Narvaez v. United States , 641 F.3d 877 ( 2011 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 09-2919
    L UIS M. N ARVAEZ,
    Petitioner-Appellant,
    v.
    U NITED S TATES OF A MERICA,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Western District of Wisconsin.
    No. 09-cv-222—Barbara B. Crabb, Judge.
    A RGUED D ECEMBER 7, 2010—D ECIDED JUNE 3, 2011
    A MENDED D ECEMBER 6, 2011 Œ
    Before R IPPLE, K ANNE and SYKES, Circuit Judges.
    R IPPLE, 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
    Œ
    This opinion was released initially in typescript form.
    2                                                 No. 09-2919
    § 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 imposi-
    tion of the career offender status was illegal in light of the
    Supreme Court’s decisions in Begay v. United States, 
    553 U.S. 137
     (2008), and Chambers v. United States, 
    555 U.S. 122
    ,
    
    129 S. Ct. 687
     (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 retroactive-
    ly to Mr. Narvaez’s case. Because Mr. Narvaez’s career
    offender sentence was improper, his period of incarcera-
    tion 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
    1
    The jurisdiction of the district court was based on 
    28 U.S.C. §§ 1331
     and 2255 and 
    18 U.S.C. § 3231
    . We have jurisdiction
    under 
    28 U.S.C. §§ 1291
     and 2253(a).
    2
    The term “miscarriage of justice” comes from the Supreme
    Court’s holding that a non-jurisdictional, non-constitutional
    error of law is not a basis for collateral attack under § 2255
    unless the error is “a fundamental defect which inherently
    results in a complete miscarriage of justice.” Hill v. United
    States, 
    368 U.S. 424
    , 428 (1962); see also United States v.
    Addonizio, 
    442 U.S. 178
    , 185 (1979).
    No. 09-2919                                                        3
    without imposition of the career offender status. No
    other aspect of the sentence determination is to be dis-
    turbed.3
    I
    BACKGROUND
    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
    3
    This opinion has been circulated among all judges of this court
    in regular active service pursuant to Circuit Rule 40(e). No judge
    favored to hear this case en banc.
    4
    Under existing circuit precedent at the time of sentencing, Mr.
    Narvaez’s felony escape convictions constituted “crime[s] of
    violence” within the meaning of the career offender guideline
    because they were held to “otherwise involve[] conduct that
    present[ed] a serious potential risk of physical injury to an-
    other,” U.S.S.G. § 4B1.2(a)(2). See United States v. Bryant, 
    310 F.3d 550
    , 553-54 (7th Cir. 2002).
    5
    As a career offender, Mr. Narvaez was assigned an offense
    level of 32. He received a three-level reduction for acceptance of
    (continued...)
    4                                                      No. 09-2919
    The court sentenced him to 170 months’ imprison-
    ment — 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
    . The
    Court explained that the crimes listed in the ACCA
    “all typically involve purposeful, violent, and aggressive
    conduct.” 
    Id. at 144-45
     (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
    .6
    5
    (...continued)
    responsibility, resulting in a total adjusted offense level of 29.
    Under the then-mandatory Sentencing Guidelines, pairing the
    offense level of 29 with a criminal history category of VI resulted
    in a guidelines range of 151-188 months.
    6
    Section 924(e)(2)(B) of Title 18 defines “violent felony” as
    “any crime punishable by imprisonment for a term exceeding
    one year, or any act of juvenile delinquency involving the use or
    carrying of a firearm, knife, or destructive device that would be
    punishable by imprisonment for such term if committed by an
    adult, that—(i) has as an element the use, attempted use, or
    threatened use of physical force against the person of another;
    or (ii) is burglary, arson, or extortion, involves use of explosives,
    or otherwise involves conduct that presents a serious potential
    risk of physical injury to another.”
    No. 09-2919                                                    5
    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 an other,” 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 recog-
    nized that the definition of a violent felony
    under the ACCA was “repeated verbatim” by the Sentenc-
    ing 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
    7
    Section 4B1.2(a) provides in pertinent part that “[t]he term
    ‘crime of violence’ means any offense under federal or state law,
    punishable by imprisonment for a term exceeding one year,
    (continued...)
    6                                                    No. 09-2919
    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 vio-
    lence” within the meaning of the career offender guide-
    line. 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
    7
    (...continued)
    that—(1) has as an element the use, attempted use, or threatened
    use of physical force against the person of another, or (2) is
    burglary of a dwelling, arson, or extortion, involves use of
    explosives, or otherwise involves conduct that presents a serious
    potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
    8
    Section 2255(a) of Title 28 provides that a federal prisoner
    may claim “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, [and] may move the court which imposed the sentence to
    vacate, set aside or correct the sentence.” See also supra note 2.
    No. 09-2919                                                7
    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.
    II
    DISCUSSION
    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
    8                                                       No. 09-2919
    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 (1998) (discuss-
    ing Teague v. Lane, 
    489 U.S. 288
    , 311 (1989)). In Welch
    v. United States, 
    604 F.3d 408
    , 415 (7th Cir. 2010), cert.
    denied, 
    131 S. Ct. 3019
     (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 punish-
    ment 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 applica-
    9
    In Welch v. United States, 
    604 F.3d 408
    , 429 (7th Cir. 2010), cert.
    denied, 
    131 S. Ct. 3019
     (2011), we ultimately held that the peti-
    tioner’s sentence “was imposed in accordance with governing
    legal principles” because his “prior conviction for the Illinois
    offense of aggravated fleeing or attempting to elude a police
    officer was properly treated as a ‘violent felony’ under the
    ACCA.”
    No. 09-2919                                                 9
    ble 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 (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 (2000) (internal quotation
    marks omitted).
    10                                               No. 09-2919
    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 imprison-
    ment 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 of-
    fender. Consequently, Mr. Narvaez was made eligible
    for roughly five additional years of incarceration
    without any justification in the sentencing scheme estab-
    lished by law. The Constitution grants sentencing
    courts “wide discretion in determining what sentence
    to impose.” United States v. Tucker, 
    404 U.S. 443
    , 446
    (1972). It is well-established, however, that the Due
    Process Clause applies to certain aspects of the sentencing
    process. See Hicks v. Oklahoma, 
    447 U.S. 343
    , 346-47
    (1980) (recognizing a due process violation at sentencing
    when the defendant was deprived of the jury’s
    discretion to impose a lower sentence than the maxi-
    mum); Gardner v. Florida, 
    430 U.S. 349
    , 358 (1977) (plurality
    opinion) (noting, in a capital case, that “sentencing is
    a critical stage of the criminal proceeding” and, therefore,
    “the sentencing process . . . must satisfy the requirements
    of the Due Process Clause”). Therefore, Mr. Narvaez has
    a “constitutional right to be deprived of liberty as punish-
    ment for criminal conduct only to the extent authorized
    by Congress.” Whalen v. United States, 
    445 U.S. 684
    ,
    690 (1980). Certainly, as the district court acknowledged,
    “jurists of reason would find it debatable whether
    the petition states a valid claim of the denial of a constitu-
    tional right.” Slack, 
    529 U.S. at 484
    .
    No. 09-2919                                                        11
    2.
    We now turn to the merits of Mr. Narvaez’s claims.1 0
    We have recognized that sentencing errors are generally
    not cognizable on collateral review, especially when
    such errors can be raised on direct appeal. See Scott
    v. United States, 
    997 F.2d 340
    , 342-43 (7th Cir. 1993) (observ-
    ing “that arguments of the sort [the defendant] proffers
    [in his § 2255 petition] must be advanced on direct appeal
    or not at all”). Mr. Narvaez’s case, however, does not
    come within this general rule. It presents a special and
    very narrow exception: A postconviction clarification in
    the law has rendered the sentencing court’s decision
    unlawful. See Welch, 
    604 F.3d at 412-13
     (recognizing that
    a sentencing error is cognizable on collateral review
    “where a change in law reduces the defendant’s statutory
    maximum sentence below the imposed sentence”).
    More precisely, it is now clear that Mr. Narvaez never
    10
    We have recognized that § 2255 relief “is appropriate only for
    an error of law that is jurisdictional, constitutional, or constitutes
    a fundamental defect which inherently results in a complete
    miscarriage of justice.” Harris v. United States, 
    366 F.3d 593
    ,
    594 (7th Cir. 2004) (internal quotation marks omitted). Mr.
    Narvaez’s argument in this appeal is based on two of these
    statutory grounds. First, he asserts that he is entitled to § 2255
    relief because the sentencing court’s application of the career
    offender status resulted in a complete miscarriage of justice.
    See Addonizio, 
    442 U.S. at 185
    . Second, Mr. Narvaez submits
    that he is entitled to § 2255 relief because the sentencing court’s
    error amounted to a violation of his due process rights. Because
    we believe that a miscarriage of justice entitles Mr. Narvaez
    to relief, we do not reach Mr. Narvaez’s due process claim.
    12                                                    No. 09-2919
    should have been classified as a career offender and
    never should have been subjected to the enhanced punish-
    ment reserved for such repetitive and violent offenders.
    We believe that the Court’s decision in Davis v.
    United States, 
    417 U.S. 333
    , 346 (1974), speaks to the situa-
    tion here.11 In Davis, the petitioner sought § 2255 relief
    after a subsequent interpretation of the statute, under
    which he was convicted, established that his conviction
    and punishment were “for an act that the law does
    11
    The Supreme Court has addressed the issue of whether a non-
    constitutional, non-jurisdictional error is a miscarriage of justice
    on collateral review in five cases. Four of these cases involved
    errors of a procedural nature, and the Court held that no
    miscarriage of justice occurred in those four cases. See Reed v.
    Farley, 
    512 U.S. 339
    , 342, 349-50 (1994) (lack of compliance with
    statutory time limit for commencing trial); Addonizio, 
    442 U.S. at 179, 186-87
     (subsequent change in the policies of the United
    States Parole Commission to consider gravity of the offense in
    whether to grant parole); United States v. Timmreck, 
    441 U.S. 780
    , 781, 784-85 (1979) (error under Federal Rule of Criminal
    Procedure 11 regarding the taking of a guilty plea); Hill v.
    United States, 
    368 U.S. 424
    , 425, 428-29 (1962) (denial of allocu-
    tion at sentencing, which violated Federal Rule of Criminal
    Procedure 32(a)). In the only case to involve a substantive
    error, which rendered the sentence unlawful, the Court found
    that a miscarriage of justice had occurred. See Davis v. United
    States, 
    417 U.S. 333
    , 346-47 (1974) (subsequent change in law
    rendered defendant’s conviction and sentence unlawful). The
    misapplication of the career offender status—which increased
    Mr. Narvaez’s sentencing range—is certainly a substantive error
    more akin to the error in Davis than the error in the other cases.
    No. 09-2919                                                     13
    not make criminal.” 
    Id. at 346
    . The Supreme Court con-
    cluded that “[t]here can be no room for doubt that such a
    circumstance inherently results in a complete miscarriage
    of justice.” 
    Id.
     (internal quotation marks omitted);
    see also Curtis v. United States, 
    294 F.3d 841
    , 843 (7th
    Cir. 2002) (“[A] person convicted of an act that the law
    does not make criminal may obtain collateral relief.”).
    Moreover, in In re Davenport, 
    147 F.3d 605
    , 610 (7th
    Cir. 1998), we found that the defendant was “indeed being
    held in prison for a nonexistent crime,” and, accordingly,
    he may be entitled to collateral relief.1 2
    Although these cases provide collateral relief when
    a defendant is innocent of the underlying crime, we believe
    that reasoning extends to this case, where a post-
    conviction Supreme Court ruling made clear that Mr.
    Narvaez was not eligible for the categorization of violent
    offender wrongfully imposed upon him. We have ex-
    plained that: “When the elements of a crime are narrowed,
    12
    In In re Davenport, 
    147 F.3d 605
     (7th Cir. 1998), a federal
    prisoner filed a motion to vacate, in which he claimed that his
    conviction under 
    18 U.S.C. § 924
    (c) for “use” of a firearm during
    the commission of a drug offense was illegal in light of the
    Supreme Court’s decision in Bailey v. United States, 
    516 U.S. 137
     (1995). In Bailey, the Court resolved an open question
    regarding the definition of the term “use” in the statute, holding
    that “use” of a firearm requires more than “mere possession.”
    
    516 U.S. at 143
    . We held in Davenport that, in light of the Court’s
    Bailey decision, the prisoner was “being held in prison for a
    nonexistent crime,” and, therefore, may be entitled to collateral
    relief based upon his Bailey claim. 
    147 F.3d at 610
    .
    14                                                  No. 09-2919
    that change serves to prohibit any punishment for
    the conduct. Begay prohibits some of that punishment.
    We believe, however, that this distinction is one of degree,
    not one of kind.” Welch, 
    604 F.3d at 415
     (last emphasis
    added). Indeed, in Welch, we found the defendant’s
    challenge to his sentence under the ACCA “analogous”
    to the situation in Davis where the defendant’s punish-
    ment “for an act that the law does not make criminal”
    resulted in “a complete miscarriage of justice.” 
    Id.
     at 413
    n.6 (internal quotation marks omitted).
    Our decision in Welch addressed a sentence under the
    ACCA, but the definition of “violent felony” under the
    ACCA is the same as the definition of “crime of violence”
    under the Sentencing Guidelines. As a result, “[i]t would
    be inappropriate to treat identical texts differently just
    because of a different caption.” Templeton, 
    543 F.3d at 380
    .1 3
    Moreover, at the time of Mr. Narvaez’s sentencing, the
    Guidelines were mandatory. The imposition of a career
    offender status therefore increased the sentencing range
    the district court was authorized to employ. See United
    States v. Booker, 
    543 U.S. 220
    , 234 (2005) (“Because [the
    Guidelines] are binding on judges, we have consistently
    held that the Guidelines have the force and effect of
    laws.”).
    13
    Accord United States v. Tiger, 
    538 F.3d 1297
    , 1298 (10th Cir.
    2008) (holding, on direct review of a sentence, that “the Court’s
    reasoning in Begay applies equally to the sentencing guide-
    lines”).
    No. 09-2919                                               15
    This case therefore involves the classifying of an individ-
    ual as belonging to a subgroup of defendants, repeat
    violent offenders, that traditionally has been treated very
    differently from other offenders. To classify Mr. Narvaez
    as belonging to this group and therefore to increase,
    dramatically, the point of departure for his sentence is
    certainly as serious as the most grievous misinformation
    that has been the basis for granting habeas relief. Cf.
    Tucker, 
    404 U.S. at 447
     (granting habeas relief because
    the trial judge based the defendant’s sentence in part
    upon prior convictions that were later determined to
    be invalid). Accordingly, we believe that a miscarriage of
    justice occurred.
    The Government submits, however, that the sentencing
    court’s error in this case does not warrant § 2255 relief.
    Unlike the situation under the ACCA, Mr. Narvaez’s 170-
    month sentence was actually within the authorized 20-year
    statutory maximum for his crime. Therefore, the Govern-
    ment reasons that, because Mr. Narvaez would be exposed
    to the full range of punishment authorized by Congress
    for his crime at resentencing, and would remain eligible
    for the identical 170-month sentence under the advisory
    guidelines, his claim does not present a fundamental
    defect.
    We cannot accept this argument. The fact that Mr.
    Narvaez’s sentence falls below the applicable statutory-
    maximum sentence is not alone determinative of whether
    a miscarriage of justice has occurred. The imposition of the
    career offender status branded Mr. Narvaez as a male-
    factor deserving of far greater punishment than that
    usually meted out for an otherwise similarly situated
    16                                              No. 09-2919
    individual who had committed the same offense. It
    created a legal presumption that he was to be treated
    differently from other offenders because he belonged in
    a special category reserved for the violent and incorrigi-
    ble. No amount of evidence in mitigation or extenuation
    could erase that branding or its effect on his sentence. His
    designation as a career offender simply took as unchal-
    lenged a premise that was not true and gave him no way of
    avoiding the consequences of that designation. The sen-
    tencing court’s misapplication of the then-mandatory
    § 4B1.1 career offender categorization in Mr. Narvaez’s
    case was the lodestar to its guidelines calculation. It
    placed him in a very special status for the calculation of
    his final sentence solely because the court ruled that he
    was a career offender and that the corresponding guide-
    lines required such a status. Speculation that the district
    court today might impose the same sentence is not
    enough to overcome the fact that, at the time of his initial
    sentencing, Mr. Narvaez was sentenced based upon the
    equivalent of a nonexistent offense. As the Supreme Court
    put it in Hicks v. Oklahoma, 
    447 U.S. 343
    , 346 (1980), to
    assume that the same sentence would have been
    imposed in the absence of the career offender provision is
    “frail conjecture” that evinces in itself “an arbitrary
    disregard of the petitioner’s right to liberty.” This error
    clearly constitutes a miscarriage of justice. The Govern-
    ment is correct that Mr. Narvaez does not have an absolute
    right to a lower sentence. Nevertheless, he does have an
    absolute right not to stand before the court as a career
    offender when the law does not impose that label on him.
    No. 09-2919                                                     17
    The career offender status illegally increased Mr.
    Narvaez’s sentence approximately five years beyond that
    authorized by the sentencing scheme. Therefore,
    Mr. Narvaez’s claim goes to the fundamental legality of
    his sentence and asserts an error that constitutes a miscar-
    riage of justice, entitling him to relief.1 4 Because we con-
    clude that Mr. Narvaez is entitled to relief based on
    his claim of miscarriage of justice, we do not reach his
    due process claim.
    Conclusion
    The judgment of the district court denying Mr. Narvaez’s
    motion for relief under § 2255 is reversed and re-
    14
    The Government invites our attention to the Eleventh Cir-
    cuit’s recent decision in Gilbert v. United States, 
    640 F.3d 1293
    (11th Cir. 2011) (en banc), No. 11-6053 (U.S. Aug. 17, 2011). The
    Eleventh Circuit in Gilbert, however, explicitly did not address
    the issue in this case, namely whether a guidelines misapplica-
    tion claim based on a new Supreme Court rule is cognizable in
    an initial collateral attack. The Eleventh Circuit concluded that
    it had “no reason to decide that issue because this is not [the
    defendant]’s first collateral attack on his sentence.” 
    Id. at 1306
    .
    The Government also invites our attention to the recent
    decision in Sun Bear v. United States, 
    644 F.3d 700
     (8th Cir. 2011)
    (en banc). Unlike the defendant in Sun Bear, Mr. Narvaez’s
    sentence was not within the sentencing range had the career
    offender status not been applied. Nevertheless, to the extent a
    tension between this opinion and the Eighth Circuit’s
    reasoning in Sun Bear exists, we respectfully disagree with
    our colleagues on the Eighth Circuit.
    18                                            No. 09-2919
    manded. On remand, the district court is to impose
    the sentence applicable without the imposition of a
    career offender status. No other aspect of the sentence is
    to be revisited.
    R EVERSED and R EMANDED with INSTRUCTIONS
    12-16-11