UNITED STATES of America, v. Angel CEPERO a/k/a Angel Villar-Cepero a/k/a Mosquito, Angel Cepero, Appellant, 224 F.3d 256

OPINION OF THE COURT ALDISERT, Circuit Judge: We must decide whether the Antiterrorism and Effective Death Penalty Act of 1996 precludes our review of Appellant’s unsuccessful § 2255 motion to correct his sentence, notwithstanding the District Court’s issuance of a certificate of appeala-bility under 28 U.S.C. § 2258. Appellant contends that the District Court erred by sentencing him under U.S.S.G. § 2D1.1 because the Government did not prove the substance involved in his criminal offenses was crack cocaine. The court order declared: “A certificate of appealability on the crack-enhancement is granted.

It -is denied on all other issues.” App. at 113a. The Government now moves for dismissal of this appeal on the grounds that the District Court erroneously issued the certificate of appealability because Cepero did not make a “substantial showing of the denial of a constitutional right” as required under § 2253(c)(2) so as to invoke our limited power to review the denial of his § 2255 petition. We will grant the Government’s motion to dismiss. I.

In April 1997, Angel Cepero was indicted along with two co-defendants for conspiracy to distribute and possess with intent to distribute “cocaine and more than 50 grams of cocaine base, a/k/a ‘crack’ cocaine” in violation of 21 U.S.C. §§ 841(

a) and 846.

The indictment listed the overt acts committed in furtherance of the conspiracy as the delivery and sale of “cocaine base,” but did not specifically mention “crack cocaine.” An assistant federal public defender was appointed as Cepero’s counsel, and in June and July 1997 filed two pretrial motions, both of which referred to the substance at issue as “crack cocaine.” Shortly thereafter, Cepero executed a plea agreement in which he agreed to plead guilty to the conspiracy count, which paragraph 1 identified as “conspiracy to distribute more than 5 grams of cocaine base.” In pertinent part, paragraph 1 stated also that the “maximum penalty for the offense is imprisonment for a period of 40 years [and] a fine of $2,000,000,” which corresponds to the maximum penalties for crack cocaine under 21 U.S.C. § 841(b)(l)(B)(iii).

Paragraph 9 of the plea agreement stipulated that his offense conduct “involved no less than 35 but no more than 50 grams of cocaine base.” Cepero and his public defender reviewed and signed the agreement. Three days later a guilty-plea hearing was held, during which the sentencing court, the prosecutor and the public defender all referred to the offense as involving either cocaine or cocaine base. The prosecutor noted the statutory range of penalties as being from five to 40 years and a maximum fine of $250,000, based on the agreement that Cepero’s conduct involved 35 to 50 grams of cocaine base.

The prosecutor summarized the Government’s case and consistently referred to the drug transaction as involving cocaine or cocaine base. Cepero agreed that this was an accurate account of his involvement and pled guilty to the conspiracy charge. The presentence report identified the substance at issue as “crack cocaine.” The report concluded that Cepero’s base offense level was 30, derived from U.S.S.G. § 2D1.1 for offenses involving at least 35 grams but less than 50 grams of cocaine base.

After a two point deduction for acceptance of responsibility, his offense level was 28, and his criminal history category was set at III, which resulted in a guideline range of 97 to 121 months. Neither the Government nor the defendant objected to the report. On November 2, 1997, Cepero was sentenced to 97 months imprisonment and he did not appeal.

On September 20, 1998, Cepero filed his pro se habeas petition in the District Court pursuant to 28 U.S.C. § 2255 and alleged inter alia that the Government failed to prove at sentencing that the substance in question was crack cocaine and not merely cocaine powder, which carries a lesser sentence. The court denied his petition by memorandum order but granted him a certificate of appealability under § 2253(

c) with respect to the “crack-enhancement” issue — i.e., whether the Government adequately proved at sentencing that he had conspired to distribute crack cocaine. Cepero timely filed his notice of appeal and thereafter the Government moved to dismiss for want of subject-matter jurisdiction. We appointed counsel and referred the matter to a merits panel, to which both parties submitted briefs and argued their positions.

After argument, we granted rehearing en banc to decide whether the District Court erroneously granted Cepero a certificate of appealability under 28 U.S.C. § 2253(c), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996). We exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to the court’s factual findings. Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000). II.

Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner in federal custody who was denied relief by a district court on a § 2255 petition could appeal to the court of appeals without obtaining a certificate of probable cause. See 28 U.S.C. § 2253 (1995) (pre-AEDPA language); United States v. Eyer, 113 F.3d 470, 472 (3d Cir.1997).

By contrast, a petitioner in state custody challenging his detention could not appeal the denial of his petition “unless the justice or judge who rendered the order or a circuit justice or judge issuefd] a certificate of probable cause.” 28 U.S.C. § 2253 (1995) (pre-AEDPA language); see Eyer, 113 F.3d at

Section 102 of the Antiterrorist and Effective Death Penalty Act amended the jurisdictional dimension of § 2253 to provide: (c)

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (

A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (

B) the final order in a proceeding under

section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c)(l)-(3) (as amended Apr. 24, 1996) (emphasis added). The AEDPA thus replaced certificates of probable cause with “certificates of appealability” and required prisoners in federal custody to obtain certificates of appealability before appealing from the denial of their § 2255 petitions.

In our prior decisions interpreting the amended version of § 2253, we have held that, notwithstanding the ambiguous language of the statute which seems to empower only circuit court judges with the authority to grant certificates of appeala-bility, see § 2253(c)(1), the district court judge who denies the prisoner’s habeas petition is also authorized to certify issues for appeal. See Eyer, 113 F.3d at 472-473; accord Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir.1997) (“We therefore uphold the authority of district judges to issue [certificates of appealability], at least in

section 2254 cases.”); United States v. Asrar, 108 F.3d 217, 218 (9th Cir.1997); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1066-1073 (6th Cir.1997); Hunter v. United States, 101 F.3d 1565, 1573-1577 (11th Cir.1996) (en banc). III. We recognize that several courts of appeals have passed on the question we decide today — whether we have jurisdiction under § 2253(

c) to review the denial of a § 2255 petition where the Government challenges the validity of a certificate of appealability issued by a district court. In United States v. Eyer, we assumed jurisdiction to review the denial of a § 2255 petition notwithstanding the questioned validity of the certificate of appealability, but in that case the Government opposed only the power of the district court to issue certificates of appealability and took the position that, if the district court was authorized to certify issues for appeal under § 2253(c), then the case should be decided on the merits.

We concluded that district court judges were authorized to issue certificates of appealability and thereafter assumed jurisdiction. Nevertheless we recognized the lingering question of whether the petitioner made a “substantial showing of the denial of a constitutional right.” [Petitioner] raises questions ... involving issues of statutory construction. Therefore, it is possible that [he] does not raise an issue involving a constitutional right. Here [ ] we avoid the procedural point because the government .... took the position that if the district court is empowered to issue certificates of appeala-bility under

section 2253(c)(1), we should decide this case on the merits. Thus, the determination of the meaning of “constitutional right” in

section 2253(c)(2) is not necessary to the disposition of this appeal. In reaching our result, we have not disregarded our practice of examining our jurisdiction before reaching the merits of an appeal, and we recognize the possibility that the procedural problems we have identified [i.e., petitioner’s possible failure to raise issues implicating constitutional rights] could be considered jurisdictional.

Instead, we are applying the settled principle that an appellate court, confronted by a difficult jurisdictional or quasi-jurisdictional question, may forego its resolution if the merits of the appeal are, as here, straightforward and easily resolved in favor of the party or parties to whose benefit the objection to jurisdiction would redound. Eyer, 113 F.3d at 474 (internal 'quotation marks and citations omitted). This practice of exercising “hypothetical jurisdiction” is neither new nor specific to certificates of appealability. See generally Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (collecting cases). Nevertheless, in 1998 the Supreme Court largely rejected this custom. See id. at 94, 118 S.Ct. 1003. We recently discussed the Court’s teachings in Steel Co. vis-a-vis our past exercise of hypothetical jurisdiction in Eyer: We recognize that the Supreme Court in Steel Co. [ ] disapproved the practice of a court of appeals, such as in Eyer [ ], avoiding difficult jurisdictional questions when a merits determination would favor the party who would benefit if it declined to exercise jurisdiction.

But if we were to determine that we will not issue a certificate of appealability because [petitioner] has not demonstrated that he is entitled to one under 28 U.S.C. § 2253(c)(3), then we would find that this court does not have jurisdiction to go forward in this appeal. United States v. Williams, 158 F.3d 736, 741-742 (3d Cir.1998). We continue to recognize that the Court’s opinion in Steel Co. stands for the proposition that an

Article III court may not assume subject-matter jurisdiction to reach the merits of an appeal. Several of our sister courts of appeals have reached the merits of prisoners’ appeals from unsuccessful § 2255 petitions based on the reasoning that § 2253(c)(2) is not jurisdictional in nature. In Young v.

United States, 124 F.3d 794, 799 (7th Cir.1997), cert. denied, 524 U.S. 928, 118 S.Ct. 2324, 141 L.Ed.2d 698 (1998), the Court of Appeals for the Seventh Circuit held that an erroneously issued certificate of appeal-ability satisfied the requirements of § 2253(c)(2) regardless of whether it was properly issued, reasoning as follows: The certificate is a screening device, helping to conserve judicial (and prose-cutorial) resources ... Once a certificate has issued, however, the case proceeds to briefing and decision; the resources have been invested. It is too late to narrow the issues or screen out weak claims.

Perhaps a motion to dismiss an appeal on the ground that a certificate was improperly issued would serve some function. But once the briefs have been written and the case heard, there is little point in scrutinizing the certificate of appealability.

An obligation to determine whether a certificate should have been issued, even if the parties do not present this issue for decision — a step entailed by the conclusion that a proper certificate is a jurisdictional requirement — would increase the complexity of appeals in collateral attacks and the judicial effort required to resolve them, the opposite of the legislative plan. So we proceed to the merits as the parties have presented them. Id. at 799. The Court of Appeals for the Tenth Circuit reached the same conclusion and relied on the Young reasoning. See United States v.

Talk, 158 F.3d 1064, 1065 (10th Cir.1998), cert. denied, 525 U.S. 1164, 119 S.Ct. 1079, 143 L.Ed.2d 81 (1999). Similarly, the Court of Appeals for the Second Circuit adopted this reasoning in Soto v. United States, 185 F.3d 48 (2d Cir.1999), emphasizing that “the certificate is a screening device” and that it had previously intimated the same “gate-keeping” view of the certificate of appealability requirement in Lozada v. United States, 107 F.3d 1011, 1015 (2d Cir.1997).

It reasoned that “dismissing an appeal after a certificate of appealability has already issued would be of little utility; installing this Court as a gate keeper for the gate keeper would be redundant.” Soto, 185 F.3d at 52. IV. The difficulty that we have with the approach of our sister courts of appeals is that they fail to recognize the precise jurisprudential nature of a certificate of ap-pealability as defined in Hohn v. United States, 524 U.S. 286, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998).

The centerpiece of the reasoning of those courts is that a certificate is an administrative function, described as “a screening device, helping to conserve judicial (and prosecutorial) resources.” Young, 124 F.3d at 799; see Talk, 158 F.3d at 1065, 1068; Soto, 185 F.3d at 52. The question for decision in Hohn was “whether the Court has jurisdiction to review decisions of courts of appeals denying applications for certificate of appealability,” 524 U.S. at 238-239, 118 S.Ct. 1969.

To reach this question the Court first had to decide whether the issuance of a certificate of appealability by a court of appeáls constituted a judicial function, rather than an administrative function, and was therefore subject to judicial review. The Court rejected the notion advanced by the respondent in the case before it, and explicit in the reasoning in Young, Talk and Soto, that a certificate of appealability is merely a screening device. To the contrary, the Court held that decisions regarding applications for certificates of appealability are not merely an administrative function of the courts.

Hohn, 524 U.S. at 245, 118 S.Ct. 1969. The teaching of Hohn is clear and unambiguous: Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here.... Construing the issuance of a certificate of appealability as an administrative function, moreover, would suggest an entity not wielding judicial power might review the decisions of an

Article III court. In light of the constitutional questions which surround such an arrangement, see Gordon [v. United States, 117 U.S. Appx. 697, 702, 704 (1864) ]; Hayburn’s Case, 2 Dall. 409, 1 L.Ed. 436 (1792), we should avoid any such implication. Hohn, 524 U.S. at 245-246, 118 S.Ct. 1969 (emphasis added). The Court then proceeded to analogize Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942): We held the request for leave [to appeal] constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request.

We reasoned, “[presentation of the petition for judicial action is the institution of a suit. Hence the denial of the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals.” 317 U.S., at 24 [63 S.Ct. 2]. Hohn, 524 U.S. at 246, 118 S.Ct. 1969. The Court concluded by stating, the circumstance that the question before the court is a preliminary issue, such as the denial of a certificate of appealability or venue, does not oust appellate courts of the jurisdiction to review a ruling on the matter.

Id. at 248, 118 S.Ct. 1969. In view of the explicit language of the Court, we must reject the analysis of our sister circuits and decline the notion that this court is bound by the District Court’s issuance of a certificate of appeala-bility. The issuance of the certificate in the case before us is not merely an exercise of judicial gate-keeping, but rather, in the language of the Court, is “the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals.” Hohn, 524 U.S. at 246, 118 S.Ct. 1969 (quoting Quirin, 317 U.S. at 24, 63 S.Ct. 1).

We now proceed into a review of the order granting the certificate of ap-pealability. V. Our first task in our review is to address

Section 102 of the Antiterrorist and Effective Death Penalty Act of 1996, which amended the jurisdictional dimension of § 2253: (c)

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (

A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (

B) the final order in a proceeding under

section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c)(1 )-(3) (emphasis added). It had been suggested that the use by Congress of the phrase “substantial showing of a denial of a constitutional right” was inadvertent, inasmuch as it intended to codify the teachings of Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), a § 2254 ease in which the Court used the expression “substantial showing of the denial of a federal right.” 463 U.S. at 893, 103 S.Ct. 3383 (emphasis added).

The denial of a federal right encompasses not only rights assured by the United States Constitution but also those based on federal statutes, including the Sentencing Guidelines. Cepero advances two basic arguments, either of which he claims requires us to reject the plain language of “constitutional right” and hold that Congress intended the phrase to mean “federal right” — first, that the amended version of § 2253(

c) does not mean what it says, because Congress in the AEDPA intended to codify the Court’s holding in Barefoot, which used the expression “federal right,” but mistakenly amended the statute to apply to only those issues implicating the denial of a “constitutional right”; second, that in Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999), the Court considered the merits of a § 2255 appeal that did not implicate a constitutional right. A.

We are satisfied that the Court has recently made clear that the use of the phrase “constitutional right” must be given effect. “Our task is to interpret the statute as best we can, not to second-guess the wisdom of the congressional policy choice .... Congress chose the language that requires us to decide as we do, and Congress is free to change it.” Mansell v. Mansell, 490 U.S. 581, 594, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (citation omitted). In Slack v.

McDaniel, — U.S.-, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Court held: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, — U.S. at-, 120 S.Ct. at 1604 (emphasis added).

In so holding, the Court construed § 2263(

c) as follows: Under AEDPA, a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). Except for substituting the word “constitutional” for the word “federal,” § 2253 is a codification of the CPC [certificate of probable cause] standard announced in Barefoot v. Estelle. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in § 2253(

c) the meaning ascribed it in Barefoot, with due note for the substitution of the word “constitutional. ” Slack, — U.S. at-, 120 S.Ct. at 1603 (emphasis added and citations omitted).

Prior to the Court’s opinion in Slack, the Court of Appeals for the Tenth Circuit offered a similar analysis of the post-AED-PA version of § 2253(c): By requiring an applicant for a certificate of probable cause to make a “substantial showing of the denial of a federal right,” the Supreme Court in Barefoot ensured that appellate review of the federal habeas process should be limited to petitions that make a color-able showing of constitutional error.

Although the Court used the word “federal,” an applicant seeking a certificate of probable cause to appeal a district court’s denial of a § 2254 petition for a writ of habeas corpus must demonstrate a substantial showing of constitutional error underlying the state conviction. We have always read the Barefoot standard to require a habeas petitioner to make a substantial showing of the denial of a federal constitutional right. Indeed, in the context of federal habeas review of a conviction entered in state court, it is the only intelligible reading. Lennox v.

Evans, 87 F.3d 431, 434 (10th Cir.1996) (citations omitted), overruled on other grounds by United States v. Kunzman, 125 F.3d 1363 (10th Cir.1997). Because Congress’ meaning of “constitutional” in § 2253(c)(2), as amended, is crucial to our analysis of our jurisdiction, it is helpful to examine the legislative history. The first legislative report on this bill, House Bill 665, was introduced by the House Judiciary Committee on February 2, 1995. At that time the bill contained no language amending the review provisions of § 2253.

The second legislative report on the bill was filed four days later, on February 6, and again did not purport to amend § 2253. On February 8, 1995, the House Judiciary Committee introduced House Report 104-23, which accompanied House Bill 728. The House Report on this bill contained the following language:

Section 2253 of title 28, United States Code, is amended to read as follows: (c).... A certificate of probable cause may only issue if the petitioner has made a substantial showing of the denial of a Federal right.... Sec. 102, H.R. Report No. 104-23 (1995) (emphasis added). This Report included also a

section entitled “Background and Need for the Legislation,” which provided: The bill also strengthens the certificate of probable cause requirement by providing (in proposed § 2253(c)) that a certificate may issue only on a substantial showing of the denial of a federal right. The bill thus enacts the standard of Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).... H.R. Report No. 104-23 (“Background and Need for the Legislation”).

In March 1995, the Senate and House of Representatives considered various versions of the bill, and on December 5 and 6 the House and Senate Judiciary Committees respectively issued their final reports on the proposed legislation, neither of which contained language amending § 2253. On April 15, 1996, House Conference Report No. 104-518, accompanied by S. 735, was passed. Both the Conference Report and the accompanying bill contained language amending § 2258(c).

The new bill substituted “certificates of appeal-ability” for certificates of probable cause, and limited issuance of these certificates to situations where petitioners have made a “substantial showing of a denial of a constitutional right.” (emphasis added). Neither the Conference Report nor the accompanying bill explained why the language of § 2253(

c) referred to “constitutional” and not “federal” rights. Congress passed this version of the bill, known as the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which the President signed into law on April 24, 1996. B. Notwithstanding AEDPA’s limited legislative history on this point, it is clear that Congress by amending § 2253 intended to codify in part the Court’s holding in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); see H.R. Report No. 104-23 (“Background and Need for the Legislation”).

In Barefoot, the Court granted certiorari to determine whether the Court of Appeals for the Fifth Circuit erred in refusing to stay a state petitioner’s death sentence under a § 2254 proceeding. Id. at 888, 103 S.Ct. 3383. Reviewing the procedural actions of the court of appeals, the Court outlined the grounds for appealing the denial of a § 2254 petition: First. Congress established the requirement that a prisoner obtain a certificate of probable cause to appeal in order to prevent frivolous appeals from delaying the States’ ability to impose sentences, including death sentences.

The primary means of separating meritorious from frivolous appeals should be the decision to grant or withhold a certificate of probable cause.... We agree with the weight of opinion in the Courts of Appeals that a certificate of probable cause requires petitioner to make a “substantial showing of the denial of [a] federal right.” Stewart v. Beto, 454 F.2d 268, 270, n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972). Barefoot, 463 U.S. at 893, 103 S.Ct. 3383 (alteration in original) (footnote omitted) (citing Ramsey v. Hand, 309 F.2d 947, 948 (10th Cir.1962); and Goode v.

Wainwright, 670 F.2d 941 (11th Cir.1982)). There is no doubt that the current version of § 2253(c)(2) codified the Court’s holding in Barefoot that a petitioner must make a “substantial showing.” Congress, however, made a significant change to the Barefoot standard, “substituting the word ‘constitutional’ for the word ‘federal.’” Slack, 120 S.Ct. at 1603. The term “constitutional right” means something very different from the term “federal right,” and because we must assume that Congress “means in a statute what it says,” Connecticut Nat’l Bank v.

Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992), we give effect to the change. It must be emphasized that it makes no difference whether “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court” described in § 2253(c)(1)(

A) emanates from a proceeding brought under § 2254 or § 2241(c)(3) (a prisoner in custody “in violation of the Constitution or laws or treaties of the United States”). Under either proceeding, a state prisoner must obtain a certificate of appealability — that is, “make a substantial showing of the denial of a constitutional right” under § 2253(c)(2) — before appealing from any aspect of the state-ordered detention under § 2253(c)(1)(A). See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.2000) (“[T]his court reads § 2253(c)(1)(

A) as applying whenever a state prisoner habeas petition relates to matters flowing from a state court detention order[, including challenges under § 2254 and § 2241.]”). Federal prisoner appeals from § 2241 proceedings, however, are not governed by 2253’s certificate of appealability requirement. See 28 U.S.C. § 2253(c)(1)(B) (applying the certifícate of appealability requirement to federal prisoner appeals from “the final order in a proceeding under

section 2255”); see also Sugarman v. Pitzer, 170 F.3d 1145, 1146 (D.C.Cir.1999) (“We hold that a COA is not required for federal prisoner § 2241 appeals.”); Ojo v. INS, 106 F.3d 680, 681 (5th Cir.1997). This is not to suggest that Congress’ amendment of § 2253(c)(2) was without problems. We confront the specter that Congress has now differentiated between the type of § 2255 petition that may be filed in district court and the type that may be appealed to this court. Cf. United States v. Gordon, 172 F.3d 753, 754 (10th Cir.1999); Young, 124 F.3d at

Section 2255 petitioners may allege and have adjudicated non-constitutional issues in district court: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence ... 28 U.S.C. § 2255 (emphasis added); see Gordon, 172 F.3d at 754.

However, the courts of appeals under the post-AEDPA version of § 2253(c)(2) have limited jurisdiction over unsuccessful § 2255 petitions. Bohn, 524 U.S. at 240, 118 S.Ct. 1969; see Young, 124 F.3d at 799 (“If the district court denies a [§ 2255] petition based on a statutory issue, § 2253(c)(2) precludes an appeal.”). To the ad terrorem argument that the defendant is thereby totally denied the opportunity to appeal nonconstitu-tional issues, the short answer is that Congress has indicated that these issues must be presented in the direct appeal from the conviction. C.

We now address the argument that the Court sub silentio has already interpreted § 2253(c)(l)-(3) and has held that the phrase “denial of a constitutional right” may be interpreted to embrace non-constitutional issues such as

interpretation of the Federal Rules of Criminal Procedure. See Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999). Although there is no discussion or reference made in the Peguero opinion that contemplates the precise issue presented here, Appellant here argues that the issue of jurisdiction under § 2253(

c) was before the Peguero Court because the Government indirectly raised the issue in a footnote in its brief, when it stated: The government acquiesced in the granting of a certificate of appealability. [ ] In fact, however, the district court erred in issuing a certificate. A certificate of appealability may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2) (Suppl. II 1996), and the Rule 32 error on which the petitioner sought the certificate is not of constitutional dimension.

Brief for Respondent at *6 n. 5, Peguero, 1998 WL 848085. There are two answers to this contention. First, the footnote clearly states that the “government acquiesced in the granting of the certificate.” Having acquiesced in the granting of the certificate in the court below, it may not be contended that the Government was raising a serious jurisdictional argument before the Supreme Court. Second, and much more fundamental, the Court consistently teaches that an opinion that does not refer to or substantially treat the jurisdictional argument does not have the strong bite of binding precedent.

See e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). We are of the view that the teachings of Peguero do not address the precise issues presented in this case. There the Court did not have before it the issue of whether a certifícate of appealability could issue for other than a claim of constitutional right.

Specifically, the first sentence of the Court’s opinion stated the question for decision: We granted certiorari to resolve a Circuit conflict over whether a district court’s failure to advise a defendant of his right to appeal as required by the Federal Rules of Criminal Procedure provides a basis for collateral relief even when the defendant was aware of his right to appeal when the trial court omitted to give the advice. Peguero, 526 U.S. at 24, 119 S.Ct. 961.

That was the only issue before the court and the teachings of that case must be limited to the' precise issue decided. “[W]hen questions of jurisdiction have been passed on in prior decisions sub si-lentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.” Pennhurst, 465 U.S. at 119, 104 S.Ct. 900 (quoting Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)); see United States v. More, 7 U.S. (3 Cranch) 159, 172, 2 L.Ed. 397 (1805) (“No question was made, in that case, as to the jurisdiction.

It passed sub silentio, and the court does not consider itself as bound by that case.”) (Marshall, C.J.). In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court referred to a series of cases in which it reached the merits of challenges to federal welfare regulations brought by welfare recipients. In meeting for the first time whether the Eleventh Amendment precluded federal court jurisdiction to grant retroactive relief, the Court noted that it had previously decided the cases on the merits without meeting the question of jurisdiction. It referred also to Shapiro v.

Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), where “the Eleventh Amendment objection to such retroactive relief was actually presented to this Court in a case which was orally argued.” Edelman, 415 U.S. at 670, 94 S.Ct. 1347. Significantly, the Court explained why Shapiro and three other cases decided by the Court on the merits could not be interpreted as sub silentio deciding the issue of jurisdiction: This Court, while affirming the judgment [in Shapiro], did not in its opinion refer to or substantially treat the Eleventh Amendment argument. Nor, of course, did the

summary dispositions of the three District Court cases contain any substantive discussion of this or any other issues raised by the parties. This case, therefore, is the first opportunity the Court has taken to fully explore and treat the Eleventh Amendment aspects of such relief in a written opinion.... Having now had the opportunity to more fully consider the Eleventh Amendment holdings of those cases after briefing and argument, we disapprove the Eleventh Amendment holdings of those cases to the extent that they are inconsistent with our holding today. Id. at 670-671, 94 S.Ct. 1347.

The Court had a similar issue before it in Hagans v. Lavine, and noted: In none of these cases was the jurisdiction issue squarely raised as a contention in the petitions for certiorari, jurisdictional statements, or briefs filed in this Court. Moreover, when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us....

We therefore approach the question of the District Court’s jurisdiction to entertain this suit as an open one calling for a canvass of relevant jurisdictional considerations. Hagans, 415 U.S. at 535 n. 5, 94 S.Ct. 1872 (citations omitted). Applying the foregoing teachings to the issue at bar, we see that a year after the Peguero decision, in Slack v. McDaniel, speaking through Justice Kennedy, the same justice who authored the opinion in Peguero, the Court met the precise issue presented here: Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(

c) is straightforward: The petitioner must demonstrate that reasonable jurists would find that the district court’s assessment of the constitutional claims debatable or wrong .... This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims .... — U.S. at-, 120 S.Ct. at 1604. What the Supreme Court did not say in the 1999 Peguero case cannot trump what the court explicitly said in Slack a year later, especially when both opinions were authored by the same justice.

Accordingly, we reject the argument that the Court’s decision in Peguero runs counter to the holding we reach today — that a certificate of appealability in a case brought under § 2253(c)(2) may issue, in the literal language of the statute, “only if the applicant has made a substantial showing of the denial of a constitutional right.” VI. In determining whether the certificate of appealability was proper and thus whether we have jurisdiction to review this petition, we examine whether Cepero had made (1) a substantial showing of a deprivation of (2) a constitutional right, so as to invoke our § 2253(

c) jurisdiction. Petitioner alleges the District Court erred by enhancing his sentence, because the Government failed at sentencing to show beyond a preponderance of the evidence that he conspired to sell crack cocaine, and not some other form of cocaine base. His contention of error thus is misapplication of the Sentencing Guidelines, and he relies on our decision in United States v. James, 78 F.3d 851 (3d Cir.1996) to support his claim.

Section 2D1.1 of the Sentencing Guidelines provides a much greater sentence for drug offenses involving crack cocaine (100 to 1, based on drug amount) than for offenses involving powder cocaine or some other form of cocaine base. In James, we held that the Government was required to prove at sentencing that the defendant distributed crack cocaine, not just cocaine base, before § 2D1.1 of the Sentencing Guidelines could be used to impose the increased sentence. 78 F.3d at 856. However, the facts and procedural posture in James are materially different than those in Cepero’s § 2255 petition.

The petitioner in James pursued review of his sentence on direct appeal. In contrast, Cepero sought post-conviction review of his sentence via a § 2255 petition.

Section 2255 petitions are not substitutes for direct appeals and serve only to protect a defendant from a violation of the constitution or from a statutory defect so fundamental that a complete miscarriage of justice has occurred. Reed v. Farley, 512 U.S. 339, 348, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994); Young, 124 F.3d at 796. Under § 2253(c)(2), we have appellate jurisdiction over only those issues substantially shown to deny a petitioner a constitutional right. We find no such deprivation here.

Cepero’s allegation here, that the sentencing court misapplied the Sentencing Guidelines in his case, is a question that does not present a constitutional issue under § 2253(c). See Buggs v. United States, 153 F.3d 439, 443 (7th Cir.1998) (“[E]rrors in the implementation of the Sentencing Guidelines are generally not cognizable in a collateral attack.”).

Because of the specific misapplication of the Sentencing Guidelines that Appellant alleges in this case, we conclude that he has not “made a substantial showing of the denial of a constitutional right,” and thus the District Court erred under § 2253(c)(2) by issuing a certificate of appealability. Accordingly, we do not have jurisdiction to review the merits of Appellant’s case. * * * * * * We will grant the Government’s motion to dismiss the appeal for lack of subject-matter jurisdiction. .

In 1993 the Sentencing Commission amended the Guidelines to include the following definition of cocaine base: "Cocaine base,” for the purposes of this guideline, means "crack.” "Crack” is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form. U.S.S.G. § 2D1.1. .

Section 2D 1.1 of the Sentencing Guidelines directs a sentencing court to use the same base offense level for a crime involving 1.5 kilograms or more of cocaine base, or crack cocaine, that it would use for a crime involving 150 kilograms or more of powdered cocaine. Thus, an enhanced sentence exists in crimes involving crack cocaine vis-a-vis powdered cocaine. . Because the Court of Appeals for the Seventh Circuit decided Young in August of 1997, it did not have the advantage of the Supreme Court's June 15, 1998 decision in Hohn.

However, the Courts of Appeals for the Second and Tenth Circuits decided Soto (July 21, 1999) and Talk (Sept. 11, 1998), respectively, after Hohn was handed down. . It bears emphasis that § 2241 is not involved in this case because Appellant brought this action as a “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a person in Federal Custody.” App. at 65a. He did not argue otherwise in the district court or in his briefs to this court. See Appellant's Br. at iv, Table of Authorities. .

Because application of the Sentencing Guidelines in this case does not implicate a fact that would increase the penalty of a crime beyond the statutory maximum, the teachings of Apprendi v. New Jersey,-U.S. -, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), are not relevant here. . We do not suggest that a misapplication of the Guidelines can never rise to the level of a constitutional deprivation.