Brown v. Rios, No. 11–1695.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtPOSNER
Citation696 F.3d 638
PartiesCarnell BROWN, Petitioner–Appellant, v. Ricardo RIOS, Warden, Respondent–Appellee.
Docket NumberNo. 11–1695.
Decision Date20 August 2012

696 F.3d 638

Carnell BROWN, Petitioner–Appellant,
v.
Ricardo RIOS, Warden, Respondent–Appellee.

No. 11–1695.

United States Court of Appeals,
Seventh Circuit.

Argued July 11, 2012.
Decided Aug. 20, 2012.


[696 F.3d 639]


Melissa A. Cox (argued), Barry Levenstam, Attorneys, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellant.

Linda L. Mullen (argued), Attorney, Office of the United States Attorney, Rock Island, IL, for Respondent–Appellee.


Before POSNER, MANION, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

The principal although not only issue presented by this appeal is the often vexing question of whether a conviction used to enhance a defendant's sentence under the Armed Career Criminal Act is a “violent felony” within the meaning of the Act. 18 U.S.C. § 924(e). The Act defines the term to mean either a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(i), (ii). It is the catchall phrase, which we have italicized, that presents problems of application.

Carnell Brown was convicted in 2000 of being a felon in possession of a gun, § 922(g)(1), an offense for which the maximum sentence is normally 10 years in prison. § 924(a)(2). The government urged that he be sentenced to a minimum of 15

[696 F.3d 640]

years on the ground that he had three previous convictions for a violent felony or a felony drug offense, and if this was right then the Armed Career Criminal Act indeed required a sentence at least that long. § 924(e)(1). We held that it was right, United States v. Brown, 273 F.3d 747 (7th Cir.2001), and on remand Brown was sentenced to 264 months in prison, and did not appeal.

In 2010, following an unsuccessful collateral attack on his sentence under 28 U.S.C. § 2255 (the federal prisoner's substitute for habeas corpus), he mounted a new collateral attack under the federal habeas corpus statute, 28 U.S.C. § 2241, in reliance on the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). There the Court had held that driving under the influence is not within the catchall provision of the Armed Career Criminal Act because a crime within the catchall “typically involve[s] purposeful, ‘violent’, and ‘aggressive’ conduct.” Id. at 144–45, 128 S.Ct. 1581. The district court in this case, seconded by the government, held that section 2241 was a proper vehicle for Brown's attack on his sentence, but went on to hold that he indeed had been convicted of three violent felonies or serious drug offenses, and so his sentence stood, and he has appealed.

The government has conceded that Brown can use the habeas corpus statute to challenge the legality of his sentence. Normally a federal prisoner is confined to his remedy under 28 U.S.C. § 2255, but he may petition under section 2241 instead if his section 2255 remedy is “inadequate or ineffective to test the legality of his detention.” § 2255(e). In re Davenport, 147 F.3d 605, 610–12 (7th Cir.1998), set forth three conditions for this exception to apply. Two clearly are satisfied in this case. First, Begay was not a constitutional case, but a statutory-interpretation case, so Brown could not have invoked it by means of a second or successive section 2255 motion. 28 U.S.C. § 2255(h)(2); United States v. Wyatt, 672 F.3d 519, 522 (7th Cir.2012). Second, although he could not have invoked it in his first section 2255 motion either, because Begay hadn't been decided, compare In re Davenport, supra, 147 F.3d at 609,Begay is applicable retroactively, id. at 610;Welch v. United States, 604 F.3d 408, 415 (7th Cir.2010), and therefore he could invoke it by a later motion, provided (because of the bar in section 2255(h)(2) to second or successive section 2255 motions) that the later motion wasn't a section 2255 motion. It wasn't; it was a section 2241 motion.

The third condition is that Brown's sentence enhancement under the Armed Career Criminal Act, because based on a conviction for a crime of which he was innocent, have been a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding. Narvaez v. United States, 674 F.3d 621, 623 (7th Cir.2011), held that such an error “was indeed a miscarriage of justice,” even though in that case it was a violation merely of the career-offender sentencing guidelines, rather than a statutory violation. Narvaez was a case in which the guidelines had been mandatory when the defendant was sentenced; we left open in United States v. Wyatt, supra, 672 F.3d at 523–24, whether the result might be different now that they are merely advisory. We needn't try to resolve the issue in this case.

Davenport, unlike Narvaez, had been a case in which a defendant (Nichols, Davenport's codefendant) had been innocent of the crime of which he had been convicted (use of a firearm in connection with a drug offense), whereas the present case, like Narvaez, involves a sentencing error. A

[696 F.3d 641]

number of cases, before and after and contrary to Narvaez, specify “actual innocence” of the crime of which the defendant was convicted as one of the conditions for allowing a challenge under the habeas corpus statute. See, e.g., Unthank v. Jett, 549 F.3d 534, 536 (7th Cir.2008); In re Bradford, 660 F.3d 226, 230 (5th Cir.2011) (per curiam); Kinder v. Purdy, 222 F.3d 209, 213–14 (5th Cir.2000) (per curiam). We didn't use the term in Davenport, although it was, as we said, an “actual innocence” case.

But these cases involved, like Narvaez, violations of the sentencing guidelines rather than of the Armed Career Criminal Act. A sentence that violates a statute, as distinct from a sentence permitted by a statute though more severe than authorized by the guidelines, could well be thought an error grave enough to warrant relief in a habeas corpus proceeding—a “fundamental error equivalent to actual innocence,” Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir.2002)—whereas now that the guidelines are merely advisory, a sentencing judge, while still required to calculate the guidelines sentence, is free to give a heavier (or for that matter a lighter) sentence.

But we needn't pursue the issue whether or what sentencing errors can be corrected in a habeas corpus proceeding further in this case, in view of the government's concession.

And so we come to the merits, where the principal issue is whether the felony of which Brown was convicted in an Illinois court...

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512 practice notes
  • Mitchell v. Warden, FCI-Greenville, Case No. 19-cv-0539-RJD
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • November 8, 2019
    ...justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See also Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). Since Davenport, the Seventh Circuit has made it clear that "there must be some kind ofPage 8 structural problem with......
  • Samak v. Warden, No. 13–12161
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 10, 2014
    ...have acknowledged that some prisoners might be entitled to relief under the savings clause for a sentencing claim. See Brown v. Rios, 696 F.3d 638, 644 (7th Cir.2012) (granting relief under the savings clause for a petitioner erroneously sentenced under the Armed Career Criminal Act, 18 U.S......
  • Chazen v. Marske, No. 18-3268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 2019
    ...Beason , 926 F.3d at 935 (same); Poe v. LaRiva , 834 F.3d 770, 772–73 (7th Cir. 2016) (same); Light , 761 F.3d at 812–13 ; Brown v. Rios , 696 F.3d 638, 640 (7th Cir. 2012). More to it, we have held that a petitioner seeking relief under § 2241 need only show that the case on which he relie......
  • Hawkins v. United States , No. 11–1245.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 7, 2013
    ...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 maxim......
  • Request a trial to view additional results
512 cases
  • Mitchell v. Warden, FCI-Greenville, Case No. 19-cv-0539-RJD
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • November 8, 2019
    ...justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See also Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). Since Davenport, the Seventh Circuit has made it clear that "there must be some kind ofPage 8 structural problem with......
  • Samak v. Warden, No. 13–12161
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 10, 2014
    ...have acknowledged that some prisoners might be entitled to relief under the savings clause for a sentencing claim. See Brown v. Rios, 696 F.3d 638, 644 (7th Cir.2012) (granting relief under the savings clause for a petitioner erroneously sentenced under the Armed Career Criminal Act, 18 U.S......
  • Chazen v. Marske, No. 18-3268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 2019
    ...Beason , 926 F.3d at 935 (same); Poe v. LaRiva , 834 F.3d 770, 772–73 (7th Cir. 2016) (same); Light , 761 F.3d at 812–13 ; Brown v. Rios , 696 F.3d 638, 640 (7th Cir. 2012). More to it, we have held that a petitioner seeking relief under § 2241 need only show that the case on which he relie......
  • Hawkins v. United States , No. 11–1245.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 7, 2013
    ...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 maxim......
  • Request a trial to view additional results

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