Narvaez v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2919

L UIS M. N ARVAEZ,

Petitioner-Appellant,

v.

U NITED STATES OF A MERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:09-cv-00222-bbc—Barbara B. Crabb, Judge.

A RGUED D ECEMBER 7, 2010—D ECIDED JUNE 3, 2011

Before R IPPLE, K ANNE and SYKES, Circuit Judges.

R IPPLE, Circuit Judge. In 2003, Luis Narvaez pleaded

guilty to bank robbery, a violation of 18 U.S.C. § 2113(a).

The district court sentenced Mr. Narvaez as a career

offender under the United States Sentencing Guidelines

§ 4B1.1 because his record revealed two prior escape

convictions involving failure to return to confinement,

violations of Wisconsin Statute section 946.42(3)(a).

Mr. Narvaez later filed a motion to vacate his sentence

2 No. 09-2919

under 28 U.S.C. § 2255(a); he asserted that application of

the career offender enhancement was illegal in light of the

Supreme Court’s decisions in Begay v. United States, 553

U.S. 137, 128 S. Ct. 1581 (2008), and Chambers v. United

States, 555 U.S. 122, 129 S. Ct. 687 (2009). The district court

denied Mr. Narvaez’s motion; it ruled that Begay and

Chambers did not apply retroactively to cases on collat-

eral review. The court then granted him a certificate of

appealability.1

We conclude that Begay and Chambers apply retroac-

tively to Mr. Narvaez’s case. Because Mr. Narvaez’s career

offender sentence was improper, his period of incarcera-

tion exceeds that permitted by law and constitutes a due

process violation. He is therefore entitled to relief under

§ 2255. Accordingly, we reverse the judgment of the dis-

trict court and remand for resentencing without the

career offender enhancement. No other aspect of the

sentence determination is to be disturbed.

I

BACKGROUND

In 2003, Mr. Narvaez pleaded guilty to bank robbery, a

violation of 18 U.S.C. § 2113(a). The sentencing court

designated him as a career offender, see U.S.S.G. § 4B1.1,

based on two prior escape convictions, under Wisconsin

1

The jurisdiction of the district court was based on 28 U.S.C.

§§ 1331 and 2255 and 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a).

No. 09-2919 3

Statute section 946.42(3)(a), that involved failing to

return to confinement.2 The sentencing court’s applica-

tion of the career offender enhancement increased the

then-mandatory sentencing range for Mr. Narvaez from

100-125 months to 151-188 months.3 The court sentenced

Mr. Narvaez to 170 months’ imprisonment—the midpoint

of the enhanced guidelines range.

Five years later, in Begay, the Supreme Court clarified the

definition of a violent felony under the Armed Career

Criminal Act (“ACCA”). It held that driving under the

influence of alcohol did not constitute a violent felony

under the statute. 128 S. Ct. at 1588. The Court explained

that the crimes listed in the ACCA “all typically involve

purposeful, violent, and aggressive conduct.” Id. at 1586

(internal quotation marks omitted). Therefore, the term

“violent felony” applies only to crimes that are “roughly

2

Under existing circuit precedent at the time of sentencing,

Mr. Narvaez’s felony escape convictions constituted “crime[s]

of violence” within the meaning of the career offender guide-

line because they were held to “otherwise involve[] conduct

that present[ed] a serious potential risk of physical injury to

another.” U.S.S.G. § 4B1.2(a)(2); see United States v. Bryant,

310 F.3d 550, 553-54 (7th Cir. 2002).

3

As a career offender, Mr. Narvaez was assigned an offense

level of 32. He received a three-level reduction for acceptance of

responsibility, resulting in a total adjusted offense level of 29.

Under the then-mandatory Sentencing Guidelines, pairing the

offense level of 29 with a criminal history category of VI resulted

in a guidelines range of 151-188 months.

4 No. 09-2919

similar, in kind as well as in degree of risk posed, to the

examples [listed in the ACCA] themselves.” Id. at 1585.4

In Chambers, the Court further explored the definition

of a violent felony under the ACCA in the context of a

conviction under an Illinois escape statute for failure to

report for penal confinement, a statute similar to the

Wisconsin law under which Mr. Narvaez was convicted.

The Court held that the failure to report was a “passive”

offense that did not inherently involve conduct presenting

“a serious potential risk of physical injury to another,” 18

U.S.C. § 924(e)(2)(B), and, therefore, “falls outside the

scope of the ACCA’s definition of ‘violent felony.’” 129

S. Ct. at 691, 693.

Although Begay and Chambers specifically involved the

ACCA, not the Sentencing Guidelines, we have recognized

that the definition of a “violent felony” under the ACCA

was “repeated verbatim” by the Sentencing Commission in

defining a “crime of violence” in § 4B1.2 and that “[i]t

would be inappropriate to treat identical texts differently

just because of a different caption.” United States v.

4

Section 924(e)(2)(B) of Title 18 defines “violent felony” as “any

crime punishable by imprisonment for a term exceeding one

year, or any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that would be

punishable by imprisonment for such term if committed by an

adult, that—(i) has as an element the use, attempted use, or

threatened use of physical force against the person of another;

or (ii) is burglary, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential

risk of physical injury to another.”

No. 09-2919 5

Templeton, 543 F.3d 378, 380 (7th Cir. 2008); see also United

States v. Woods, 576 F.3d 400, 403-04 (7th Cir. 2009) (noting

that the language describing crimes of violence in

§ 924(e)(2)(B) of the ACCA and § 4B1.2 of the Sentencing

Guidelines is identical and, therefore, interchangeable).5

On April 15, 2009, Mr. Narvaez filed a motion under 28

U.S.C. § 2255 to vacate his sentence. 6 He asserted that, in

light of the Supreme Court’s recent decisions in Begay and

Chambers, his prior convictions for failure to return to

confinement did not qualify as “crimes of violence” within

the meaning of the career offender guideline. The district

court dismissed Mr. Narvaez’s § 2255 motion. In its

view, Begay and Chambers did not apply retroactively

5

Section 4B1.2(a) provides in pertinent part that “[t]he term

‘crime of violence’ means any offense under federal or state law,

punishable by imprisonment for a term exceeding one year,

that—(1) has as an element the use, attempted use, or threatened

use of physical force against the person of another, or (2) is

burglary of a dwelling, arson, or extortion, involves use of ex-

plosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).

6

Section 2255(a) of Title 28 provides that a federal prisoner may

claim “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 collat-

eral attack, [and] may move the court which imposed the

sentence to vacate, set aside or correct the sentence.”

6 No. 09-2919

to cases on collateral review. The court nevertheless

granted Mr. Narvaez a certificate of appealability.

The Government now concedes that Begay and Chambers

decided questions of substantive statutory construction

and that they apply retroactively on collateral review. The

Government further concedes that, after Begay and Cham-

bers, Mr. Narvaez’s prior escape convictions for failure to

return to confinement do not constitute crimes of violence

under the career offender guideline. Nevertheless, the

Government argues that Mr. Narvaez did not satisfy the

requirement for the granting of a certificate of appeala-

bility because the certificate does not identify a substan-

tial constitutional question, as required by 28 U.S.C.

§ 2253(c)(2). The Government also argues that Mr. Narvaez

is not entitled to relief on his due process claim.

II

DISCUSSION

A.

The parties agree that Mr. Narvaez’s motion under § 2255

was timely and that Mr. Narvaez is not a career offender

in light of Begay and Chambers because both cases apply

retroactively to Mr. Narvaez’s conviction.

We agree that the motion is timely. Section 2255(f)(3) of

Title 28 provides that a motion is timely if it is filed within

one year of “the date on which the right asserted was

initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made

No. 09-2919 7

retroactively applicable to cases on collateral review.”

There is no dispute that the right asserted by

Mr. Narvaez—the right not to receive an enhanced sen-

tence based on an incorrect understanding of the term

“crime of violence”—was recognized by the Supreme

Court in Begay and Chambers. Mr. Narvaez filed his motion

within one year of both the Begay and Chambers decisions.

We also agree that, in these circumstances, the Begay and

Chambers decisions apply retroactively on collateral review.

See Welch v. United States, 604 F.3d 408, 415 (7th Cir. 2010).

In Welch, we ultimately held that the petitioner’s sentence

“was imposed in accordance with governing legal princi-

ples” because his “prior conviction for the Illinois of-

fense of aggravated fleeing or attempting to elude a police

officer was properly treated as a ‘violent felony’ under

the ACCA.” Id. at 429. We recognized nevertheless that

the ACCA career offender enhancement adds five years of

imprisonment that the law otherwise would not impose.

We held, therefore, that “[s]uch an increase in punishment

is certainly a substantive liability” that should be retroac-

tively applicable on collateral review. Id. at 415. We have

no reason to believe that Chambers requires a different

analysis. Indeed, in Welch, we noted that the Tenth Circuit

recently had held that Chambers was retroactively ap-

plicable on collateral review. See id. at 413-14; see also

United States v. Shipp, 589 F.3d 1084, 1089, 1091 (10th Cir.

2009) (holding that Chambers articulated “a substantive

rule of statutory interpretation” because a defendant who

“does not constitute an ‘armed career criminal’ . . . [has]

received a punishment that the law cannot impose upon

him.” (internal quotation marks omitted)). Chambers,

8 No. 09-2919

like Begay, falls within the class of substantive decisions

that “prohibit[] a certain category of punishment for a

class of defendants because of their status or offense.”

O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (internal

quotation marks omitted).

B.

1.

We turn now to the Government’s argument regarding

the certificate of appealability. One of the requirements for

obtaining a certificate of appealability is: An applicant

must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme

Court has explained that, in this context, a substantial

showing requires “a demonstration that . . . reasonable

jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different

manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation

marks omitted).

In this case, the certificate of appealability raises a claim

that Mr. Narvaez’s illegal designation as a career offender

resulted in an increase in his term of imprisonment that

deprived him of liberty without due process of law.

Relying upon precedent that subsequently has been

overruled by Begay and Chambers, the sentencing court

concluded, understandably, that Mr. Narvaez’s two prior

violent felonies made him a career offender and accord-

ingly applied the sentencing enhancement. Consequently,

No. 09-2919 9

Mr. Narvaez was made eligible for five additional years of

incarceration without any justification in the sentencing

scheme established by law. The Constitution grants

sentencing courts “wide discretion in determining what

sentence to impose.” United States v. Tucker, 404 U.S. 443,

446 (1972). It is well-established, however, that the Due

Process Clause applies to certain aspects of the sentencing

process. See Hicks v. Oklahoma, 447 U.S. 343, 347 (1980)

(recognizing a due process violation at sentencing when

the defendant was deprived of the jury’s discretion to

impose a lower sentence than the maximum); Gardner v.

Florida, 430 U.S. 349, 358 (1977) (plurality opinion) (noting,

in a capital case, that “sentencing is a critical stage of the

criminal proceeding” and, therefore, “the sentencing

process . . . must satisfy the requirements of the Due

Process Clause”). Therefore, Mr. Narvaez has a “constitu-

tional right to be deprived of liberty as punishment for

criminal conduct only to the extent authorized by Con-

gress.” Whalen v. United States, 445 U.S. 684, 690 (1980).

Certainly, as the district court acknowledged, “jurists of

reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right.” Slack,

529 U.S. at 484.

2.

We have recognized that sentencing errors are generally

not cognizable on collateral review. See Scott v. United

States, 997 F.2d 340, 342-43 (7th Cir. 1993). Mr. Narvaez’s

10 No. 09-2919

case, however, does not come within this general rule. 7 It

presents a special and very narrow exception: A post-

conviction change in the law has rendered the sentencing

court’s decision unlawful. See Welch, 604 F.3d at 412–13

(recognizing that relief is available “where a change in law

reduces the defendant’s statutory maximum sentence

below the imposed sentence”). In Begay and Chambers,

the Supreme Court resolved an open question regarding

the kinds of crimes that fall within the meaning of “violent

felony” under the ACCA, and, by implication, the career

offender guideline. See Templeton, 543 F.3d at 380. The

Court’s pronouncements did not simply constitute an

“intervening change in the law” in the traditional sense.

Rather, the decisions make clear that, at the time of

his sentencing, Mr. Narvaez did not qualify as a career

offender under the guidelines. An additional five years

of incarceration was imposed upon him without any

7

We have recognized that § 2255 relief “is appropriate only for

an error of law that is jurisdictional, constitutional, or constitutes

a fundamental defect which inherently results in a complete

miscarriage of justice.” Harris v. United States, 366 F.3d 593,

594 (7th Cir. 2004) (internal quotation marks omitted). Mr.

Narvaez’s argument in this appeal is based on two of these

statutory grounds. First, he asserts that he is entitled to § 2255

relief because the sentencing court’s application of the career

offender enhancement resulted in a complete miscarriage of

justice. See United States v. Addonizio, 442 U.S. 178, 185 (1979).

Second, Mr. Narvaez submits that he is entitled to § 2255 relief

because the sentencing court’s error amounted to a violation of

his due process rights. As our analysis makes clear, both aspects

of the statute are implicated by Mr. Narvaez’s claim.

No. 09-2919 11

legal justification. Such gratuitous infliction of punish-

ment is a fundamental defect in the court’s judgment that

clearly constitutes a complete miscarriage of justice and

a violation of due process.

Our earlier holdings not only support, but compel, this

result. We have recognized that, when a petitioner is

convicted and is sentenced for an act that the law does not

make criminal and when the defendant has not had a

reasonable opportunity to obtain judicial correction of the

fundamental defect, the defendant may be entitled to

collateral relief. See In re Davenport, 147 F.3d 605, 609 (7th

Cir. 1998).8 Resting our analysis upon Davis v. United

States, 417 U.S. 333 (1974), we recognized that such

“arguments go to the fundamental legality of [the peti-

tioner’s] sentence[].” Davenport, 147 F.3d at 609 (citing

Davis, 417 U.S. at 346). Indeed, in Davis, the petitioner

sought § 2255 relief after a subsequent interpretation of

the statute under which he was convicted established

8

In In re Davenport, 147 F.3d 605 (7th Cir. 1998), a federal

prisoner filed a motion to vacate, in which he claimed that his

conviction under 18 U.S.C. § 924(c) for “use” of a firearm during

the commission of a drug offense was illegal in light of the

Supreme Court’s decision in Bailey v. United States, 516 U.S. 137

(1995). In Bailey, the Court resolved an open question regarding

the definition of the term “use” in the statute, holding that “use”

of a firearm requires more than “mere possession.” 516 U.S. at

143. We held in Davenport that, in light of the Court’s Bailey

decision, the prisoner was “being held in prison for a nonexis-

tent crime,” and, therefore, may be entitled to collateral relief

based upon his Bailey claim. 147 F.3d at 610.

12 No. 09-2919

that his conviction was “for an act that the law does not

make criminal.” 417 U.S. at 346. The Supreme Court held

that “[t]here can be no room for doubt that such a cir-

cumstance ‘inherently results in a complete miscarriage

of justice.’” Id. at 346–47.9

The Government submits, however, that the sentencing

court’s error in this case does not warrant § 2255 relief.

Unlike the situation under the ACCA, Mr. Narvaez’s 170-

month sentence was actually within the authorized 20-year

statutory maximum for his crime. Therefore, the Govern-

ment reasons that, because Mr. Narvaez would be exposed

to the full range of punishment authorized by Congress for

his crime at resentencing, and would remain eligible for the

identical 170-month sentence under the advisory guide-

lines, his claim does not present a fundamental defect.

We cannot accept this argument. The fact that Mr.

Narvaez’s sentence falls below the applicable statutory-

maximum sentence is not alone determinative of whether

a miscarriage of justice has occurred. The sentencing

court’s misapplication of the then-mandatory § 4B1.1

enhancement in Mr. Narvaez’s case was central to its

guidelines calculation. Nothing in the record indicates that

9

See also Young v. United States, 124 F.3d 794, 796 (7th Cir. 1997)

(“If a legal development after the conviction shows that the

conviction and punishment are for an act that the law does not

make criminal, the [§ 2255] standard is satisfied: the change of

law shows why the claim could not have been made earlier, and

imprisonment for a non-crime is a miscarriage of justice.”

(internal quotation marks and citation omitted)).

No. 09-2919 13

the court would have sentenced Mr. Narvaez to five

additional years of incarceration had the judge not

been under the legal misapprehension, shared by the rest

of the circuit, that Mr. Narvaez was a career offender

and that the corresponding guidelines required such

an enhancement. The application of the career offender

provision increased the sentencing range for Mr. Narvaez.

Speculation that the district court today might impose the

same sentence is not enough to overcome the fact that,

at the time of his initial sentencing, Mr. Narvaez was

sentenced based upon the equivalent of a nonexistent

offense. This error clearly constitutes a miscarriage of

justice and a due process violation.

The Government is correct that Mr. Narvaez does not

have an absolute right to a lower sentence. Nevertheless,

he does have an absolute right not to have extra punish-

ment imposed on the basis of an inapplicable enhance-

ment. Due process requires that Mr. Narvaez be deprived

of his liberty only to the extent determined by an exer-

cise of the sentencing court’s discretion, cabined by the

applicable statutory criteria. See Hicks, 447 U.S. at 346-47

(finding a due process violation when a defendant was

sentenced to the maximum term authorized by state

law after the sentencing jury was prevented erroneously

from exercising the discretion permitted under state law

to impose a lower sentence); see also Prater v. Maggio,

686 F.2d 346, 350 n.8 (5th Cir. 1982) (noting that the Hicks

14 No. 09-2919

rule “is not . . . limited to imposition of sentences by juries”

(emphasis in original)).1 0

A recidivist enhancement both illegally increased

Mr. Narvaez’s sentence five years beyond that authorized

by the sentencing scheme and also prevented the sen-

tencing court from determining, as a matter of discretion,

whether a lesser sentence was warranted. Therefore,

Mr. Narvaez’s claim, like the Bailey claim raised by the

petitioner in Davenport, asserts an error that violates the

essence of due process—fundamental fairness—and

entitles him to collateral relief.

Conclusion

The judgment of the district court denying Mr. Narvaez’s

motion for relief under § 2255 is reversed and remanded.

On remand, the district court is to impose the sentence

10

The Government submits that the application of the due

process sentencing rule announced in Hicks v. Oklahoma, 447 U.S.

343 (1980), to Mr. Narvaez’s case is barred by the Supreme

Court’s holding in Teague v. Lane, 489 U.S. 288 (1989), which

prohibits the retroactive application of “[n]ew procedural rules

that are established after a conviction has become final.” Welch

v. United States, 604 F.3d 408, 413 (7th Cir. 2010). We disagree

with the Government’s assertion that Mr. Narvaez’s case

requires a novel extension of the Court’s holding in Hicks. We

believe that a fair reading of Hicks supports Mr. Narvaez’s

assertion that due process is violated when the sentencer, in

this case the sentencing judge, is prevented erroneously from

exercising its full discretion to impose a lesser sentence.

No. 09-2919 15

applicable without the career offender enhancement. No

other aspect of the sentence is to be revisited.

R EVERSED AND R EMANDED

WITH INSTRUCTIONS

6-3-11