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