*1 Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Marlon Dale Sun Bear ("Sun Bear") appeals the district court's dismissal of his
motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Sun Bear asserts that his
360-month sentence, which included an enhancement for being a career offender
under U.S. Sentencing Guidelines § 4B1.1, was improper in light of Begay v. United
States,
I. Background
Sun Bear was sentenced to 360 months' custody on January 7, 2002 after he pled guilty to second-degree murder. The district court sentenced Sun Bear as a career offender pursuant to U.S.S.G. § 4B1.1 based on his adult convictions for attempted escape, attempted theft of a vehicle, and attempted burglary of a commercial building. Consequently, the adjusted offense level was thirty-seven. The court found that Sun Bear's criminal record warranted a criminal history category of VI, resulting in a guidelines range of 360 months to life. Had the court declined to apply § 4B1.1, Sun Bear's offense level would have been thirty-five, resulting in a guidelines range of 292 to 365 months.
In addition, the district court applied a three-level upward departure based on its determination that the criminal history category VI understated the seriousness of Sun Bear's criminal history. However, that departure was offset when the court also decreased the offense level by three levels based on Sun Bear's acceptance of responsibility. Thus, Sun Bear's offense level remained thirty-seven, and he was sentenced to 360 months' custody, the bottom of the applicable guidelines range.
Sun Bear appealed the district court's application of the career offender
guideline. Specifically, he argued that the three predicate convictions were not crimes
of violence. This Court affirmed the sentence, holding that two of Sun Bear's prior
convictions—attempted theft of a vehicle and attempted burglary—were crimes of
violence under § 4B1.1. United States v. Sun Bear,
Several years later, in Begay, the Supreme Court of the United States held that
driving under the influence of alcohol is not a violent felony for purposes of the
Armed Career Criminals Act ("ACCA"). 553 U.S. at 148. In United States v.
Williams,
On November 12, 2008, Sun Bear filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, asserting that attempted theft of a vehicle and attempted burglary are not crimes of violence under the career offender guideline in light of Begay and the post-Begay Eighth Circuit precedent. [2] The district court, notably the same judge who sentenced Sun Bear in 2002, dismissed Sun Bear's § 2255 motion, finding Begay not retroactively applicable to cases on collateral review.
In this appeal, the government concedes that Begay is retroactively applicable to Sun Bear's case because he challenged the career offender enhancement at sentencing and on direct appeal, and because this is his first § 2255 motion. The government also concedes that, after Begay, Sun Bear's prior conviction for theft of a vehicle is not a crime of violence for purposes of the career offender guideline. Rather, the government argues that relief is inappropriate under § 2255 because there was no miscarriage of justice.
II. Discussion
The parties agree that Sun Bear is not a career offender in light of Begay and
that Begay is retroactive. We set forth the reasons for our agreement, though, because
these issues are unsettled in our circuit and because these stipulations are dispositive
for Sun Bear's § 2255 motion. See Merck & Co., Inc. v. Reynolds,
A. Was Sun Bear a Career Offender?
The career offender sentencing guideline provides for an enhanced offense level
for certain crimes if the defendant has two predicate felonies for crimes of violence
or qualifying drug offenses. See U.S.S.G. § 4B1.1. Whether an offense is a crime of
violence under the sentencing guidelines is the same inquiry as whether an offense is
a violent felony under the ACCA. Williams,
Sun Bear pled guilty to attempted theft of a vehicle under a Utah statute, which
states: "A person commits theft if he obtains or exercises unauthorized control over
the property of another with a purpose to deprive him thereof." Utah Code § 76-6-404.
This statute is materially indistinguishable from Missouri's offense for auto theft
without consent, which is not a crime of violence for purposes of the sentencing
guidelines. Williams,
B. Is Begay Retroactive?
Sun Bear filed his § 2255 motion within one year of the Supreme Court's decision in Begay. Consequently, there is no dispute that Sun Bear's § 2255 motion was timely if Begay applies retroactively in this case. See 28 U.S.C. § 2255(f)(3). But the question remains whether Begay is retroactively applicable to cases on collateral review. Because the Supreme Court did not declare that Begay is retroactive, we must apply the established principles of retroactivity: When a Supreme Court decision results in a "new rule" of criminal procedure, that rule applies to all criminal cases still pending on direct review, but, as to convictions that are already final, the rule applies only in limited circumstances. New substantive rules–which narrow the scope of a criminal statute or which place particular conduct or persons covered by the statute beyond the State's power to punish–generally apply retroactively. New procedural rules generally do not apply retroactively *6 unless the rule is of "watershed" magnitude implicating "the fundamental fairness and accuracy of the criminal proceeding," or unless the rule prevents the lawmaking authority from criminalizing certain kinds of conduct.
Never Misses A Shot v. United States,
The rule in Begay, that a crime must be similar in kind to the enumerated
offenses in order to qualify as a violent felony under the ACCA, is wholly unlike
procedural rules, which "merely raise the possibility that someone convicted with use
of the invalidated procedure might have been acquitted otherwise." Schriro, 542 U.S.
at 352; see also Welch v. United States,
The government could argue that Begay is retroactive only for sentencing errors under the ACCA and not for errors under U.S.S.G. § 4B1.1. However, this Court has held that the inquiries under § 4B1.1 and the ACCA are the same. Williams, 537 F.3d at 971. Further, 28 U.S.C. § 2255(f)(3) speaks only of "the right asserted," and we see no basis for limiting the right newly recognized in Begay to the specific statutory context of that case. Accordingly, we hold that the rule in Begay is applicable retroactively to cases on collateral review.
C. Is Sun Bear Entitled to Relief Under § 2255?
Under 28 U.S.C. § 2255(a), a federal prisoner has an avenue of relief if "the
sentence was imposed in violation of the Constitution or laws of the United States, or
[if] the court was without jurisdiction to impose such sentence, or [if] the sentence was
in excess of the maximum authorized by law, or is otherwise subject to collateral
attack." Not every legal error at trial or sentencing warrants relief under this section.
"[A]n error of law does not provide a basis for collateral attack unless the claimed
error constituted 'a fundamental defect which inherently results in a complete
miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979)
(quoting Hill v. United States,
We have generally found that sentencing errors are not proper bases for relief
under § 2255. In Auman v. United States,
that "ordinary questions of [sentencing] guideline interpretation falling short of the
'miscarriage of justice' standard do not present a proper section 2255 claim."
However, Sun Bear's claim is more than a run-of-the-mill claim that the district court
misapplied the sentencing guidelines.
[4]
This case is based on a post-conviction change
in the law that renders unlawful the district court's sentencing determination. "There
can be no room for doubt that such a circumstance 'inherently results in a complete
miscarriage of justice' and 'presents exceptional circumstances' that justify collateral
relief under § 2255." Davis v. United States,
The government argues, however, that the district court's error in applying the career offender sentencing guideline was harmless, and therefore Sun Bear cannot demonstrate a miscarriage of justice. [5] During the sentencing proceedings, the district court made several statements that, according to the government, show that the judge would have sentenced Sun Bear to 360 months' custody regardless of whether it applied the career offender guideline. For example, in support of the three-level departure based on the inadequacy of the criminal history categories, the court stated:
[Sun Bear] already has a criminal history category of VI and that's as far as the table goes. He certainly has more of a criminal history category than VI. I have not seen a man this young have a criminal history of this type in the years that I've sat on the bench since May of 1995. . . . I cannot go any further on the chart. He is more than a career criminal because of the number of offenses of violence, all of which involve a sentence of more than one year. Or a potential sentence of more than one year.
Later, after the court determined that the Sun Bear's offense level was thirty-seven, the court suggested that it was giving Sun Bear a lower sentence than he deserved:
Based solely on the fact that he did cooperate with the government as to the co-defendant, I'm going to sentence the defendant to a minimum of 360 months. And that's probably too lenient a sentence under all of the circumstances here.
After defense counsel objected to the court's authority to impose an upward departure in addition to the career offender enhancement, the court stated: "I find that, in any event, the appropriate sentence is 360 months." The cumulative effect of these statements, the government asserts, is that the error in applying the career offender guideline was harmless.
We have held in several direct appeals that a sentencing error is harmless where
the district court makes a clear record that a specific contested sentencing issue would
not impact the ultimate determination of a sentence under 18 U.S.C. § 3553(a). See,
e.g., United States v. Krueger, No. 09-3186,
However, the record is not so clear in this case. At most, the court's statements show that it believed Sun Bear deserved a criminal-history-based upward departure—which it imposed—and that he may have deserved a longer sentence than 360 months. Regardless of what was possible, the court imposed a sentence at the bottom of the guidelines range. Furthermore, the sentencing judge's statement that he was imposing a 360-month sentence "in any event" did not address the specific possibility of an error in applying the career offender guideline. Indeed, that statement is materially indistinguishable from a "blanket statement" that a sentence is "fair," where the statement was "intended to cover any and all potential guidelines calculation errors," which we have held is insufficient to demonstrate harmless error. United States v. Icaza, 492 F.3d 967, 971 (8th Cir. 2007) (quotation omitted). Without a more explicit statement of the court's intention to impose a particular sentence, taking into account the specific issue in controversy, we are unable to find the sentencing error harmless in this case. Cf. Jackson, 594 F.3d at 1030 (error harmless where the district court "provided comments leaving no doubt that it would apply the same sentence regardless of whether the career offender provisions applied").
To be sure, there is overlap between the district court's guidelines range (360
months to life) and the correct guidelines range (292 to 365 months), and Sun Bear's
sentence falls within that overlap. However, "such an overlap renders a sentencing
error unreviewable only if the district court, at the time of sentencing, states
unequivocally that it would impose the same sentence with or without the challenged
calculation." Alaniz v. United States,
We note, finally, that the district court judge who dismissed Sun Bear's § 2255 motion was the same judge who sentenced Sun Bear in 2002. If the district court would have given Sun Bear a 360-month sentence regardless of the career offender issue, as the government argues, then we would expect the court to say as much. Instead, in a seven-page order, the court relied entirely on the principles of retroactivity to dismiss Sun Bear's § 2255 motion. The district court has had two opportunities to state that an error in applying the career offender guideline would not have impacted its sentencing determination, and yet has not done so. In these circumstances, we are unable to say Sun Bear's sentence was inevitable.
Accordingly, we hold that Sun Bear has raised a cognizable claim for relief under § 2255.
III. Conclusion
For the foregoing reasons, we reverse the district court's judgment and remand this case for further proceedings consistent with this opinion.
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Notes
[1] In the Sun Bear appeal, our Court found the government failed to prove the
attempted escape was a felony offense.
[2] Sun Bear neither sought direct review nor seeks collateral review of the district court's three-level upward departure based on the inadequacy of the criminal-history categories.
[3] Cf. United States v. Shipp,
[4] We also note that Sun Bear's claim is free of the problems that have
complicated our prior cases involving § 2255 motions on the basis of sentencing
errors. See, e.g., King v. United States,
[5] We note that, on direct appeal, the government did not argue that the alleged sentencing error was harmless.