United States v. Coleman

• Decision Date: 16 October 2014
• Docket Number: 12–2762.,Nos. 12–2621,s. 12–2621
• Citation: 763 F.3d 706
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Quadale D. COLEMAN, Defendant–Appellee. Quadale D. Coleman, Petitioner–Appellee, v. United States of America, Respondent–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

763 F.3d 706

UNITED STATES of America, Plaintiff–Appellant,

v.Quadale D. COLEMAN, Defendant–Appellee.

Quadale D. Coleman, Petitioner–Appellee,

v.United States of America, Respondent–Appellant.

Nos. 12–2621, 12–2762.

United States Court of Appeals, Seventh Circuit.

Argued April 25, 2014.

Decided Aug. 14, 2014.

As Amended on Denial of Rehearing and Rehearing En Banc Oct. 16, 2014.

Michael A. Rotker, Attorney, Department of Justice, Washington, DC, for Plaintiff–Appellant.

Adam Stevenson, Attorney, University of Wisconsin Law School, Madison, WI, for Defendant–Appellee.

Before KANNE and ROVNER, Circuit Judges, and DOW, District Judge. ^*

ROVNER, Circuit Judge.

On August 8, 2007, Quadale D. Coleman pled guilty to the charge of possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), which involved 121.989 grams of crack cocaine. The offense subjected Coleman to a statutory imprisonment range of a minimum of 5 years and a maximum of 40 years. The sentencing proceedings in the district court revealed a criminal history that included past convictions for possession with intent to distribute cocaine base in Dane County Circuit Court, and for sexual assault of a child in violation of Wis. Stat. § 948.02(2) in Dane County Circuit Court. Based on those convictions, the district court determined that he was a career offender under § 4B1.1 of the Sentencing Guidelines (the “Guidelines”) as a person with two convictions of either crimes of violence or offenses involving a controlled substance. That designation increased the sentencing range under the Guidelines from a range of 140–175 months to a range of 188–235 months. In an amended judgment, the district court imposed a sentence of 225 months imprisonment followed by 5 years of supervised release.

Subsequently, the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and our decision in United States v. McDonald, 592 F.3d 808 (7th Cir.2010), altered the terrain as to the determination of career offender status. Begay held that the residual clause of the crime-of-violence definition encompasses the types of crimes that categorically involve purposeful, violent and aggressive conduct. 553 U.S. at 144–45, 148, 128 S.Ct. 1581. The Court cautioned that “[i]n determining whether [a] crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Id. at 141, 128 S.Ct. 1581, citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In McDonald, we held that pursuant to Begay, a conviction for second-degree sexual assault of a child in Wis. Stat. § 948.02(2), which prohibits “sexual contact or sexual intercourse with a person who has not attained the age of 16 years,” is not a “crime of violence” for purposes of the career offender designation in § 4B1.1 of the Guidelines because it is a strict liability offense. 592 F.3d at 813–14. Based on that caselaw, Coleman filed a motion pursuant to 28 U.S.C. § 2255 asserting that he was improperly considered a career offender and sought resentencing. The district court granted the motion and recalculated the Guidelines range excluding that career offender designation. The court also concluded that a reduction in the base offense level was appropriate because the Guidelines range for that drug offense had subsequently been lowered by the Sentencing Commission, and therefore determined that the proper range was 120–150 months instead of the 140–175 month range that the original court would have applied absent the career offender designation. The court sentenced Coleman to 120 months imprisonment and 5 years of supervised release. The government now appeals both the district court's order granting Coleman's motion to vacate his sentence under § 2255(a) and ordering resentencing (No. 12–2762), and the second amended judgment in the underlying criminal case against Coleman entered after that resentencing (No. 12–2621). We have consolidated those appeals for resolution.

The government does not dispute that in light of McDonald, the sexual assault conviction could not form the basis for career offender status, and that Coleman accordingly should not have been sentenced using that § 4B1.1 career offender designation. The dispute on appeal is only whether such an error is cognizable in a § 2255 motion. The government contends that our decision in Hawkins v. United States, 706 F.3d 820 (7th Cir.2013), an opinion later supplemented on denial of rehearing, 724 F.3d 915 (7th Cir.2013), is controlling in this case and requires reversal.

In Hawkins, this court recognized that “not every error is corrigible in a post-conviction proceeding, even if the error is not harmless.” 706 F.3d at 823. Relief under § 2255 is available “only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878–79 (7th Cir.2013). “[D]eviations from the Sentencing Guidelines generally are not cognizable on a § 2255 motion.” Welch v. United States, 604 F.3d 408, 412 (7th Cir.2010); Scott v. United States, 997 F.2d 340, 343 (7th Cir.1993).

In Hawkins, we held that the erroneous determination that the petitioner was a career offender in calculating his sentence was not a cognizable error under § 2255 post- Booker. Hawkins, 706 F.3d 820; see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We reasoned that after Booker, the Guidelines are not binding on a district court judge, and in fact “the judge may not even presume that a sentence within the applicable guidelines range would be proper.” Hawkins, 706 F.3d at 822. The judge must therefore independently determine the appropriate sentence in light of the factors set forth in 18 U.S.C. § 3553(a), and impose a sentence that is sufficient but not greater than necessary to comply with the purposes of § 3553(a). Id. at 822–23. Although recognizing that the Guidelines remain influential in sentencing, such that Hawkins may have received a lower sentence if the Guidelines range had been properly calculated, we noted that the district court would not have been required to impose a lower sentence. Id. at 824. In balancing the interest in finality against the injustice of a possibly mistaken sentence, we concluded that in the context of postconviction proceedings, a sentence well below the ceiling imposed by Congress—whether directly in the statute or by delegation to the Sentencing Commission in the Guidelines—does not constitute a miscarriage of justice. Id. at 824–25. Accordingly, we held in Hawkins that the error in calculating the Guidelines range did not constitute a miscarriage of justice for § 2255 purposes given the advisory nature of the Guidelines and the district court's determination that the sentence was appropriate and that it did not exceed the statutory maximum. In so holding, we distinguished the case from that of Narvaez v. United States, 674 F.3d 621 (7th Cir.2011), in which the Guidelines were considered mandatory by the district court and which found such a sentencing error cognizable in a § 2255 motion. Although I dissented, repeatedly, from that holding, it is now the law of this circuit. See Hawkins, 706 F.3d at 825, 724 F.3d at 919.

Coleman acknowledges in his briefing to this court that our Hawkins decision held that the error in applying the career offender provision in determining the advisory Guidelines range was not cognizable in a § 2255 motion. He argues that we should nevertheless affirm the district court. First, he asserts that our holding in Hawkins has been rejected by the Eleventh Circuit in Spencer v. United States, 727 F.3d 1076 (11th Cir.2013), and that we should reconsider it in light of that intervening, contradictory caselaw. The Eleventh Circuit, however, has since granted en banc review and vacated that panel decision. Similarly, the Fourth Circuit in a panel decision in Whiteside v. United States, 748 F.3d 541 (4th Cir.2014), held that a sentence based on a career offender enhancement that was subsequently revealed to be inapplicable constituted a miscarriage of justice cognizable under § 2255, but en banc review was granted in that case as well and that panel opinion also was vacated. Whiteside v. United States, 2014 WL 3377981 (July 10, 2014). Moreover, our decision in Hawkins is consistent with the Eighth Circuit's decision in Sun Bear v. United States, 644 F.3d 700 (8th Cir.2011) (en banc), which held that career offender status is an ordinary question of Guidelines interpretation and that error in assessing that status is not an error that results in a miscarriage of justice cognizable in a § 2255 motion. The treatment of the issue by the other circuits and the prevalence of en banc review reflects that the issue is a contentious one, which we as a circuit already know given the lack of unanimity in the Hawkins panel and the close 5–4 en banc vote in our own circuit. See Hawkins v. United States, 725 F.3d 680 (7th Cir.2013). Given the dissents in Hawkins and the en banc petition, the Hawkins court was well aware of the contrary viewpoints later reflected in those since-vacated panel opinions in the other circuits, and Hawkins constitutes our court's resolution of that issue. Accordingly, at least at this time, there is no split in the circuits or novel arguments that would cause us to re-examine our decision in Hawkins.

Coleman argues that this case is distinguishable from Hawkins because we need not guess as to whether the sentence would have been lower absent the career offender designation, given that at resentencing the district court sentenced him to only 120 months. That...