                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-3333
                                   ___________

Michael Eugene Seebeck,                 *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
United States of America,               *
                                        * [UNPUBLISHED]
            Appellee.                   *
                                   ___________

                             Submitted: June 16, 2010
                                Filed: August 9, 2010
                                 ___________

Before LOKEN, ARNOLD and GRUENDER, Circuit Judges.
                          ___________

PER CURIAM.

      A federal grand jury returned a superseding indictment charging Michael
Seebeck with numerous drug offenses. Pursuant to a plea agreement with the
Government, Seebeck pled guilty to one count of possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and waived his right to
appeal a sentence of 188 months or less.

       The Presentence Investigation Report (“PSR”) classified Seebeck as a career
offender under U.S.S.G. § 4B1.1, and calculated an offense level of 29, a criminal
history category of VI, and an advisory sentencing guidelines range of 151 to 188
months. Seebeck’s career offender status was based on his August 2003 conviction
for second-degree assault and his November 2003 conviction for fleeing a peace
officer in a motor vehicle in Minnesota. At the March 17, 2008 sentencing hearing,
the district court adopted the PSR’s calculation of the advisory guidelines range and
sentenced Seebeck to 151 months’ imprisonment. No direct appeal was filed.

       Less than a month after Seebeck was sentenced, the Supreme Court decided
Begay v. United States, 553 U.S. 137 (2008). In Begay, the Court addressed how to
determine whether an offense qualifies as a “violent felony” under the “otherwise”
clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Section
924(e)(2)(B)(ii) defines “violent felony” to include “burglary, arson, or extortion, [and
crimes that] involve[] use of explosives, or otherwise involve[] conduct that presents
a serious potential risk of physical injury to another.” The Supreme Court observed
in Begay that the example crimes listed in § 924(e)(2)(B)(ii) “typically involve
purposeful, violent, and aggressive conduct,” 553 U.S. at 144-45 (citation and internal
quotation marks omitted), and announced that in applying the “otherwise” clause,
courts “should read the examples as limiting the crimes that clause (ii) covers to
crimes that are roughly similar, in kind as well as in degree of risk posed, to the
examples themselves,” id. at 143. Because the definitions of “violent felony” in
§ 924(e) and “crime of violence” in U.S.S.G. § 4B1.2 are nearly identical, the holding
in Begay is relevant to determining whether a defendant is a career offender under the
sentencing guidelines. See United States v. Hennecke, 590 F.3d 619, 621 n.2 (8th Cir.
2010), petition for cert. filed, --- U.S.L.W. --- (U.S. Mar. 30, 2010) (No. 09-9972).

       On November 10, 2008, Seebeck filed a pro se motion to vacate, correct, or set
aside the sentence under 28 U.S.C. § 2255, arguing that his conviction for fleeing a
peace officer in a motor vehicle is not a “crime of violence,” and that he therefore
should not have been sentenced as a career offender. On August 13, 2009, the district




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court denied Seebeck’s motion, concluding that Seebeck’s failure to challenge his
career offender classification in a direct appeal “constitutes a procedural default.”1

       Seebeck, still acting pro se, filed a motion to alter or amend the denial of his §
2255 motion under Federal Rule of Civil Procedure 59(e), arguing that Begay applies
retroactively to cases on collateral review. While Seebeck’s motion to alter or amend
was pending before the district court, we decided United States v. Tyler, 580 F.3d 722
(8th Cir. 2009). There, applying the principles set out in Begay, we held that the
Minnesota crime of fleeing a peace officer in a motor vehicle —the same crime for
which Seebeck was convicted in November 2003—does not constitute a “crime of
violence.” Id. at 726.

       In a subsequent order, the district court granted a certificate of appealability,
“based on the recent Eighth Circuit Court of Appeals decision in United States v.
Tyler,” on the following issue: “[W]hether the holding of [Begay] applies
retroactively, permitting Petitioner to collaterally attack his designation as a Career
Offender, in spite of Petitioner’s failure to file a direct appeal on this issue and the
passage of more than one year since entry of judgment in Petitioner’s case.” In the
same order, the district court denied Seebeck’s motion to alter or amend without
further discussion.




      1
       Noting that Seebeck had not addressed “cause, prejudice, or actual innocence
in his § 2255 motion,” the district court concluded that it could not “excuse the
procedural default on these bases.” Seebeck did, however, argue in his § 2255 motion
that his attorney provided ineffective assistance, which can excuse a procedural
default. See Becht v. United States, 403 F.3d 541, 544-45 (8th Cir. 2005). Citing
United States v. Kendrick, 423 F.3d 803, 809 (8th Cir. 2005) (holding that the Oregon
crime of fleeing a police officer in a motor vehicle is a crime of violence under
U.S.S.G. § 4B1.1), the district court concluded that Seebeck had not shown prejudice
under Strickland v. Washington, 466 U.S. 668 (1984).

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       “[A] district court has broad discretion to alter or amend a judgment under Rule
59(e), and we will reverse only for a clear abuse of discretion.” SFH, Inc. v. Millard
Refrigerated Servs., Inc., 339 F.3d 738, 746 (8th Cir. 2003) (citing Innovative Home
Health Care, Inc. v. P.T.O.T. Assocs., 141 F.3d 1284, 1286 (8th Cir. 1998)). “A
district court abuses its discretion when it bases its decision on a legal error or a
clearly erroneous finding of fact.” United States v. Bailey, 571 F.3d 791, 804 (8th Cir.
2009) (quoting Roach v. Stouffer, 560 F.3d 860, 863 (8th Cir. 2009)).

       Because the district court failed to offer any analysis in its order, we can only
surmise that its denial of Seebeck’s motion to alter or amend was based on an implicit
finding that Begay does not apply retroactively to cases on collateral review.2 Not
only does the Government concede on appeal that Begay is retroactively applicable,
but we recently held that “the rule in Begay is applicable retroactively to cases on
collateral review,” Sun Bear v. United States, --- F.3d ---, 2010 WL 2813620 at *4
(8th Cir. July 20, 2010). The district court’s contrary ruling was legal error and thus
a clear abuse of discretion. See Bailey, 571 F.3d at 804.

     For the foregoing reasons, we vacate the district court’s order denying
Seebeck’s motion to alter or amend and remand for further proceedings.




LOKEN, Circuit Judge, dissents.
                    ______________________________

      2
        We are puzzled by the district court’s reference to “the passage of more than
one year since entry of judgment in [Seebeck’s] case.” The district court sentenced
Seebeck on March 17, 2008, and Seebeck filed his § 2255 motion on November 10,
2008, less than eight months later. See 28 U.S.C. § 2255(f) (“A 1-year period of
limitation shall apply to a motion under this section.”). The district court denied
Seebeck’s § 2255 motion on August 13, 2009, and Seebeck filed his motion to alter
or amend on August 26, 2009, well within the 28-day period prescribed by Federal
Rule of Civil Procedure 59(e).

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