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July 12, 2011

En banc Eighth Circuit finds misapplication of career offender guideline not cognizable under § 2255

Joining the Eleventh Circuit (and deviating, I believe, from at least one ruling by the Seventh Circuit), the Eighth Circuit today, though a split 6-5 en banc ruling, adopts federal prosecutors' "contention that [a defendant's] collateral attack on an application of the career offender guidelines provisions is not cognizable under § 2255." This ruling today comes in Sun Bear v. US, No. 09-2992 (8th Cir. July 12, 2011) (available here), and here is a key passage from the majority opinion per Judge Loken (with circuit cites/internal quotes) mostly omitted:

Section 2255 “was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343.  Like habeas corpus, this remedy “does not encompass all claimed errors in conviction and sentencing.”  United States v. Addonizio, 442 U.S. 178, 185 (1979).  It provides a remedy for jurisdictional and constitutional errors, neither of which is at issue here.  Beyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; “an 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.’”  Id., quoting Hill v. United States, 368 U.S. 424, 428 (1962).

These principles are reflected in the text of § 2255, which the Supreme Court described as “somewhat lacking in precision” in Davis, 417 U.S. at 343.  A § 2255 motion may be filed by a federal prisoner “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.”  § 2255(a). The court shall grant appropriate relief if it finds “that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”  § 2255(b).

Applying these principles, this court and our sister circuits have consistently held that ordinary questions of guideline interpretation falling short of the ‘miscarriage of justice’ standard do not present a proper section 2255 claim.  Therefore, such questions may not be re-litigated under § 2255....

In this case, the panel concluded that the miscarriage-of-justice exception applies because Sun Bear’s claim “is based on a post-conviction change in the law that renders unlawful the district court’s sentencing determination.” Sun Bear II, 611 F.3d at 930, citing Davis, 417 U.S. at 346-47. We disagree. Sun Bear’s 360-month sentence is not unlawful. An unlawful or illegal sentence is one imposed without, or in excess of, statutory authority. Sun Bear’s sentence is well-within the statutory maximum authorized for the offense of second-degree murder, see 18 U.S.C. § 1111(b), and in addition within the initial guidelines range of 292-365 months.

Here is the start of the en banc dissent in Sun Bear per Judge Melloy:

At sentencing and on direct appeal, Sun Bear correctly argued that he did not qualify as a career offender.  We rejected his arguments, but the Supreme Court subsequently vindicated his position in an opinion addressing the same question of law. See Begay v. United States, 553 U.S. 137 (2008).  That opinion has retroactive effect, is not clear the error below was harmless, and Sun Bear has diligently pressed his correct interpretation of the law at every available opportunity.  It is "inconsistent with the rudimentary demands of fair procedure," Hill v. United States, 368 U.S. 424, 428 (1962), and therefore amounts to a miscarriage of justice to deny Sun Bear the retroactive benefit of the Court's opinion. Accordingly, I dissent.  I would hold that Sun Bear's claim is cognizable pursuant to 28 U.S.C. § 2255(b) and that he is entitled to be resentenced.

July 12, 2011 at 12:29 PM | Permalink

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The Alice in Wonderland picture should accompany this absurd decision of the 8th Circuit.

Posted by: reader | Jul 13, 2011 12:48:04 PM

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