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November 14, 2014

Over lengthy dissents, en banc Eleventh Circuit shuts 2255 door to claims based on advisory guideline misapplication

The Eleventh Circuit has today provided some special weekend reading for hard-core federal sentencing fans with a special interest in finality issues (which, I realize, might be a small group).  Specifically, the en banc ruling together with dissents in Spencer v. US, No. 10-10676 (11th Cir. Nov. 14, 2014) (available here), runs more than 100 pages. More than three-quarters of those pages come from the dissents to a majority opinion (per Judge William Pryor) that begins this way:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence.  After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.”  United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006).  Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review.  We disagree.

Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines.  Spencer’s sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer’s sentence was and remains lawful.  We affirm the denial of Spencer’s motion to vacate his sentence.

At the very end of a very long week, I cannot do justice to the majority opinios or the dissents in this space, so I will close by quoting from the start of one of the dissents (per Judge Jordan) to highlight the human story at the center of the legal debate in Spencer:

At the end of the day, what constitutes a fundamental defect resulting in a complete miscarriage of justice comes down to a matter of considered judgment.  In my judgment, having an individual serve an additional 81 months in prison due to an erroneous career offender designation under the advisory Sentencing Guidelines constitutes such a miscarriage of justice, and for that reason I respectfully dissent.

Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine.  The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months.  For those of us familiar with — and sometimes numbed by — the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error.  To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.

Mr. Spencer timely and consistently objected to the career offender designation, only to be told he was wrong.  As it turns out, he was right.  Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. § 2255 to correct the error.

November 14, 2014 at 04:44 PM | Permalink

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Comments

To quote Mr. Bill's words over at the NY Times, "Such thinking is the breeding ground of resentment and self-justification, which in turn are the breeding grounds for disregard of the law."

Posted by: George | Nov 14, 2014 7:23:03 PM

these total fuckup's need to be careful. If they keep proving what useless retards they are someone is going to take action. At that point they are done.

Posted by: rodsmith | Nov 15, 2014 2:00:44 AM

Reminds me a bit of the last two pages of valdovinos dissent (here: http://www.ca4.uscourts.gov/Opinions/Published/134768.P.pdf ). As draconian as these sentences are, if there's a reasonable argument to get to them, why not take it?

Posted by: Gray Proctor | Nov 15, 2014 2:18:02 PM

I see the U.S. Supreme court granting Certiorari in this case. Prior Supreme court decisions established that in violates the Fifth Amendment to require a defendant to spend even 1 day longer in prison than is required by a properly calculated lawful sentence. So, stay tuned.

Posted by: Jim Gormley | Nov 15, 2014 2:24:41 PM

Emphasizing the advisory nature of the guidelines isn't all that helpful. If a Judge said "you deserve this sentence regardless of the guidelines" vs. "I'm going to follow the guidelines regardless," then you could distinguish whether a change in the calculation would have affected sentence. On the other hand, it's not as simple as remanding to ask the Judge to make that decision. The problem with Habeas relief is it could happen at any point. The Judge could be dead before it happens. So I see why this is a difficult issue.

Posted by: Erik M | Nov 15, 2014 5:13:03 PM

I would also certainly think it's not at all concrete that a ruling saying that DUI(even felony DUI) is not a crime of violence gives this offender such a pass when the crime is instead felonious child abuse. I would expect that felonious child abuse would require the same sort of harm or thread of harm as is typical with the named crime of extortion.And to win a case on habeas it ought to be very clear that the otherwise final judgement is somehow wrong, so I would say the majority is on pretty solid ground.

Posted by: Soronel Haetir | Nov 17, 2014 2:13:58 AM

Shorter Spencer majority: Screw all that “fundamental fairness interest ... in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty" crap; Peugh is simply irrelevant.

Posted by: Michael Drake | Nov 17, 2014 3:34:49 PM

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