                                  IN THE

                UNITED STATES COURT OF APPEALS

                      FOR THE SEVENTH CIRCUIT

                            _________________

No. 09-2919

LUIS M. NARVAEZ,

                                                        Petitioner-Appellant,

                                      v.

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                            ________________

               Appeal from the United States District Court
                 for the Western District of Wisconsin.
               No. 09-cv-222—Barbara B. Crabb, Judge.

                            ________________

      ARGUED DECEMBER 7, 2010--DECIDED JUNE 3, 2011

                    AMENDED DECEMBER 6, 2011*
                        ________________

      Before RIPPLE, KANNE and SYKES, Circuit Judges.



      *
          This opinion is being released initially in typescript form.
No. 09-2919                                                              Page 2

        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 (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 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


        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).
        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
                                                             (continued...)
No. 09-2919                                                            Page 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 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. 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


       3
         (...continued)
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 another,” 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 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.
No. 09-2919                                                              Page 4

similar, in kind as well as in degree of risk posed, to the examples [listed in
the ACCA] themselves.” Id. at 143.6

        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

        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.”
        7
            Section 4B1.2(a) provides in pertinent part that “[t]he term ‘crime
                                                                  (continued...)
No. 09-2919                                                            Page 5

         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.

       7
         (...continued)
of violence’ means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, 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                                                            Page 6


                                      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 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) (discussing 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 punishment is certainly a
substantive liability.” Id. As a result, we concluded that because the Begay
No. 09-2919                                                              Page 7

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 (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).

        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 petitioner’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                                                            Page 8

        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 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 maximum); 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 punishment 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 constitutional right.” Slack, 529 U.S. at 484.


                                      2.
No. 09-2919                                                               Page 9

        We now turn to the merits of Mr. Narvaez’s claims.10 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) (observing “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 should have been classified as a career offender and never should have
been subjected to the enhanced punishment 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 situation here.11 In Davis, the petitioner

        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.
        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
                                                                   (continued...)
No. 09-2919                                                          Page 10

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 not make criminal.” Id. at 346. The Supreme
Court concluded that “[t]here can be no room for doubt that such a
circumstance inherently results in a complete miscarriage of justice.” Id. at
346 (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.12

       11
         (...continued)
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
allocution 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.
       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
                                                                (continued...)
No. 09-2919                                                            Page 11

        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 postconviction Supreme Court ruling made clear that Mr.
Narvaez was not eligible for the categorization of violent offender
wrongfully imposed upon him. We have explained that: “When the
elements of a crime are narrowed, 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 punishment “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 380.13 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


(...continued)
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.
       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 guidelines”).
No. 09-2919                                                            Page 12

laws.”).

         This case therefore involves the classifying of an individual 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 a 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
Government 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 malefactor
deserving of far greater punishment than that usually meted out for an
otherwise similarly situated 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 incorrigible. 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 unchallenged a premise that was not true and gave
him no way of avoiding the consequences of that designation. The
sentencing court’s misapplication of the then-mandatory § 4B1.1 career
offender categorization in Mr. Narvaez’s case was the lodestar to its
No. 09-2919                                                               Page 13

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 guidelines 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 Government 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.

       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 miscarriage of justice, entitling
him to relief.14 Because we conclude that Mr. Narvaez is entitled to relief

        14
          The Government invites our attention the Eleventh Circuit’s recent
decision in Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en
banc). The Eleventh Circuit in Gilbert, however, explicitly did not address
the issue in this case, namely whether a guidelines misapplication 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, 09-2992, 2011 WL 2683183 (8th Cir. July 12,
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
                                                               (continued...)
No. 09-2919                                                         Page 14

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 remanded. 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.

                   REVERSED and REMANDED with INSTRUCTIONS




(...continued)
our colleagues on the Eighth Circuit.
