearm by a con victed felon, i n violation of 18 U.S.C. § 922(g)(1) (counts 9 and 10).

Ross’s case went to trial. After the parties had fin ished presenting evidence, the district c ourt instructed the jury ; however

, r egarding count 8, the c ourt did not say

– and
Ross’s trial counse l failed to object and insist

– that as part of provin g Ross possessed a machine gun, the government was required to prove b ey ond a reasonable doubt that he had specific knowledge of the firearm’s characte ristics that made
it a “machine gun” as defined by st atute, specifically 26 U.S.C. § 5845(b)

. T he jury found Ross guilty on all counts.

At sentencing, b ecause Ross had a prior conviction for a felony drug trafficking offense and was also, on count 5, convicted of an offense involving 500 gr ams or more of5 cocaine , he was subject to a mandatory minimum penalty of 10 years’ imprisonment. He was further subject to a mandatory consecutive term of 30 years’ imprisonment
because he was , on count 7, co nvicted of possessing a
machine gun in furtherance of a drug t rafficking crime

. The
district c ourt found that Ross was a career of fender under
section 4B1.1 of the United States Sentencing Guidelines and sentenced him to concurrent terms of 10 years’ imprisonment on counts 1, 2, 3, 4, 5, 8, and 10, followed by a con secutive term of 30 years’ imprisonment on count 7. The c ourt imposed a total term of eight years’ supervised release, a fine of $3,000, and an $800 special assessment

– that is, $100 for
each count of conviction . On the government’s motion, the
d istrict c ourt dismissed counts 6 and 9.

Ross filed a direct appeal . He argued that the district court erroneously concluded that 18 U.S.C. § 924(c)(1)(B)(ii) required the imposition of thirty years’ imprisonment on count 7, that the court further erred by inc reasing his mandatory minimum sentence based on a prior conviction, and that there was insufficient evidence to prove that he had violated 18 U.S.C. § 922(g) . He also challenged the constitutionality of 18 U.S.C. §§ 92 2(o) and 922(g)(1). On April 27 , 200 9, we affirmed his conviction

. United States v.

Ross , 323 F. App’x 117 , 120 (3d Cir. 2009).

Sixteen months later, i n August 2010, Ross filed his motion to vacate, set aside, or correct his sentence pu rsuant to 28 U.S.C. § 2255, and he filed a supplemen tal motion in September 2013. The District Court denied those motions
and refused to issue a certificate of a ppealability

. The Court predicted that we would apply the reasoning of the Supreme
Court’s decision in Staples v. United States , 511 U.S. 6006 (19 94), and would conclude that Ross’s convicti on under section 922(o) was unlawful because the jury was no t required to find that Ross had spe cific knowledge of the 9mm pistol’s firing characteristics. Nevertheless, t he Court reasoned that any error with re spect to Ross’s conviction under section 922(o) did not cause prejudice under Strickland v. Washington , 466 U.S. 668 (1984), for two reasons: first,
because Ross is classified as a Category VI career criminal,
and so the section 922(o) conviction could not change his criminal history category in any future federal sentencing proceeding; second, because, even if t he section 922(o)
conviction were vacated, Ross would not be released fr om custody any sooner given the concurrency of his sentence for
that count with the time he had to serve on other counts of
conviction

.

Ross timely appealed. He chose to apply directly to us
for a certificate of a ppealability, which we granted

. The
certificate of a ppealability limited Ross to raising the issue of
whether h is trial and appellate counsel rendered ineffective assistance by failing to argue that the government introduced
insufficient evidence to conv ict him of possessing a
machine gun as charged in count 8 and that the jury instructions did not require the jury to find as an essential
element of that crime that he knew of the characteristics of the firearm that brought it within the statutory definition of “machinegun.” ( App. at 23. ) In the certificate of appealability, w e stated that, “ jurists of reason would debate the District Court’s conclusion that appellant did not suffer prejudice under Strickland v. Washington , 466 U.S. 668 (1984)

, ” and, in particular, we noted that it was debatable
whether “ his conviction under § 922(o) did not increase his
actual sente nce and would have no effect under the federal7 Sentencing Guidelines on the sentence imposed for any
federal conviction in the future.” (App. at 23.)

II. D ISCUSSION 1

T wo questions are before us

. The first , raised by the
government, is whether the rel ief that Ross seeks is cognizable under section 2255. The second , pressed by Ross

, is whether section 922(o) include s a mens rea element that requires the government to prove that a defendant had specific knowledge of a firearm’s characteristics. Because we answer the first question in the neg ative, we cannot reach the
second.

Ross bases his section 2255 motion on the alleged
ineffective assistance of his counsel at trial and on direct appeal. He argues that those lawyers performed deficiently in
fail ing to challenge the sufficiency of evidence presented to prove a violation of section 922(o) and in failing to object to the associated jury instruction

. We note at the outset that, had Ross challenge d his conviction under section 922(o) on direct appeal

, there is a fair likelihood we would have vacate d that
conviction and remand ed for resentencing. 2 But this case

1 The District Court had jurisdiction under 28 U.S.C. § 2 255. We have appellate jurisdiction pursuant to 28 U.S.C. § 2253. We exercise plenary review over the District Court’s legal conclusions and apply the clearly erroneous standard to its factual findings. Cradle v. United States ex rel. Miner

, 290 F.3d 53 6, 538 (3d Cir. 2002).

2 Given the opportunity, we might join our sister circuits in holding that, to obtain a conviction under section 922(o), the government must prove beyond a reasonable8 comes before us now as a collateral attack on the c onviction
and sentence , not as a direct appeal, and the forms of relief remaining to Ross a re severely limited by statute. He may be right that the 922(o) conviction is unlawful, but, given the current posture of the case, not every wrong is in our power to

doubt that the defendant knew of the characteristics of the
fire arm that render it a “machine gun” within the meaning of section 5845(b). See United States v. Smith , 508 F.3d 861, 866 n.3 (8th Cir. 2007) (requiring the government to prove that the defendant “knew he possessed a weapon with
characteristics that made it subject to registration requirements”); United States v. Nieves

- Castaño , 480 F.3d 597, 599 (1st Cir. 2007) (“ [ T ] he government’s burden is to

prove that the defendant had knowledge of the characteristics that brought the gun within the statutory definition

... .”); United States v. Camp , 343 F.3d 743, 745 (5th Cir. 2003) (“Pursuant to Staples , the Government must prove a defendant knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun.” (citations

, emphasis, and internal quotation marks omitted)); United States v. McGiffen , 267 F.3d 581,
589

- 90 (7th Cir. 2001) (requiring the government to prove
defendant knew of the weapon’s characteristics that “bring it within the statutory definition”); United St ates v. Gravenmeir

, 121 F.3d 526, 529

- 30 (9th Cir. 1997) (concluding the district court properly instructed the jury that the government must prove “the defendant knew that the firearm was a machinegun”); United States v. Rogers , 94 F.3d 1519, 1523
n.5 (11 th Cir. 1996) (agreeing with the government that Staples ’s reasoning applies with “equal force” to prosecutions under section 922(o)).9 right. W e are bound by the text of section 2255. That statute provides, in pertinent p art:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that
the court was with out jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

28 U.S .C. § 2255(a) (emphasis added).

The strictures of section 2255 constitute a threshold

test in addressing Ross’s post

- conviction claims of ineffecti ve assistance of counsel. The viability of those claims , if we were to reach their merit, is determined b y the familiar two

part inquiry outlined in Strickland v. Washington , pursuant to which Ross has the burden of demonstrating (1) “that counsel’s per formance was deficient” and (2) “that the deficient performance prejudiced the defense.” 466 U.S. at
687. T he government contends , however, that , before getting to that inquiry, we must reject Ross’s claim because it is not cognizable under section 2255. E ven if Ross’s trial and appellate counsel provided objectively unreasonable assistance that prejudiced hi m , he still would not be entitled

to relief , according to the government, because he is not “claiming the right to be released” from “custody

. ” Ross10 responds that controlling precedent establishes that the $100 special assessment and the collateral conseq uences associated with the 922(o) conviction each constitute “custody” within the meaning of section 2255.

A

. $100 S PECIAL A SSESSMENT

The plain text of s ection 2255 provide s relief only to those prisoners who claim the right to be released from
“custod y

. ” The term “custody,” however, is not as straightforward as it may at first appear. In McNally v. Hill

, 293 U.S. 131, 136

- 37 (1934) , the Supreme Court held that discharge from physical confinement is the only relief
available in a habeas corpus proceed ing , but the Court
reversed course in Peyton v. Rowe , 391 U.S. 54, 66

- 67 (1968), explaining that the concept of “custody” i s expansive enough to enc ompass harms and remedies other than immediate discharge from physical confinement. Since McNally

, “our und erstanding of custody has broadened ” to include many forms of restraint short of physi cal confinement, Rumsfeld v. Padilla , 542 U.S. 426, 437 (2004). See, e.g.

, Carafas v. LaVallee , 391 U.S. 234, 237

- 38 (1968) (holding that, for mootness purposes, a petit ioner is “in custody” if he is burdened by the “collateral consequences” of the challenged conviction) ; Jones v. Cunningham , 371 U.S. 236, 243 (1963) (holding that the conditions and restraints of a parole order constituted “custody”). Despite the elastic ity
the word “custody” has acquired

, precedent firml y establishes
that the use of the term in federal habeas statutes is “designed to preserve the writ of habeas corpus as a remedy for severe restraints on ind ividual liberty

. ” Hensley v. Mun. Court, San

J ose Milpitas Judicial Dist. , 411 U.S. 345, 351 (1973) (emphasis added) ; Barry v. Bergen Cnty. Prob. Dep’t , 12811 F.3d 152, 159 (3d Cir. 1997)

. The Supreme Court has
distilled a three

- part test for deciding what constitutes custody: the restraints on the pet itioner must be (1) severe, (2) immediate ( i.e. , not speculative), and (3) not shared by the public generally. Hensley , 411 U.S. at 351

- 53 ; Ira P Robbins, Habeas Corpus Checklists 465 (2014

- 2015 ed.)

.

We have not previously considered whether a

monetar y penalty such as the $100 special assessment associated with Ross’s conviction under 922(o) is a “severe ”
restraint on a defendant’s individual liberty , but the answer
must be no

. Supreme Court decisions holding that a petitioner suffered from a “severe restraint ” on liberty have emphasized the physical nature of the restraints. Hensley

, 411 U.S. at 351 (emphasizing that the petitioner “cannot come and go as he pleases” and that his “freedom of movement rests in the hands of state judicial officers, who may demand his presence a t any time and without a moment’s notice”); Peyton , 391 U.S. at 67 (1968) (holding that “a prisoner serving consecutive sentences is ‘in cu stody’ under any one of them”); Jones

, 371 U.S. at 242 (“Petitioner is confined by the parol e order to a particular community, house, and job at the sufferance of his parole officer. He
cannot dr ive a car without permission.”) . Our sister circuits
have fo llowed the Supreme Court’s lead. S ee Calhoun v.
Att’ y Gen. of Colo

. , 745 F.3d 1070, 1074 ( 10th Cir. 2014) (holding that the requirement to register under state se x offender registration statute does not satisfy the “in custody” requirement because it involves no physical restraint)

, cert. denied , 135 S. Ct. 376 (2014) ; Virsnieks v. Smith , 521 F .3d 707, 718 (7th Cir. 2008) (“[T]he collateral consequences of a conviction, those consequences with negligible effects on a petitioner’s physical liberty of movement, are insufficient to12 sat isfy the custody requirement.”); Williamson v. Gregoire

, 151 F.3 d 1180, 1183 (9th Cir. 1998) (noting that cases that find a severe restriction on a petitioner’s liberty “rely heavily on the notion of a physical sense of liberty

– that is, whether the legal disability in question somehow limits the putative habeas petit io ner’s movement”)

. Ross does not and could not argue that the $100 special assessment imposes any
restriction on his freedom of movement

, because, of course, it
does not

.

Our own precedent holds that the monetary component
of a sentence is not capable of satisfying the “ in custody” requirement of federal habeas statutes

. See Obado v. New Jersey , 328 F.3d 716, 718 (3d Cir. 2003) (per curiam) (“The

pay ment of restitution or a fine , a bsent more, is not the sort of

‘ s ignificant restraint on liberty ’ conte mplated in the ‘custody’ requirement of the federal habeas corpus statutes .”); cf. Barry

, 128 F.3d at 161 (distinguishing “fine

- only” sentences where a petitioner is not “in custody” from sentences that restrict a petitioner’s physical liberty on the basis that “ fine

- only” sentences “implicate only property, not liberty”). Our sister
circuits too have held that fines, restitution orders, and other monetary penal ties are insufficient to meet the “ in custody” requirement. See Bailey v. H ill , 599 F.3d 976, 9 82 (9th Cir. 2010) (holding that a restitution order alone is insufficient to trigger the “custody” requirement); Washington v. Smith , 564 F.3d 1350, 1350 (7th Cir. 2009) (affirming denial of state
habeas relief on a claim of ineffective assistance of coun sel with respect to the restitution amount, “because it does not attack a custodial aspect of Washington’s sentence and, thus, does not state a claim for relief under the habeas corpus statutes”); Mamone v. United States , 559 F.3d 1209, 1209

- 12 (11th Cir. 2009) (per curiam) (holding that a restitution order13 cannot be challenged in a section 2255 motion because a claim seeking discharge or reduction o f a restitution order does not claim the right to be released from custody, even if it accompanies other clai ms that actually claim the rig ht to be released from custody ; E rlandson v. Northglenn Mun. Court

, 528 F.3d 785 , 788 (10th Cir. 2008) (“We agree with the
district court that t he payment of restitution or a fine, a bsent more, is not the sort of ‘ s ignificant restraint on liberty ’ contemplated in the ‘custody’ requirement of the federal
habeas statutes. ” (brackets and internal quotation marks omitted) ); Kaminski v. United States , 339 F.3d 84, 89 (2d Cir. 2003) (holding that a restitution order of $ 2 1 ,0 00 does no t constitute “custody” within the meaning of section 2255) ; United States v. Bernard , 351 F.3d 360, 361 (8th Cir. 2003) (applying “the plain and unambiguous language” of section 2255 to hold “that a federal prisoner cannot challenge the restitution portion of his sentence using 28 U.S.C. § 2255, because this statute affords relief only to prisoners claiming a right to be released from custody”) ; United States v. Segler

, 37 F.3d 1131, 1137 (5th Cir. 1994) (holding that a $30,000
fine was not a sufficient res traint on liberty to meet the “in custody” requirement of section 2255); United States v.
Michaud , 901 F.2d 5, 7 (1st Cir. 1990) (“A monetary fine is not a sufficient restraint on liberty to meet the ‘in custody’ requirement for § 2255 purposes.” (internal citations omitted) ). But see United States v. Jones , 403 F.3d 604, 607 (8th Cir. 2005) (holding that the defendant’s Strickland claim merited relief under section 2255 in part because the defendant was required to pay a $100 special assessment,
which the court stated constituted actual prejudice under
Strickland ); United States v. Bass , 310 F.3d 321 , 330 (5th Cir. 2002) (failing to cite Segler and stating that the defendant was prejudiced by his counsel’s ineffective assistance when he14 was sentenced to pa y an additional $50 assessment). It seems clear, therefore, both as a matter of fact and law that Ross’s $100 special assessment does not constitute any meaningful restriction on his liberty, let alone a severe restriction cognizable under section 2255

.

Ross nevertheless argues that “a special assessment resulting from a wrongful conviction satisfies Strickland ’s prejudice requirement” and that the Supreme Court’s
decisions in Rutledge v. United States , 517 U.S. 292 (1996), Ray v. United States , 481 U.S . 736 (1987) (per curiam) , and
Ball v. United States , 470 U.S. 856 (1985), “apply forcefully to show the prejudice of counsel’s deficient performance here.” (Opening Br. at 29.) We do not agree. Rutledge is easily distinguishable. In that case, the Sup reme Court held that conspiracy under 21 U.S.C. § 846 is a lesser included
offense of the crime of maintaining a continuing criminal enterprise

, forbidden by 2 1 U.S.C. § 848. 517 U.S. at 307

. The Court also held that the imposition of a special

assessmen t constitutes “punishment” under the Double Jeopardy Clause. Id

. at 301. As a result, the Supreme Court concluded that imposition of a special assessment for
convictions under both sections 846 and 848 “amounts to cumulative punishment not authorized by Congress.” Id . at 303. But we are not concerned here with whether a special assessment constitutes “punishment” within the meaning of the Double Jeopard y Clause; instead, we must determine
whether it constitutes “custody” within the meaning of
section 22 55. Rutledge is of no help in that task

.

Ray also provides practically no guidance in answer ing the question before us. In that case, the Supreme Court reviewed on direct appeal what has come to be called “ the15 concurrent sentence doctrin e , ” Ray

, 481 U .S. at 737, which

says , in essence

, that “courts are free to pretermit decision about convictions producing concurrent sentences, when the
extra convictions do not have cumulative effects.” Ryan v.
United States , 688 F.3d 845, 849 ( 7th Cir. 2012)

. In Ray , t he
Fifth Circuit had invoked the concurrent sentence doctrine and declined to review one of the petitioner’s two convictions on direct appeal for possession of cocaine with intent to
distribute because the sentences on the two counts of possession were concurrent. Ray , 481 U.S. at 737. The Supreme Cou rt vacated the decision, holding that the petitioner was not serving concurrent sentences because the district court had imposed a $50 special assessment on each
of the three counts on which the defendant had been
convicted. Id

. The Supreme Court concluded that

, “[s]ince petitioner’ s liability to pay this total depends on the validity of each of his three convictions, the sentences are not
concurrent.” Id

. Thus, Ray establishes that

, when a court
orders a defendant to pay a special assessment for each of several counts of conviction, the sentences are not concurrent
and the “concurrent sentence” doctrine cannot be used to avoid appellate review of each count of conviction. T he applicability of the concu rrent sen tence doctrine on direct appeal is , however, distinct from the question presented here

, on collateral review under section 2255. Ray simply does not advance Ross’s argument because it does not address the meaning of “custody

. ”

In Ball , the Sup reme Court held that duplicative convic
tions cannot stand even if the sentences are concurrent because “[t]he separate conviction , apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored.” 470 U.S. at 865 (emphasis in original)

.16 Such “adverse collateral consequences” included a potential delay in the defendant’s eligibility for parole, an increased sentence under a recidivist statute for a future offense, the use of the additional conviction to impeach th e defendant’s credibility, and the societal stigma accompanying any
criminal conviction. Id

. Again though, Ball involved a direct appeal, not a habeas corpus petition under section 2255, and its discussion of the harm stemming from the collateral

consequ ences of a felony conviction sheds no light on whether or not a monetary fine like a special assessment is the type of restriction on liberty that constitutes “custody” within the meaning of that statutory provision

.

Because we believe the burden of a s pecial assessment

– even one imposed in conjunction with a wrongful
conviction

– does not amount to “custody,” Ross is not “claiming the right to be released” from “ custody ” and his special assessment cannot serve as the basis for a claim under
section 225 5

.

2

. C OLLATERAL C ONSEQUENCES

The parties dispute whether a petition premised on the collateral consequences of an unlawful conviction , such as
those identified in Ball

, is cognizable under section 2255. Our own law does not answer the question, but w e are not without guidance. In Maleng v. Cook , 490 U.S. 488, 492 (1989) (per curiam) , the Supreme Court held that

, once a sentence for a conviction has completely expi red, the collateral consequence of future sentencing enhancement s potentially caused by that conviction is not itself sufficient to render an individual “in custody” for the purpose o f a habeas
attack . Of course, the sentence for Ross’s conviction under17 section 922(o) has not completely expired, but it is running

concurrent ly with several ot her sentences. This case thu s

seems analogous to Maleng , since Ross’s only additional harm stemming from the 922(o) conviction is whatever undefined collateral consequences may arise , not the term of imprisonment

. In the end, however, we do not have to d ecide whether, on these facts

, the collateral consequences of a wrongful conviction amount to “custody” under section 2255

, because Ross has not identified any such potential

consequences

.

Though pressed at oral argument, Ross could not point

to a colla teral consequence not already exist ing as a result of his prior felony convictions or his seven other felony
convictions in this case. He says that, as a result of his wrongful conviction under section 922(o), he is subject to greater social stigma, his c redibility could be attacked more easily at a future hearing or trial, he may be barred from obtaining the benefit of future changes to the law, or his eligibility for parole or the length of a future sentence could
be affected if he is convicted of some f uture crime. But,

g iven his remarkably long rap sheet , which chronicles a lifetime of drug

- related offenses and violent crimes, coupled
with his seven other convictions in this case

– including one unquestionably valid conviction for machine gun possession

, namely count 7

– it is hard to see any significant collateral

consequence originating from his conviction under section 922(o) , let alone one that rise s to the level of “custody.”
Indeed , most of the “collateral consequences” that he identifies are sup p orted by nothing more than speculation, which is insufficient to establish “custody.”18 Relying on Spencer v. Kemna , 523 U.S. 1 (1998)

, and
a han dful of cases that closely hew to it

, Ross asserts that “[a] presumption of collateral consequences exists whe never a criminal defendant challenges his criminal conviction.” (Opening Br. at 22 (internal quotation marks omitted).) He is
incorrect. Spencer did not hold that courts are to presume the existence of collateral consequences in all cases where a
habeas petitioner challenges his conviction

. Instead, Spencer noted only that the Supreme Court has been “willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral conseq uences that are remote and unlikely to occur)

, ” 523 U.S. at 8, in order “ to avoid mootness in challenges to conviction

, ” id . at 10 . Ross provides no reason why such a presumption should apply in a case like this

, where mootness is not at issue

. But even if we were to indulge in that presumption, it would be rebutted here for the reasons we have already noted: Ross’s lengthy criminal history, his multiple convictions in this case, and his

concurrent sentences all undermine his claim that somehow
his addit ional conviction will harm him in particular.

In the absence of any plausible evidence of collateral consequences stemming from Ross’s section 922(o) conviction, there is no basis to conclude that such consequences render him “in custody” and eligible f or relief
under section 2255

.

III. C ONCLUSION

For the reasons set forth above, we will vacate the
District Court’s order denying relief and direct that Ross’s
section 2255 motion be dismissed

.