452 F. App'x 912

Robert ORSO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 10-13609

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Jan. 17, 2012.

Janice L. Bergmann, Kathleen M. Williams, Federal Public Defender, Federal Public Defender’s Office, Fort Lauder-dale, FL, for Petitioner-Appellant.

Anne R. Schultz, Emily M. Smachetti, Wifredo A. Ferrer, U.S. Attorney, Kathleen M. Salyer, U.S. Attorney’s Office, Miami, FL, for Respondent-Appellee.

Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

Robert Orso, a federal prisoner, appeals the district court’s order denying his habe-as motion to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. § 2255. No reversible error has been shown; we affirm.

Orso pleaded guilty to one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. *913§ 922(g)(1). At the time of sentencing in 2008, Orso had two prior felony convictions: one for a controlled substance offense and one for fleeing or attempting to elude police.1 Fleeing or attempting to elude police was then considered a crime of violence. Orso was sentenced as a career offender pursuant to U.S.S.G. § 4B1.1 because he had two prior felony convictions for either a crime of violence or a controlled substance offense. Orso was sentenced to 262 months’ imprisonment on the drug count and 120 months’ imprisonment on the firearm count, to run concurrently.2 Orso filed no appeal.

In early 2005, the Government filed a Rule 35 motion to reduce Orso’s total sentence for substantial assistance. The district court — still applying the career-offender enhancement — amended Orso’s sentence to a total term of 160 months. Orso sought to appeal his new sentence but his appeal was dismissed as untimely. In 2009, Orso filed the present section 2255 motion.

The crux of Orso’s argument is that decisions rendered after his 2005 resen-tencing as a career offender now make it clear that one of the two predicate offenses used to support the career-offender enhancement — fleeing or attempting to elude police — no longer qualifies as a violent felony. See Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); United States v. Archer, 531 F.3d 1347 (11th Cir.2008); and United States v. Harrison, 558 F.3d 1280 (11th Cir.2009). The Government concedes that under recent decisions Orso had only one qualifying conviction and would no longer qualify for an enhanced sentence under the career-offender guideline.3

The district court issued a certificate of appealability (“COA”) asking:

[Whether Orso is] actually innocent of being a career offender, and therefore entitled to relief under 28 U.S.C. § 2255, notwithstanding his failure to raise on direct appeal his challenge to the career offender enhancement?4

*914As a general rule, a criminal defendant who fails to object at trial or to raise an issue on direct appeal is procedurally barred from raising the claim in a section 2255 motion absent a showing of cause for failing to preserve the claim and actual prejudice from the alleged error. See United States, v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). Orso cannot meet this high threshold. Nonetheless, Orso argues we should excuse his procedural default because he is “actually innocent” — both factually and legally — of being a career offender.5

The merits of a procedurally defaulted claim may be reached, in very narrowly defined circumstances, if failure to address the claim would result in a “fundamental miscarriage of justice.” Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). And, actual innocence of the offense may be shown to satisfy the fundamental miscarriage of justice standard. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 864, 130 L.Ed.2d 808 (1995) (“tying the miscarriage of justice exception to innocence ... accommodates both the systemic interests in finality, comity, and conservation of judicial resources, and the overriding individual interest in doing justice in the ‘extraordinary case.’ ”). But Orso does not claim to be actually innocent of the crimes for which he was sentenced; instead, he claims to be actually innocent of being a career offender. Our en banc decision in Gilbert v. United States, 640 F.3d 1293, 1320 (11th Cir.2011) categorically rejected that claim, albeit in the context of the savings clause, 28 U.S.C. § 2255(e): “A defendant who is convicted and then has the § 4B1.1 career offender enhancement, or any other guidelines enhancement, applied in the calculation of his sentence has not been convicted of being guilty of the enhancement.”

And in McKay v. United States, 657 F.3d 1190 (11th Cir.2011), we were asked to decide whether an actual innocence of sentence exception applies to an initial section 2255 claim that the petitioner was wrongly sentenced as a career offender where one of his predicate convictions— carrying a concealed weapon — did not qualify as a “crime of violence.” Reiterating that the actual innocence exception is focused on actual — not legal — innocence, we concluded that petitioner McKay — who made no claim to being factually innocent of the crime of carrying a concealed weapon-advanced a claim that fell outside the ambit of the actual innocence exception. Id. at 1199.

Orso too makes no claim that he is factually innocent of the predicate offense (willful fleeing) used to support the career-offender enhancement. The actual innocence exception has no application to *915Orso’s sentencing claim that he was wrongly sentenced as a career offender. See id. at 1200.

Because Orso fails to show that either of the two exceptions applies to excuse his procedural default, we decline to reach the merits of his procedurally-defaulted claim. See id.

AFFIRMED.

Orso v. United States
452 F. App'x 912

Case Details

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Orso v. United States
Decision Date
Jan 17, 2012
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452 F. App'x 912

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United States

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