In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1245
B ERNARD H AWKINS,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:10-cv-00016-JTM—James T. Moody, Judge.
A RGUED O CTOBER 29, 2012—D ECIDED F EBRUARY 7, 2013
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. This appeal from the denial of
a motion under 28 U.S.C. § 2255 to set aside the sentence
in a federal criminal case presents the question
whether an error in calculating the applicable guide-
lines sentencing range can be corrected in a postconvic-
tion proceeding, now that the guidelines are merely
advisory rather than, as they formerly were, mandatory.
2 No. 11-1245
Bernard Hawkins has a long, long history of violent
crimes, gun offenses, escapes, drug use, and violations
of supervised release. In May 2003 he assaulted two
U.S. marshals who were trying to arrest him pursuant
to a bench warrant stemming from his failure to attend
a court hearing on his latest violation of supervised
release. He pleaded guilty to having committed a vio-
lent assault, with a weapon, that had inflicted bodily
injury on one of the marshals. 18 U.S.C. §§ 111(a)(1), (b),
1114. Surprisingly, given the violence of his assault
with a sharply pointed piece of a banister that he had
ripped out of its moorings—an offense for which the
statutory maximum sentence was 20 years, § 111(b)—his
guidelines sentencing range would have been only 15 to
21 months’ imprisonment, or possibly 24 to 30 months
(the district judge found it unnecessary to decide
which), had he not been a career offender within the
then widely understood meaning of the career offender
guideline. U.S.S.G. § 4B1.1(a).
That guideline increases the sentencing range for a
defendant who has “at least two prior felony convictions
of either a crime of violence or a controlled substance
offense.” A criminal record of that character implies
an abnormal propensity to commit serious crimes in the
future and therefore a need for a greater punishment
to incapacitate or deter him. Ryan v. United States, 214
F.3d 877, 881 (7th Cir. 2000); United States v. Belton, 890
F.2d 9, 10 (7th Cir. 1989), overruled on other grounds by
United States v. Garecht, 183 F.3d 671, 675 (7th Cir. 1999).
Hawkins had two prior felony convictions for escape,
18 U.S.C. § 751(a), and though both were “walkaway”
No. 11-1245 3
escapes rather than violent breakouts, the law in this
circuit when he was sentenced for the assault was that
a walkaway escape is a crime of violence. United States
v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002). That made
Hawkins a career offender and so raised his guidelines
range to 151 to 188 months. The judge sentenced him to
the bottom of the range. The sentence, though far above
the guidelines range that would have been applicable
had the career offender guideline not been in play, was
well below the statutory maximum for Hawkins’ offense
of conviction, which as we said was 20 years.
At the time he was sentenced, the guidelines were
mandatory; two years later the Supreme Court in the
Booker case declared them advisory. Hawkins’s appeal
from his sentence was pending in this court when
Booker was decided, and on the authority of that decision
we directed the district judge to resentence him. United
States v. Hawkins, 136 Fed. Appx. 922 (7th Cir. 2005). On
remand the judge reimposed the 151-month sentence,
and we affirmed. 168 Fed. Appx. 98 (7th Cir. 2006). Three
years later the Supreme Court held that an “escape” that
takes the form of a failure to report is not a “violent
felony” within the meaning of the Armed Career
Criminal Act, 18 U.S.C. § 924(e). United States v. Chambers,
555 U.S. 122, 127-30 (2009). A walkaway escape is similar
and is also (given Chambers) not a violent felony within
the meaning either of that Act or of the similarly
worded career offender guideline. See United States v.
Hart, 578 F.3d 674, 681 (7th Cir. 2009); United States v.
Templeton, 543 F.3d 378, 383 (7th Cir. 2008); United States
4 No. 11-1245
v. Ford, 560 F.3d 420, 426 (6th Cir. 2009). So Hawkins
filed the section 2255 motion that is now before us. The
district judge, in his third ruling with regard to the sen-
tence, denied the motion on the ground that the legal
error that he had committed in deeming such an escape
a violent felony was not the kind of error that can
be corrected after the judgment in a criminal case
has become final.
Section 2255(a) authorizes postconviction alteration of
a sentence that “was imposed in violation of the Con-
stitution or laws of the United States, or that the court
was without jurisdiction to impose . . ., or that . . . was
in excess of the maximum authorized by law, or is other-
wise subject to collateral attack.” Hawkins refers us
to Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir.
2011), which held that a sentence that violated the
career offender sentencing guideline could be success-
fully attacked in a postconviction proceeding even
though the sentence was shorter than the statutory maxi-
mum. But Narvaez, as our opinion emphasized, unlike
Hawkins, had been sentenced when the guidelines were
mandatory. Id. at 628-29; see also Brown v. Rios, 696 F.3d
638, 640 (7th Cir. 2012); United States v. Wyatt, 672 F.3d
519, 523 (7th Cir. 2012). It was arguable therefore that his
sentence exceeded the maximum authorized by “law.”
Before Booker the guidelines were the practical equivalent
of a statute. Cf. Scott v. United States, 997 F.2d 340, 341
(7th Cir. 1993). Departures were permitted on specified
grounds, but in that respect the guidelines were no dif-
ferent from statutes, which often specify exceptions.
No. 11-1245 5
Not only do the guidelines no longer bind the sen-
tencing judge; the judge may not even presume that a
sentence within the applicable guidelines range would
be proper. He must determine whether it is consistent
with the sentencing considerations set forth in 18 U.S.C.
§ 3553(a), and if he finds it is not he may not impose it
even though it is within the applicable guidelines
range. Nelson v. United States, 555 U.S. 350, 351-52 (2009);
Rita v. United States, 551 U.S. 338, 351 (2007).
The first step in sentencing—calculating the guidelines
range correctly—was not changed by Booker. But the step
is less important now that the guidelines, including
the career offender guideline, United States v. Corner, 598
F.3d 411, 415 (7th Cir. 2010) (en banc), are merely advisory
and the sentencing judge, being forbidden to presume the
reasonableness of a guideline sentence, must make
an independent determination of whether a guideline
sentence would comport with the sentencing standard
set forth in 18 U.S.C. § 3553(a). That is a critical dif-
ference between Narvaez and the present case and also
between the present case and United States v. Paladino,
401 F.3d 471, 482 (7th Cir. 2005). The judge’s error in
Paladino was to deem the guidelines mandatory rather
than advisory, thus foreclosing application of the sen-
tencing factors in section 3553(a), which might have
induced the judge to give a lighter sentence. That was
a more serious, a more consequential, error than in
the present case. Paladino called it a miscarriage
of justice; the lesser error in the present case does not
warrant such a characterization. The judge reim-
posed the 151-month sentence after Booker had
6 No. 11-1245
made the sentencing guidelines merely advisory, as he
well knew when he reimposed the sentence. No longer
can it be argued that he imposed a sentence “in excess of
the maximum authorized by law,” since the statutory
maximum sentence for Hawkins’s offense was as we
said 20 years (240 months). Under the regime of Booker
the sentencing judge must comply with the command of
28 U.S.C. § 3553(a) “to impose a sentence sufficient, but
not greater than necessary, to comply with the purposes
[of sentencing] set forth in” the next paragraph of
section 3553(a). In resentencing Hawkins the district
judge made clear that he considered the 151-month sen-
tence that he had imposed appropriate, even though no
longer commanded because the career offender guide-
line was no longer mandatory. And on postconviction
review he confirmed that “apart from the career offender
sentencing enhancement it was appropriate for the court
to consider Hawkins’ long and violent criminal history”
(emphasis added) and therefore that “Hawkins’ sentence
was reasonable even without application of the § 4B1.1
career offender enhancement.”
Hawkins argues that he was “punished for conduct
that is not punishable,” conduct “that is not criminal,”
punished in violation of “substantive law,” “subjected to
an illegal enhancement,” and that he has been in prison
“longer than the law permitted.” None of these asser-
tions is correct. What’s true is that the judge made a
mistake in resentencing Hawkins—he realized that the
guidelines were now merely advisory but thought that
under them a walkaway escape was a crime of violence.
But not every error is corrigible in a postconviction pro-
No. 11-1245 7
ceeding, even if the error is not harmless. Suppose
the probation service in recommending a sentence to
a district judge makes a mistake in applying the (advi-
sory) guideline that the judge doesn’t catch. As a
result he imposes an above-guidelines sentence, which
he wouldn’t have done had he caught the error; none-
theless the sentence is below the statutory maxi-
mum. The error could not be corrected in a postconvic-
tion proceeding. Welch v. United States, 604 F.3d 408,
412 and n. 4 (7th Cir. 2010); Scott v. United States, supra,
997 F.2d at 342; Gilbert v. United States, 640 F.3d 1293, 1323
(11th Cir. 2011) (en banc); United States v. Mikalajunas, 186
F.3d 490, 495-96 (4th Cir. 1999).
Neither should an erroneous interpretation of the
guidelines be corrigible in such a proceeding—especially
when the interpretation is discovered to be erroneous
after the proceeding in which it was committed has
become final through exhaustion of appellate remedies.
For in such a case the challenge to the judgment de-
pends on the retroactive application of a new rule (the
corrected interpretation), and such retroactivity is
disfavored because it thwarts finality in the criminal
process. Teague v. Lane, 489 U.S. 288, 308-10 (1989) (plural-
ity opinion). Precedential decisions come pouring out
of the federal courts of appeals and the Supreme Court.
If every precedential decision interpreting the guide-
lines favorably to a prisoner were a ticket to being
resentenced, the Justice Department and the courts
might be forced “continually . . . to marshal resources
in order to keep in prison defendants whose trials and
appeals [and sentences] conformed to then-existing
8 No. 11-1245
constitutional [and statutory] standards.” Id. at 310. (It
has even been suggested, though we’re skeptical, that
judges might be discouraged from proposing new inter-
pretations of the guidelines for fear that federal courts
would be inundated with claims for postconviction
relief. See John C. Jeffries, Jr., “The Right-Remedy Gap
in Constitutional Law,” 109 Yale L.J. 87, 98-99 (1999).)
Resentencing is not as heavy a burden for a district
court as a complete retrial, but it is a burden, and the
cumulative burden of resentencing in a great many stale
cases could be considerable. About 80,000 persons are
sentenced in federal district courts every year. In every
case the judge must calculate a guidelines sentencing
range. A change in the interpretation of a guideline
could therefore, if always deemed retroactive, greatly
increase both the number of section 2255 motions and
the number of resentencings. There is a difference be-
tween reversing an error on appeal and correcting the
error years later. An erroneous computation of an
advisory guidelines sentence is reversible (unless harm-
less) on direct appeal; it doesn’t follow that it’s
reversible years later in a postconviction proceeding.
We said in Narvaez that Chambers “is retroactively
applicable on collateral review.” 674 F.3d at 626. Finality
is an important social value, but not important enough
to subject a defendant to “a punishment that the law
cannot impose upon him,” Schriro v. Summerlin, 542
U.S. 348, 352 (2004), such as a sentence that exceeds the
statutory maximum sentence for his crime or a guideline
ceiling that has the force of a statute because the judge
is forbidden to exceed it. See Narvaez v. United States,
No. 11-1245 9
supra, 674 F.3d at 626; Welch v. United States, supra, 604
F.3d at 413-14; see also United States v. Shipp, 589 F.3d
1084, 1089, 1091 (10th Cir. 2009). An error in the inter-
pretation of a merely advisory guideline is less serious.
Given the interest in finality, it is not a proper basis for
voiding a punishment lawful when imposed.
Though demoted by Booker to being merely advisory, the
guidelines remain influential. But how influential?
These days only a slight majority (53.1 percent) of sen-
tences are within the applicable guidelines range. U.S.
Sentencing Com m ission, “Prelim inary Quarterly
Data Report” 12 (3rd Quarter Release Preliminary
Fiscal Year 2012 Data Through June 30, 3012),
www.ussc.gov/Data_and_Statistics/Federal_Sentencing_
Statistics/Quarterly_Sentencing_Updates/USSC_2012_3rd_
Quarter_Report.pdf (visited Jan. 19, 2013). Still, the guide-
line ranges exert a gravitational pull on non-guideline
sentences, making them closer to sentences within
that range than they would be were there no guidelines.
(This is what is called in psychology an “anchoring
effect.”) So the judge might have given Hawkins a lower
sentence had Chambers been decided earlier. But he
would not have been required to do so and we don’t
think that a sentence that is well below the ceiling im-
posed by Congress whether directly or by delegation to
the Sentencing Commission should, as Hawkins argues,
be considered a “miscarriage of justice” that can be col-
laterally attacked, just because the judge committed a
mistake en route to imposing it. That’s the balance the
cases strike between the interest in finality and the
10 No. 11-1245
injustice of a possibly mistaken sentence. See, e.g., United
States v. Addonizio, 442 U.S. 178, 186 (1979); United States v.
Timmreck, 441 U.S. 780, 784 (1979); Hill v. United States,
368 U.S. 424, 428 (1962); Scott v. United States, supra, 997
F.2d at 342; United States v. Mikalajunas, supra, 186 F.3d at
495-96. Booker made reversible on direct review all sen-
tences based on the belief, overturned by that decision,
that the guidelines were mandatory. United States v.
Paladino, supra, 401 F.3d at 483. But reversible on
appeal doesn’t mean reversible in postconviction pro-
ceedings, and in any event our defendant unlike
Narvaez was not sentenced under the mandatory guide-
lines regime.
In Hill v. United States, supra, 368 U.S. at 428, the
Supreme Court ruled that a denial of a criminal defen-
dant’s right of allocution (the right to make a state-
ment in court before he’s sentenced) was not “an error of
the character or magnitude cognizable under a writ of
habeas corpus” because it was “neither jurisdictional
nor constitutional. It is not a fundamental defect which
inherently results in a complete miscarriage of justice,
nor an omission inconsistent with the rudimentary de-
mands of fair procedure.” Granted, the error in Hill
probably was harmless: “there is no claim that the de-
fendant would have had anything at all to say if he had
been formally invited to speak.” Id. at 429. But it was not
harmless in United States v. Addonizio, supra, 442 U.S. at
187, where similar language—including language
quoted from Hill—appears. Id. at 185. Hawkins has not
tried to catalog the subset of miscalculations of advisory
No. 11-1245 11
guidelines that are miscarriages of justice that can be
corrected in postconviction proceedings rather than just
legal errors; he argues in effect that all errors (except,
presumably, harmless ones) are miscarriages of justice,
and with that we disagree.
Hawkins was sentenced nine years ago. He has served
almost three-quarters of the sentence that he now chal-
lenges as illegal. Yet it is “illegal” (his word, but not the
right word) in the sense not that it must be nullified, but
only that, were he correct in calling it a miscarriage of
justice, it would have to be reconsidered. If we ordered
resentencing, the judge could reimpose the identical
sentence. The defendant’s criminal record would justify
the judge’s doing that. Indeed we’re surprised that the
top of the guidelines range for a violent assault with a
weapon by a hardened criminal on two federal officers,
inflicting bodily injury, is only 21 or perhaps 30 months,
a quarter or less of the statutory maximum. It would be
no surprise if a sentencing judge, asked to choose
between 21 (or 30) and 151 months, chose the latter.
The judgment denying the section 2255 motion filed
by the defendant is
A FFIRMED.
12 No. 11-1245
R OVNER, Circuit Judge, dissenting. Last year this court
reviewed a remarkably similar case but reached the
opposite result. The majority’s rationale for a different
result here is illusory and for this reason I respectfully
dissent.
In Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011),
Luis Narvaez, like Hawkins, stood before a sentencing
court as a career offender, having been convicted (just
like Hawkins) twice before of escape for failing to re-
turn to confinement. Id. at 623. Just as with Hawkins,
the sentencing court’s application of the career offender
guideline increased Narvaez’s Guidelines range signifi-
cantly, but did not increase it past the statutory maxi-
mum. Id. at 629. After the Supreme Court in Chambers
clarified that a failure to return to confinement was not
a crime of violence and thus did not trigger a career
offender enhancement (Chambers v. United States, 555
U.S. 122 (2009)), Narvaez, like Hawkins, filed a post-
conviction motion under 28 U.S.C. § 2255 to vacate his
sentence. We noted that although sentencing errors are
generally not cognizable on collateral review, Narvaez’s
case presented a narrow exception, one in which a mis-
carriage of justice entitled Narvaez to relief. Narvaez,
674 F.3d at 630.
The premise of the opinion in Narvaez was that the
defendant had “an absolute right not to stand before
the court as a career offender when the law does not
impose that label on him.” Id. at 629. Once Narvaez had
been labeled a career offender, all of the court’s calcula-
tions and assessments were filtered through that lens
and consequently,
No. 11-1245 13
[t]he imposition of the career offender status
branded Mr. Narvaez as a malefactor deserving of
far greater punishment than that usually meted out
for an otherwise similarly situated individual who
had committed the same offense. It created a legal
presumption that he was to be treated differently
from other offenders because he belonged in a
special category reserved for the violent and incor-
rigible. No amount of evidence in mitigation or ex-
tenuation could erase that branding or its effect on
his sentence.
Id. at 629. The Narvaez court was not assuaged by the
fact that the defendant’s sentence fell below the ap-
plicable statutory maximum sentence. Id. This, the
court concluded, was not alone determinative of whether
a miscarriage of justice had occurred. Id. The miscar-
riage, as highlighted in the block quotation above, was
the branding of “career offender.” Such a label, in addi-
tion to creating a legal presumption of incorrigibility (or
perhaps because of it), increased dramatically the point
of departure for the sentence. Id. “[T]o assume that
the same sentence would have been imposed in the
absence of the career offender provision,” the Narvaez
court explained, “is frail conjecture that evinces in
itself an arbitrary disregard of the petitioner’s right to
liberty.” Id. (internal citations omitted).
Despite the remarkable correlation between the facts
and legal posture in Narvaez and this case, the majority
gives Narvaez short shrift. It does so, it says, because
Narvaez was sentenced before the Supreme Court
decided United States v. Booker, when the Guidelines
14 No. 11-1245
were mandatory and thus the judge was bound by the
determination to impose a particular sentence. United
States v. Booker, 543 U.S. 220 (2005). The majority, I fear,
hangs its precedent-distinguishing hat on an illusory
distinction.
In Booker, the Supreme Court declared that the U.S.
Sentencing Guidelines, which courts before had con-
sidered mandatory, were now only advisory. Id. at 245.
Booker indeed initiated a sea change in sentencing proce-
dures, but those changes do not affect the error in this
case. Both before and after Booker, the first step in sen-
tencing was and is for the sentencing judge to begin
the sentencing proceeding by correctly calculating
the applicable Guidelines range. See Gall v. United
States, 552 U.S. 38, 49 (2007). This was “step one” before
Booker and remains “step one” now. Our cases post-Booker
have routinely held that “although a judge is no
longer required to give a Guidelines sentence, he is re-
quired to make a correct determination of the Guide-
lines sentencing range as the first step in deciding
what sentence to impose.” United States v. Vrdolyak, 593
F.3d 676, 681-82 (7th Cir. 2010), (citing Gall, 552 U.S. at 50);
United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009). The
Guidelines must be the starting point and the initial
benchmark. United States v. Hurt, 574 F.3d 439, 442-43
(7th Cir. 2009). In case after case we have emphasized
that even after Booker, a failure to initially calculate the
Guidelines properly constitutes a legal error. See, e.g.,
United States v. Chapman, 694 F.3d 908, 913 (7th Cir.
2012); United States v. Halliday, 672 F.3d 462, 472 (7th
Cir. 2012); United States v. Baker, 655 F.3d 677, 683 (7th
No. 11-1245 15
Cir. 2011); United States v. Long, 639 F.3d 293, 298 (7th
Cir. 2011); United States v. Snyder, 635 F.3d 956, 961 (7th
Cir. 2011).
In short, the error that the district court made (and it
did indeed err—even the majority admits that) occurred
in the sequence of the sentencing procedure unaltered
by Booker. Thus, there is no distinction between this
case and Narvaez.
It is true, of course, that the sentencing court in this
case was not required to sentence Hawkins according to
the Guidelines calculations. Step two of the sentencing
procedure requires the court to consider the factors
enumerated in 18 U.S.C. § 3553 to evaluate whether
the Guidelines range is truly proper given particular
considerations. Gall, 552 U.S. at 49-50. But the harm
to Hawkins had already occurred—before the court
could even turn to the advisory part of the Guidelines.
The judge could now only view Hawkins through ca-
reer-offender tinted glasses, and his baseline considera-
tion before applying the § 3553 factors was multitudes
higher than it would have been otherwise.
Suppose, for example, that a sentencing court deter-
mined that because of Hawkins’ mental or physical
condition, a below-Guidelines sentence was warranted.
If Hawkins stood before the court as a career offender,
the judge would have calculated his sentence as a career
offender and then considered those mitigating § 3553
factors, beginning from the 151-month benchmark. Were
he not a career offender, the judge would begin by cal-
16 No. 11-1245
culating the 15-21 1 month range before considering any
§ 3553 factors. The majority admits that Hawkins might
not have received the same sentence had he not been
labeled a career offender. I think it rather more fair to
conclude that there was no chance that Hawkins would
have been sentenced to 151 months after Chambers.
Faced with a Guidelines range of 15-21 months, or even
24-30 months, a five to tenfold increase in the sentence
would have been shocking. In short, the injustice here
is not rectified by Booker. The error and prejudice
occurred in the proper calculation of the Guidelines as
a starting point—something that has not changed now
that the Guidelines are merely advisory. Narvaez is our
precedent and a fresh one at that.2 This precedent
demands that Hawkins be treated in just the same
manner as Narvaez.
The majority is correct that the law has changed, but
the relevant change occurred in Chambers and not
Booker. The majority admits that the judge erred when
he thought a walk-away escape was a crime of violence,
but argues that the retroactive application of the Chambers
1
There is some dispute as to whether the range would have
been 15-21 months, or 24-30 months. The district court found
it unnecessary to decide. In any event, both ranges are magni-
tudes less than the 151 months that Hawkins received.
2
The Narvaez court emphasized that Narvaez’s sentence
occurred when the Guidelines were mandatory, but that it
had no reason to consider whether or not the distinction
mattered. Narvaez, 674 F.3d at 628-29.
No. 11-1245 17
rule should not apply lest it undermine the principle of
finality integral to the criminal process. Were we
writing on a blank slate, we might argue against the
majority’s elevation of finality over fairness, as did
our dissenting brothers in the 8th and 11th Circuits in
indistinguishable cases, arguing that finality must not
trump justice where a court must correct a career
offender enhancement that all agree was imposed in
error. Rozier v. United States, 701 F. 3d 681, 689-91 (11th
Cir. (Hill, J., dissenting); Meirovitz v. United States, 688
F.3d 369, 373 (8th Cir. 2012) (Bright, J., dissenting) (“with-
out finality there can be no justice . . . [i]t is equally true
that, without justice, finality is nothing more than a
bureaucratic achievement.”) petition for cert. filed, (U.S.
Nov. 20, 2012) (No. 12-7461). But we need not engage
in this policy dispute about the virtues and failures of
finality, for although the majority discusses at some
length the burdens of retroactive application of a new
rule, such as the one announced in Chambers, that ship
has hoisted the mainsail and left port. This Circuit has
already declared that Chambers (and its closely related
ancestor, Begay) apply retroactively on collateral review.
Narvaez, 674 F.3d at 621. See also United States v. Wyatt,
672 F.3d 519, 523-24 (7th Cir. 2012) (noting retro-
activity of Chambers and Begay); Brown v. Rios, 696 F.3d
638, 640 (7th Cir. 2012) (applying Begay retroactively on
collateral review); Welch v. United States, 604 F.3d 408,
415 (7th Cir. 2010) (Begay rule is retroactively applied on
collateral review), cert. denied, 131 S. Ct. 3019 (2011); United
States v. Shipp, 589 F.3d 1084, 1090-91 (10th Cir. 2009)
18 No. 11-1245
(applying Chambers retroactively on collateral review);
Sun Bear v. United States, 611 F.3d 925, 927 (8th Cir.
2010) (applying Begay on collateral review).
The majority fears that errors in the interpretation of
the Guidelines, if always retroactive, would greatly
increase the number of § 2255 motions and re-sen-
tencings. The opinion in Narvaez did not alter the fact
that ordinarily errors in calculations of the Sentencing
Guidelines are not cognizable in a § 2255 motion. Welch,
604 F.3d at 412. An intervening change in the law made
applicable retroactively, however, can indeed require a
court to recognize a “miscarriage of justice,” that must be
correctable on collateral review. Id. at 412-13, nn.4 & 6.
Stanback v. United States, 113 F.3d 651, 654 (7th Cir. 1997).
See also Davis v. United States, 417 U.S. 333, 342 (1974).
But retroactive application of a law is not the norm
and depends on whether a new rule is considered to be
procedural or substantive. It is clear in this Circuit that
Chambers “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” and
thus is a substantive rule retroactively applied. Narvaez,
674 F.3d at 626.
Furthermore, this is not an error that Hawkins could
have raised on direct review. At the time, we would
have viewed as frivolous a challenge to the established
principle that a walk-away crime is a violent offense.
United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007),
rev’d, 555 U.S. 122 (2009); Wyatt, 672 F.3d at 520 (marking
the change in law after Chambers and noting that on the
No. 11-1245 19
defendant’s direct appeal it had been well-established
that a walk-away escape was a crime of violence); United
States v. Golden, 466 F.3d 612, 614 (7th Cir. 2006);
United States v. Rivera, 463 F.3d 598, 600-01 (7th Cir.
2006); United States v. Bryant, 310 F.3d 550, 553-55 (7th
Cir. 2002); United States v. Franklin, 302 F.3d 722, 724
(7th Cir. 2002); See also Stanback, 113 F.3d at 655-656
(noting that a defendant cannot be required to posit an
argument that would not have had any relevance prior
to an intervening change in Supreme Court law).
Thus the majority’s example of a probation service recom-
mending the incorrect sentence to an unnoticing judge
is inapt. The latter error could have been addressed
on direct review.
The majority further characterizes this error in calcula-
tion of a guideline as “less serious” than one that vio-
lates a statute or regulation. I suspect that the defendant
sitting in prison for twelve years, rather than fifteen
months because of a conceded Guidelines miscalcula-
tion would beg to differ. Few Guidelines interpretations
have as pronounced an effect on a sentence than the
career offender designation. Does it make any sense to
the goals of justice to determine that an improperly
calculated sentence that exceeds the statutory maximum
by one month is a serious error worthy of post con-
viction relief, but that an improperly calculated error
that exceeds the Guidelines range by eleven years (but
is still within the statutory maximum) is not? That is
why we said in Paladino that even where a sentence
falls within the sentencing range that Congress had
created for a defendant’s conduct, it is a miscarriage of
20 No. 11-1245
justice to give a person an illegal sentence that increases
his punishment, just as it is to convict an innocent
person. United States v. Paladino, 401 F.3d 471, 483 (7th
Cir. 2005). And in the context of considering prejudice
under a Strickland analysis, the Supreme Court has in-
structed that any amount of errantly imposed actual jail
time matters. Glover v. United States, 531 U.S. 198, 203
(2001); United States v. Seacott, 15 F.3d 1380, 1384 (“we are
unaware of anyone who would maintain that even one
additional hour of confinement, much less a day, or
week of confinement, ‘doesn’t matter.’ ”)
The idea that Sentencing Guidelines are not “laws” that
can be challenged in a § 2255 motion was first floated
in this Circuit in Scott v. United States, 997 F.2d 340, 341
(7th Cir. 1993). In that case, we posed the issue as an
unresolved question, but it has since crept into our case
law as an accepted premise. See, e.g., Welch, 604 F.3d at
412 (citing Scott for the proposition “that devia-
tions from the Sentencing Guidelines generally are not
cognizable on a § 2255 motion.”) But the Supreme
Court has stated only that if an error is neither jurisdic-
tional nor constitutional, in order to be cognizable on
collateral review, it must present “exceptional circum-
stances” in which a fundamental defect inherently
results in a complete miscarriage of justice. See Hill v.
United States, 368 U.S. 424, 428 (1962). The Court has not
addressed whether a Guidelines case could reach such
exceptional levels. Id. See also Sun Bear v. United States,
644 F.3d 700, 707 (8th Cir. 2011) (en banc) (Melloy, J.,
dissenting) (noting that the issue of whether Sentencing
Guidelines errors are cognizable in § 2255 proceedings
No. 11-1245 21
has not been decided by the Supreme Court or the 8th
Circuit). In Scott, we surmised, without deciding, that
Guidelines errors should not be redressable upon § 2255
review because, given their status, “[o]ne full and fair
opportunity to make arguments under the Guide-
lines—at sentencing and on direct appeal—is enough.” Id.
at 342. We know, however, that Hawkins did not and
could not have had one full and fair opportunity to
make his argument under the Guidelines because his
argument did not exist until the Supreme Court ruled in
Chambers—after his direct appeal had concluded. It was
just such an intervening change in law which convinced
the Supreme Court to declare a miscarriage of justice
in Davis, despite the Court’s long history of denying
such a characterization for non-constitutional, non-juris-
dictional errors. Davis, 417 U.S. at 346-47. The Davis
Court concluded that punishment for an act that the
law does not make criminal inherently results in a com-
plete miscarriage of justice and presents exceptional
circumstances that justify collateral relief under § 2255.
Id. at 346-47. Thus being punished as a career offender
for an act that the law does not consider a prerequisite
for career offender status results in a complete miscar-
riage of justice and presents exceptional circumstances
that justify collateral relief under § 2255.
As with Davis, an intervening reinterpretation of the
law also motivated this court in Paladino to find a miscar-
riage of justice where the change could have influenced
22 No. 11-1245
a judge’s baseline consideration in sentencing.3 Paladino,
401 F.3d at 483. Of course, the change in law in
Paladino occurred while the case was on direct review,
but that distinction blurs when one considers the
posture of Paladino. By the time the Paladino cases
came before this court, we had already concluded that
Booker could not be applied retroactively. Thus a Booker
error that occurs after a judgment becomes final cannot
be corrected on post-conviction review. Paladino, 401
F.3d at 481. Chambers, however is applied retroactively.
Moreover, because Paladino involved plain error review,
we were implementing the very same “miscarriage of
justice” standard in Paladino as we are in this
case—that is “whether the error would seriously affect
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 481, (citing Johnson v. United States,
520 U.S. 461, 466-67 (1997)). In Paladino, the miscarriage
of justice occurred because, at sentencing, the judges
were under the mistaken understanding that the Guide-
lines were mandatory rather than advisory.4 That errant
3
At times we speak of Booker and Chambers as intervening
changes in the law. It is a helpful shorthand for the more precise
description which is that the law did not change, but rather
the Supreme Court informed the courts that they had been
misinterpreting the law all along.
4
Paladino consolidated several cases for review and concluded
that the proper procedure for remedying the error was to,
“while retaining jurisdiction of the appeal, order a limited
remand to permit the sentencing judge to determine whether
(continued...)
No. 11-1245 23
belief affected the judges’ thought processes as they
reviewed the sentencing options. This was not an error
that could have been knowable and thus correctable
until the Supreme Court decided Booker. The same is
true in this case—a judge’s errant belief about the sen-
tencing law greatly affected his thought process. That
error could not have been known and thus corrected
until the Supreme Court announced its decision in Cham-
bers.
The majority tells us that the error in Paladino was
more serious and consequential, but errantly believing
that the career offender enhancement applies when it
does not is at least as consequential to a defendant’s
sentence than errantly believing that the Guidelines are
mandatory when they are not. In the solid majority of
Paladino remands, the judge sentenced the defendant
exactly as before. See, e.g., United States v. Davis, 682 F.3d
596, 602 (7th Cir. 2012); United States v. Harrison, 355
Fed. Appx. 953, 954 (7th Cir. 2009); United States v. Sebolt,
320 Fed. Appx. 468, 468 (7th Cir. 2009); United States
v. Armstead, 309 Fed. Appx. 11, 11 (7th Cir. 2009); Coleman
v. United States, 309 Fed. Appx. 9, 10 (7th Cir. 2009);
United States v. Hall, 304 Fed. Appx. 451, 452 (7th Cir.
2008); but see United States v. Steel, 322 Fed. Appx. 455,
456 (7th Cir, 2009). Errantly believing that the career
offender enhancement applies when it does not, on the
4
(...continued)
he would (if required to resentence) reimpose his original
sentence.” Paladino, 401 F.3d at 484.
24 No. 11-1245
other hand, creates a high probability of getting a
much longer sentence. First, because the career offender
enhancement imposes sentences multitudes higher
than otherwise and second, because, as we noted above,
the judge is required to begin sentencing with a
Guidelines calculation and therefore will commence
her sentencing process contemplating a range that is
leagues higher than it should be.
It made no difference to the Paladino court that all of
the sentences in that case were within the statutory sen-
tencing range and thus could have been imposed by
the judge in any event. Nor should it here. Just as we
did not know in Paladino whether the judges would
have given the same sentence if they had known at sen-
tencing that the Guidelines were merely advisory, we
cannot know whether a judge would have given the
same sentence if he had known that the career offender
enhancement did not apply. In this case, we know that
the judge was highly influenced by the Guidelines range
as he said at the Paladino remand:
Over the last 16 plus years, the Sentencing Commis-
sion has promulgated and honed the Guidelines to
achieve these Congressional purposes. Congress, as
well, has approved those Guidelines and has in-
dicated its view that the Guideline sentences achieve
its purity. Therefore, the Court will, in exercising
its discretion, give considerable weight to those Guide-
lines in determining an appropriate sentence for
this defendant.
No. 11-1245 25
Also in the exercise of its discretion, the Court will
only depart from those Guidelines in unusual cases for
clearly identified persuasive reasons. The defendant’s
request for a sentence outside of the advisory Guide-
lines is just not persuasive today. Even though a
departure is authorized in the case, I would choose,
and I do choose, not to depart, because I believe
departure is just not warranted under the facts and
circumstances of this case.
Appellate R. at 12, Tr. 10/28/05 at 34 (emphasis added).
This sounds much like a forbidden presumption that
the Guidelines sentence is proper, and thus arguably
error of an entirely different sort. See Gall, 552 U.S. at 50.
In any event, it certainly demonstrates how, even
under an advisory Guidelines system, a mistake in the
Guidelines calculations anchored the judge to the
higher range and virtually assured Hawkins a sentence
ten times greater than one he would have received other-
wise. The majority notes that the Guidelines remain
influential and asks rhetorically, “how influential?” The
answer in this case is clear. The district court judge “g[a]ve
considerable weight to the Guidelines,” and noted that
he would only “depart” (a word no longer relevant
post-Booker, and one that might indicate an inappro-
priate loyalty to the Guidelines) “from those Guidelines
in unusual cases.” Appellate R. at 12, Tr. 10/28/05 at 34.
The majority includes quotations (without citation) to
language implying that at resentencing the judge would
have imposed the same sentence even without the
26 No. 11-1245
career offender enhancement. Supra at 6. But the quoted
language comes from the district court’s order five years
later on post-conviction review. The district court judge’s
posthoc reasoning in denying collateral review is surely
not a reliable indicator of what he would do if ordered
to sentence Hawkins de novo without the career
offender enhancement, particularly given the dispositive
weight the court appears to have given the Guidelines
at the time of the Paladino remand. It is one thing for
the judge to say, five years later, that he would have
sentenced Hawkins to 151 months regardless, and another
for him to actually begin with a 15-21 month range and
then decide to increase the sentence by another decade.
This case, which demands reversal, will open no
flood gates as the majority fears. It involves, first, an
uncontroverted mistake of law by the district court—that
is declaring Hawkins a “career offender” when he was
not; second, an inability to address the error on direct
review due to an intervening change in the law, which is,
third, applicable retroactively. See Sun Bear, 644 F.3d at
712 (Melloy, J., dissenting). Finally we note again that
the application of the career offender enhancement
triggers sentencing ranges magnitudes higher than the
unenhanced range.
The majority, it seems, has no problem ignoring the
error and allowing Hawkins to be sentenced under a
career offender guideline that should not apply to him,
noting that he is a “hardened criminal” guilty of a
“violent assault.” And while the majority is quick to
describe the “escape” attempt that turned violent when
No. 11-1245 27
Hawkins was high on drugs, the majority neglects to
inform the reader that the other escape that qualified
Hawkins as a career offender occurred when Hawkins
merely signed himself out of a halfway house and failed
to return. But we need not dwell on these facts. Whether
a crime is a violent felony is determined by how the law
defines it and not how an individual offender might
have committed it on a particular occasion. Begay v.
United States, 553 U.S. 137, 141 (2008). Moreover and
more compellingly, this decision will not apply only to
Hawkins, but also to the mild-mannered, non-violent
offender who panics and fails to return to the halfway
house after a day at work. Because this Court has deter-
mined that an error in calculating the correct Sen-
tencing Guidelines for such a walk-away offender is not
a miscarriage of justice and not a cognizable error, even
where the error increases an offender’s sentence
tenfold, our mild-mannered, non-violent offender could
spend not one year in prison, but twelve and a half when
neither Congress, nor the Sentencing Commission, nor
likely even the district court that sentenced him thinks
he should be there. See Wyatt, 672 F.3d at 524. That seems
a poor use of resources and, more importantly, a terrible
miscarriage of justice.
For this reason, I would reverse the decision of the
district court and remand to the district court to allow
Mr. Hawkins to stand before it without the errantly
imposed black mark of a career offender.
2-7-13