               Case: 10-10676        Date Filed: 08/15/2013      Page: 1 of 45


                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              _______________________

                                     No. 10-10676
                               _______________________

                     D.C. Docket Nos. 3:08-cv-00914-VMC-MCR,
                            3:06-cr-00349-VMC-MCR-1

KEVIN SPENCER,

                                                                        Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

                                                                       Respondent-Appellee.

                               _______________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                             _______________________

                                     (August 15, 2013)



Before JORDAN and KRAVITCH, Circuit Judges, and HORNBY,* District Judge.


_______________________
*
 Honorable D. Brock Hornby, United States District Judge for the District of Maine, sitting by
designation.
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HORNBY, District Judge:

      We hold that a defendant who unsuccessfully raised a career offender issue

at both sentencing and on direct appeal can use a timely-filed first motion under 28

U.S.C. § 2255 to pursue the same issue when an intervening case from the

Supreme Court validates his argument and applies retroactively. Under that

intervening case, this defendant’s third degree Florida felony child abuse

conviction no longer qualifies as a predicate crime of violence. He therefore is not

properly treated as a career offender. We vacate the district court’s denial of his

section 2255 motion and remand for resentencing.

                                Procedural History

      In 2007, Kevin Spencer, age 21, received a 151-month federal sentence for

distributing 5.5 grams of crack cocaine. The sentencing judge determined that

Spencer was a career offender and sentenced him at the bottom of the career

offender Guideline range. The judge told Spencer that without career offender

status, “instead of looking at a level 32, you’d have been looking at a level 23. It’s,

in essence, half the sentence, in essence.” Sentencing Tr. at 20 (Record No. 49).

(Without career offender status, Spencer’s Guideline range was 70 to 87 months.

Presentence Investigation Report ¶¶ 24, 37.)

      To be a career offender, a defendant must have two previous felony

convictions for enumerated drug trafficking crimes and/or crimes of violence. 28


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U.S.C. § 994(h). Spencer certainly had one such previous conviction. In 2004 at

age 18, he was convicted of possession with intent to sell cocaine while he was 17.

But at his 2007 federal sentencing, Spencer argued that the second predicate

felony—a 2004 Florida conviction on the same date as the other predicate

conviction—was not a qualifying crime of violence.

      Spencer argued then and now that this Florida conviction—third degree

felony abuse of a minor—did not require intent to cause physical injury or even a

reasonable likelihood of physical injury, that intent to cause mental injury (or a

reasonable likelihood of mental injury) alone was sufficient for conviction, and

therefore that the conviction did not satisfy the federal crime-of-violence

definition.

      Spencer lost that argument before the federal sentencing judge. He appealed

his sentence, making the same arguments on appeal. This court rejected those

arguments in 2008 and affirmed Spencer’s career offender sentence in an

unpublished per curiam opinion on the basis that the conduct that resulted in the

prior conviction created a serious potential risk of physical injury. United States v.

Spencer (Spencer I), 271 F. App’x 977, 979 (11th Cir. 2008).

      Two weeks later, the United States Supreme Court decided Begay v. United

States, 553 U.S. 137, 143, 128 S. Ct. 1581, 1585 (2008), a case that narrowed one

portion of the crime-of-violence definition to “crimes that are roughly similar, in


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kind as well as in degree of risk posed,” to examples specifically listed in the

statute (the listed crimes are burglary, arson, extortion, and use of explosives).1

Spencer then moved that same year under 28 U.S.C. § 2255 (his first such motion)

to vacate, set aside, or correct his sentence. The district court denied his motion in

2010. Order and Judgment in Civil Case (Record Nos. 17 & 18). We then granted

a certificate of appealability2 on the following two issues:

       1.      Whether in light of Begay v. United States, 553 U.S. 137, 128 S. Ct.

1581 (2008), and later cases in this court, Spencer’s freestanding challenge to a

career offender sentence is cognizable under 28 U.S.C. § 2255.

       2.      If so, whether the district court, in light of Begay, erroneously

determined that Spencer was a career offender based upon a predicate state

conviction for felony child abuse under Fla. Stat. § 827.03(1).3



       1
          Begay involved the Armed Career Criminal Act, not the career offender statute and
Guideline, but courts treat them the same in defining what is a crime of violence. See infra note
5.
        2
          In light of Gonzalez v. Thaler, 132 S. Ct. 641 (2012), and the government’s failure to
argue the issue, we do not re-examine whether the certificate of appealability properly issued
under 28 U.S.C. § 2253(c)(2)-(3).
        3
          The certificate of appealability reads in its entirety:
                 Whether in light of Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581, 170 L.
        Ed. 2d 490 (2008), Gilbert v. United States, No. 09-12513 (11th Cir. June 21, 2010), and
        United States v. Hunter, 559 F.3d 1188 (11th Cir. 2009), the movant’s freestanding
        challenge to a career offender sentence imposed under U.S.S.G. § 4B1.1 is cognizable
        under 28 U.S.C. § 2255? If so, whether the district court, in light of Begay v. United
        States, 553 U.S. 137, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008), erroneously determined
        that the movant was properly classified as a career offender where he had a prior state
        conviction for felony child abuse under Fla. Stat. § 827.03(1)?


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       On appeal from a district court’s denial of a section 2255 motion, “we

review legal issues de novo and factual findings under a clear error standard.”

Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009) (citation omitted).

We also “review de novo whether a prior conviction qualifies as a ‘crime of

violence’ under the Sentencing Guidelines.” United States v. Lockley, 632 F.3d

1238, 1240 (11th Cir. 2011) (citation omitted).

                                          Analysis

                                              I.

       The Applicable Statutes and Guideline

       The United States Sentencing Commission created career offender sentences

as a result of a specific directive from Congress. In the Sentencing Reform Act of

1984, Congress instructed:

             The Commission shall assure that the guidelines specify a
       sentence to a term of imprisonment at or near the maximum term
       authorized for categories of defendants in which the defendant is
       eighteen years old or older and—
             (1) has been convicted of a felony that is [a crime of violence
                    or an enumerated drug trafficking offense]; and
             (2) has previously been convicted of two or more prior
                    felonies, each of which is—



Certificate of Appealability at 2 (Record No. 22). There was a delay in hearing the appeal
pending the disposition of other cases that might have affected it. The government and Spencer
(proceeding pro se) fully briefed the case in January 2011. In November 2011, the court
appointed an attorney for Spencer. In June 2012 the case was fully briefed again. In December
2012, we heard oral argument.

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                             (A) a crime of violence; or
                             (B) [an enumerated drug trafficking offense].

28 U.S.C. § 994(h). Accordingly, the Commission devised a separate Guideline

4B1.1 for calculating the sentences of these “career offenders.” As Congress

directed, they generally receive a significantly higher offense level and a higher

criminal history score, with a resulting significantly higher sentencing range.

       Since 1989,4 the Sentencing Commission has used the statutory definition of

“violent felony” from the Armed Career Criminal Act to define “crime of

violence” for career offenders: 5

              The term “crime of violence” means any offense under federal
       or state law, punishable by imprisonment for a term exceeding one
       year, that—


       4
          Amy Baron-Evans, Jennifer Coffin & Sara Silva, Deconstructing the Career Offender
Guideline, 2 Charlotte L. Rev. 39, 58-66 (2010), provide a detailed history.
        5
          The Commission made a single substantive modification, listing “burglary of a
dwelling” rather than the undifferentiated “burglary” of the statutory definition, 18 U.S.C.
§ 924(e)(2)(B). In Comment 1, the Commission added further elaboration:
                “Crime of violence” includes murder, manslaughter, kidnapping,
        aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate
        extension of credit, and burglary of a dwelling. Other offenses are included as
        “crimes of violence” if (A) that offense has as an element the use, attempted use,
        or threatened use of physical force against the person of another, or (B) the
        conduct set forth (i.e., expressly charged) in the count of which the defendant was
        convicted involved use of explosives (including any explosive material or
        destructive device) or, by its nature, presented a serious potential risk of physical
        injury to another.
U.S. Sentencing Guidelines Manual § 4B1.2 cmt. 1. Although the Commission says that the
definitions are “not identical,” id. § 4B1.4 cmt. 1, we follow the precedents that treat the
definition of crime of violence as virtually identical in the career offender and armed career
criminal cases. See, e.g., United States v. James, 550 U.S. 192, 206, 127 S. Ct. 1586, 1596
(2007) (“closely tracks”); United States v. Chitwood, 676 F.3d 971, 975 n.2 (11th Cir. 2012)
(“substantially the same”).


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              (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. Sentencing Guidelines Manual § 4B1.2(a).

       The Florida statute under which Spencer was convicted of third degree

felony child abuse provided: “A person who knowingly or willfully abuses a child

without causing great bodily harm, permanent disability, or permanent

disfigurement to the child commits a felony of the third degree . . . .” Fla. Stat.

§ 827.03(1) (2003) (emphasis added).6 It defined child abuse as:

               (a) Intentional infliction of physical or mental injury 7 upon a
                   child;
               (b) An intentional act that could reasonably be expected to
                   result in physical or mental injury to a child; or
               (c) Active encouragement of any person to commit an act that
                   results or could reasonably be expected to result in physical
                   or mental injury to a child.

Id. (emphases added). Spencer argued at his federal sentencing that the records

that the federal sentencing judge could consult did not show that he pleaded guilty

       6
          The child abuse statute has been substantially altered and renumbered since Spencer
was convicted. In this opinion, we cite the version of the statute in effect when Spencer was
convicted.
        7
          At the time Spencer was convicted, mental injury was defined in a related chapter
entitled “Proceedings Relating to Children” as: “injury to the intellectual or psychological
capacity of a child as evidenced by a discernible and substantial impairment in the ability to
function within the normal range of performance and behavior.” Fla. Stat. § 39.01(43) (2002);
see also DuFresne v. State, 826 So. 2d 272, 278-79 (Fla. 2002) (concluding that the child abuse
statute “is not unconstitutionally vague because the term ‘mental injury’ is adequately defined in
another related statute,” namely, chapter 39).


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to the physical injury element of the statute at his Florida conviction, and thus that

his Florida conviction could not be counted as a crime of violence.

      The government agrees that Spencer’s Florida conviction for third degree

felony child abuse does not satisfy subsection (1) of the federal crime-of-violence

definition requiring that physical force be an element of the crime. Appellee’s Br.

at 22 n.4. The government’s concession is appropriate because the Florida statute

can result in conviction without the use or threat of physical force. The Florida

crime also is not one of the enumerated crimes in subsection (2) (burglary of a

dwelling, arson, extortion, use of explosives).

      Instead, to be counted as a crime of violence, Spencer’s Florida conviction

must qualify under the so-called residual clause of subsection (2) as an offense that

“otherwise involves conduct that presents a serious potential risk of physical injury

to another.” The sentencing judge in 2007 and this court in 2008 both ruled

against Spencer on the basis of that language.

      We turn then to the initial issue on which we granted the certificate of

appealability.

                                          II.

      Can section 2255 be used to challenge a career offender sentence where

the challenge is based upon a later Supreme Court case and later cases from

this court?


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       Spencer seeks to challenge his career offender sentence under that portion of

section 2255 that allows a prisoner serving federal time to “move the court which

imposed the sentence to vacate, set aside or correct the sentence” when his claim is

“that the sentence was imposed in violation of the Constitution or laws of the

United States.” 28 U.S.C. § 2255(a).8 This is Spencer’s first such motion.

Spencer claims that, because of the Supreme Court’s new definition of crime of

violence in Begay, he had only one prior drug trafficking offense or crime of

violence at the time of his federal sentence, while the career offender statute and

Guideline both require two, and that his career offender sentence therefore was “in

violation of the . . . laws of the United States.” Section 2255(f)(3) provides a one-

year limitation period for filing such a motion. The period runs from “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.” 9 As we discuss in Part IV, we and other




       8
          In Gilbert v. United States, 640 F.3d 1293, 1306 (11th Cir. 2011) (en banc), the
government argued that a Guideline error could not be raised in any collateral attack, not even a
first one. The en banc court refused to decide that issue and dealt only with second or successive
motions. Id. As a result, the en banc court saw no reason to deal with decisions like Davis v.
United States, 417 U.S. 333, 94 S. Ct. 2298 (1974), and Hill v. United States, 368 U.S. 424, 82 S.
Ct. 468 (1962), see Gilbert, 640 F.3d at 1306 n.13, cases we discuss below.
        9
          We have treated Begay as creating such a “new right.” Zack v. Tucker, 704 F.3d 917,
925-26 (11th Cir. 2013) (en banc).


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circuit courts have stated that Begay applies retroactively. Here, Spencer filed his

motion in a timely fashion, i.e., within one year of the 2008 Begay decision.

       In Davis v. United States, 417 U.S. 333, 343-46, 94 S. Ct. 2298, 2303-05

(1974) (not a sentencing case), the Supreme Court ruled explicitly that section

2255’s language “laws of the United States” includes more than constitutional

challenges. 10 With particular relevance to Spencer’s section 2255 motion here

based upon Begay, Davis held that section 2255 could be used for a challenge

based upon a change in the applicable circuit law that occurred after the defendant

was convicted and sentenced the first time, even though the defendant had raised

and lost that very issue in the trial court and on appeal. Id. at 342, 346, 94 S. Ct. at

2303, 2305. Thus, both section 2255(f)(3) and Davis contemplate a section 2255

motion based upon a change in the law.

       But the Supreme Court in Davis added this qualification: “‘[C]ollateral

relief is not available when all that is shown is a failure to comply with the formal

requirements’ of a rule of criminal procedure in the absence of any indication that

the defendant was prejudiced by the asserted technical error.” Id. at 346, 94 S. Ct.

at 2305. For this proposition, Davis quoted Hill v. United States, 368 U.S. 424,


       10
          Earlier, in United States v. Behrens, 375 U.S. 162, 84 S. Ct. 295 (1963), the Supreme
Court allowed a convicted defendant to use section 2255 to attack a sentence that the judge
imposed in the absence of the defendant and his lawyer, on the basis that the process violated the
Federal Rules of Criminal Procedure. That Criminal Rules violation appears to have qualified as
a violation of the “laws of the United States” under section 2255.


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429, 82 S. Ct. 468, 472 (1962), where the sentencing judge failed to inform the

defendant that he had the right to speak at sentencing, characterized as a “failure to

comply with the formal requirements of the Rule.” 11 Quoting Hill, Davis said that

“the appropriate inquiry was whether the claimed error of law was ‘a fundamental

defect which inherently results in a complete miscarriage of justice,’ and whether

‘(i)t . . . present(s) exceptional circumstances where the need for the remedy

afforded by the writ of habeas corpus is apparent.’” 417 U.S. at 346, 94 S. Ct. at

2305 (quoting Hill, 368 U.S. at 428, 82 S. Ct. at 471). Davis did meet the

complete-miscarriage-of-justice standard because the intervening change in the law

arguably made the defendant’s conduct no longer criminal, and “[t]here can be no

room for doubt that such a circumstance ‘inherently results in a complete

miscarriage of justice’ and ‘present(s) exceptional circumstances’ that justify

collateral relief under § 2255.” Id. at 346-47, 94 S. Ct. at 2305.

       Later, the Supreme Court recognized a section 2255 challenge to a career

offender sentence in Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571

(2005). After being sentenced, Johnson persuaded a state court to invalidate one of

the convictions that had made him a federal career offender. He then requested the


       11
          Other cases like Hill (failure to comply with the formal requirements of a rule of
criminal procedure) are Peguero v. United States, 526 U.S. 23, 119 S. Ct. 961 (1999) (failure to
inform defendant of the right to appeal where defendant knew of the right), and United States v.
Timmreck, 441 U.S. 780, 99 S. Ct. 2085 (1979) (judge’s failure to mention a special parole term
at the Rule 11 guilty plea).


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federal sentencing court to reduce his sentence under section 2255. The Supreme

Court stated that “[t]he Government shares Johnson’s preliminary assumption that

if he filed his § 2255 motion in time, he is entitled to federal resentencing now that

the State has vacated one of the judgments supporting his enhanced sentence.” Id.

at 302-03, 125 S. Ct. at 1577. The Supreme Court then supported that assumption,

summarizing two of its earlier cases that countenanced the challenge of career

offender sentences under section 2255 if a state court later declared the predicate

convictions invalid. 12 Johnson stated: “This case presents the distinct issue of how

soon a prisoner, successful in his state proceeding, must challenge the federal

sentence under § 2255.” 13 Id. at 304, 125 S. Ct. at 1578 (emphasis added). Thus,

Johnson acknowledged that section 2255 could provide relief in a career offender

sentencing case if the motion were timely. It did so without referring to the

fundamental-defect/complete-miscarriage-of-justice standard. But since Johnson

did not remove that requirement, we construe the decision as having implicitly

found it satisfied.

       In Stewart v. United States, 646 F.3d 856, 858-59 (11th Cir. 2011), this

court recognized Johnson’s import and likewise allowed a convicted defendant to



       12
           The cases were Daniels v. United States, 532 U.S. 374, 381-82, 121 S. Ct. 1578, 1582-
83 (2001), and Custis v. United States, 511 U.S. 485, 497, 114 S. Ct. 1732, 1739 (1994).
        13
           For reasons not relevant to this case, Johnson held that the defendant there proceeded
too late and that the statute of limitations barred his section 2255 claim.


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use section 2255 to attack a career offender sentence after predicate state

convictions were vacated following his federal sentence and appeal. Like Johnson,

Stewart also did not refer to the fundamental-defect/complete-miscarriage-of-

justice standard, and we construe the decision as having implicitly found it

satisfied.

       Johnson and Stewart are the career offender/collateral review cases that

guide us. 14 On the other hand, other circuit courts have said that Guideline error is

not cognizable under section 2255.15 But except for the Eighth and Seventh



       14
           We recognize that before Johnson and Stewart, in Burke v. United States, 152 F.3d
1329, 1332 (11th Cir. 1998), this court said that a prisoner could not collaterally attack his
Guideline sentence based solely upon the fact that the Sentencing Commission later adopted a
“clarifying” amendment. But since a clarifying amendment makes no change in the substantive
Guideline law, and since Burke could have made an argument for the proper interpretation at
sentencing (he did not) or on appeal (he withdrew his appeal), we concluded that the alleged
Guideline misapplication was not a fundamental defect/complete miscarriage of justice.
        In Hunter v. United States, 559 F.3d 1188, 1191 (11th Cir. 2009), vacated, 558 U.S.
1143, 130 S. Ct. 1135 (2010), an armed career criminal case, we said that “sentencing errors ‘are
generally not cognizable in a collateral attack,’” citing a Seventh Circuit case, but we did not
elaborate. Hunter involved the separate question whether a certificate of appealability should
properly issue, which requires a “substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2) (emphasis added), and concluded that the defendant’s allegedly erroneous
sentence did not violate any constitutional right. In this case, by contrast, we address the distinct
question whether Guideline error as defined by a later Supreme Court decision is a violation of
the non-constitutional “laws of the United States” within the ambit of § 2255(a). Moreover,
Hunter no longer has precedential effect, because the Supreme Court vacated the decision and
the district court ultimately vacated the defendant’s armed career criminal sentence under section
2255. See Cnty. of L.A. v. Davis, 440 U.S. 625, 634 n.6, 99 S. Ct. 1379, 1384 n.6 (1979) (“Of
necessity our decision ‘vacating the judgment of the Court of Appeals deprives that court’s
opinion of precedential effect . . . .’” (citations omitted)).
        15
           See, e.g., Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011); United States
v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001); United States v. Williamson, 183 F.3d 458, 462
(5th Cir. 1999); United States v. Pregent, 190 F.3d 279, 284 (4th Cir. 1999); Scott v. United
States, 997 F.2d 340, 342 (7th Cir. 1993).


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Circuit cases described below, we have found none that dealt with a section

2255(f)(3) new “right” recognized by the Supreme Court that affects the

determination of career offender status. Moreover, most of these cases were

procedurally barred in any event for failure to raise the issue on appeal, 16 or as

second or successive motions.17

       Two years ago, however, the Eighth Circuit used the “Guideline error”

characterization to prevent section 2255 challenges to career offender sentences

based upon Begay. In Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011), a

deeply divided (6/5) en banc court held that under section 2255, errors of law other

than jurisdictional and constitutional errors do “not provide a basis for collateral

attack unless the claimed error constituted ‘a fundamental defect which inherently

results in a complete miscarriage of justice.’” Id. at 704 (citations and quotation

marks omitted). According to Sun Bear, erroneous career offender status is not “a

fundamental defect which inherently results in a complete miscarriage of justice.”

Id. Instead, the Eighth Circuit treated it as within the category of cases holding

“that ordinary questions of guideline interpretation falling short of the ‘miscarriage

of justice’ standard do not present a proper section 2255 claim.” Id. (citations and

quotation marks omitted). But there was a peculiarity about Sun Bear: the

       16
          E.g., Williamson; Pregent; Scott.
       17
          E.g., Peterman. We too prohibited review on a second or successive motion in Gilbert
v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc).


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sentence imposed was within the same Guideline range even in the absence of

career offender status. Id. at 705, 706. That unusual overlap weakened

considerably any fundamental-defect/complete-miscarriage-of-justice assertion. A

later Eighth Circuit decision reaching the same result had the same peculiarity.

Meirovitz v. United States, 688 F.3d 369, 371 (8th Cir. 2012).

       The Seventh Circuit reached a different conclusion in Narvaez v. United

States, 674 F.3d 621 (7th Cir. 2011). It said that because of changes in the law

under Begay and Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009),

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.” Narvaez, 674 F.3d at 627. Narvaez relied on Seventh Circuit

precedents allowing armed career criminals to challenge their sentences under

section 2255 when later changes in the caselaw made them no longer armed career

criminals. Even though the career offender sentence in Narvaez fell below the

applicable statutory maximum sentence (unlike the armed career criminal cases 18),

the Seventh Circuit found that a miscarriage of justice had occurred:




       18
          Armed career criminal sentences often receive section 2255 collateral review without
the “complete miscarriage of justice” showing, because those sentences are above the statutory
maximum in the absence of armed career criminal status and section 2255 allows review for
sentences “in excess of the maximum authorized by law.” See, e.g., Welch v. United States, 604
F.3d 408, 412-13 (7th Cir. 2010); United States v. Shipp, 589 F.3d 1084, 1090 (10th Cir. 2009).


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       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.

Id. at 629. But Narvaez, unlike Spencer, was sentenced when the Guidelines were

mandatory and the sentencing judge was bound by the career offender range. Over

a dissent, a three-judge panel of the Seventh Circuit recently limited the Narvaez

holding to mandatory Guidelines. In Hawkins v. United States, 706 F.3d 820, 822

(7th Cir. 2013), the majority reasoned that erroneous imposition of mandatory

Guidelines could result in a sentence exceeding that “authorized by ‘law’” under

the language of section 2255. But according to the Seventh Circuit, Guidelines

now are “merely advisory” and a mistake is thus “less serious.”19 Id. at 824; see

also Brown v. Caraway, 719 F.3d 583, 588 (7th Cir. 2013) (career offender

Guideline error can amount to a miscarriage of justice “at least where (as here) the




       19
          After Peugh v. United States, 133 S. Ct. 2072 (2013), discussed infra, the panel in
Hawkins denied rehearing and both the majority and dissent filed supplemental opinions. See
2013 WL 3942324 (7th Cir. July 31, 2013). In denying rehearing en banc that same date, see
2013 WL 3984518 (7th Cir. July 31, 2013), the Seventh Circuit was as deeply divided (5/4) as
the Eighth in Sun Bear.


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defendant was sentenced in the pre-[United States v.] Booker [543 U.S. 220, 125

S. Ct. 738 (2005)] era”).

      On this first certified question of the availability of section 2255 review for a

career offender sentence rendered erroneous by a later Supreme Court decision, we

reach a conclusion that differs from both the Seventh and Eighth Circuits. We do

recognize that the Supreme Court has found no fundamental error/complete

miscarriage of justice in cases where only a formal requirement of a criminal

procedural rule has been overlooked. See, e.g., Peguero v. United States, 526 U.S.

23, 119 S. Ct. 961 (1999); United States v. Timmreck, 441 U.S. 780, 99 S. Ct.

2085 (1979); Hill, 368 U.S. 424, 82 S. Ct. 468. But categorization as a career

offender is not merely a formal requirement of a criminal procedural rule. The

Guidelines are the heart of the substantive law of federal sentencing. The Seventh

Circuit may think that mistakenly categorizing a defendant as a career offender

became not very serious once Booker made the Guidelines advisory, Hawkins, 706

F.3d at 824, but the Supreme Court told us in June (several months after the panel

decision in Hawkins but before the Seventh Circuit denied en banc review) that

that the Guidelines are still “the lodestone of sentencing.” Peugh v. United States,

133 S. Ct. 2072, 2084 (2013). The Supreme Court requires that “‘district courts

must begin their analysis with the Guidelines and remain cognizant of them

throughout the sentencing process.’” Id. at 2083 (quoting Gall v. United States,


                                          17
               Case: 10-10676        Date Filed: 08/15/2013        Page: 18 of 45


552 U.S. 38, 50 n.6, 128 S. Ct. 586, 596 n.6 (2007)). There would be no reason to

require that exercise if they had no impact.20 In fact, as the Supreme Court

observed in Peugh, the Sentencing Commission data show that four out of five

sentences are within the Guidelines or prompted by a government motion under the

Guidelines to depart for cooperation. 133 S. Ct. at 2084; see also News Release,

U.S. Sentencing Commission, Sentencing Commission Issues Comprehensive

Report on the Continuing Impact of United States v. Booker on Federal Sentencing

(Jan. 30, 2013). We cannot pretend that, because of Booker, career offender status

no longer matters to sentence length.

       Thus, Guideline sentencing error can be serious. But, as Sun Bear observed,

644 F.3d at 705, it is not exactly an error of the sort that the Supreme Court

recognized in Davis. According to the Supreme Court in Davis:

       If [Davis’s] contention is well taken, then Davis’ conviction and
       punishment are for an act that the law does not make criminal. There
       can be no room for doubt that such a circumstance “inherently results
       in a complete miscarriage of justice” and “present(s) exceptional
       circumstances” that justify collateral relief under § 2255.




       20
          This court also recognized the Guidelines’ anchoring effect in United States v.
Wetherald, 636 F.3d 1315, 1321 (11th Cir. 2011) (“It is true that the Guidelines are no longer
mandatory, but neither are they without force. The simple reality of sentencing is that a
‘sentencing judge, as a matter of process, will normally begin by considering the presentence
report and its interpretation of the Guidelines.’” (quoting Rita v. United States, 551 U.S. 338,
351, 127 S. Ct. 2456, 2465 (2007))).


                                                18
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417 U.S. at 346-47, 94 S. Ct. at 2305. Unlike Davis, Spencer was properly

convicted; the only issue is the proper length of his sentence.

       Nevertheless, we conclude that a sentencing error like the one here can

amount to a fundamental defect that inherently creates a complete miscarriage of

justice.21 We have, first, the Supreme Court decision in Johnson and our opinion

in Stewart allowing collateral review of a career offender sentence where one or

more of the predicate convictions is later invalidated. 22 If that circumstance

deserves later collateral review, we can think of no principled reason to deny

collateral review based upon a change in the law having the same effect on career

offender status. We recognize that both Johnson and Stewart involved then-

mandatory Guidelines. But the Supreme Court has said that “[t]he post-Booker

federal sentencing scheme aims to achieve uniformity by ensuring that sentencing

       21
            Unlike armed career criminal sentences, career offender sentences are still within the
statutory maximum and thus must confront the fundamental-defect/complete-miscarriage-of-
justice threshold. Nevertheless, the availability of review for similarly onerous armed career
criminal sentences certainly contributes to the perception that refusing to review career offender
sentences creates a complete miscarriage of justice.
         22
            We take the permitted collateral review in those cases as recognizing that the
Guidelines are “laws of the United States” for section 2255 purposes. The Seventh Circuit said
years ago that “[w]hether the Guidelines are ‘laws’ is a fascinating question. Congress did not
enact them, and only the legislative branch makes ‘laws’ under the Constitution. But they have
legal effect—that is, the ‘force of law’—in the same way as many rules promulgated by
administrative agencies under delegated authority.” Scott v. United States, 997 F.2d 340, 341
(7th Cir. 1993). That was before Booker made the Guidelines advisory, and the Hawkins
decision discounted their significance in the miscarriage-of-justice calculus as a result of Booker.
But the Supreme Court later reaffirmed their significance and held that their influence “creates a
sufficient risk of a higher sentence to constitute an ex post facto violation” when they are applied
retroactively. Peugh, 133 S. Ct. at 2084. Here, moreover, it is a statute, 28 U.S.C. § 994(h), that
initially defines career offender status.


                                                19
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decisions are anchored by the Guidelines and that they remain a meaningful

benchmark,” and that federal judges must bear them in mind “throughout the

sentencing process.” Peugh, 133 S. Ct. at 2083 (emphases added) (citations and

quotation marks omitted). An erroneous career offender Guideline calculation,

even though advisory, therefore can amount to a fundamental defect in the

sentencing analysis.23

       Here the sentencing judge told Spencer that career offender designation

essentially doubled his sentence to 151 months. Sentencing Tr. at 20. The

Sentencing Commission’s statistics show that this effect is not atypical. In 2012

the mean sentence for a criminal history VI non-career offender was 84 months,

and the median sentence was 60 months. 24 For career offenders, the mean sentence

nearly doubled to 163 months, and the 151-month median was greater by a factor

of 2.5. Measured against all criminal history categories (i.e., not just VI), career

offender sentences were still harsher, relative to the mean (53 months) and median




       23
           We note that an erroneous Guideline calculation is generally grounds for remand when
raised on direct appeal. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
(“Booker did not affect 18 U.S.C. section 3742(f), which mandates remand of any case in which
the sentence ‘was imposed as a result of an incorrect application of the sentencing
guidelines . . . .’” (citation omitted)).
        24
           Table 14 of the 2012 Sentencing Commission Sourcebook of Federal Sentencing
Statistics sets forth the mean and median lengths of imprisonment for offenders in each criminal
history category for fiscal year 2012.


                                               20
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(30 months) sentences. 25 Not surprisingly, the Supreme Court has recognized that

career offender status creates “a category of offender subject to particularly severe

punishment.” Buford v. United States, 532 U.S. 59, 60, 121 S. Ct. 1276, 1278

(2001). Thus, erroneous career offender categorization is not “ordinary” or

“garden-variety” Guideline error. Instead, it is a fundamental defect that inherently

results in a complete miscarriage of justice and presents exceptional circumstances

where the need for a post-conviction remedy is apparent. See Davis, 417 U.S. at

346, 94 S. Ct. at 2305.

       Moreover, unlike most of the Guidelines, career offender status is not merely

a vanilla-flavored application of Guideline calculations based solely upon U.S.

Sentencing Commission policy, reasoning, and statistics. Like armed career

criminal status, criminal livelihood, and repeat-and-dangerous-sex-offender-

against-minors status, 26 career offender status stems from a congressional

requirement. Congress provided: “The Commission shall assure that the guidelines

specify a sentence to a term of imprisonment at or near the maximum term


       25
           “Drugs – Trafficking” (Spencer’s crime here) was the most common category of crime
among career offenders according to the Table (1,627 out of a total of 2,215 for fiscal year 2012;
there were also 27 sentences in the category “Drugs – Communication Facility”). Among drug
trafficking offenders across all criminal history categories, the mean sentence was 72 months and
the median 57 months, and among category VI non-career offenders, the mean was 115 months
and the median 96 months; but for career offenders, those figures jumped to 154 months and 144
months respectively.
        26
           The Commission includes all of these in Chapter Four Part B of the Guidelines
Manual.


                                               21
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authorized” for those who meet the statutory qualifications created by Congress.

28 U.S.C. § 994(h). For most other Guidelines, the Commission itself is the source

of the Guideline range for imprisonment. See 28 U.S.C. § 994(a)-(d). But for

career offenders, it was Congress that determined that two prior felony convictions

for drug trafficking or a crime of violence demand this special punishment at or

near the statutory maximum. See 28 U.S.C. § 994(h). The Supreme Court has

recognized the distinctiveness of the career offender category in invalidating one of

the Sentencing Commission’s amendments to the career offender Guideline. The

Court observed that in general Congress delegated to the Commission “‘significant

discretion in formulating guidelines’” but that the discretion “must bow to the

specific directives of Congress” as in section 994(h). United States v. LaBonte,

520 U.S. 751, 757, 117 S. Ct. 1673, 1677 (1997) (citation omitted).27



       27
           Similarly, the Fourth Circuit has distinguished between career offender and non-career
offender challenges for purposes of the “actual innocence” exception to the procedural default
bar. In United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir. 1994), the Fourth Circuit held
that the defendant’s improper designation as a career offender was a “fundamental miscarriage of
justice” excusing his procedural default because he was actually innocent of one of the predicate
crimes. The Fourth Circuit later cabined that holding to “the context of eligibility for application
of a career offender or other habitual offender guideline provision” in United States v.
Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999).
        (Confusingly, the phrase “miscarriage of justice” is used in determining both whether a
claim is cognizable under § 2255 and whether a claim can be reviewed in spite of procedural
default. See, e.g., Schlup v. Delo, 513 U.S. 298, 314-15, 115 S. Ct. 851, 861 (1995) (petitioner
unable to show cause and prejudice for procedural default can obtain collateral review “only if
he falls within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice’”
(citation omitted)). Miscarriage of justice is defined more narrowly in the context of procedural
default, where it is limited to claims of actual innocence. See, e.g., Bousley v. United States, 523


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       Finally on this issue, we acknowledge the perennial concern about the

justice system’s need for finality so that defendants accept their punishments and

move forward, and so that justice system resources can be husbanded.28 Although

there is room for debate over how much weight should be afforded this factor in a

circuit court’s interpretation of a statute and Supreme Court decisions, 29 we have

looked at it in the past and we do so here.30




U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998) (absent a showing of cause and prejudice for
procedural default, “[p]etitioner’s claim may still be reviewed in this collateral proceeding if he
can establish that the constitutional error in his plea colloquy ‘has probably resulted in the
conviction of one who is actually innocent’” (citation omitted)); see also Lynn v. United States,
365 F.3d 1225, 1232-35 (11th Cir. 2004) (applying the “complete miscarriage” standard to
determine the cognizability of a claim under § 2255 and the “actual innocence” standard as an
exception to the procedural default rule).)
        28
           In United States v. Addonizio, 442 U.S. 178, 184 & n.11, 99 S. Ct. 2235, 2240 & n.11
(1979), the Supreme Court identified the following “reasons for narrowly limiting the grounds
for collateral attack on final judgments”: the effect of undermining confidence in the integrity of
court procedures, the increased volume of judicial work and, with greatly delayed collateral
attacks, the difficulty of conducting evidentiary hearings that are conclusive and the
impossibility of conducting retrials. (Addonizio, a sentencing case, held that section 2255 could
not be used to attack a sentence on the basis that the Parole Commission later changed its criteria
for parole. The Court said that the change “affected the way in which the court’s judgment and
sentence would be performed but it did not affect the lawfulness of the judgment itself—then or
now.” 442 U.S. at 187, 99 S. Ct. at 2241. “[T]he sentence was and is a lawful one.” Id. Here,
Spencer is attacking the lawfulness of his sentence, not the manner in which it will be carried
out.)
        29
           Professor Russell suggests that finality concerns should be less pressing in the context
of sentencing errors given, inter alia, the relative ease of reviewing evidence and determining
errors. See Sarah French Russell, Reluctance to Resentence: Courts, Congress, and Collateral
Review, 91 N.C. L. Rev. 79, 139-62 (2012).
        30
           We described finality interests in Gilbert v. United States, 640 F.3d 1293, 1309-12
(11th Cir. 2011) (en banc), in enforcing the second or successive motions bar under section
2255(h). But there we were explicit that we were not deciding whether a first section 2255
motion could collaterally attack a Guideline error. Id. at 1306.


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      We conclude that allowing a first, timely-filed motion under section 2255

where a new Supreme Court decision has been given retroactive effect, and where

the prisoner has preserved the issue of career offender categorization at both

original sentencing and appeal, will not create an unmanageable problem.

Sentences that are affected by an argument newly recognized by the Supreme

Court, see 28 U.S.C. § 2255(f)(3), are not a huge category to start with. The

motion must be filed within one year of the date of the new Supreme Court

decision, and review is available only if the new decision is retroactive. Id.; see

also Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). Review is not

available for second and subsequent motions. Gilbert v. United States, 640 F.3d

1293, 1323 (11th Cir. 2011) (en banc). In addition to the Rozier v. United States,

701 F.3d 681 (11th Cir. 2012), limitation we discuss at the end of this opinion,

section 2255 generally cannot be used to challenge an issue that the defendant

could have raised on direct appeal but failed to. See United States v. Frady, 456

U.S. 152, 165, 102 S. Ct. 1584, 1593 (1982) (“[A] collateral challenge may not do

service for an appeal.” (citations omitted)); see also McKay v. United States, 657

F.3d 1190, 1196 (11th Cir. 2011); Lynn v. United States, 365 F.3d 1225, 1234

(11th Cir. 2004). And as for manageability, as commentators have observed,




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               Case: 10-10676        Date Filed: 08/15/2013       Page: 25 of 45


collateral reviews of sentencing cases deal generally only with paper records, 31 and

they usually return to the same judge who sentenced the defendant initially. No

trial or sentencing judge likes to repeat what he or she has done before, but those

factors assuage the burden.

       And on the other side of the ledger, there is the annual cost to the taxpayers

of keeping people in prison who should no longer be there. According to the

Bureau of Prisons, that annual cost is $28,893.40 per prisoner. Annual

Determination of Average Cost of Incarceration, 78 Fed. Reg. 16711-02 (Mar. 18,

2013). 32 In Spencer’s case, according to the sentencing judge he was facing

roughly half the sentence in the absence of career offender status. Sentencing Tr.

at 20. Thus, erroneously labeling him a career offender results in an annual

taxpayer outlay of $28,893.40 for an extra 6 ¼ years. We do not know how many

instances there are of defendants like him.

       Our holding here is limited to properly preserved and timely filed career

offender sentence challenges under section 2255 where an intervening and

retroactive change in the controlling Supreme Court caselaw has made the career




       31
          See Russell, supra note 29, at 147-48, 153.
       32
          That figure represents only the direct costs of incarceration. See Douglas J. Bench, Jr.,
Collateral Review of Career Offender Sentences: The Case for Coram Nobis, 45 U. Mich. J.L.
Reform 155, 167 (2011) (pointing to other indirect costs).


                                                25
                Case: 10-10676       Date Filed: 08/15/2013       Page: 26 of 45


offender status erroneous. 33 That is not ordinary Guideline error. The floodgates

will hold. 34

       We turn then to the second issue on which we granted a certificate of

appealability.

                                               III.

       Did the District Court erroneously determine that Spencer’s Florida

third degree felony child abuse conviction was a crime of violence?

       As we said at the outset, if Spencer’s Florida conviction is to qualify as a

crime of violence, it must be under the residual clause of subsection (2). The

government agrees.

       Here is how this court has described the proper approach to the residual

clause analysis:

              There are two ways in which a crime can fall within the residual
       clause of § 4B1.2(a)(2). The first way is the categorical approach,
       under which “‘we consider whether the elements of the offense are of
       the type that would justify its inclusion within the residual provision,
       without inquiring into the specific conduct of this particular
       offender.’” If the elements of an offense are such that any conviction
       for violating that statute will fall within the scope of the residual
       clause, then we can say categorically that the offense is a crime of
       violence under the residual clause.


       33
          We do not address whether a change in this Circuit’s caselaw alone would suffice.
       34
          Because we conclude that there was a fundamental defect/complete miscarriage of
justice, we do not address Spencer’s secondary argument that the sentencing error was of
constitutional magnitude because it violated his due process right to be sentenced on the basis of
accurate information.


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United States v. Chitwood, 676 F.3d 971, 975-76 (11th Cir. 2012) (second

emphasis added) (citations omitted).

       In identifying the elements of the offense, the language of the Florida statute

refers to “physical or mental injury to a child.” Fla. Stat. § 827.03(1) (2003)

(emphasis added). The Florida Supreme Court has said that “as defined under

section 827.[03], 35 ‘child abuse’ includes intentional infliction of mental injury

upon a child, as well as an intentional act that could reasonably be expected to

result in mental injury to a child.” DuFresne v. State, 826 So. 2d 272, 278 (Fla.

2002). Knowing or willful action that reasonably could be expected to result in

mental injury to a child, however abhorrent it may be, does not meet the risk-of-

physical-injury standard from the federal crime-of-violence definition. Since we

therefore cannot say that the elements of the Florida crime mean that “any

conviction” under this statute will meet the physical injury risk standard, we cannot

“say categorically that the offense is a crime of violence under the residual clause.”

Chitwood, 676 F.3d at 976.

       When that is the case, we proceed to another stage:



       35
          The DuFresne court actually cited section 827.01, which defined only the terms
“caregiver,” “child,” and “placement.” Fla. Stat. § 827.01 (1996). Elsewhere throughout the
opinion, the DuFresne court cited section 827.03, which did define child abuse, not section
827.01. Thus, we assume that DuFresne’s quoted reference to 827.01 here, rather than 827.03,
was inadvertent.


                                              27
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              The second way that a crime can come within the residual
      clause is the modified categorical approach, which can be applied
      where some, but not all, of the violations of a particular statute will
      involve the requisite violence. Stated another way, courts apply the
      modified categorical approach “when the law under which a
      defendant has been convicted contains different statutory phrases—
      some of which qualify as ‘crimes of violence’ and some of which do
      not . . . .” In that statement, “different statutory phrases” means
      different statutory elements or ways of violating the statute.

Id. (quoting United States v. Pantle, 637 F.3d 1172, 1175 (11th Cir. 2011)); see

also Descamps v. United States, 133 S. Ct. 2276, 2281-82 (2013). This part of the

analysis applies to Florida’s felony child abuse statute. One statutory element—

physical injury—qualifies for crime of violence, while another—mental injury—

does not. Under the modified categorical approach, we ask whether we can

determine which category was the basis for the conviction:

      Using [the modified categorical] approach to “determine which
      statutory phrase was the basis for the conviction” involves consulting
      “a narrow universe of ‘Shepard [v. United States, 544 U.S. 13, 125 S.
      Ct. 1254 (2005)] documents’ that includes any charging documents,
      the written plea agreement, the transcript of the plea colloquy, and any
      explicit factual finding by the trial judge to which the defendant
      assented.”

Chitwood, 676 F.3d at 976 (quoting Pantle, 637 F.3d at 1175). Here, the “Shepard

documents” are an inapplicable charging document, a transcript of the Florida

guilty plea proceeding, a written 2-page “plea of guilty and negotiated sentence”

that says nothing about the criminal conduct, the judgment papers, and any




                                         28
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concessions that Spencer made at his federal sentencing. Id.; see also United

States v. Palomino Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010). 36

       That record reveals that Spencer’s Florida conviction involved a plea

bargain for one year in the county jail (with credit for 114 days’ time served) that

would resolve three charges, including both charges that led to Spencer’s career

offender status. 37 On the third degree felony child abuse charge with which we are

concerned, there was no charging document. The only charging document was

with respect to a lewd or lascivious battery charge under Fla. Stat. § 800.04(4), 38 a

more serious second degree felony to which Spencer did not plead guilty. It

accused him of engaging in sexual activity with a minor between 12 and 16 “by

placing his penis in or upon the vagina of” the minor. That charge was a strict

liability crime. See Fla. Stat. § 800.04(2) & (3) (2000) (victim’s consent or

       36
            Spencer attached the Florida information, judgment and conviction, plea agreement,
and change of plea hearing transcript as “appendices” to his brief, but we do not believe that
alone makes them properly part of the record. So far as we can tell, they were not introduced in
the district court on this motion and we no longer have the record of the original appeal to
determine if they were part of that record. We nevertheless treat the transcript of Spencer’s
Florida change of plea hearing as part of the record for the reasons set forth infra in note 40. We
also discuss the other documents, because the government has not objected to their inclusion, but
excluding them from consideration would not affect our holding in any event.
         37
            The third charge was cocaine possession, not distribution. Presentence Investigation
Report ¶ 30.
         38
            The federal presentence report says that it was a lewd and lascivious assault charge. At
Spencer’s federal sentencing, the Assistant United States Attorney stated only that Spencer was
initially “charged with lewd and lascivious.” Sentencing Tr. at 8. Later in the sentencing
hearing, Spencer’s lawyer stated that Spencer had been “originally charged with . . . . lewd
battery,” and the sentencing judge responded, “Correct.” Id. at 14. The Florida information
attached as Appendix 1 to Spencer’s brief charges lewd and lascivious battery. We treat the
charge as lewd and lascivious battery, but the distinction is ultimately immaterial.


                                                29
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ignorance of age or misrepresentation of age no defense); see also United States v.

Harris, 608 F.3d 1222, 1232 (11th Cir. 2010) (“It is true that . . . Fla. Stat.

§ 800.04(3) ‘impose[s] strict liability, criminalizing conduct in respect to which the

offender need not have had any criminal intent at all.’” (quoting Begay, 553 U.S. at

145, 128 S. Ct. at 1586-87)); State v. Snyder, 807 So. 2d 117, 120 (Fla. Dist. Ct.

App. 2002) (“‘lewd and lascivious’ conduct in violation of Section 800.04 carries

with it the same concept of ‘strict liability’ that has traditionally characterized

‘statutory rape’”). According to that Florida statute (lewd or lascivious battery),

the victim’s consent was not a defense, and neither was the defendant’s ignorance

of the victim’s age or the victim’s misrepresentation of her age.

       But instead of pleading guilty to that offense, Spencer pleaded guilty to a

lesser offense, a third degree child abuse felony. 39 At the Florida change of plea

hearing for that third degree felony, the prosecutor did not repeat the sexual battery

charge description. Instead he stated: “I need to lay the [basis for] the child abuse.

All right. As to the same defendant, in case number 2004-1079, he did engage in

sexual activity with a minor and that action could reasonably cause physical or




       39
          The presentence report incorrectly describes the child abuse felony as a “lesser
include[d]” offense. Presentence Investigation Report at 5. Although it is a lesser offense (third
rather than second degree), it is not a lesser included offense.


                                                30
               Case: 10-10676        Date Filed: 08/15/2013       Page: 31 of 45


mental injury to that child, contrary to the provisions of 827.03.” Change of Plea

Hr’g Tr., Appellant’s Br., App. 3 at 9.40

       That was it. There was no description of what the sexual activity with a

minor was, no reference to Spencer’s state of mind (mens rea), and no distinction

drawn between physical and mental injury. The plea agreement provided no more

information, and there were no other Shepard documents for the federal sentencing

judge to consult. That record does not permit us to determine which element in the

Florida child abuse statute—risk of physical injury or risk of mental injury—was

the basis for Spencer’s conviction.

       The government essentially skips that problem and invites us to jump to

Spencer’s underlying conduct, which the government says is sexual intercourse

with a minor, and to conclude that such activity necessarily carries a serious




       40
          The transcript of Spencer’s Florida change of plea hearing, attached as “Appendix 3”
to Spencer’s brief, does not appear to have been introduced in the lower court on this motion.
But at Spencer’s federal sentencing hearing, his lawyer stated that probation and the government
both had copies of the Florida transcript, and proceeded to quote the same statement from the
Florida prosecutor cited in the accompanying text. Sentencing Tr. at 8. The government did not
object, and later referred to the same statement by the Florida prosecutor. Id. at 11. Spencer also
appears to have included and cited this document as a “record excerpt” (we no longer have that
document) on his direct appeal, see, e.g., Spencer I Appellant’s Br. at 12 (Appeal No. 07-14116-
JJ) (quoting the same statement from the Florida prosecutor), and the government acknowledged
that document, see Spencer I Appellee’s Br. at 2 n.1 (Appeal No. 07-14116-JJ) (“Spencer has
included in his record excerpts (#4) a copy of the colloquy of his plea of guilty to the felony
child abuse.”). Given the government’s earlier acknowledgment of the document and the
quotation from it at Spencer’s federal sentencing, we accept the Florida plea transcript as part of
the record.


                                                31
               Case: 10-10676        Date Filed: 08/15/2013       Page: 32 of 45


potential risk of physical injury regardless, and thus that Spencer necessarily

pleaded guilty to the risk-of-physical-injury element of the Florida statute.

       At this stage of the case, we will accept the assertion that sexual intercourse

with a minor is the appropriate description of Spencer’s underlying conduct that

generated the Florida conviction.41 Although the Florida prosecutor did not offer

that as the factual basis for Spencer’s guilty plea, that is what the federal

presentence report said. Spencer objected to the presentence report’s

characterization of what he did, but the federal sentencing judge accepted the

presentence report’s characterization. On the first appeal, we expressed no

disagreement with what the presentence report disclosed and what the sentencing

judge did.



       41
           At the federal sentencing, the presentence report stated: “This offense was originally
charged as lewd and lascivious assault [the charge actually appears to have been lewd or
lascivious battery, see supra note 38] on a child over 12 and under 16 years old. The defendant
pled to a lesser include[d] offense [actually, although it is a lesser offense, third degree felony
child abuse is not a lesser included offense of second degree lewd or lascivious battery] of felony
child abuse. On June 20, 2004, the defendant engaged in sexual intercourse with a 14 year old
female victim.” Presentence Investigation Report at 5. Spencer’s lawyer objected both in
writing to the probation officer and orally at sentencing that the record did not establish sexual
intercourse. The sentencing judge stated that as to controverted facts, she accepted the probation
officer’s position in the addendum to the presentence report. See Sentencing Tr. at 16. There
were no factual findings in the addendum, only the probation officer’s analysis of why this
Circuit’s caselaw justified treating statutory rape as a crime of violence. Nevertheless, the
sentencing judge certainly treated Spencer as convicted of sexual intercourse with a minor, and
in Spencer I we treated Spencer as having waived objection to the presentence report’s
description of his conduct. We do not revisit that waiver determination. Moreover, we note that
in this 2255 motion Spencer supplies an affidavit from the then 14-year-old, now an adult, saying
that it was sexual intercourse. (She also says that she initiated it.) See Sworn Declaration and
Affidavit (Record No. 14).


                                                32
                Case: 10-10676        Date Filed: 08/15/2013        Page: 33 of 45


       But the conclusion that Spencer pleaded guilty to the physical injury phrase

in the statute still does not follow under Florida law. And as the government

acknowledges, the determinative issue is which Florida statutory phrase Spencer

pleaded to. Appellee’s Br. at 28. Contrary to the government’s argument, we

cannot resolve that issue from the Shepard documents or any concessions at

sentencing. Even in admitting sexual activity with a minor, Spencer could well

have pleaded guilty to the mental injury element alone, and thus we cannot answer

the question under the modified categorical approach. We must therefore treat the

conviction as the least culpable crime under the statute. Johnson v. United States,

559 U.S. 133, 137, 130 S. Ct. 1265, 1269 (2010) (analyzing whether a prior

conviction for battery was a “violent felony” within the meaning of the ACCA by

considering “the least of” three disjunctive means of committing the offense under

a state statute and concluding that “nothing in the record of . . . conviction

permitted the District Court to conclude that it rested upon anything more than the

least of these acts” (citation omitted)). Here, that least culpable crime is

intentional conduct (sexual intercourse) with a minor (whether or not Spencer

knew her age)42 where it reasonably could be expected that mental (not physical)



       42
           Florida caselaw holds that knowledge of the victim’s age is not an element of
aggravated child abuse. Witt v. State, 780 So. 2d 946, 947 (Fla. Dist. Ct. App. 2001) (“[T]he
state has a compelling interest in protecting underage persons from being sexually abused or
exploited. . . . Accordingly, . . . ignorance of the age of the victim is not a defense.”). Witt’s


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injury might result. That is not a predicate crime of violence for career offender

purposes.

       Nevertheless, in Spencer I we affirmed the sentencing court and held that

Spencer’s Florida child abuse conviction was a crime of violence. We did so

because we concluded that Spencer’s conduct inherently caused a serious potential

risk of physical injury, without evaluating whether it was similar in kind to the

crimes specifically listed as crimes of violence in the career offender statute and

Guideline. That is the conclusion that the Begay standard invites us to revisit. In

doing so, we address an issue that was not briefed, but that the government raised

by letter after this court’s recent decision in Rozier v. United States, 701 F.3d 681

(11th Cir. 2012).

                                              IV.

       Does this court’s 2008 decision in Spencer I preclude the relief that

Spencer seeks now?

       “[W]here there has been no intervening change in controlling law, a claim or

issue that was decided against a defendant on direct appeal may not be the basis for

relief in a § 2255 proceeding.” Rozier, 701 F.3d at 684; see also 3 Charles Alan

Wright & Sarah N. Welling, Federal Practice and Procedure § 628 (4th ed. 2011).


reasoning that knowledge that the victim is a minor is not an element applies equally to child
abuse that is not aggravated. Here, moreover, the sentencing judge concluded that consent was
irrelevant.


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This court decided the crime-of-violence issue against Spencer on his direct appeal

in 2008. Spencer therefore must show that a change in controlling law occurred

after Spencer I in order to proceed on this later collateral challenge to his sentence.

      We have stated that Begay applies retroactively, see Zack v. Tucker, 704

F.3d 917, 925-26 (11th Cir. 2013) (en banc), and so have some other circuits, see

Jones v. United States, 689 F.3d 621, 624 (6th Cir. 2012); Lindsey v. United

States, 615 F.3d 998, 1000 (8th Cir. 2010). But see In re Bradford, 660 F.3d 226,

231 (5th Cir. 2011). The government agreed at oral argument that Begay applies

retroactively, as it has in other cases. Narvaez, 674 F.3d at 625; Welch v. United

States, 604 F.3d 408, 414-15 & n.8 (7th Cir. 2010). Given that concession, we

apply Begay here. See Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct. 948, 953

(1994) (“[A] federal court may, but need not, decline to apply Teague[’s non-

retroactivity analysis] if the [government] does not argue it.”).

      But the government argues that after this court granted the certificate of

appealability on account of Begay, the Supreme Court limited the effect of Begay

in Sykes v. United States, 131 S. Ct. 2267 (2011). In Chitwood, 676 F.3d at 978,

this court concluded that following Sykes, Begay’s narrower definition of crimes

of violence now applies only to crimes that are “akin to strict liability, negligence,

and recklessness crimes” (quoting Sykes, 131 S. Ct. at 2276). The government

maintains that because the Florida child abuse statute refers to “knowingly or


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willfully” abusing a child, Spencer’s Florida conviction for third degree felony

child abuse does not fit the narrow category to which Begay’s requirement (that the

crime be similar in kind as well as in degree of risk) still applies, and therefore that

there has been no “intervening change in controlling law” since Spencer I.

Consequently, we examine Spencer’s Florida conviction in light of Begay, Sykes,

and Chitwood.

      According to the federal judge at Spencer’s pre-Begay sentencing: “In this

particular instance the victim was—the child was 14 years old. She can’t consent

to having sexual relations with somebody who is an adult, with somebody who is

18 years old. So I think it is appropriate to consider this a crime of violence.”

Sentencing Tr. at 13. In other words, the lack of legal consent was the operative

element for the crime-of-violence determination. The federal prosecutor stated: “I

would say that a review of the case law shows that attempted lewd assault, lewd

acts, sexual encounters with minors that are charged where there’s not an element

even of physical violence in that particular statute, has been found nonetheless to

be considered a crime of violence, taking into account that it—it is inherently one

person doing something with someone else without their consent.” Id. at 15

(emphases added). The federal sentencing judge immediately responded:

“Particularly when you have a child who can’t consent, somebody who is not old

enough to be able to give their own consent.” Id. at 15-16. Our certificate of


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appealability stated that the issue on this appeal is whether the district court

erroneously characterized Spencer as a career offender. Undeniably, the

sentencing court’s determination of physical violence was predicated upon the

minor’s age and lack of legal capacity to consent, essentially making it a strict

liability crime. 43

       This characterization of Spencer’s conduct continued on the first appeal.

There, the government argued that Spencer had not objected to the factual accuracy

of the description of the crime in the presentence report, and that

       the district court was free to rely on those facts to determine that the
       sexual “activity” was, in fact, sexual intercourse with a minor. The
       district court, therefore, correctly determined that Spencer’s prior
       conviction for felony child abuse qualified as a crime of violence for
       purposes of the career offender guideline.

Spencer I Appellee’s Br. at 2-3 (Appeal No. 07-14116-JJ). (That still is the

government’s position. Appellee’s Br. at 25.) At sentencing, the district court had

found that the conduct was sexual intercourse with a minor where consent was

irrelevant, and we did nothing to cast doubt on that finding as the basis for the

crime-of-violence determination. We did recognize that Spencer’s challenge was



       43
           In denying Spencer’s 2255 motion in 2010, the sentencing judge reiterated that the 14-
year-old’s consent and initiation of sexual intercourse were irrelevant to the crime-of-violence
conclusion. Order of January 7, 2010, at 4-5 (Record No. 17) (“[C]ounsel was correct in
advising Spencer that the victim’s consent and initiation of the sexual contact would be
irrelevant. There would have been no difference in the outcome of the case if counsel had called
the child to testify as to her consent, as consent had no bearing on the prior state conviction.”).

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“that the district court should not have relied on the predicate offense description

from the PSI, but rather could only rely on the state’s factual proffer of the offense

from the sentencing transcript” (a factual proffer that did not describe the sexual

conduct). Spencer I, 271 F. App’x at 977. But we said:

      For purposes of sentencing, the district court may also base its factual
      findings on undisputed statements in the PSI. Facts contained in a PSI
      are considered undisputed unless the defendant makes a challenge to
      those facts “with specificity and clarity.”

Id. at 978 (internal citation omitted). Thus, we seem to have concluded that

Spencer’s objections lacked “specificity and clarity.” Nothing in our opinion in

Spencer I discussed mens rea, or the possibility of conviction solely for mental

injury or its risk, or knowledge of age, or factual (not legal) consent, or that

anything other than undifferentiated sexual intercourse with a minor was involved.

In affirming Spencer’s career offender sentence we focused on the fact that it was a

minor who was involved:

      We have emphasized that sexual offenses against minors “always
      present a substantial risk that physical force will be used to ensure a
      child’s compliance with an adult’s sexual demands.” [United States
      v.] Ivory, 475 F.3d [1232, 1238 (11th Cir. 2007)] (holding that
      statutory rape, a “nonconsensual act of sexual penetration,” inherently
      involves some physical force and is a crime of violence) (internal
      quotations and citations omitted). Using this reasoning, we have held
      that § 4B1.2(a)(2)’s definition of a crime of violence includes lewd
      assault on a minor, United States v. Rutherford, 175 F.3d 899, 905
      (11th Cir. 1999), and persuading, inducing, enticing, or coercing a
      minor to engage in unlawful sexual activity, [United States v.] Searcy
      [418 F.3d 1193, 1197 (11th Cir. 2005)] (noting that the offense
      “presents the possibility of an encounter that could result” in serious
                                           38
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      risk of physical injury and that “physical injury need not be [certain]
      for a crime to pose a serious risk of physical injury”) (citation
      omitted).
             ....
             Because we conclude that Spencer’s predicate conviction for
      felony child abuse involved a serious potential risk of physical injury
      to another, we agree with the district court’s classification of that
      predicate offense as a crime of violence . . . .

Id. at 978-79 (emphasis added). The involvement of a minor was the fact

that made the crime violent.

      But later, Begay held that not all crimes that involve a serious potential risk

of physical injury automatically satisfy the crime-of-violence definition. Instead,

Begay limited the category to crimes that are “roughly similar, in kind as well as in

degree of risk posed,” to the enumerated crimes in the statute and that involve

“purposeful, ‘violent,’ and ‘aggressive’ conduct.” Begay, 553 U.S. at 143, 144-45,

128 S. Ct. at 1585, 1586 (emphasis added) (citation omitted). Sexual intercourse

with a minor where neither knowledge of age nor factual consent is relevant does

not involve purposeful, violent, and aggressive conduct that is similar “in kind” to

burglary, arson, extortion, and use of explosives. United States v. Owens, 672

F.3d 966, 971-72 (11th Cir. 2012).

      Nevertheless, as the government argues, Begay was not the end of the

matter. Following Begay, the Supreme Court once again revisited the definition of

crime of violence in Sykes. Sykes resuscitated the serious-potential-risk-of-

physical-injury test and limited Begay’s requirement of purposeful, violent, and
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aggressive conduct to crimes that are “akin to strict liability, negligence, and

recklessness crimes.” Sykes, 131 S. Ct. at 2276. We recognized that narrowing in

Chitwood, 676 F.3d at 978. The government now tries to salvage the crime-of-

violence determination in Spencer’s federal sentence on the basis that the

“knowingly or willfully” statutory language that appears in the Florida lesser

offense provision disqualifies Spencer from relief because of the Sykes narrowing

of Begay to strict liability, negligence, and recklessness crimes.

      “The meaning of ‘physical force’ is a question of federal law, not state law.

But, in determining whether a conviction [under Florida law] is a ‘crime of

violence’ for sentencing enhancement purposes, we are bound by Florida courts’

determination and construction of the substantive elements of that state offense.”

United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) (citations

omitted). We have studied the Florida cases and we disagree with the

government’s reading of Florida law. It is true that generally speaking in Florida

statutes, the phrase “knowingly or willfully” is the mark of a “general intent”

crime, Frey v. State, 708 So. 2d 918, 920 (Fla. 1998), as distinguished from a

specific intent crime. In a Florida general intent crime a defendant must intend to

commit the act, not the consequences, but the consequences must nevertheless be




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“substantially certain to result.” Reynolds v. State, 784 So. 2d 509, 511 (Fla. Dist.

Ct. App. 2001) (citation omitted). 44

       “Substantially certain to result,” however, is not the standard for felony child

abuse, by either the plain language of the Florida statute (an “act that could

reasonably be expected to result in . . .,” Fla. Stat. § 827.03(1) (2003) (emphasis

added)) or the Florida Supreme Court’s interpretation. The Florida Supreme Court

explained in DuFresne, 826 So. 2d at 278, that under the Florida child abuse statute

only the act (here the intercourse) needs to be intentional, and that it is sufficient

for conviction if that act reasonably could be expected to result in mental (not

physical) injury. Id. at 278 (“‘[C]hild abuse’ includes intentional infliction of

mental injury upon a child, as well as an intentional act that could reasonably be

expected to result in mental injury to a child.” (emphasis added)). 45 Florida does

not require that the defendant have intended or even foreseen that consequence.

Moreover, a Florida court of appeal has held that under the child abuse statute a

defendant need not know that the victim was a minor. Witt v. State, 780 So. 2d



       44
           The Florida courts still use that “substantially certain to result” standard. See, e.g.,
Pinkney v. State, 74 So. 3d 572, 576 (Fla. Dist. Ct. App. 2011).
        45
           In Witt v. State, 780 So. 2d 946, 947 (Fla. Dist. Ct. App. 2001), the Florida District
Court of Appeal stated that “[t]he word ‘knowingly’ is used in [the child abuse statute] to insure
that the abuse referred to in [the aggravated child abuse] subsection is knowing and not merely
negligent.” In light of the later Florida Supreme Court pronouncement in DuFresne, any
ambiguity in Witt’s reference to “abuse” must be read to mean that the act must be done
knowingly, not that the consequences of the act must be foreseen.


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946, 947 (Fla. Dist. Ct. App. 2001). The irrelevance of knowledge that the victim

is a minor and the foreseeability standard—“reasonably could be expected to result

in . . . injury”—combine strict liability and negligence in the mens rea requirement

for this crime. See also Munao v. State, 939 So. 2d 125, 129 (Fla. Dist. Ct. App.

2006) (“[I]t appears that the child abuse statute actually outlaws a result derived

from any act, making the statute applicable to a wide range of acts that cause a

‘physical or mental injury upon a child.’”). 46

       Thus, what “knowingly or willfully” adds to the mens rea of Spencer’s

conviction is that Spencer had to intend the sexual intercourse, but not that Spencer

intended or foresaw injury of any kind or knew that the victim was a minor. This

very limited mens rea makes Spencer’s third degree felony child abuse conviction

directly “akin to” a strict liability or negligence crime in the language of Sykes and

Chitwood. 47 After Begay and Sykes, for that crime to be a crime of violence it

must involve purposeful, violent, and aggressive conduct similar in kind to

burglary, arson, extortion, and use of explosives. Although sexual activity with a

minor may still meet the requirement of a serious potential risk of physical injury,



       46
          And the federal sentencing judge found consent to be irrelevant (legally impossible
because of age).
       47
          For statutory rape, age is considered “the critical element of the offense.” 2 Model
Penal Code and Commentaries § 213.1 cmt. 6, at 326 (1980). It is the disallowance of the
defense of reasonable mistake about the critical element of age that results in statutory rape being
considered a strict liability crime. Id.; see also id. § 213.6 cmt. 2, at 413.


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it does not meet this Begay requirement even as Chitwood has construed its

narrowed scope after Sykes.

      This conclusion is consistent with our conclusion in Owens, 672 F.3d at

971-72, that Alabama statutory rape and second degree sodomy do not satisfy the

residual clause for a crime of violence. In Owens, we adhered to our earlier

precedent that those crimes still meet the test of posing “a serious potential risk of

physical injury to the victim.” Id. at 972. But we observed that statutory rape and

second degree sodomy have no mens rea requirement and do not allow consent as

a defense, that they therefore impose strict liability and that under Begay (even

after Sykes) they cannot be said to involve “purposeful, violent and aggressive

conduct.” Id. Likewise in Harris, 608 F.3d at 1230, 1233, we concluded that

Florida “sexual battery of a child under sixteen . . . is a crime that presents a

serious potential risk of physical injury,” but that viewed generically or

categorically, it “imposes strict liability and covers such a broad range of conduct,

we cannot say that a violation of it typically involves ‘purposeful, “violent,” and

“aggressive” conduct’” (quoting Begay, 553 U.S. at 144-45, 128 S. Ct. at 1586).

Consequently, we concluded in Harris that although there was a serious risk of

physical injury in a Florida sexual battery conviction involving a minor, it was not

a crime of violence under the residual clause after Begay. (The Florida statute

under which Harris was convicted, lewd or lascivious sexual battery of a child


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under the age of 16, was an earlier version of the statute under which Spencer was

charged. But as we have recounted, Spencer ultimately pleaded guilty to the lesser

offense of third degree felony child abuse.)

      Thus, the “knowingly and willfully” phrase in the statute does not salvage

the crime-of-violence determination, and Sykes does not alter Begay’s change in

the controlling law that, contrary to Spencer I, this conviction does not qualify as a

crime of violence. Rozier does not prevent our review.

                                     Conclusion

      At age 18 in 2004, Kevin Spencer received one year in the county jail from

the Florida court for three crimes, including a 2003 drug trafficking offense

committed when he was 17 and sexual intercourse with a 14-year-old when he was

18. As a result of that single disposition of the two enumerated crimes he was

categorized as a federal career offender at his 2007 federal sentencing for

distributing 5.5 grams of crack, and he then received 151 months in federal prison,

double the sentence otherwise applicable. At the time, this court’s precedents

treated any sexual offense against a minor as automatically a crime of violence.

But as a result of the intervening Supreme Court cases of Begay and Sykes, that is

no longer the controlling law. Under controlling law, the record does not permit

the conclusion that Spencer’s Florida conviction for third degree felony child abuse

was a crime of violence. Spencer challenged the crime-of-violence determination


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at sentencing, on appeal, and in this timely-filed first section 2255 motion. Under

these circumstances, we conclude that categorizing Spencer as a career offender

amounts to a violation of the laws of the United States in a way that is a

fundamental defect that “inherently results in a complete miscarriage of justice”

and “present(s) exceptional circumstances where the need for the remedy afforded

by the writ of habeas corpus is apparent.” Davis, 417 U.S. at 346, 94 S. Ct. at 2305

(citation omitted). We therefore VACATE the district court’s order that denied

relief under section 2255. We REMAND with instructions to resentence the

defendant without treating his Florida conviction for third degree felony child

abuse as a crime of violence.




                                         45
