Dustin Shepherd v. UNKNOWN PARTY, Warden, FCI Tucson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUSTIN SHEPHERD ,
Petitioner-Appellant,
v.
UNKNOWN PARTY, Warden, FCI
Tucson,
Respondent-Appellee.
No. 19-15834
D.C. No.
4:18-cv-00104-
DCB-BGM
OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted June 16, 2021
San Francisco, California
Filed July 22, 2021
Before: Mary M. Schroeder, Milan D. Smith, Jr., and
Lawrence VanDyke, Circuit Judges.
Per Curiam Opinion

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2 SHEPHERD V . UNKNOWN PARTY
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s denial of a
28 U.S.C. § 2241 petition in which federal prisoner Dustin
Shepherd sought to challenge his 2014 career offender
sentence.
Shepherd previously filed a 28 U.S.C. § 2255 motion that
was denied. In his § 2241 petition, he maintained that in
light of intervening Supreme Court decisions, Mathis v.
United States, 136 S. Ct. 2243 (2016), and Decamps v.
United States, 570 U.S. 254 (2013), his previous convictions
do not qualify him for career offender status.
Generally, a federal prisoner who seeks to challenge the
legality of confinement must utilize a § 2255 motion. Under
the “escape hatch” provision of 28 U.S.C. § 2255(e), a
federal prisoner may file a § 2241 petition only when the
prisoner makes a claim of actual innocence and has not had
an unobstructed procedural shot at presenting that claim.
The district court held that Shepherd failed to meet either of
these requirements.
Shepherd’s approach to actual innocence is founded on
the decision in Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020).
There, the defendant, who was sentenced in 1997 when the
sentencing guidelines were mandatory, filed a § 2241
petition relying on Mathis and Decamps to challenge his
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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SHEPHERD V . UNKNOWN PARTY 3
sentence as a career offender. This court held in Allen that
the defendant could establish actual innocence of the
mandatory sentencing enhancement.
In this case, the panel held that Allen is limited to
petitioners who received a mandatory sentence under a
mandatory sentencing scheme. Applying that rule to
Shepherd, who was sentenced after the guidelines became
advisory, the panel held that Shepherd cannot show that he
was actually innocent of the career offender enhancement
utilized during sentencing. The panel noted that the fact that
the district court imposed a sentence below the guidelines
range that would have applied even if the career offender
enhancement had not been imposed only confirms that
Shepherd is not entitled to relief. The panel concluded that
the district court therefore properly dismissed his § 2241
petition.
COUNSEL
Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Petitioner-Appellant.
Robert L. Miskell (argued), Assistant United States
Attorney; Christina M. Cabanillas, Deputy Appellate Chief;
Michael Bailey, United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Respondent-
Appellee.

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4 SHEPHERD V . UNKNOWN PARTY
OPINION
PER CURIAM:
Dustin Shepherd is a federal prisoner with a lengthy
criminal history who was sentenced as a career offender in
the Northern District of Ohio in 2014 after being convicted
of multiple counts of drug and firearm-related offenses. He
is now incarcerated in Arizona. By means of a 28 U.S.C.
§ 2241 petition, he seeks to challenge his career offender
sentence. He had previously filed a 28 U.S.C. § 2255 motion
in Ohio that was denied. He now maintains that, in light of
intervening Supreme Court decisions, his previous
convictions do not qualify him for career offender status.
See Mathis v. United States, 136 S. Ct. 2243 (2016);
Descamps v. United States, 570 U.S. 254 (2013).
Generally, a federal prisoner who seeks to challenge the
legality of confinement must utilize a § 2255 motion.
Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). Under
the “escape hatch” provision of § 2255(e), however, a
federal prisoner may file a § 2241 petition, but only if the
§ 2255 remedy is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e); see also
Marrero, 682 F.3d at 1192. This is not easy to establish,
since we have held that the escape hatch is available when
the prisoner “(1) makes a claim of actual innocence, and
(2) has not had an unobstructed procedural shot at presenting
that claim.” Marrero, 682 F.3d at 1192 (citation omitted).
The district court held that Shepherd had failed to meet
either of these requirements. We affirm the district court and

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SHEPHERD V . UNKNOWN PARTY 5
hold that Shepherd has not established a claim of actual
innocence.1
Shepherd was not “actually innocent” within the
conventional understanding of innocence. He does not
dispute the validity of the conviction or that he committed
the drug and firearm crimes leading to his sentence.
Instead, Shepherd’s approach to actual innocence is
founded on our decision in Allen v. Ives, 950 F.3d 1184 (9th
Cir. 2020). There, the defendant filed a § 2241 petition,
relying on Mathis and Descamps, to challenge his sentence
as a career offender. Id. at 1188–89. We held that the
defendant could establish actual innocence of the mandatory
sentencing enhancement. Id. at 1189–90.
There is a conspicuous difference between Shepherd’s
case and Allen’s. Allen was sentenced in 1997, when the
sentencing guidelines were mandatory. See id. at 1186. In
Allen, we found the mandatory nature of the guidelines
important when deciding that case. See id. at 1186, 1189.
We additionally noted that a fact increasing a mandatory
minimum sentence is analogous to an “element of the
offense.” Id. at 1189 (citation and internal quotation marks
omitted).
Our court denied rehearing en banc in Allen. See Allen
v. Ives, 976 F.3d 863, 864 (9th Cir. 2020). The author of the
initial opinion in Allen, joined by the other judge from the
Allen majority, wrote that Allen should be limited to
petitioners who “received a mandatory sentence under a
1 Because we affirm on the actual innocence prong of the escape
hatch test, we do not reach any of the other possible grounds for denying
the petition.

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6 SHEPHERD V . UNKNOWN PARTY
mandatory sentencing scheme.” Id. at 869 (W. Fletcher, J.,
concurring in the denial of the petition for rehearing en
banc); see also id. (“Allen’s actual innocence claim was
cognizable under § 2241 because he was sentenced before
the Court decided [United States v. Booker, 543 U.S. 220
(2005)], which rendered the Sentencing Guidelines advisory
rather than mandatory.”).
Although an opinion concurring in the denial of
rehearing en banc is not binding, we take this opportunity to
hold that Allen is limited to petitioners who “received a
mandatory sentence under a mandatory sentencing scheme.”
Id. Since our decision in Allen, district courts and magistrate
judges in our circuit have limited Allen’s holding in such a
manner. See, e.g., McKenzie v. Martinez, No. EDCV 20-
1419-VAP (KK), 2021 WL 971067, at *3 (C.D. Cal. Jan. 12,
2021) (Kato, M.J.), report and recommendation adopted, No.
EDCV201419VAPKK, 2021 WL 1269111 (C.D. Cal. Apr.
5, 2021); Jaramillo v. United States, No. CR-15-8236-PCT-
SPL, No. CV-19-8017-PCT-SPL (JFM), 2020 WL 3001783,
at *11–12 (D. Ariz. May 11, 2020) (Metcalf, M.J.), report
and recommendation adopted, No. CR-15-8236-PCT-SPL,
No. CV-19-08017-PCT-SPL (JFM), 2020 WL 2991584 (D.
Ariz. filed June 4, 2020); Saelua v. Ciolli, No. 1:20-CV-
01312-SKO (HC), 2020 WL 5548317, at *3–4 (E.D. Cal.
Sept. 16, 2020) (Oberto, MJ); cf. Gonzalez v. Ciolli, No.
1:20-CV-00724-DAD-SKO (HC), 2021 WL 1016387, at *3
(E.D. Cal. filed Mar. 17, 2021) (applying Allen to a
petitioner who “was sentenced to the statutory mandatory
sentence of life imprisonment,” even though the case was
decided after Booker, when the guidelines were advisory).
Furthermore, our opinion in Allen relied on authorities
that had recognized actual innocence in mandatory
sentencing contexts. 950 F.3d at 1189–90. For example, in

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SHEPHERD V . UNKNOWN PARTY 7
Gibbs v. United States, 655 F.3d 473 (6th Cir. 2011), the
Sixth Circuit explained that “sentencing guidelines
calculations do not affect a defendant’s eligibility for a
sentence” and distinguished Supreme Court precedent in
which it was determined that the defendant was not eligible
for the sentence given. Id. at 478–79 (citing Sawyer v.
Whitley, 505 U.S. 333 (1992)). Instead, as the Sixth Circuit
noted, “[a] challenge to the sentencing court’s guidelines
calculation . . . only challenges the legal process used to
sentence a defendant and does not raise an argument that the
defendant is ineligible for the sentence she received.” Id.
at 479.
Similarly, the Eleventh Circuit has reasoned that “any
miscalculation of the guideline[s] range cannot be a
complete miscarriage of justice because the guidelines are
advisory. If the district court were to resentence [such a
defendant], the district court could impose the same sentence
again.” Spencer v. United States, 773 F.3d 1132, 1140 (11th
Cir. 2014) (en banc). Spencer dealt with the scenario we
counter here: a defendant designated as a career offender
pursuant to the advisory sentencing guidelines. See id.
at 1136, 1140.
Thus, based on our reasoning in Allen, the concurrence
to the denial of rehearing en banc in that case, and persuasive
precedent from other circuits and district courts within our
own circuit, we limit Allen’s application to petitioners who
“received a mandatory sentence under a mandatory
sentencing scheme.” Allen, 976 F.3d at 869 (W. Fletcher, J,
concurring in the denial of the petition for rehearing en
banc).
Applying that rule to Shepherd’s case, we hold that he
cannot show that he was actually innocent of the career
offender enhancement utilized during sentencing. In 2005,

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8 SHEPHERD V . UNKNOWN PARTY
the Supreme Court held that constitutional constraints
rendered the guidelines advisory only. See Booker, 543 U.S.
245. Shepherd was sentenced after the guidelines became
advisory. And “the specific facts of this case only confirm
to us that [Shepherd] is not entitled to relief.” Gibbs,
655 F.3d at 479. Shepherd’s guidelines range with the career
offender enhancement was 248–295 months’ imprisonment.
Had the district court not imposed that enhancement, the
range would have been 228–270 months. The district court
imposed a below-the-(either)-guidelines-range sentence of
190 months, belying Shepherd’s claim of actual innocence.
Therefore, Shepherd has failed to make a claim of actual
innocence, and the district court properly dismissed his
§ 2241 petition.
AFFIRMED.

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