Narvaez v. United States

• Decision Date: 06 December 2011
• Docket Number: No. 09–2919.,09–2919.
• Citation: 674 F.3d 621
• Parties: Luis M. NARVAEZ, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

674 F.3d 621

Luis M. NARVAEZ, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 09–2919.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 2010.Decided June 3, 2011.Amended Dec. 6, 2011.*

Brandon M. Duncomb (argued), Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Petitioner–Appellant.

Michael A. Rotker (argued), Department of Justice, Washington, DC, for Respondent–Appellee.

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

In 2003, Luis Narvaez pleaded guilty to bank robbery, a violation of 18 U.S.C. § 2113(a). The district court sentenced Mr. Narvaez as a career offender under the United States Sentencing Guidelines § 4B1.1 because his record revealed two prior escape convictions involving failure to return to confinement, violations of Wisconsin Statute section 946.42(3)(a). Mr. Narvaez later filed a motion to vacate his sentence under 28 U.S.C. § 2255(a); he asserted that imposition of the career offender status was illegal in light of the Supreme Court's decisions in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). The district court denied Mr. Narvaez's motion; it ruled that Begay and Chambers did not apply retroactively to cases on collateral review. The court then granted him a certificate of appealability.¹

We conclude that Begay and Chambers apply retroactively to Mr. Narvaez's case. Because Mr. Narvaez's career offender sentence was improper, his period of incarceration exceeds that permitted by law and constitutes a miscarriage of justice.² He is therefore entitled to relief under § 2255. Accordingly, we reverse the judgment of the district court and remand for resentencing without imposition of the career offender status. No other aspect of the sentence determination is to be disturbed.³

IBACKGROUND

In 2003, Mr. Narvaez pleaded guilty to bank robbery, a violation of 18 U.S.C. § 2113(a). The sentencing court designated him as a career offender, see U.S.S.G. § 4B1.1, based on two prior escape convictions, under Wisconsin Statute section 946.42(3)(a), that involved failing to return to confinement.⁴ The sentencing court's application of the career offender status increased the then-mandatory sentencing range for Mr. Narvaez from 100–125 months to 151–188 months.⁵ The court sentenced him to 170 months' imprisonment—the midpoint of the enhanced guidelines range.

Five years later, in Begay, the Supreme Court clarified the definition of a violent felony under the Armed Career Criminal Act (“ACCA”). It held that driving under the influence of alcohol did not constitute a violent felony under the statute. See Begay, 553 U.S. at 148, 128 S.Ct. 1581. The Court explained that the crimes listed in the ACCA “all typically involve purposeful, violent, and aggressive conduct.” Id. at 144–45, 128 S.Ct. 1581 (internal quotation marks omitted). Therefore, the term “violent felony” applies only to crimes that are “roughly similar, in kind as well as in degree of risk posed, to the examples [listed in the ACCA] themselves.” Id. at 143, 128 S.Ct. 1581.⁶

In Chambers, the Court further explored the definition of a violent felony under the ACCA in the context of a conviction under an Illinois escape statute for failure to report for penal confinement, a statute similar to the Wisconsin law under which Mr. Narvaez was convicted. The Court held that the failure to report was a “passive” offense that did not inherently involve conduct presenting “a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B), and, therefore, “falls outside the scope of the ACCA's definition of ‘violent felony.’ ” Chambers, 129 S.Ct. at 691, 693.

Although Begay and Chambers specifically involved the ACCA, not the Sentencing Guidelines, we have recognized that the definition of a violent felony under the ACCA was “repeated verbatim” by the Sentencing Commission in defining a “crime of violence” in § 4B1.2 and that “[i]t would be inappropriate to treat identical texts differently just because of a different caption.” United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008); see also United States v. Woods, 576 F.3d 400, 403–04 (7th Cir.2009) (noting that the language describing crimes of violence in § 924(e)(2)(B) of the ACCA and § 4B1.2 of the Sentencing Guidelines is identical and, therefore, interchangeable).⁷

On April 15, 2009, Mr. Narvaez filed a motion under 28 U.S.C. § 2255 to vacate his sentence.⁸ He asserted that, in light of the Supreme Court's recent decisions in Begay and Chambers, his prior convictions for failure to return to confinement did not qualify as “crimes of violence” within the meaning of the career offender guideline. The district court dismissed Mr. Narvaez's § 2255 motion. In its view, Begay and Chambers did not apply retroactively to cases on collateral review. The court nevertheless granted Mr. Narvaez a certificate of appealability.

The Government now concedes that Begay and Chambers decided questions of substantive statutory construction and that they apply retroactively on collateral review. The Government further concedes that, after Begay and Chambers, Mr. Narvaez's prior escape convictions for failure to return to confinement do not constitute crimes of violence under the career offender guideline. Nevertheless, the Government argues that Mr. Narvaez did not satisfy the requirement for the granting of a certificate of appealability because the certificate does not identify a substantial constitutional question, as required by 28 U.S.C. § 2253(c)(2). The Government also argues that Mr. Narvaez is not entitled to relief because no miscarriage of justice occurred.

IIDISCUSSION

A.

The parties agree that Mr. Narvaez's motion under § 2255 was timely and that Mr. Narvaez is not a career offender in light of Begay and Chambers because both cases apply retroactively to Mr. Narvaez's conviction.

We agree that the motion is timely. Section 2255(f)(3) of Title 28 provides that a motion is timely if it is filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” There is no dispute that the right asserted by Mr. Narvaez—the right not to receive an enhanced sentence based on an incorrect understanding of the term “crime of violence”—was recognized by the Supreme Court in Begay and Chambers. Mr. Narvaez filed his motion within one year of both the Begay and Chambers decisions.

We also agree that, in these circumstances, the Begay and Chambers decisions apply retroactively on collateral review. The retroactivity of a Supreme Court rule depends on whether it is procedural or substantive. Bousley v. United States, 523 U.S. 614, 620–21, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (discussing Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). In Welch v. United States, 604 F.3d 408, 415 (7th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 3019, 180 L.Ed.2d 844 (2011), we observed that “ Begay narrowed substantially [the defendant]'s exposure to a sentence of imprisonment.” With the imposition of the “violent felony” status under the ACCA, the defendant in Welch faced, “at a minimum, five years of imprisonment that the law otherwise could not impose upon him under his statute of conviction. Such an increase in punishment is certainly a substantive liability.” Id. As a result, we concluded that because the Begay rule was substantive, it “is retroactively applicable on collateral review.” Id.⁹ We have no reason to believe that Chambers requires a different analysis. Indeed, in Welch, we noted that the Tenth Circuit recently had held that Chambers was retroactively applicable on collateral review. See id. at 413–14; see also United States v. Shipp, 589 F.3d 1084, 1089, 1091 (10th Cir.2009) (holding that Chambers articulated “a substantive rule of statutory interpretation” because a defendant who “does not constitute an armed career criminal ... [has] received a punishment that the law cannot impose upon him” (internal quotation marks omitted)). Chambers, like Begay, 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,” O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (internal quotation marks omitted).

B.

1.

We turn now to the Government's argument regarding the certificate of appealability. One of the requirements for obtaining a certificate of appealability is that an applicant must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that, in this context, a substantial showing requires “a demonstration that ... reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted).

In this case, the certificate of appealability raises a claim that Mr. Narvaez's illegal designation as a career offender resulted in an increase in his term of imprisonment that deprived him of liberty without due process of law. Relying upon precedent that subsequently has been overruled by Begay and Chambers, the sentencing court concluded, understandably, that Mr. Narvaez's two prior violent felonies made him a career offender. Consequently, Mr. Narvaez was made eligible for roughly five additional years of incarceration without any justification in the sentencing scheme established by law. The Constitution grants sentencing courts “wide discretion in...