Sun Bear v. United States

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-2992
___________

Marlon Dale Sun Bear, *
*
Petitioner- Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
United States of America, *
*
Respondent - Appellee. *
___________

Submitted: January 10, 2011
Filed: July 12, 2011
___________

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY,
SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit
Judges, en banc.
___________

LOKEN, Circuit Judge, with whom RILEY, Chief Judge, WOLLMAN, COLLOTON,
GRUENDER, and BENTON, Circuit Judges, join.

Marlon Dale Sun Bear pleaded guilty to the second-degree murder of his uncle
in Indian country. At sentencing, the district court1 departed upward three levels
based upon Sun Bear’s extensive and violent criminal history, resulting in a
sentencing range of 292 to 365 months in prison under the then-mandatory Sentencing

1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
Guidelines. The court further ruled that Sun Bear’s prior felony convictions for
attempted escape, attempted theft of a vehicle, and attempted burglary of a
commercial building were “crimes of violence” under U.S.S.G. § 4B1.2(a), resulting
in a career offender enhancement that increased the guidelines range to 360 months
to life. The court sentenced Sun Bear as a career offender to 360 months in prison.2
Sun Bear appealed, arguing that he should not have been sentenced as a career
offender because his three prior felonies were not crimes of violence. We affirmed,
concluding that he was properly sentenced as a career offender because, although the
attempted escape offense was not proved to be a felony, the felony convictions for
attempted auto theft and attempted burglary constituted two crimes of violence
warranting the career offender enhancement. United States v. Sun Bear, 307 F.3d
747, 753 (8th Cir. 2002) (Sun Bear I), cert. denied, 539 U.S. 916 (2003).

In November 2008, counsel for Sun Bear filed a 28 U.S.C. § 2255 motion to
vacate his sentence, alleging that the career offender determination violated Begay v.
United States, 128 S. Ct. 1581 (2008), as construed by a panel of this court in United
States v. Williams, 537 F.3d 969 (8th Cir. 2008). There were three significant
obstacles to the relief sought. First, the motion appeared to be untimely because it was
not filed within one year from “the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). Second, the career offender issue was raised and
rejected on direct appeal. With rare exceptions, § 2255 may not be used to relitigate
matters decided on direct appeal. See Davis v. United States, 417 U.S. 333, 346-47
(1974).3 Third, the § 2255 motion was a collateral attack on the sentencing court’s

2
The court commented that it had “not seen a man this young have a criminal
history of this type in the years that I’ve sat on the bench,” and opined that Sun Bear
was “more than a career criminal,” having “done nothing his entire life other than
attack people [and] steal their property.”
3
Had Sun Bear not raised this issue on direct appeal, this obstacle would have
required him to avoid that procedural default using the cause and prejudice analysis
mandated by Frady v. United States, 456 U.S. 152, 165-69 (1982). See Anderson v.

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interpretation and application of the Guidelines, an attack this court, and most of our
sister circuits, have never found “cognizable,”4 as we discuss in Part II.

The District of South Dakota § 2255 form required Sun Bear to explain why his
motion was timely. He alleged:

This motion was filed within one year of the U.S. Supreme
Court’s decision in Begay v. United States [which] initially and newly
recognized the right asserted herein. Consequently, the motion is timely
filed pursuant to 28 U.S.C. § 2255(f)(3).5

The district court granted the government’s motion to dismiss the motion as time-
barred because, in the words of § 2255(f)(3), Begay did not initially recognize “a right
. . . made retroactively applicable to cases on collateral review.” Sun Bear v. United
States, No. CIV 08-3021, Jul. 8, 2009 Opinion & Order (D.S.D.). Sun Bear appealed,
and the district court issued a certificate of appealability on the retroactivity issue. A
panel of this court reversed, concluding that Begay announced a new substantive rule
that, under Teague v. Lane, 489 U.S. 288 (1989), retroactively applies to career
offender decisions under the Guidelines. Sun Bear v. United States, 611 F.3d 925,
929 (8th Cir. 2010) (Sun Bear II). We granted the government’s petition for rehearing
en banc, vacated the panel opinion, and now affirm the district court’s denial of
§ 2255 relief.

United States, 25 F.3d 704, 706-07 (8th Cir. 1994).
4
Cognizable has been defined as, “Capable of being judicially tried or examined
before a designated tribunal; within the court’s jurisdiction.” Black’s Law Dictionary
295 (9th ed. 2009).
5
Sun Bear further alleged that the decision in Begay uncovered a “fact”
supporting his claim, making the motion timely under § 2255(f)(4). We agree with
the district court that subsequent interpretations of the law “can be the basis of delay
in filing a § 2255 motion only in accordance with § 2255(f)(3).”

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 I. Retroactivity

In Begay, the Supreme Court held that a felony conviction for driving under the
influence of alcohol is not a “violent felony” for purposes of 18 U.S.C.
§ 924(e)(2)(B)(ii), part of the Armed Career Criminal Act (ACCA). 128 S. Ct. at
1588. The effect of this ACCA provision is to increase the sentence of one convicted
of being a felon in possession of a firearm from a statutory maximum of ten years in
prison to a mandatory minimum term of fifteen years. Compare 18 U.S.C.
§ 924(a)(2), with § 924(e)(1). Under Teague v. Lane, a new rule of criminal
procedure is not retroactively applied to collateral attacks on a final conviction unless
it is a “watershed” rule. However, this principle does not apply to new substantive
rules, that is, to “decisions that narrow the scope of a criminal statute by interpreting
its terms . . . as well as constitutional determinations that place particular conduct or
persons covered by the statute beyond the State’s power to punish.” Schriro v.
Summerlin, 542 U.S. 348, 351-52 (2004) (citations omitted).

The government has conceded in § 2255 proceedings around the country that
Begay announced a new substantive rule that should be applied retroactively if the
application of § 924(e)(1) at issue increased the defendant’s statutory maximum
sentence, which will be true with many if not most felon-in-possession convictions.
At least two of our sister circuits have so held. See Welch v. United States, 604 F.3d
408, 414-15 (7th Cir. 2010); United States v. Shipp, 589 F.3d 1084, 1090-91 (10th
Cir. 2009) (applying Chambers v. United States, 129 S. Ct. 687 (2000), retroactively).
We are inclined to agree with the proposition as limited in this manner, but it does not
resolve the retroactivity issue presented in this case. Sun Bear is not relying on the
holding in Begay. Rather, he argues for the retroactive application of our panel
decision in Williams that the reasoning in Begay implicitly overruled our decision in
Sun Bear I that a felony conviction for attempted auto theft is a crime of violence
under the career offender provisions of the Guidelines. 537 F.3d at 971, 973-75. To
sustain that contention, we would have to conclude that the Supreme Court’s

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reasoning in Begay was correctly construed by our panel in Williams and is a “right
. . . newly recognized by the Supreme Court” for purposes of 28 U.S.C. § 2255(f)(3).6
We decline to consider these issues because we agree with the government’s
alternative contention that Sun Bear’s collateral attack on an application of the career
offender guidelines provisions is not cognizable under § 2255.7

II. Cognizability

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

6
Williams was Eighth Circuit precedent binding on the panel in this case, but
it is not binding on the court en banc. There were five votes to grant rehearing en
banc in Williams, one short of the number required for en banc review. We express
no view as to whether Williams was a correct application of Begay except to note that
the Supreme Court recently advised that the decision in Williams, like those of nearly
all our sister circuits, “overreads” the significance of the phrase “purposeful, violent,
and aggressive” in the Begay opinion. Sykes v. United States, No. 09-11311, slip op.
at 10-11 (June 9, 2011). Moreover, whether new judicial interpretations of the career
offender guidelines provisions are new substantive rules for retroactivity purposes is
far from clear. See Welch, 604 F.3d at 413-14 n.7; United States v. Giggey, 551 F.3d
27, 36 n.3 (1st Cir. 2008).
7
We reject Sun Bear’s contention that the Government only argued harmless
error to the panel. At page 16 of its brief to the panel, the government argued, “Sun
Bear cannot demonstrate the application of the career offender enhancement resulted
in a complete miscarriage of justice.” That is a cognizability argument.

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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.” Auman
v. United States, 67 F.3d 157, 161 (8th Cir. 1995); accord United States v. Pregent,
190 F.3d 279, 284 (4th Cir. 1999), and cases cited; United States v. Williamson, 183
F.3d 458, 462 (5th Cir. 1999); Graziano v. United States, 83 F.3d 587, 590 (2d Cir.
1996). Therefore, such questions “may not be re-litigated under § 2255.” United
States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000). Although decisions such as
Auman have reserved judgment as to whether a misapplication of the Sentencing
Guidelines could ever support § 2255 relief, 67 F.3d at 161, neither the parties’ nor
our own research have uncovered decisions in which a guidelines error was held to be
a “complete miscarriage of justice” cognizable under § 2255 prior to the panel opinion
in Gilbert v. United States, 609 F.3d 1159, 1163-67 (11th Cir. 2010), an opinion the

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Eleventh Circuit vacated when it granted a rehearing en banc. Gilbert v. United
States, 625 F.3d 716 (11th Cir. 2010). 8

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. United States v. Foster, 514 F.3d 821, 824 (8th Cir.
2008); United States v. Stobaugh, 420 F.3d 796, 804 (8th Cir. 2005) (“a sentence is
not illegal . . . unless it exceeds the statutory maximum for the offense of conviction”),
cert. denied, 546 U.S. 1120 (2006). 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.
Unlike cases such as Welch and Shipp, where applying the ACCA increased the

8
The en banc court recently reversed the panel opinion on other grounds,
declining to consider the issue we address -- “whether a claim that the sentencing
guidelines were misapplied may be bought in a first time § 2255 motion.” Gilbert v.
United States, 2011 WL 1885674 at *29 (11th Cir. May 19, 2011).

For its contrary view, the dissent relies on the recent panel decision in Narvaez
v. United States, 2011 WL 2162901 (7th Cir. June 3, 2011). Infra at n.4 & 8-9.
Though factually distinguishable from this case because Narvaez was sentenced
outside his then-mandatory unenhanced guidelines range, id. at *1, the Seventh Circuit
panel’s discussion is at least in tension with this opinion. Id. at *4. We respectfully
disagree with that portion of its discussion. The government has advised that it
intends to petition the Seventh Circuit for rehearing en banc in Narvaez.

The dissent also cites our unpublished opinion in Seebeck v. United States, 395
F. App’x 326 (8th Cir. 2010), for the proposition that a Begay retroactivity claim is
cognizable under § 2255. But the panel in Seebeck simply followed the prior panel
decision in Sun Bear II. Seebeck is hereby overruled.

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defendant’s statutory maximum sentence, the same 360-month sentence could be
reimposed were Sun Bear granted the § 2255 relief he requests.9 Thus, no miscarriage
of justice is at issue.

The Supreme Court’s opinion in Davis, on which the panel relied, is not to the
contrary. Although the claim in Davis, like Sun Bear’s claim, was based upon an
“intervening change in the law,” the Supreme Court explained in Addonizio that the
miscarriage of justice in Davis resulted from “a change in the substantive law that
established that the conduct for which petitioner had been convicted and sentenced
was lawful.” 442 U.S. at 186-87 (emphasis added). Here, Sun Bear’s conduct was
unlawful. This made his murder conviction and a 360-month sentence lawful, both
at the time of his conviction and sentencing, and now.

Our cases applying the complete-miscarriage-of-justice exception in other
contexts support this conclusion. In Stobaugh, 420 F.3d at 804, we concluded that
enforcing an appeal waiver does not result in a miscarriage of justice unless the
sentence imposed “exceeds the statutory maximum for the offense of conviction.”
Accord United States v. Reynolds, 432 F.3d 821, 824 (8th Cir. 2005); United States
v. Andis, 333 F.3d 886, 892 (8th Cir.) (en banc), cert. denied 540 U.S. 997 (2003).
In United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001), cert. denied, 534 U.S.
1083 (2002), we reversed the grant of § 2255 relief vacating a guidelines-range
sentence because “the miscarriage-of-justice exception to the rule against relitigating

9
Prior to enactment of the Sentencing Reform Act of 1984, Fed. R. Crim. P.
35(a) provided, “The court may correct an illegal sentence at any time . . . .” In the
Reform Act, which established the Sentencing Guidelines, Congress took the unusual
step of rewriting this rule of criminal procedure to eliminate Rule 35(a). Pub. L. No.
98-473, § 215(b), 98 Stat. 2015-16 (1984). This evidences an intent that applications
of guidelines provisions not be subject to collateral attack beyond the boundaries of
what Supreme Court decisions had confirmed were cognizable § 2255 claims -- errors
that are jurisdictional, constitutional, or result in a complete miscarriage of justice.
See Scott v. United States, 997 F.2d 340, 340-41 (7th Cir. 1993).

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matters decided on direct appeal” applies “only when petitioners have produced
convincing new evidence of actual innocence”; new evidence that defendant was
“actually innocent of the sentence imposed” would not be sufficient because “the
actual-innocence exception does not apply to noncapital sentences.” See also Sawyer
v. Whitley, 505 U.S. 333, 339 (1992) (“the miscarriage of justice exception is
concerned with actual as compared to legal innocence”); Embrey v. Hershberger, 131
F.3d 739, 740-41 (8th Cir. 1997) (en banc), cert. denied, 525 U.S. 828 (1998).10

Abandoning the panel’s view that Sun Bear’s sentence was unlawful, the
dissent “keys off” a statement in Hill, 368 U.S. at 428, repeated in United States v.
Timmreck, 441 U.S. 781, 783 (1979), that “manifest injustice” includes “an omission
inconsistent with the rudimentary demands of fair procedure.” Infra at 7-8. Both Hill
and Timmreck turned on procedural issues. This case does not. Sun Bear has been
afforded fair procedure throughout his direct appeal and § 2255 proceedings. By
focusing on this single phrase in an unrelated context, the dissent produces a
“miscarriage of justice” discussion completely untethered to the basic principle that,
in sentencing, a miscarriage of justice cognizable under § 2255 occurs when the
sentence is in excess of that authorized by law. Addonizio, 442 U.S. at 184. Unlike
the panel, Sun Bear II, 611 F.3d at 930, the dissent shifts the analysis, equating
“miscarriage of justice” with every substantive sentencing result that can be
characterized, in hindsight, as lacking “rudimentary” fairness. We reject this open-
ended expansion of the doctrine as contrary to controlling Supreme Court precedent.
Moreover, when we take into account, first, that the 360-month sentence was both
below the statutory maximum and within the unenhanced guidelines range as
determined by the district court after applying an upward departure at the time of

10
We have granted, on direct appeal, plain error review of some errors in
applying the mandatory Guidelines. See United States v. Pirani, 406 F.3d 543, 553
(8th Cir.) (en banc), cert. denied, 546 U.S. 909 (2005). But the showing required for
a collateral attack under § 2255 is greater than that required to establish plain error.
Frady, 456 U.S. at 166.

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sentencing, and second, that if granted § 2255 relief, Sun Bear would be resentenced
under an advisory guidelines regime that permits an upward variance to 360 months
even if the district court were persuaded to determine a lower advisory range, any
notion that his sentence as a career offender resulted in a miscarriage of justice
because it was lacking in rudimentary fairness evaporates.

For these reasons, the order of the district court denying Sun Bear’s motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is affirmed.

MELLOY, Circuit Judge, with whom MURPHY, BYE, SMITH, and SHEPHERD,
Circuit Judges join, dissenting.

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,11 it is not clear the error below was harmless,12 and Sun Bear has diligently

11
The majority appears to reluctantly concede, as a general matter, that the
limited holding of Begay has retroactive effect. The majority suggests, however, that
the rule of Begay may not. I note, as a I did in Sun Bear II, that the government
conceded to the court in argument that Begay has retroactive effect in this case.
See Sun Bear II, 611 F.3d 925, 927 (8th Cir. 2010). Further, for the reasons set forth
in that panel opinion, Begay would have retroactive effect in this case even in the
absence of such a concession. Id. at 928–29.
12
I note, as I did in Sun Bear II, that the government did not advance arguments
alleging harmless error in Sun Bear's direct appeal. See Sun Bear II, 611 F.3d at 930
n.5. Rather, the government's first suggestion of harmless error appeared in arguments
to the district court in the § 2255 proceedings that led to our opinion in Sun Bear II.
Further, I interpret the arguments to the panel in Sun Bear II as containing a
government concession that, if the error were not harmless, then the defendant's
sentence would represent a miscarriage of justice. In fact, the government directed its

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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.

The majority correctly notes that, as a general rule, run-of-the-mill sentencing
errors are not cognizable in § 2255 proceedings. Neither our court nor the Supreme
Court, however, has previously interpreted this general rule as being absolute. In our
prior opinions, we carefully left open the possibility of exceptions as demanded by
justice. Finally, the government has conceded that this case does not involve a run-of-
the-mill sentencing issue.13 For all of these reasons, as explained below, I would hold
that denying relief in the present circumstances would result in a miscarriage of justice
and that § 2255 permits a remedy. The contrary result dictated by the majority's
holding promotes finality at the expense of justice in a situation where, unlike most
AEDPA cases, there are no concerns of comity or federalism. Thus, I cannot join
"[t]his . . . approach to sentencing claims [that] is nothing more than a judicial
'gotcha.'" Gilbert v. United States, ___ F.3d ___, 2011 WL 1885674, at *41 (11th Cir.
May 19, 2011) (en banc) (Hill, J., dissenting).

arguments to the panel primarily towards establishing that the error was harmless. For
the reasons I previously set forth in Sun Bear II, 611 F.3d at 931–32, the error was
not, in fact, harmless.
13
At oral argument, counsel for the government stated, "[W]e concede that the
Begay issue is not a garden variety issue, particularly, in light of the circumstances
of this case because of the fact it was objected to and appealed, and then timely
brought up here, we submit that it is our position that would not be a garden variety,
just a typical run of the mill Guidelines issue."

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 I. Eighth Circuit Precedent: Exception to the General Rule

Although the en banc court is not strictly constrained by our prior opinions, I
find it compelling that no such opinions preclude finding a miscarriage of justice in
the present circumstances, i.e., where a challenged sentence results from a guidelines
error but falls within the statutory range. The majority cites cases in which we defined
the concept of a miscarriage of justice in other settings, but we have not previously
applied those cases in the present context. In fact, the government's primary authority,
Auman v. United States, 67 F.3d 157 (8th Cir. 1995), expressly leaves open this
possibility, and in at least one similar case, we actually granted relief. Seebeck v.
United States, 395 F. App'x 326 (8th Cir. 2010) (per curiam).

In Auman, the defendant pleaded guilty to a drug offense. The district court
determined that prior convictions qualified as "either . . . crime[s] of violence or . . .
controlled substance offense[s]." Id. at 159. On direct appeal, the defendant failed to
contest these career-offender findings. The court of appeals affirmed as to the issues
actually raised. The defendant then moved to have the district court vacate and
reconsider his sentence pursuant to 18 U.S.C. § 3742(a), raising for the first time a
challenge to the career-offender guideline determination. The district court looked at
the conduct underlying the conviction, determined it was a crime of violence, and
refused to grant relief. The defendant appealed, but we determined that the district
court had lacked jurisdiction to entertain the order under 18 U.S.C. §§ 3582 and 3742.
The defendant then filed a § 2255 motion challenging the career-offender
determination as to one of the prior convictions.

The court of appeals rejected his challenge, due in large part to procedural
default and the defendant's failure to preserve error, stating:

Auman's Sentencing Guideline claim is not properly brought under
section 2255, but should have been raised on direct appeal. See United

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 States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995) ("Collateral
proceedings under 28 U.S.C. § 2255 cannot be made to do service for an
appeal."). While section 2255 does provide relief for cases in which "the
sentence was in excess of the maximum authorized by law," this
provision applies to violations of statutes establishing maximum
sentences, rather than garden-variety Sentencing Guideline application
issues.

Id. at 160–61 (emphasis added). The court continued its discussion, citing an earlier
per curiam opinion which stated that a defendant could "'not obtain § 2255 relief for
unappealed errors to which no contemporaneous objection was made unless he can
show both cause and prejudice.'" Id. at 161 (quoting United States v. Wilson, 997
F.2d 429, 431 (8th Cir. 1993) (per curiam). The court noted, "As to the Sentencing
Guidelines arguments, we affirmed the district court's holding that these claims should
have been brought on direct appeal, and thus implicitly, that they did not fall within
the section 2255 provision for sentences 'in excess of the maximum authorized by
law.'" Id. (quoting Wilson, 997 F.2d at 431).

Finally, Auman cited authority from other circuits and noted general agreement
"that issues of guideline interpretation do not constitute proper section 2255 claims
unless they rise to the level of being a miscarriage of justice." Id. The court
concluded by reserving ruling on the core issue of the present case:

[W]e reserve judgment on whether violation of the guidelines could ever
be cognizable under section 2255. We merely hold that ordinary
questions of guideline interpretation falling short of the “miscarriage of
justice” standard do not present a proper section 2255 claim. Auman's
claim of error in interpreting the career offender guidelines does not
present a cognizable claim.

Id. Auman, then, does not preclude relief in the present case, nor does it demonstrate
that the miscarriage-of-justice "exception" in the sentencing-guideline context is to be
equated solely with sentences outside the applicable statutory range, as held by the

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majority today. Rather, Auman expressly left open an exception as required by the
ends of the justice and rested its holding on procedural default.

After Auman, our court repeatedly cited the general prohibition on § 2255 relief
for run-of-the-mill sentencing errors, noted the exception for a miscarriage of justice,
but found the exception inapplicable. The court, however, has not firmly limited the
miscarriage-of-justice exception to situations involving sentences outside the
applicable statutory range, as suggested by the majority. Supra at 7–8. In King v.
United States, 595 F.3d 844 (8th Cir. 2010), for example, the court faced a § 2255
claim related to a purported error in applying the guideline career-offender provisions.
As in Auman, the error was not preserved; it was raised for the first time in the § 2255
motion. Again, the court stated a general rule, but employed the qualifying language
saving an exception for miscarriages of justice:

King cannot obtain relief on the basis of the guideline error alone,
however, because he waived the right to bring all § 2255 claims except
claims of ineffective assistance of counsel or prosecutorial misconduct.
We have recognized in any case that "ordinary questions of guideline
interpretation" are not remediable on a § 2255 motion unless the error
rises to the level of being a miscarriage of justice. Auman v. United
States, 67 F.3d 157, 161 (8th Cir. 1995). This case does not rise to that
extraordinary level.

King, 595 F.3d at 852 (emphasis added). Ultimately, the court in King provided
relief, holding that the defendant should not have been bound to his plea waiver. Like
Auman, however, King involved issues of unpreserved error thus distinguishing that
case from the present situation and providing no opportunity to determine whether a
defendant's eventual vindication as to properly asserted and properly preserved
arguments concerning the career-offender provisions should afford a basis for § 2255
relief pursuant to the miscarriage-of-justice exception.

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 At a minimum, King shows that it is proper to label some guidelines errors as
involving miscarriages of justice. In addressing the impropriety of enforcing the
waiver, the court in King applied plain error review. The final step of plain error
review (integrity of judicial proceedings, etc.) is an articulation of a type of
miscarriage-of-justice standard, and, in King, the court granted relief under plain error
review due to the imposition of a beyond-the-guideline-range sentence. The court
stated:

The dismissal of King's direct appeal on the basis of an unenforceable
waiver was plain error. Furthermore, there can be little doubt that the
petitioner's substantial rights are affected if his prison sentence is longer
than it should have been. But for the failure of King's counsel, the court
would have reached the merits of his argument. Since we now conclude
that argument succeeds, it follows that there is a strong probability that
but for the error he would have received a more favorable sentence.

Finally, we afford relief only where a plain error seriously affects the
fairness, integrity or public reputation of judicial proceedings. King
received a sentence many years beyond the correct guideline range. He
advanced pro se a meritorious argument which his lawyer ignored, and
his appeal was summarily dismissed for an improper reason. The error
seriously affected the fairness and integrity of the proceedings, and we
therefore find it proper to grant the relief King seeks.

Id. at 854 (internal quotation marks and citations omitted, emphasis added).

Even more recently, an Eighth Circuit panel granted relief based on a Begay
retroactivity claim in the context of a § 2255 motion. See Seebeck v. United States,
395 F. App'x 326 (8th Cir. 2010) (per curiam). In Seebeck, which, again, did not
involve preserved error, the court vacated and remanded because it appeared the
district court had wrongly concluded Begay did not apply retroactively. Of course,
if no sentencing error could ever qualify as a miscarriage of justice leading to § 2255
relief, it would have been unnecessary and improper to remand in Seebeck—there was
no allegation that the sentence in Seebeck was outside the applicable statutory range.
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Seebeck, then, although merely a per curiam, unpublished opinion, shows that Begay-
type sentencing-guideline errors, even if not preserved, are not to be considered
ordinary guideline errors and may be sufficient to meet the miscarriage-of-justice
exception to the general bar on granting § 2255 relief in the context of non-statutory
sentencing errors.14

II. Miscarriage of Justice

Notwithstanding the absence of prior authority to support the majority's
elimination of the often-referenced "exception," it remains necessary to determine
whether a denial of relief in the present circumstances amounts to a miscarriage of
justice. In this regard, there is guidance from the Supreme Court as to how we should
define the term "miscarriage of justice," in this and similar settings.

In Davis v. United States, 417 U.S. 333 (1974), the Court applied habeas
standards in the context of a § 2255 motion challenging a conviction based on a law
found invalid after resolution of a defendant's unsuccessful direct appeal. Quoting
Hill v. United States, 368 U.S. 424, 428 (1962), the Court stated, "[T]he appropriate
inquiry was whether the claimed error of law was 'a fundamental defect which
inherently results in a complete miscarriage of justice,' and whether '[i]t . . . present[s]

14
The majority cites an absence of extra-jurisdictional authority holding a
sentencing error may satisfy the miscarriage-of-justice exception. I note, however,
that the issue is not as well-settled as suggested. Several circuits have yet to articulate
their standard and continue to hold open the possibility of § 2255 relief in cases such
as this. See, e.g., Gilbert, 2011 WL 1885674, at *29 ("We do not decide whether a
claim that the sentencing guidelines were misapplied may be brought in a first time
§ 2255 motion."); United States v. O'Neal-Sloane, 371 F. App'x 298, 301 (3d. Cir.
2010) ("Arguably, an incorrect classification as a career offender would be a
miscarriage of justice but O'Neal-Sloane does not present such a case."). Further, the
Seventh Circuit recently granted § 2255 relief based upon sentencing error that
resulted in a sentence within the statutory range. See Narvaez v. United States, ___
F.3d ___, 2011 WL 2162901 (7th Cir. June 3, 2011).
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exceptional circumstances where the need for the remedy afforded by the writ of
habeas corpus is apparent." Davis, 417 U.S. at 346. Later, in United States v.
Timmreck, 441 U.S. 780 (1979), the Court rejected a claim that a mere technical
violation of a Rule 11 notice requirement regarding terms of supervised release could
justify § 2255 relief. There, the Court stated, "It is not a fundamental defect which
inherently results in a complete miscarriage of justice, nor an omission inconsistent
with the rudimentary demands of fair procedure." Id. at 783 (emphasis added)
(quoting Hill, 368 U.S. at 428). Importantly, the Court in Timmreck proceeded to
examine the facts of the case, found no harm, and explained how the particular
omission at issue had not resulted in a proceeding "inconsistent with the rudimentary
demands of fair procedure." Id. at 784 (internal quotation marks omitted). The Court
specifically limited its holding, stating, "[W]e find it unnecessary to consider whether
§ 2255 relief would be available if a violation of Rule 11 occurred in the context of
other aggravating circumstances." Id. 784–85.

Keying off this language, it seems clear that, rather than borrowing a
miscarriage-of-justice standard from absolutist and non-analogous settings such as the
enforcement of appeal waivers or the application of the actual-innocence exception,
supra at 7–8, the key inquiry today must be whether the present case satisfies "the
rudimentary demands of fair procedure." The Supreme Court's own language and the
fact that it actually reviewed the alleged error in Timmreck for harmlessness, id. at
784, support this conclusion. Rudimentary demands of fair procedure require § 2255
relief where the preserved error is not harmless and where it is ultimately shown that
the defendant was correct all along as to a fully preserved issue made retroactive after
a conviction becomes final. Had the Court's rule been absolute, as interpreted by the
majority today, the Court would have had no reason to conduct a harmless error
review in Timmreck or to note the absence of other aggravating circumstances.

Facing an issue nearly identical to that in the present case, the Seventh Circuit
recently held a sentencing error cognizable in an initial § 2255 proceeding even
though the sentence at issue fell within the applicable statutory range. See Narvaez
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v. United States, ___ F.3d ___, 2011 WL 2162901, at *4–5 (7th Cir. June 3, 2011)
(granting relief, but noting, "Unlike the situation under the [Armed Career Criminal
Act], Mr. Narvaez's 170-month sentence was actually within the authorized 20-year
statutory maximum for his crime"). There, the court rejected arguments similar to
those advanced by today's majority, holding, "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." Id. at *5. The court called arguments
about what sentence the district court might have imposed in the absence of the career-
offender enhancement "[s]peculation" and held that the defendant had "an absolute
right not to have extra punishment imposed on the basis of an inapplicable
enhancement." Id. The court rejected attempts by the government to mischaracterize
the defendant's asserted right as "an absolute right to a lower sentence" and
appropriately identified the right at issue as "the right not to have extra punishment
imposed" without legal justification. Id. (emphasis added). This characterization of
the issue rejects the fiction, adopted by today's majority, that no process is denied as
long as a sentence falls below the statutory maximum.

The court in Narvaez, and the dissenters in a recent, en banc Eleventh Circuit
opinion correctly note that the present issue pits concerns of finality against justice
with no attendant issues of comity or federalism as often arise in AEDPA cases.
Gilbert, 2011 WL 1885674, at *38–39 (Martin, J., dissenting); id. at *41–42 (Hill, J.,
dissenting). In Gilbert, the en banc court strictly and expressly limited its holding to
the unique situation presented in that case, namely, the ability to seek the type of relief
discussed herein through a successive § 2255 motion where error was not fully
preserved. Id. at *29 (holding a Begay sentencing error not cognizable in a
subsequent § 2255 petition but stating, "We do not decide whether a claim that the
sentencing guidelines were misapplied may be brought in a first time § 2255 motion").
The numerous dissents and concurrences contained therein suggest a firm split in that
court as to how it might resolve the actual issue we face today.

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 Discussing concerns of finality, a first dissenter described the reasons we value
finality and convincingly demonstrated that none of those reasons were furthered by
a denial of relief:

First, denying relief does not build confidence in our court system
because this looks to the world like a court refusing to acknowledge or
make amends for its own mistake. Second, to the extent that there have
been administrative costs and delay in considering Mr. Gilbert's request
for relief, they have already been incurred, and we need only grant him
that relief to end his very expensive incarceration. Third, because the
only issue before us is a purely legal one, there is no evidence we must
consult. Thus spoilation is not a concern. And finally, Mr. Gilbert's case
presents no comity concerns insofar as he seeks to correct a sentence
imposed in federal court and not by the state.

Id. at *39 (Martin, J., dissenting). Emphasizing the defendant's diligence, the next
dissenter stated, "[The defendant] raised his claim of sentencing error to every court
he could, every chance he got. No court correctly resolved his claim until the
Supreme Court made clear that [his] claim was meritorious—he was never a career
offender." Id. at *41 (Hill, J., dissenting).

Judge Hill eloquently concluded:

I recognize that without finality there can be no justice. But it is equally
true that, without justice, finality is nothing more than a bureaucratic
achievement. Case closed. Move on to the next. Finality with justice is
achieved only when the imprisoned has had a meaningful opportunity for
a reliable judicial determination of his claim. Gilbert has never had this
opportunity.

Id. at *42.

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 Like the court in Narvaez and the dissenters in Gilbert, I find the sole
justification for the majority's holding today to be an uncompelling and unjust denial
of process resting on hollow claims of a need to promote finality. I find the dissenter's
views in Gilbert to be particularly persuasive because that court was facing a
successive petition whereas Sun Bear's case is even more compelling: he now
advances his fully preserved and diligently pursued arguments in this, his first attempt
at collateral review pursuant to § 2255.

Finally, I note that the government presents a parade of horribles suggesting
there will be an overwhelming burden caused by the application of § 2255 in this
context due to the number of career offenders, the number of post-Begay crime of
violence disqualifications, and the number of other Guidelines errors likely to be
raised in § 2255 motions. This alarmist argument is wholly without merit given the
limitation of the facts of the present case: fully preserved error in the context of new
Supreme Court authority issued with retroactive effect as applied in a case that cannot
pass a harmless error inquiry. Further, the government's argument suggests that
keeping court dockets clear is more important than the liberty of those prisoners who
potentially should not be serving career-offender sentences. Even if there were merit
to the government's assertions, resentencings pursuant to recent guideline amendments
have shown the courts' ability to efficiently process sentencing adjustments en mass.
______________________________

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