Dustin Grammer v. Warden ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6746
DUSTIN M. GRAMMER,
Petitioner - Appellant,
v.
WARDEN, FCI Gilmer,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:19-cv-00057-GMG)
Submitted: August 24, 2021 Decided: August 27, 2021
Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dustin M. Grammer, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dustin M. Grammer, a federal prisoner, appeals the district court’s order accepting
the recommendation of the magistrate judge and denying relief on Grammer’s 28 U.S.C.
§ 2241 petition in which Grammer sought to challenge his sentence by way of the savings
clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a prisoner may challenge his conviction
or sentence in a traditional writ of habeas corpus pursuant to § 2241 if a § 2255 motion
would be inadequate or ineffective to test the legality of his detention.
[Section] 2255 is inadequate and ineffective to test the legality of a sentence
when: (1) at the time of sentencing, settled law of this circuit or the Supreme
Court established the legality of the sentence; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2)
for second or successive motions; and (4) due to this retroactive change, the
sentence now presents an error sufficiently grave to be deemed a fundamental
defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Because Grammer was sentenced under the advisory Sentencing Guidelines, we
agree with the district court’s conclusion that he fails to satisfy the fourth prong of Wheeler.
See Braswell v. Smith, 952 F.3d 441, 450 (4th Cir. 2020); Lester v. Flournoy, 909 F.3d 708,
715 (4th Cir. 2018). Accordingly, we affirm for the reasons stated by the district court.
Grammer v. Warden, No. 3:19-cv-00057-GMG (N.D.W. Va. Mar. 26, 2021). We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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