                              In the

    United States Court of Appeals
                 For the Seventh Circuit
Nos. 12-2621, 12-2762

UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellant,
                                 v.


QUADALE D. COLEMAN,
                                                Defendant-Appellee.

         Appeal from the United States District Court for the
                    Western District of Wisconsin.
     No. 3:07-cr-00080-wmc-1 — William M. Conley, Chief Judge.


QUADALE D. COLEMAN
                                                 Petitioner-Appellee,
                                 v.

UNITED STATES OF AMERICA,
                                             Respondent-Appellant.

        Appeal from the United States District Court for the
                  Western District of Wisconsin.
     No. 3:10-cv-00736-wmc —William M. Conley, Chief Judge.


    ARGUED APRIL 25, 2014 — DECIDED AUGUST 14, 2014
2                                               Nos. 12-2621, 12-2762

   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 Guide-
lines 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 (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


*
   The Honorable Robert M. Dow, Jr., of the Northern District of Illinois,
sitting by designation.
Nos. 12-2621, 12-2762                                           3

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. 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, citing
Taylor v. United States, 495 U.S. 575, 602 (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 prohib-
its “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 pursu-
ant 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 Guide-
lines 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 §
4                                          Nos. 12-2621, 12-2762

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 cogniza-
ble 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 constitu-
tional 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 (2005). We
Nos. 12-2621, 12-2762                                            5

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 sentenc-
ing, 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 distin-
guished 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.
6                                          Nos. 12-2621, 12-2762

    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 interpre-
tation 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 preva-
lence 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
Nos. 12-2621, 12-2762                                                        7

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 argument is problematic for a number
of reasons. First, the resentencing in this case was by a different
district court judge years after the original sentence, and the
transcript indicates that the district court considered the
defendant’s conduct in prison and his participation in prison
programs as evidence militating towards a lower sentence. The
district court on resentencing held that there was not anything
mitigating in Coleman’s criminal history, and noted that
although the forcible sexual assault was not a crime of violence
for career offender designation, the details of the sexual assault
in the criminal complaint were “disturbing” and could be
considered under § 3553(a). Coleman did not dispute the facts
in the Presentence Report (PSR) before the district court
concerning that offense, which indicated that the sexual assault
was forcible and that the victim was 14 years old.** There is, in


**
  Although the content of PSRs are generally confidential, consideration of
the PSR is appropriate as necessary to provide the factual background for
a district court’s sentence and to address the arguments for resentencing.
See United States v. Kelly, 314 F.3d 908, 913 (7th Cir. 2003). In deference to
                                                                 (continued...)
8                                                   Nos. 12-2621, 12-2762

short, no reason to believe that a district court—faced with a
crime of such a nature—would be inclined to revise the
sentence based solely on whether the elements of that offense
necessarily fall within the career offender provision’s definition
of a crime of violence. It is the type of crime that one would
expect to fall within such a category and that is at a minimum
analogous to such crimes, and a court would properly consider
that in determining the appropriate sentence in light of the
§ 3553(a) factors. The mitigating factors identified at sentencing
involving Coleman’s conduct in prison would not have been
factors at the original sentence and therefore the lower sen-
tence resulting from that consideration does not inform us as
to whether the original sentence would have been lower.
     We need not decide that, however, because the second and
more pressing problem with this argument is that even errors
that are not harmless may not be cognizable in a § 2255
proceeding. Hawkins, 706 F.3d at 823. In Hawkins, we deter-
mined that § 2255 relief was unavailable even though we
conceded that the judge may have imposed a lower sentence
if the proper Guidelines range was calculated. Id. at 824. In fact,
in Hawkins the gap between the range used by the district court
and the appropriate range was much more substantial than is
the case here. In Hawkins, the district court should have
sentenced the defendant based on a Guidelines range of either
15-21 months or 24-30 months (the court found it unnecessary


**
  (...continued)
that interest in confidentiality, we provide here only the general outline of
the factual underpinnings of the sexual assault claim, as that is sufficient for
purposes of this analysis.
Nos. 12-2621, 12-2762                                          9

to decide which would have been appropriate), but because the
district court (erroneously, as it turned out) deemed Hawkins
a career offender, the court instead relied on a Guidelines
range of 151-188 months and imposed a sentence of 151
months. Id. at 821. A district court faced with the proper
Guidelines range would not reach a sentence that high unless
it determined that a five to tenfold increase from that range
was appropriate. Id. at 827 (Rovner, J. dissenting). In contrast,
the difference from the actual (188-235 months) to the appro-
priate (140-175 at time of sentencing) range was much less
significant here. Therefore, the likelihood of a different
sentence in light of the sentencing error is not an adequate
basis to distinguish Hawkins.
    Coleman argues two other means of distinguishing
Hawkins. First, he asserts that Hawkins applies to sentencing
under the Guidelines in which the district court understood
that the Guidelines were advisory, but here the district court
did not appear to appreciate the discretion because the court
stated that the career offender range was the legal sentencing
range and was what “the law will allow.” The transcript of the
sentencing hearing makes clear, however, that the district court
judge understood his role and the advisory nature of the
Guidelines. The judge explicitly stated that he would use the
2007 Guidelines Manual and that it was advisory, and declared
that he would impose the sentence consistent with the provi-
sions set forth in 18 U.S.C. § 3553(a). Moreover, the court’s
discussion of the appropriate sentence reflects consideration of
those § 3553(a) factors. Accordingly, Hawkins is not distinguish-
able on this basis.
10                                         Nos. 12-2621, 12-2762

    Finally, Coleman contends that his case presents a proce-
dural posture that would help ensure against the Hawkins’
court concern with limited judicial resources and the potential
of a flood of filings because his § 2255 motion was filed within
the original § 2255 deadlines, again relying on the Eleventh
Circuit’s case in Spencer, 727 F.3d at 1091. As we previously
stated, Spencer was vacated and the case is being considered en
banc. Moreover, the argument that the Spencer court had
endorsed and Coleman seeks to adopt would allow a first,
timely-filed motion under § 2255 where a new Supreme Court
decision has been given retroactive effect, but Hawkins simi-
larly addressed a timely-filed § 2255 motion based upon a new
Supreme Court opinion. Hawkins, 706 F.3d at 822. Coleman has
failed to argue how that factor distinguishes this case from that
presented and decided in Hawkins, and therefore it is not a
basis for affirmance of the district court’s decision to resentence
him. Based on our decision in Hawkins, the decision of the
district court in No. 12-2621 resentencing Coleman is VA-
CATED, the decision in No. 12-2762 granting the § 2255 motion
is REVERSED and the case is REMANDED with instructions to
the court to deny the § 2255 motion and reinstate the original
amended judgment of conviction and sentence.
