United States of America v. Maximus Prophet, Mark L. Ferrari

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3776
UNITED STATES OF AMERICA
v.
MAXIMUS PROPHET, MARK L. FERRARI,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No.: 3-07-cr-00025-001)
District Judge: Honorable Kim R. Gibson
Argued November 12, 2020
(Opinion Filed: March 3, 2021)
Before: HARDIMAN, SCIRICA, and RENDELL, Circuit
Judges

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Laura S. Irwin
Haley F. Warden-Rodgers (Argued)
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
James S. Ballenger
Zev Klein * (Argued)
Anna C. Pepper* (Argued)
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
Counsel for Appellant
O P I N I O N
RENDELL, Circuit Judge
Maximus Prophet (a/k/a Mark Ferrari) appeals the
District Court’s denial of his motion to vacate his sentence
under 28 U.S.C. § 2255 and, in the alternative, his petition for
a writ of habeas corpus under 28 U.S.C. § 2241. Prophet
challenges the sentencing court’s application of a two-point
Guidelines enhancement for distribution of child pornography.
He argues that the enhancement should not apply because in
2016 the United States Sentencing Commission adopted
* Eligible law student under 3d Cir. L.A.R. 46.3 (2011).

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Amendment 801, limiting the enhancement to those who
“knowingly engaged in distribution,” and there was no
evidence in his case that he knowingly engaged in distribution.
Prophet argues that Amendment 801 is a clarifying amendment
which should apply retroactively to him. He seeks a
resentencing under § 2255 or § 2241 on that basis. The District
Court concluded that Amendment 801 is not retroactive and
denied Prophet’s motion and petition for habeas relief.
We issued a certificate of appealability on four issues
but can decide this case based only on the first issue, namely
whether Amendment 801 is a clarifying amendment that can
be raised and retroactively applied under § 2255. Because we
conclude that it is not retroactive and will affirm the District
Court’s order on that basis, we need not address the other issues
which explore the cognizability of the claim under § 2255 and
§ 2241.1
The government moved to dismiss the appeal for
mootness because Prophet was released from prison in 2019
and is now serving a fifteen-year term of supervised release.
This motion has been fully briefed and is ripe for review. We
conclude that Prophet’s case is not moot and will deny the
government’s motion to dismiss.
1 We take this opportunity, however, to commend the parties
for thorough briefing and excellent oral arguments on these
nuanced issues.

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I.
A.
Prophet pleaded guilty to one count of possessing child
pornography in violation of 18 U.S.C. § 2252(a)(4) and eleven
counts of receipt of child pornography in violation of 18 U.S.C.
§ 2252(a)(2). The sentencing court applied a two-level
enhancement for distribution under U.S. Sentencing
Guidelines Manual § 2G2.2(b)(3)(F) (U.S. Sentencing
Commission 2007) because of Prophet’s use of LimeWire, a
peer-to-peer file sharing network. Prophet has consistently
maintained that he did not know that LimeWire made his files
available to other LimeWire users. The sentencing court
decided that his involvement in LimeWire was enough to
trigger the enhancement. The court determined that the
enhancement was warranted because “the files found on
[Prophet’s] computers were available for viewing by other
members of the network.” App. 23. The court explained that
the fact that his files were available for viewing was equivalent
to posting the material on a website for public viewing, which
was the example provided in Application Note 1 of U.S.
Sentencing Guidelines Manual § 2G2.2 (U.S. Sentencing
Commission 2007), the version of the Guidelines applicable at
the time. The court also noted that “distribution” “is not
restricted to acts with intent only.” App. 23.
The court applied the 2007 Sentencing Guidelines and
determined that Prophet’s offense level was 34. This resulted
in a Guidelines range of 151 to 188 months. The Guidelines
authorized a supervised release term of at least two years for
each of the twelve counts, but the accompanying policy

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statement recommended a term of life because the offense of
conviction was a sexual offense.
The court sentenced Prophet to 120 months’
imprisonment for Count One, 168 months’ imprisonment for
Counts Two through Twelve, to be served concurrently, and
fifteen years of supervised release. The court noted that the
term of supervised release
is above the [G]uideline range but not above the
maximum permitted by law, and is warranted as
it is apparent that you are in need of counseling
regarding your appetite for child pornography,
and 15 years of supervised release will ensure
that you are able to reintegrate successfully and
productively into society after your term of
imprisonment.
App. 34. Prophet appealed his sentence and we affirmed.
United States v. Prophet, 335 F. App’x 250 (3d Cir. 2009).
Prophet moved to vacate his sentence in 2015 based on
our decision in United States v. Husmann, 765 F.3d 169 (3d
Cir. 2014). In Husmann, we held that the offense of
distribution of child pornography under 18 U.S.C. § 2252(a)(2)
based on use of a peer-to-peer network requires evidence that
another person accessed the material. Id. at 176. The
magistrate judge construed Prophet’s motion as a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, noting that
a motion to vacate would be untimely and Prophet had not
“present[ed] anything that would statutorily or equitably toll
the one-year limitations period in 28 U.S.C. § 2255(f).” App.
55. The magistrate judge concluded that Prophet’s petition

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must be dismissed because in Husmann we addressed the
distribution requirement in the Guidelines enhancement and
concluded that it applied to broader conduct than the statutory
definition. The district court adopted the magistrate judge’s
report and recommendation, denied Prophet’s petition, and we
affirmed. We explained that Husmann did not apply to Prophet
because it involved the narrower crime of distribution, not the
enhancement under the Sentencing Guidelines. United States
v. Prophet, 644 F. App’x 128, 129 (3d Cir. 2016). We
explained, “Under the applicable sentencing guideline,
Prophet’s act of merely logging in to a file-sharing network
qualified as distribution.” Id.
At or around the time that we decided Husmann, there
was a split among the circuits as to whether the Guideline
enhancement under § 2G2.2(b)(3)(F) required a finding of
mens rea. The Second, Fourth, and Seventh Circuits
interpreted the Guideline to require knowledge. See United
States v. Robinson, 714 F.3d 466, 468 (7th Cir. 2013); United
States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2014); United
States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). On the
other hand, the Fifth, Tenth, and Eleventh Circuits held, “the
language of § 2G2.2(b)(3)(F) unambiguously does not contain
a scienter requirement.” United States v. Baker, 742 F.3d 618,
622 (5th Cir. 2014); accord United States v. Ray, 704 F.3d
1307, 1312 (10th Cir. 2013); United States v. Creel, 783 F.3d
1357, 1360 (11th Cir. 2015).
The United States Sentencing Commission resolved this
debate by promulgating Amendment 801, effective on
November 1, 2016. Amendment 801 revised the language of
U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) from “If
the offense involved . . . distribution other than distribution

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described in subdivisions (A) through (E),” to “If the defendant
knowingly engaged in distribution, other than distribution
described in subdivisions (A) through (E).” U.S. Sent’g
Guidelines Manual app. C, amend. 801 (U.S. Sent’g Comm’n
2016) (emphasis added).
B.
Prophet filed a second motion seeking relief under §
2255 and in the alternative a petition for habeas corpus under
§ 2241 in October 2017. Prophet argued that Amendment 801
should apply retroactively to his sentence, and as a result he is
entitled to be resentenced. The Magistrate Judge reasoned that
although Amendment 801 would require a sentencing court
today to make findings as to Prophet’s knowledge, it is not a
retroactive amendment because “[i]n the absence of an express
retroactivity provision, see United States Sentencing Guideline
§ 1B1.10(d), amendments to the Guidelines do not apply
retroactively.” App. 8. The Magistrate Judge also noted that
even if he were to conclude that Amendment 801 was a
clarifying amendment and therefore is retroactive, relief under
§ 2255 would be precluded because the motion to vacate was
untimely.
Moreover, the Magistrate Judge concluded, Prophet’s
argument for relief under § 2241 based on In re Dorsainvil,
119 F.3d 245 (3d Cir. 1997) was unavailable because § 2241 is
available only when a motion to vacate is barred for procedural
reasons and subsequent authority has negated the criminal
liability for the conduct. Because Amendment 801 did not
negate Prophet’s criminal liability, the Magistrate Judge
decided that Dorsainvil was inapplicable.

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The District Court adopted the Magistrate Judge’s
report and recommendation in full and denied Prophet’s
motion to vacate. Prophet timely appealed.
II.
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 2255. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253(a).2 United States v. Folk, 954 F.3d
597, 601 (3d Cir. 2020), cert. denied, No. 20-5983, 2020 WL
6551899 (U.S. Nov. 9, 2020). We review legal conclusions de
novo and factual findings for clear error. Id.
The government has moved to dismiss Prophet’s appeal
as moot because he is no longer imprisoned. However, because
Prophet is now serving the supervised release portion of his
sentence, we conclude that Prophet’s case is not moot. We will
address this issue before turning to the merits of Prophet’s
appeal.
A.
Under Article III of the Constitution, a federal court
may adjudicate “only actual, ongoing cases or controversies.”
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “This
case-or-controversy requirement subsists through all stages of
federal judicial proceedings, trial and appellate. The parties
must continue to have a personal stake in the outcome of the
lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting
Lewis, 494 U.S. at 477–78) (cleaned up).
2 Cognizability here does not impact our jurisdiction. See
United States v. Doe, 810 F.3d 132, 149 (3d Cir. 2015).

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“[A] live case or controversy that a court can remedy
arises when a defendant challenges the sentence he is currently
serving . . . .” United States v. Jackson, 523 F.3d 234, 241 (3d
Cir. 2008). Prophet is challenging the validity of his sentence,
“which includes his term of imprisonment and his term of
supervised release.” United States v. Scripps, 961 F.3d 626,
631 (3d Cir. 2020). Although he has already served his prison
term, Prophet argues that because his prison term was longer
than it should have been based on the improper enhancement,
on resentencing the District Court would likely reduce his
period of supervised release.
The government bases its argument on cases that
consider whether certain collateral consequences might render
a case not moot.3 We need not address the likelihood of
3 The government relies on Burkey v. Marberry, 556 F.3d 142
(3d Cir. 2009), Spencer v. Kemna, 523 U.S. 1 (1998), and
United States v. Juvenile Male, 564 U.S. 932 (2011), but they
are inapposite. Prophet’s circumstances are distinct from those
in Burkey, where the defendant was not challenging his
sentence, but was instead challenging the BOP’s execution of
its own early release policy. Burkey, 556 F.3d at 144–48. So
we explained: “[Burkey’s] challenge was more remote,
attacking only what the BOP had done, and urging it as the
basis for the sentencing court to now afford him relief against
an indisputably valid term of supervised release.” Id. at 148.
In Spencer, the petitioner challenged his parole revocation, but
he had completed the entire term of imprisonment resulting
from the parole revocation. Spencer, 523 U.S. at 3, 8. In
Juvenile Male, the respondent challenged conditions of
supervision to which he was no longer subject. Juvenile Male,

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collateral consequences where the defendant is challenging the
sentence he is serving. See Jackson, 523 F.3d at 241–42. We
have explained that when an erroneous Guidelines
enhancement “would likely merit a credit against [the
defendant’s] period of supervised release for the excess period
of imprisonment,” the case is not moot. United States v.
Cottman, 142 F.3d 160, 165 (3d Cir. 1998).
We reaffirmed this in United States v. Jackson and
explained, “the possibility of a credit for improper
imprisonment against a term of supervised release is sufficient
to give us jurisdiction.” 523 F.3d at 241. In Jackson, the
defendant had completed her term of imprisonment and was
serving her remaining term of supervised release. Id. at 237.
Jackson’s initial argument on appeal was that she should have
been sentenced to probation rather than any term of
imprisonment. Id. at 242. But she acknowledged that any
excess time in prison could not be “credited” against her period
of supervised release. Id. at 242 n.4. Instead, she argued that
the only issue left for this Court was “whether a three year
period of supervised release [was] reasonable.” Id. at 242. We
agreed and explained that her case was not moot because she
was “currently serving a term of supervised release, and [] her
challenge is to whether that term of supervised release is
reasonable.” Id. at 242. The same is true for Prophet.4 See
564 U.S. at 934–37. None of these cases involved a challenge
to an ongoing sentence.
4 Insofar as the government argues that credit against a term of
supervised release conflicts with Johnson v. United States, 529
U.S. 53 (2000), this ignores the Supreme Court’s language in
Johnson. The Supreme Court acknowledged that even though
Johnson was not entitled by statute to a reduction in his term

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Scripps, 961 F.3d at 631 (“Although Scripps has completed his
period of imprisonment, he is currently serving his term of
supervised release. Accordingly, because Scripps is directly
challenging ‘the sentence he is currently serving, issues of
mootness do not arise.’” (quoting Jackson, 523 F.3d at 241)).
Thus, the instant appeal is not moot.
III.
Prophet argues that because Amendment 801 is a
clarifying amendment that applies retroactively, he should be
resentenced so the District Court can determine whether he
knowingly engaged in distribution, and if not, consider
reducing his period of supervised release. Prophet relies on our
decision in United States v. Marmolejos, where we recognized
“a post-sentencing amendment to a sentencing guideline or its
comments should be given effect if it ‘clarifies’ the guideline
or comment in place at the time of sentencing. If, however, the
amendment effects a substantive change in the law, the
defendant does not [receive] the benefit of the [change].” 140
F.3d 488, 490 (3d Cir. 1998).
We had occasion to explore this distinction in
Marmolejos. Marmolejos was convicted of conspiracy to
distribute cocaine in violation of 21 U.S.C. § 846. Id. at 489.
of supervised release, “equitable considerations of great weight
exist when an individual is incarcerated beyond the proper
expiration of his prison term.” Id. at 60. We have continued
to recognize that “a likely credit against a defendant’s term of
supervised release for an excess term of imprisonment still
remains valid after Johnson.” Jackson, 523 F.3d at 239; accord
id. at 240.

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He negotiated to sell 5.00 kg of cocaine but only delivered 4.96
kg. Id. Based on Application Note 12 to U.S. Sentencing
Guidelines Manual § 2D1.1 (U.S. Sentencing Commission
1990), which instructed courts to use the weight under
negotiation in an uncompleted distribution, Marmolejos was
sentenced based on the 5.00 kg amount—even though his case
involved a completed distribution of 4.96 kg, not addressed in
the commentary. Id. at 489–90. This increased his base
offense by two levels from what it would have been if he was
sentenced for the 4.96 kg amount involved in the completed
sale. Id. at 489 n.2.
Four years after Marmolejos was sentenced, the
Sentencing Commission promulgated Amendment 518, which
revised the text of Application Note 12 to read as follows: “In
an offense involving an agreement to sell a controlled
substance, the agreed-upon quantity of the controlled
substance shall be used to determine the offense level unless
the sale is completed and the amount delivered more
accurately reflects the scale of the offense.” U.S. Sent’g
Guidelines Manual § 2D1.1, Note 12 (U.S. Sent’g Comm’n
1995) (emphasis added). Marmolejos argued that this new
language “clarified” the prior Guideline for a completed
distribution such as his, so he was entitled to be resentenced.
Marmolejos, 140 F.3d at 490.
We explained that while “[t]here is no bright-line test,”
courts determine whether a Guideline amendment is
retroactive by evaluating “the language of the amendment, the
amendment’s purpose and effect, and whether, as a matter of
construction, the guideline and commentary in effect at that
time is really consistent with the amended manual.” Id. at 491
(internal citations and quotations omitted).

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In the case of Application Note 12, the previous version
did not address the amount of drugs that a court should
consider when sentencing a defendant for a completed drug
transaction. Id. It only addressed uncompleted transactions.
Id. We explained, “Thus, the terms of the previous application
note were facially ambiguous; the note spoke only to
uncompleted deals.” Id.
The government argued that because Amendment 518
conflicted with how most courts had applied Application Note
12, it necessarily effected a substantive change in the law. We
rejected that argument and reasoned:
[W]hile Amendment 518 may alter the practice
of the courts in construing § 2D1.1, and may
even reverse the caselaw interpreting
Application Note 12, it is the text of the
amendment—not the courts’ gloss on that text—
that ultimately determines whether the
amendment is a clarification or a substantive
revision.
Id. at 492 (footnote omitted).
The government urged that the Commission’s
explanation that the Amendment “revise[d] the Commentary to
§ 2D1.1” was illustrative of a substantive change. Id. at 493.
We rejected this and explained that our own interpretation of
the text is controlling. “[T]he mere fact that an amendment is
referred to as a clarification or a revision is ordinarily of slight
import to our analysis.” Id. Additionally, we noted that “[i]t
‘revises’ the commentary in the same way that every
amendment revises the commentary—by changing, altering, or

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modifying the text,” but this does not mean that it “revises” the
method for courts to determine the correct drug quantity under
§ 2D1.1. Id.
We concluded that Amendment 518 was a clarification
because it did “not change the method for calculating amounts
involved in uncompleted sales, but merely clarifie[d] the
proviso for completed ones.” Id. We explained that “it fills a
void and resolves an ambiguity in § 2D1.1 regarding the proper
weight of drugs for a court to consider.” Id.
Here, the text of Amendment 801 adds a mens rea
requirement to the actual text of the Guideline, rather than
merely the commentary, which suggests that it effected a
substantive change. As noted above, we interpreted the prior
text to not require a showing of mens rea. See Prophet, 644 F.
App’x at 129 (“Under the applicable sentencing guideline,
Prophet’s act of merely logging in to a file-sharing network
qualified as distribution.”). In contrast to the revision at issue
in Marmolejos, see 140 F.3d at 493, Amendment 801 changed
the method for applying the enhancement by requiring the
court to make findings as to the defendant’s knowledge. The
amendment in Marmolejos did not change the method for
applying the enhancement but merely provided guidance
where there was none before and which was not inconsistent
with the existing guidance. Id. at 491–93. Here, Amendment
801 did not fill an explanatory gap, but instead changed the
application of the enhancement to require a specific finding of
knowledge on the part of the defendant.
As for the purpose of the amendment, the Commission’s
explanation indicates that Amendment 801 implemented a new
substantive requirement. The Commission explained that

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“Based on testimony, public comment, and data analysis, the
Commission determined that the 2-level distribution
enhancement is appropriate only in cases in which the
defendant knowingly engaged in distribution.” U.S. Sent’g
Guidelines Manual app. C, amend. 801 (U.S. Sent’g Comm’n
2016). This suggests that the Commission’s earlier view was
that a finding of knowledge was not required to apply the
enhancement, but following “testimony, public comment, and
data analysis,” the Commission adopted the approach of the
courts that had required it. This is supported by the
Commission’s description of Amendment 801 as “generally
adopt[ing] the approach of the Second, Fourth, and Seventh
Circuits” which had required a showing of knowledge to apply
the enhancement. Id. The language “generally adopts”
signifies that the amendment is effectuating a change that adds
something new. Thus, this is not a situation where an
amendment merely implemented “precisely what [the
Commission] meant to say (but neglected to) all along.” See
United States v. Spinello, 265 F.3d 150, 162 (3d Cir. 2001).
Accordingly, Amendment 801 does more than merely clarify
the Commission’s previous understanding of the
enhancement’s applicability.
Prophet argues that the Sentencing Commission’s
purpose of Amendment 801 was to resolve an ambiguity, and
therefore to clarify the Guideline. We disagree. In Marmolejos
we rejected the government’s argument that the Amendment
must have effected a substantive change because it conflicted
with how most courts were applying the Guidelines.
Marmolejos, 140 F.3d at 492. We explained that this conflict
could also reveal an ambiguity made apparent in the caselaw
that a clarifying amendment was intended to resolve. Id. In
other words, a circuit split as to the meaning or the application

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of a Guideline, evidencing an ambiguity, is not determinative
because resolving the ambiguity could require either a
clarification or a substantive change. As such, we are guided
by “the text of the amendment—not the courts’ gloss on that
text,” so the fact of a circuit split provides limited guidance
here. See id.
Amendment 801 had the effect of narrowing the scope
of offenders subject to the enhancement, which also points to
a substantive change. The absence of a mens rea requirement
allowed courts to apply the enhancement based on strict
liability, but now the enhancement requires evidence of
knowledge. In United States v. Roberson, we noted that an
amendment was substantive when its effect was to “narrow[]
the category of controlled substances subject to enhanced
penalties from all forms of cocaine base to a single type,
crack.” 194 F.3d 408, 418 (3d Cir. 1999). The narrowing of
the scope of the enhancement to those with a heightened mens
rea similarly suggests a new meaning here that conflicts with
the pre-Amendment language.
Moreover, we are not concerned with the Commission’s
use of the word “clarifying” in its “Reason for Amendment.”
See U.S. Sent’g Guidelines Manual app. C, amend. 801, at
145–46 (U.S. Sent’g Comm’n 2016). As we explained in
Marmolejos, the Commission’s word choice between
“clarification” and “revision” “is ordinarily of slight import to
our analysis.” Marmolejos, 140 F.3d at 493.
While we conclude that Amendment 801 is not
retroactive, we disagree with the government’s argument that
Amendment 801 cannot be applied retroactively because it is
not included in the list of retroactive amendments in United

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States Sentencing Guideline § 1B1.10(d). The District Court
actually based its conclusion on this reasoning, but we cannot
accept it. The government contends that to give retroactive
effect to an amendment not listed in § 1B1.10(d) would
conflict with the congressional intent to give the Sentencing
Commission the authority to decide retroactivity. But the
Commission’s authority from Congress under 28 U.S.C. §
994(u) to determine whether amendments should be given
retroactive effect is only implicated when motions for
resentencing are brought under 18 U.S.C. § 3582(c)(2). See
U.S. Sent’g Guidelines Manual § 1B1.10 cmt. background
(U.S. Sent’g Comm’n 2018). Thus, the Commission’s list of
retroactive amendments in § 1B1.10(d) is only relevant when
a defendant brings a motion for a resentencing under
§ 3582(c)(2) “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
See 18 U.S.C. § 3582(c)(2); see also U.S. Sent’g Guidelines
Manual § 1B1.10(a)(1) (U.S. Sent’g Comm’n 2018). When a
petitioner seeks relief under § 2255 or § 2241, the analysis is
different from § 3582(c)(2). See Marmolejos, 140 F.3d at 491;
United States v. Armstrong, 347 F.3d 905, 908–09 (11th Cir.
2003).
We also note that our conclusion regarding the effect of
Amendment 801 is in accord with two of our sister circuits who
have reached this conclusion, albeit briefly in non-precedential
opinions. United States v. Mullins, 748 F. App’x 795, 801
(10th Cir. 2018) (finding Amendment 801 to be substantive
because “it overruled our existing precedent and revised the
enhancement’s language, not just the language of the
commentary”); United States v. Garcia, 654 F. App’x 972, 975
n.2 (11th Cir. 2016) (“[E]ven if the amendment were in effect,

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we would consider it a substantive amendment that does not
apply retroactively.”).
Amendment 801 imposed a substantive change to the
Guidelines themselves. It did not clarify the previous
Guideline. The Amendment had the purpose and effect of
narrowing the scope of the enhancement, making the previous
version of § 2G2.2(b)(3)(F) inconsistent with the amended
version. We hold that Amendment 801 effected a substantive
change to the Guidelines, and therefore does not apply
retroactively. As a result, Prophet’s argument that he is
entitled to resentencing under Marmolejos fails, so he is not
entitled to be resentenced.
IV.
For these reasons, we will affirm the District Court’s
denial of Prophet’s motion to vacate and petition for habeas
relief.

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