Appeal from the United States District Court for the District of South Dakota.
Submitted: January 10, 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 court*fn1
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
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.*fn2 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).*fn3 Third, the § 2255 motion was a collateral attack on the sentencing court's interpretation and application of the Guidelines, an attack this court, and most of our sister circuits, have never found "cognizable,"*fn4 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).*fn5
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.
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 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).*fn6 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.*fn7
Section 2255 "was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Davis, 417 U.S. at 343. Like habeas corpus, this remedy "does not encompass all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185 (1979). It provides a remedy for jurisdictional and constitutional errors, neither of which is at issue here. Beyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; "an error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id., quoting Hill v. United States, 368 U.S. 424, 428 (1962).
These principles are reflected in the text of § 2255, which the Supreme Court described as "somewhat lacking in precision" in Davis, 417 U.S. at 343. A § 2255 motion may be filed by a federal prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." § 2255(a). The court shall grant appropriate relief if it finds "that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." § 2255(b).
Applying these principles, this court and our sister circuits have consistently held "that ordinary questions of guideline interpretation falling short of the 'miscarriage of justice' standard do not present a proper section 2255 claim." 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 Eleventh Circuit vacated when it granted a rehearing en banc. Gilbert v. United States, 625 F.3d 716 (11th Cir. 2010). *fn8
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 ...