Bear v. U.S.A

• Decision Date: 20 July 2010
• Docket Number: No. 09-2992.,09-2992.
• Parties: Marlon Dale SUN BEAR, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

611 F.3d 925

Marlon Dale SUN BEAR, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 09-2992.

United States Court of Appeals Eighth Circuit.

Submitted: May 13, 2010.

Filed: July 20, 2010.

Rehearing En Banc Granted, Opinion Vacated Sept. 27, 2010.

Jana Miner, AFPD, argued, Pierre, SD (William A. Delaney, III, on the brief AFPD, Sioux, SD), for Appellant.

Eric D. Kelderman, argued, Pierre, SD, for Appellee.

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Marlon Dale Sun Bear (“Sun Bear”) appeals the district court's dismissal of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Sun Bear asserts that his 360-month sentence, which included an enhancement for being a career offender under U.S. Sentencing Guidelines § 4B1.1, was improper in light of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). We reverse and remand.

I. Background

Sun Bear was sentenced to 360 months' custody on January 7, 2002 after he pled guilty to second-degree murder. The district court sentenced Sun Bear as a career offender pursuant to U.S.S.G. § 4B1.1 based on his adult convictions for attempted escape, attempted theft of a vehicle, and attempted burglary of a commercial building. Consequently, the adjusted offense level was thirty-seven. The court found that Sun Bear's criminal record warranted a criminal history category of VI, resulting in a guidelines range of 360 months to life. Had the court declined to apply § 4B1.1, Sun Bear's offense level would have been thirty-five, resulting in a guidelines range of 292 to 365 months.

In addition, the district court applied a three-level upward departure based on its determination that the criminal history category VI understated the seriousness of Sun Bear's criminal history. However, that departure was offset when the court also decreased the offense level by three levels based on Sun Bear's acceptance of responsibility. Thus, Sun Bear's offense level remained thirty-seven, and he was sentenced to 360 months' custody, the bottom of the applicable guidelines range.

Sun Bear appealed the district court's application of the career offender guideline. Specifically, he argued that the three predicate convictions were not crimes of violence. This Court affirmed the sentence, holding that two of Sun Bear's prior convictions-attempted theft of a vehicle and attempted burglary-were crimes of violence under § 4B1.1. United States v. Sun Bear, 307 F.3d 747, 752-53 (8th Cir.2002).¹ Sun Bear petitioned for certiorari review, which was denied. Sun Bear v. United States, 539 U.S. 916, 123 S.Ct. 2275, 156 L.Ed.2d 133 (2003) (mem.).

Several years later, in Begay, the Supreme Court of the United States held that driving under the influence of alcohol is not a violent felony for purposes of the Armed Career Criminals Act (“ACCA”). 553 U.S. at 148, 128 S.Ct. 1581. In United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008), we recognized that Begay required us to re-examine our holding in Sun Bear. We ultimately concluded that ordinary auto theft is not a crime of violence for purpose of the ACCA or the career offender guideline. Id. at 975.

On November 12, 2008, Sun Bear filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, asserting that attempted theft of a vehicle and attempted burglary are not crimes of violence under the career offender guideline in light of Begay and the post- Begay Eighth Circuit precedent. ² The district court, notably the same judge who sentenced Sun Bear in 2002, dismissed Sun Bear's § 2255 motion, finding Begay not retroactively applicable to cases on collateral review.

In this appeal, the government concedes that Begay is retroactively applicable to Sun Bear's case because he challenged the career offender enhancement at sentencing and on direct appeal, and because this is his first § 2255 motion. The government also concedes that, after Begay, Sun Bear's prior conviction for theft of a vehicle is not a crime of violence for purposes of the career offender guideline. Rather, the government argues that relief is inappropriate under § 2255 because there was no miscarriage of justice.

II. Discussion

The parties agree that Sun Bear is not a career offender in light of Begay and that Begay is retroactive. We set forth the reasons for our agreement, though, because these issues are unsettled in our circuit and because these stipulations are dispositive for Sun Bear's § 2255 motion. See Merck & Co., Inc. v. Reynolds, --- U.S. ----, ----, 130 S.Ct. 1784, 1793, 176 L.Ed.2d 582 (2010) (setting forth reasons for the Court's agreement with the parties on a non-obvious, dispositive legal issue); cf. Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 290, 37 S.Ct. 287, 61 L.Ed. 722 (1917) (“[T]he court cannot be controlled by agreement of counsel on a subsidiary question of law.”).

A. Was Sun Bear a Career Offender?

The career offender sentencing guideline provides for an enhanced offense level for certain crimes if the defendant has two predicate felonies for crimes of violence or qualifying drug offenses. See U.S.S.G. § 4B1.1. Whether an offense is a crime of violence under the sentencing guidelines is the same inquiry as whether an offense is a violent felony under the ACCA. Williams, 537 F.3d at 971. The Supreme Court addressed the latter question in Begay, holding that a prior felony conviction for driving under the influence of alcohol is not a violent felony. 553 U.S. at 148, 128 S.Ct. 1581. Whether an offense is a crime of violence, the Court explained, depends on the degree of risk of physical injury and whether the crime is similar in kind to the example crimes listed in the ACCA (burglary, arson, extortion, and crimes involving the use of explosives). Id. at 142-43, 128 S.Ct. 1581. The focal point of the similarity analysis is whether the offense in question involves conduct that is similarly “purposeful, violent, and aggressive” when compared to the closest analogue among the example crimes. Id. at 144-45, 128 S.Ct. 1581. “That conduct is such that it makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Id. at 145, 128 S.Ct. 1581. In Williams, we held that the Missouri crimes of auto theft without consent and auto theft by deception are not violent crimes of violence for purposes of § 4B1.1 because they were not similar in kind to the enumerated offenses. Id. at 975. Importantly, we acknowledged that Begay undermined the broad interpretation of the career offender sentencing guideline that we applied in Sun Bear. 537 F.3d at 971.

Sun Bear pled guilty to attempted theft of a vehicle under a Utah statute, which states: “A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.” Utah Code § 76-6-404. This statute is materially indistinguishable from Missouri's offense for auto theft without consent, which is not a crime of violence for purposes of the sentencing guidelines. Williams, 537 F.3d at 974; see also United States v. Aleman, 548 F.3d 1158, 1168 (8th Cir.2008) (holding that Minnesota's offense for auto theft without consent is not a crime of violence). As such, we agree with the parties that Sun Bear's Utah conviction for attempted theft of a vehicle does not qualify as a crime of violence, and therefore, in light of Begay, the sentencing court erred by applying the career offender sentencing guideline.

B. Is Begay Retroactive?

Sun Bear filed his § 2255 motion within one year of the Supreme Court's decision in Begay. Consequently, there is no dispute that Sun Bear's § 2255 motion was timely if Begay applies retroactively in this case. See 28 U.S.C. § 2255(f)(3). But the question remains whether Begay is retroactively applicable to cases on collateral review. Because the Supreme Court did not declare that Begay is retroactive, we must apply the established principles of retroactivity:

When a Supreme Court decision results in a “new rule” of criminal procedure, that rule applies to all criminal cases still pending on direct review, but, as to convictions that are already final, the rule applies only in limited circumstances. New substantive rules-which narrow the scope of a criminal statute or which place particular conduct or persons covered by the statute beyond the State's power to punish-generally apply retroactively. New procedural rules generally do not apply retroactively unless the rule is of “watershed” magnitude implicating “the fundamental fairness and accuracy of the criminal proceeding,” or unless the rule prevents the lawmaking authority from criminalizing certain kinds of conduct.

Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir.2005) (per curiam) (citing Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)).

The rule in Begay, that a crime must be similar in kind to the enumerated offenses in order to qualify as a violent felony under the ACCA, is wholly unlike procedural rules, which “merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Schriro, 542 U.S. at 352, 124 S.Ct. 2519; see also Welch v. United States, 604 F.3d 408, 415 (7th Cir.2010) (“ [Begay] does not address the accuracy of the process afforded [the defendant]; it addresses the degree to which the government may punish him for his violation of the law.”). Admittedly, the rule in Begay is also different from traditional substantive rules. Begay did not narrow any of the elements of a criminal offense and it does not call into question Sun Bear's conviction. Instead Begay limited the scope of conduct that can be used to increase a person's sentence under a federal statute. For example, in this case Begay repudiated the sentencing court's basis for determining that...