
    161 F.3d 738
    UNITED STATES of America, Appellee, v. Raymond J. POWELL, Appellant.
    No. 98-3066.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 17, 1998.
    Decided Nov. 19, 1998.
    Evelina J. Norwinski, Assistant Federal Public Defender, argued the cause as amicus curiae on behalf of appellant. With her on the briefs was A.J. Kramer, Federal Public Defender, appointed by the court.
    Raymond J. Powell, appearing pro se, was on the briefs for appellant.
    John R. Fisher, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Wilma A. Lewis, U.S. Attorney.
    Before: EDWARDS, Chief Judge, Wl L LI AMS and Gl N SBU RG, Circuit Judges.
   PER CURIAM.

Raymond J. Powell, a federal prisoner, has requested that this court certify his second or successive motion under 28 U .S.C. § 2255 to the District Court. After consideration of Mr. Powell's motion, we have decided to stay our hand regarding Mr. Powell's request, because it is dear from the record that there are still issues regarding Mr. Powell's first § 2255 motion remaining to be addressed by the Distrid Court. Since it is dear that Mr. Powell can obtain all the relief that he is due pursuant to his pending motions, we will leave it to the Distrid Court to address these daima Adion by the Distrid Court may make it unnecessary for this court to consider the issues here on appeal.

On June 18,1993, Mr. Powell filed his first § 2255 motion. Subsequently, on September 20, 1993, Mr. Powell filed a “Traverse to Respondent’s Opposition for Motion to Vacate, Set Aside, or Modify Sentence, Pursuant to 28 USC § 2255” as an addendum to his first § 2255 motion. Although the Distrid Court denied Mr. Powell’s first § 2255 motion by order on January 3, 1994, if has never addressed the daim advanced in the Traverse that, under the holding of United States v. Price, 990 F.2d 1367, 1369 (D.C.Cir.1993), it was improper to use his state law convidion as a predicate offense when enhandng his sentence. Thus, Mr. Powell points out that the Price issue is still pending before the Distrid Court. Mr. Powell also alleges that, as to the matters other than the Price issue he never received the Distrid Court’s denial of his first motion. Moreover, on March 23, 1998, Mr. Powell filed a “Motion for Extraordinary Relief,” seeking relief under 28 U.S.C. §§ 1651 and 2241 with the Distrid Court arguing, inter alia, that his sentence was improper under Price, because his D.C. convidion was for an inchoate offense, the attempted distribution of PCP.

In short, there are significant questions pending before the Distrid Court regarding the application of Price to Mr. Powell’s sentence. Government counsel does not dispute the pendency of these mdiona

In Price, this court held that only offenses spedfied in 28 U.S.C. § 994(h) could count as predicate offenses See 990 F.2d at 1369-70. Accordingly, it was improper to apply career criminal enhancements to defendants convided of aiding and abetting, attempting, or conspiring to commit those crimes See id. at 1370. After this court’s decision in Price, the Sentendng Commission amended U.S.S.G. § 4B1.1 to indude inchoate crimes See U.S.S.G. § 4B1.1, comment (backg’d.)(Nov.1998); United States v. Seals, 130 F.3d 451, 463 (D.C.Cir.1997). However, because Powell was convided before 1995, it is undisputed that his convidion for an inchoate offense should nd have been used to qualify him as a career offender under § 4B1.1.

As was made dear at oral argument in this case, the defendant is presently serving time beyond what is legally permissible: Mr. Powell was sentenced to 262 months; yet, under Price, Mr. Powell should have been sentenced to a maximum of 78 months Thus, because Mr. Powell has served over 100 months in jail, he is now serving time far beyond that which is lawfully required. Even the Government does nd doubt that, under Price, Mr. Powell’s position is compelling. Because Mr. Powell is faced with the possibility d serving at least ten more years in prison, and he has already served far more time than is legally required, we must afford the Distrid Court the opportunity to address his pending daims.

Finally, the parties acknowledge that Mr. Powell first dted Price in his Traverse, and there sought relief based only on one theory related to Price. However, because the Distrid Court has nd yd ruled on the Traverse or on the Mdion for Extraordinary Relid, there is ndhing preventing the trial judge from considering any daims cognizable under Price. I n dher words, in order to avdd a pdential miscarriage d justice, the Distrid Court surdy is free to allow ddendant’s counsel to amplify Mr. Powdl’s original Pri.ce theory.

So ordered.  