United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE, UNITED STATES DISTRICT JUDGE
Castellano was sentenced to 300 months in prison following
his conviction at trial for possessing methamphetamine with
intent to distribute in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)B)(viii). Castellano now moves, pursuant
to 28 U.S.C. § 2241, to vacate that sentence based on
the Ninth Circuit's holding in Sandoval v.
Sessions, 866 F.3d 986 (2017). Because the
Sandoval court held that an Oregon conviction for
delivery of a controlled substance is not an
“aggravated felony” under the Controlled
Substance Act, Castellano argues that he is “actually
innocent” of the “career offender”
enhancement that was applied to his pre-Booker,
mandatory guideline sentence (an enhancement that increased
his guideline range of 110 to 137 months to 262 to 327
months). Because Castellano does not meet the “escape
hatch” requirements of § 2241, and because he has
not received permission from the Ninth Circuit to file a
successive petition under § 2255, his motion is DENIED.
a federal defendant seeking to challenge his sentence must
file a motion under 28 U.S.C. § 2255. Marrero v.
Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). In limited
circumstances, a defendant may file a petition under §
2241, a procedure only available via the “escape
hatch” provision of § 2255. Id. The
escape hatch provision is available if the defendant
“(1) makes a claim of actual innocence, and (2) has not
had an unobstructed procedural shot at presenting that
claim.” Id. (quoting Stephens v.
Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (internal
quotation marks omitted)). In the Ninth Circuit,
“[A]ctual innocence means factual innocence, not mere
legal insufficiency.” Id. at 1193 (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)
(internal quotation marks omitted) (alteration in original)).
argument, that the reasoning in Sandoval applies to
career offender enhancements under the guidelines, is one the
Ninth Circuit has yet to consider. Judge Hernandez, in an
opinion discussing Sandoval along with other Ninth
Circuit cases, concluded that an Oregon conviction for
unlawful delivery of a controlled substance remains a
“controlled substance offense” under the
guidelines. United States v. Harms, No.
3:16-cr-00028-HZ, 2017 WL 4918513 (D. Or. Oct. 31, 2017).
Analyzing Sandoval in the context of the Armed
Career Criminal Act, Judge Aiken concluded a conviction under
Oregon's manufacture/delivery of a controlled substance
statute is not a “serious drug offense.” See
Ernst v. United States, No. 6:17-cv-00893-AA, 293
F.Supp.3d 1242 (D. Or. Nov. 13, 2017); see also
Ernst, 291 F.Supp.3d 1190 (Feb. 13, 2008) (denying
government's motion for reconsideration)). Applying the
rule of lenity, Judge Aiken granted the motion to vacate.
Ernst, 293 F.Supp.3d at 1250. Neither case, however,
involved the procedural hurdles Castellano faces here.
not dive into the merits of Castellano's argument
because, even assuming Sandoval applies to the
guideline application in his case, Castellano cannot make a
claim of “actual innocence” in these
circumstances. In Green v. Ives, No.
3:16-cv-00406-MC, 2017 WL 1055963 (D. Or. Mar. 20, 2017), I
concluded in an analogous case that the petitioner there
could not proceed under an “actual innocence”
argument. Like Green, Castellano does not argue or
present evidence that he is factually innocent of either the
federal offense or the predicate state offense.
Marrero, 682 F.3d at 1192-93. 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 (11th Cir.
2014) (noting that misapplication of the career offender
enhancement under the Armed Career Criminal Act, unlike the
Guidelines, “results in a sentence that exceeds the
Castellano frames the issue as being “actually
innocent” of the career offender enhancement, the crux
of his argument is that the sentencing court misapplied the
Guidelines and imposed an incorrect sentence. In the Ninth
Circuit, such a 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”). Although Castellano urges me
to reconsider my conclusions in Green, I conclude
that as in Green, the reasoning in Marrero
controls the outcome here. Castellano's claim does not
fall within the possible exceptions to “factual
innocence” that the Ninth Circuit recognized but did
not explicitly endorse in Marrero. 682 F.3d at
1194-95. Like Marrero, Castellano does not assert a valid
claim of “actual innocence” for the purposes of
the § 2241 escape hatch.
motion to vacate, ECF No. 212, is DENIED. As in
Green, I grant Castellano a certificate of
appealability on the issue of whether he is eligible for
habeas relief under 28 U.S.C. § 2241. See Harrison
v. Ollison, 519 F.3d 952, 958-59 (9th Cir. 2008)
(certificate of appealability required if petition is
essentially a § 2255 motion “disguised” as a
§ 2241 petition).
 Upon reconsideration, I issued Green a
certificate of appealability as to whether he could proceed
under the escape hatch of § 2241. See Oct. 6,