                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-1245

B ERNARD H AWKINS,
                                            Petitioner-Appellant,
                                v.

U NITED S TATES OF A MERICA,
                                            Respondent-Appellee.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
           No. 2:10-cv-00016-JTM—James T. Moody, Judge.


                  On Petition for Rehearing.


                     D ECIDED JULY 31, 2013




 Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
  P OSNER, Circuit Judge. This opinion, a supplement to
the panel opinion reported at 706 F.3d 820, explains why
a majority of the panel does not believe that rehearing
is warranted by the Supreme Court’s decision in Peugh
v. United States, 133 S.Ct. 2707 (2013), rendered after the
panel opinion.
2                                               No. 11-1245

  The panel had held that an error in calculating a defen-
dant’s guidelines sentencing range does not justify
postconviction relief unless the defendant had, as in
Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), been
sentenced in the pre-Booker era, when the guidelines
were mandatory rather than merely advisory. Peugh
holds that a sentence violates the Constitution’s ex post
facto clause if in calculating the defendant’s advisory
guidelines range (as the judge is required to do even
though he can if he wants sentence the defendant out-
side that range) the judge had calculated the range in
effect when he sentenced the defendant, rather than
when the defendant committed the crime for which
he’s being sentenced, if the earlier range was lower (less
punitive). 133 S.Ct. at 2088. The arguable significance of
Peugh for the present case is that the Court held that an
error in calculating a merely advisory guidelines range
nevertheless invalidated the sentence.
  The issue in this case differs from that in Peugh in
several respects, however. One is that Peugh involved
constitutional error—a violation of the ex post facto
clause. Our case involves no claim of constitutional
error—no claim for example that Hawkins’s sentence
exceeded the statutory maximum (as the sentence
in Narvaez did, if mandatory guidelines are treated as
equivalents of statutes, as the panel opinion in this case
suggested they can be, 706 F.3d at 822). There is just
a claim that the sentencing judge miscalculated the ad-
visory guidelines range and might have given a lower
sentence had he not miscalculated it. Peugh tells us only
No. 11-1245                                                3

that the advisory nature of the guidelines in the
present era, the Booker era, which allows the sentencing
judge broad discretion, nevertheless does not excuse
constitutional violations arising from the judge’s miscal-
culating the applicable guideline.
  Another difference between Peugh and the present
case is that the two cases are governed by different
legal standards. The standard governing ex post facto
challenges, involved in Peugh, is not the same as the
standard for postconviction relief for nonconstitutional
errors, applicable to our case. Peugh holds that the
ex post facto clause is violated when “a change in
law creates a ‘significant risk’ of a higher sentence.” 133
S.Ct. at 2088. In contrast, postconviction relief requires
a showing that “the error ‘had substantial and injurious
effect or influence in determining the jury’s verdict.’ Under
this standard, habeas [corpus] petitioners . . . are not
entitled to habeas [corpus] relief based on trial error
unless they can establish that it resulted in ‘actual preju-
dice.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(citations omitted). Postconviction review is therefore
proper when for example the judge imposes a sentence
that he had no authority to impose, as in Narvaez, since
the consequence for the defendant in such a case is
“actual prejudice”—an “injurious effect” on the judgment.
But it doesn’t follow that postconviction relief is proper
just because the judge, though he could lawfully have
imposed the sentence that he did impose, might have
imposed a lighter sentence had he calculated the
applicable guidelines sentencing range correctly.
4                                              No. 11-1245

  Another reason to doubt the applicability of Peugh to
our case is that the Supreme Court didn’t say that the
rule it was announcing was to have retroactive effect,
and thus be subject to invocation even by persons
whose sentences became final before June 10 of this
year, when the Supreme Court handed down Peugh.
Yet unless it is retroactive, Peugh can’t help our peti-
tioner, whose sentence became final seven years ago.
A decision is retroactive if it is a “substantive” decision
but (with immaterial exceptions) not if it’s a “procedural”
one. “New substantive rules generally apply retroac-
tively. This includes decisions that narrow the scope of
a criminal statute by interpreting its terms . . . . Such
rules apply retroactively because they ‘necessarily
carry a significant risk that a defendant stands convicted
of ‘an act that the law does not make criminal’ ’ or faces
a punishment that the law cannot impose upon him . . . .
New rules of procedure, on the other hand, generally
do not apply retroactively. They do not produce a class
of persons convicted of conduct the law does
not make criminal, but merely raise the possibility that
someone convicted with use of the invalidated proce-
dure might have been acquitted otherwise.” Schriro v.
Summerlin, 542 U.S. 348, 351-52 (2004) (emphasis in origi-
nal; citations omitted). So since Peugh says that “failing
to calculate the correct Guidelines range constitutes
procedural error,” 133 S.Ct. at 2083, the implication is
that the rule announced in Peugh won’t be applied retro-
actively—and the statement in Schriro that a procedural
error “merely raise[s] the possibility that someone con-
victed with use of the invalidated procedure might
No. 11-1245                                              5

have been acquitted otherwise” is an exact description
of the present case.
  Now that we know that errors in applying the
advisory guidelines are procedural, cases reinterpreting
the advisory guidelines—including Chambers v. United
States, 555 U.S. 122 (2009), on which our petitioner relies
for his argument that his prior offense wasn’t a
“violent felony”—don’t have retroactive application
either, though there may be exceptions (none applicable
to this case): Chambers may still be considered “substan-
tive” when the pre-Chambers understanding of “violent
felony” resulted in a sentence that exceeded either
the statutory maximum under the Armed Career
Criminal Act, Welch v. United States, 604 F.3d 408, 412
and n. 5 (7th Cir. 2010), or (as in Narvaez) the guide-
lines range when the guidelines were still mandatory.
See also Brown v. Caraway, No. 12-1439, 2013 WL 1920931,
at *3-4 (7th Cir. May 10, 2013).
  Our panel opinion does not deny that the district
judge had committed an error that would be corrigible
on direct review. But we found the social interest in a
belated correction of the error outweighed by the social
interest in the finality of judicial decisions, including
sentences. About finality all that the panel dissent said
was that “were we writing on a blank slate, we might
argue against the majority’s elevation of finality over
fairness.” 706 F.3d at 828. That’s vague. As the panel
opinion pointed out, “an erroneous computation of
an advisory guidelines sentence is reversible (unless
harmless) on direct appeal; it doesn’t follow that it’s
6                                               No. 11-1245

reversible years later in a postconviction proceeding.”
Id. at 824. The panel dissent evinced no recognition of
the importance of finality to an effective judicial system,
or of the difficulty of balancing “fairness” (meaning
what exactly?) against finality. Finality is an institu-
tional value and it is tempting to subordinate such a
value to the equities of the individual case. But there
are dangers, especially if so vague a term as “fairness”
is to be the touchstone.
  Judicial systems that ignore the importance of finality
invite unreasonable delay in the disposition of cases. A
case in point is Brazil, which like a number of other
countries, such as India, has an extraordinary problem
of judicial delay—unbelievable really from a U.S. per-
spective. In India there are “30 million cases pending
in various courts and an average time span of 15 years
to get the dispute resolved through court system.”
Vandana Ajay Kumar, “Judicial Delay in India: Causes &
Remedies,” 4 Journal of Law, Policy & Globalization
16 (2012), www.iiste.org/Journals/index.php/JLPG/article/
view/2069 (visited July 24, 2013). In Brazil more than
70 percent of the cases pending in its courts in 2010
had been filed in earlier years—often many years earlier.
See CNJ (Conselho Nacional de Justiça [National
Council of Justice]), Justice in Numbers 2010 6 (2010).
Since 1988, “the backlog of cases in judicial dockets has
multiplied by a factor of ten, and as a consequence trial
delays have more than doubled . . . . Some cases have
been pending since the 1940s . . . . Conservative statistics
estimate the number of lawsuits awaiting final decision
to be more than 50 million. Between 1995 and 1999, 32.2
No. 11-1245                                               7

million processes [cases] entered the Brazilian courts.
However, only 22.6 million of these were decided
during the same period. This leaves a deficit of almost 10
million processes left unjudged.” Augusto Zimmermann,
“How Brazilian Judges Undermine the Rule of Law: A
Critical Appraisal,” 11 International Trade & Business
L. Rev. 179, 192 (2008).
  The reasons for this delay are various, but one reason
is that the Brazilian judicial system has only a weak
concept of finality. Apart from allowing interlocutory
appeals promiscuously, Brazil’s judicial culture permits
reopening (which is what our case involves) promiscu-
ously. The costs in judicial overload are very great.
  We are not Brazil or India. But we have to worry
about delay in our federal judicial system as well,
because of the difficulty of filling federal judicial
vacancies and the increasing complexity of federal cases,
which increases the time required for deciding them.
Such costs must be kept in mind in deciding how gener-
ously to allow postconviction retraction of sentences.
Fairness to victims of errors in guidelines calculation
that might or might not have lengthened a sentence
(or shortened it for that matter, thus conferring a
windfall on the defendant) must be balanced against
the harm to victims of judicial delay brought about by
judges’ neglect of the social interest in judicial finality.
Furthermore, as the Supreme Court explained in Teague
v. Lane, 489 U.S. 288, 310 (1989) (citations omitted),
“the application of new rules to cases on collateral
review may be more intrusive than the enjoining of
8                                              No. 11-1245

criminal prosecutions, for it continually forces the States
to marshal resources in order to keep in prison
defendants whose trials and appeals conformed to then-
existing constitutional standards” (emphasis in original;
citation omitted). In our case, it’s the federal government
rather than the states that have to marshal those re-
sources. And the procedural error is in sentencing
rather than at trial. But the point is the same—it’s costly
for government to have to defend sentences and
resentence defendants long after the original sentences
were imposed.




  R OVNER, Circuit Judge, dissenting from the denial of
rehearing. Since July 25, 2003, Bernard Hawkins has been
sitting in a Federal Correctional Institution, where he is
scheduled to remain for approximately twelve-and-a-
half years. It is uncontroverted that the district court
erred when it calculated his sentence using the career
offender enhancement, and had the court not erred, his
calculated sentencing range would have been approxi-
mately ten times less—somewhere in the range of 15-21
months. Yet despite the known and conceded error, we
are told that for the sake of principles of finality,
Hawkins must remain in prison for the entire 151-month
sentence. My dissent to the panel opinion elucidated the
reasons why I believe this was the wrong result. In the
No. 11-1245                                                9

interim, the Supreme Court issued a decision in Peugh v.
United States, 133 S.Ct. 2072 (2013), addressing the ques-
tion of how appellate courts should view the effect of
errors that sentencing courts make when they select
the incorrect United States Sentencing Guideline as a
starting point. In light of that decision, and for the
reasons articulated in the dissent to the panel opinion,
I believe it is our duty to reconsider Mr. Hawkins’ case
and therefore I respectfully dissent from the denial
of rehearing.
  Before the Supreme Court issued its decision in
Peugh, we knew with indisputable certainty the
following legal facts: (1) The district court erred when it
labeled Mr. Hawkins a career offender. He was not.
Chambers v. United States, 555 U.S. 122, 130 (2009). (2) This
is the type of error that can be corrected retroactively.
Narvaez v. United States, 674 F.3d 621, 625 (7th Cir. 2011).
(3) Such an error constitutes a miscarriage of justice
and could be corrected on post-conviction review, at
least when the Guidelines were mandatory. Id. at 629.
  The one and only question for which we lacked a defini-
tive answer was whether the holding in Narvaez could
be applied in post-conviction cases after Booker—that is,
when the Guidelines were no longer mandatory. In
the panel opinion, this was the critical (and only) distinc-
tion between Narvaez and this case. Hawkins v. United
States, 706 F.3d 820, 824-25 (7th Cir. 2013).
  The Supreme Court in Peugh, however, rejected just
this distinction, instructing that the advisory nature of
the Guidelines and the presence of discretion do not
10                                              No. 11-1245

alleviate the infirmities that arise when a sentencing
court chooses the improper Guideline range as a
starting point. Peugh, 133 S.Ct. at 2086. It is true
that Peugh involved a sentence that violated the Ex-Post
Facto Clause of the Constitution, but the reasoning of
Peugh broadly addressed the exact question we are
faced with here—whether the harm caused by an error
in sentencing is somehow mitigated when the Guide-
lines are merely advisory as opposed to mandatory. The
government’s position in Peugh mirrors that of the
panel opinion in this case—that an advisory system
mitigates the harm because such an error merely creates
a risk and not a guarantee of injury. Now that the Guide-
lines are advisory, the argument goes, they lack suf-
ficient legal force and effect to attain the status of a law,
as they arguably had before.
  The Supreme Court handily rejected these arguments,
reasoning that the Guidelines are much more than an
advisory set of guideposts that allow a district court to
sentence as if starting with a blank slate. First, the
Peugh court reasoned, district courts are required to
consult the Guidelines and must first correctly calculate
the Guidelines sentence before beginning any analysis
about deviations. Peugh, 133 S.Ct. at 2079, 2083, 2087.
The wagon wheels of the sentencing machinery are not
rolling off into an open field of grass. This strict require-
ment—to begin all sentencing proceedings by correctly
calculating the applicable sentencing range (see id.; Gall
v. United States, 552 U.S. 38, 49 (2007))—aligns the wheels
of the sentencing machinery into the deep grooves
created by the Guidelines. If a court does choose
No. 11-1245                                               11

to deviate, it must consider the extent of the deviation
and ensure that the justification is sufficiently
compelling to support the degree of variance. Peugh, 133
S.Ct. at 2087 (citing Gall, 552 U.S. at 50.). Furthermore, a
court of appeals is permitted to presume that a sen-
tence that comports with the Guidelines is reason-
able. Id. The reviewing court also, in considering
whether the district court’s sentence was reasonable,
weighs the extent of any departure from the Guidelines
in determining whether the district court abused its
discretion. Id. The effect of the Guidelines, therefore, is
strong and anchoring. (And it was particularly
strong in this case, see Hawkins, 706 F.3d at 831 (Rovner, J.
dissenting) (describing the district court’s verging-on-
improper allegiance to the Guidelines).).
  Moreover, as the Peugh court points out, empirical
evidence supports the view that the Sentencing Guidelines
greatly influence the sentences imposed by judges. Peugh,
133 S.Ct. at 2084. Even under the new advisory
Guidelines system, district courts have, in the vast
majority of cases, imposed either within-Guidelines
sentences or sentences that depart from the Guidelines
based on the government’s motion. Id. In less than 20% of
cases since 2007 have district courts imposed above
or below-Guidelines sentences absent a government
motion. Id. Moreover, the data indicates that when the
Guidelines range moves up or down, the sentences
move with it. Id. Thus the initial miscalculation of the
sentencing Guidelines sets the wheels of sentencing
into the tracks in which they will stay in the vast majority
of cases.
12                                             No. 11-1245

  Nowhere in Peugh’s lengthy discussion about the mag-
netism of the advisory system does the Court argue
that the pull can only cause sufficient harm if the
miscalculation causes or results from a constitutional
violation. This is not to say that there are not legitimate
differences between constitutional violations and other
errors. There are indeed. This is why most sentencing
errors are not cognizable on collateral review in the first
place. Welch v. United States, 604 F.3d 408, 412 (7th Cir.
2010). But this court and others have held that in excep-
tional cases “the claimed error of law was a funda-
mental defect which inherently results in a complete
miscarriage of justice and [where] it presents excep-
tional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent.” Davis
v. United States, 417 U.S. 333, 346 (1974) (quoting Hill
v. United States, 368 U.S. 424, 428 (1962)); see also
Narvaez, 674 F.3d at 628.
  The Peugh court had no reason to address whether its
theory (that advisory Guidelines do not mitigate the
harm) also applied to non-constitutional miscarriages of
justice that are cognizable on post-conviction review,
but it would be hard to imagine what the reasoning
might be for distinguishing them. In Peugh’s case, the
harm occurred when the district judge chose the
current Sentencing Guidelines rather than the lower
Guidelines in effect at the time Peugh committed the
crime. In Hawkins, the error occurred when the district
court judge calculated Hawkins’ sentence as if he were
a career offender, when he was not. In both cases, the
question is the same—does the advisory nature of the
No. 11-1245                                                 13

Guidelines mitigate the harm caused by an initial
improper calculation of the Guidelines? The nature of
the harm is relevant in determining whether the harm
can be addressed on post-conviction review in the
first place. But after that, it is hard to imagine how the
advisory system has a different effect on ex post facto
violations where there is a “significant risk” of a higher
sentence (Peugh, 133 S.Ct. at 2088) than on errors of law
which inherently result in a complete miscarriage
of justice. (Davis, 417 U.S. at 346, Narvaez, 673 F.3d at 628).
  The Peugh court rejected the idea that a Guidelines
error causes only a potential prejudice, stating “that
a district court may ultimately sentence a given
defendant outside the Guidelines range does not
deprive the Guidelines of force as the framework for
sentencing.” Peugh, 133 S.Ct. at 2076. The Guidelines
exert a strong controlling influence notwithstanding the
fact that they are no longer mandatory. Id. at 2084, 2086-88.
  The majority finds itself dissatisfied with the dissent’s
brief discussion about the limitations of post-conviction
review. But in Narvaez we said that when a court labels
a defendant as a career offender when he is not, (1) the
court has erred, (Narvaez, 674 F.3d at 625); (2) the error
constitutes a miscarriage of justice (id. at 629); and
(3) that error is therefore cognizable on post-conviction
review (id. at 625). Narvaez resolved any question as to
whether a sentencing error could be redressable on post
14                                               No. 11-1245

conviction relief.1 This ended the matter and thus our
discussion was initially succinct.
  A more detailed explanation would have noted that
although it is true that, in general, sentencing errors are
not cognizable in § 2255 proceedings, the Supreme
Court has never set forth a per se rule that a sentencing
error could never rise to the level of a miscarriage of
justice. Such relief is reserved for exceptional cases, but
is available. In Davis v. United States, the Supreme Court
found a non-constitutional, nonjurisdictional error to be
a miscarriage of justice where a subsequent change in
law rendered the defendant’s conviction and sentence
unlawful, and specifically rejected the notion that only
claims of constitutional dimension are cognizable under
§ 2255. Davis, 417 U.S. at 345, 346-47. And as I noted in
my dissent, this is not a run-of-the-mill sentencing er-
ror. Few Guidelines sentences have as profound an
effect as the career offender label. And when the magni-
tude of error creates a complete miscarriage of justice,
that error begins to look much like a constitutional er-
ror. After all, when we label an error as a complete miscar-


1
  The majority reasons that because the Guidelines were
binding before Booker, we should view Narvaez’s sentence,
which exceeded the Guidelines, as a sentence that exceeded
the statutory maximum. But the Guidelines, even before
Booker, were not the equivalent of statutes. Departures, for
example, allowed courts to sentence above and below the
Guidelines but did not permit changes beyond the actual
statutory range. See, e.g., United States v. Mancari, 463 F.3d
590, 597 (7th Cir. 2006).
No. 11-1245                                                  15

riage of justice, are we not saying that the defendant has
not received any of the justice that he is due? This is a
profound error indeed and, for these purposes, should be
treated in the same manner as a constitutional error.
  Turning to the dissent’s discussion of retroactivity, for
the sake of economy, I will rely on the long string cite
of cases I provided in the dissent, all of which held that
Chambers (and its closely related ancestor, Begay) apply
retroactively on collateral review. Hawkins, 706 F.3d at
828 (Rovner, J., dissenting). Peugh does indeed state
that “failure to calculate the correct Guidelines range
constitutes procedural error,” (Peugh, 133 S.Ct. at
2080) and ordinarily procedural errors cannot be
corrected retroactively. But it seems to me that Peugh’s
reference to “procedural error” refers to errors made in
the procedure required in post-Booker sentencing—that
the first procedural step any sentencing court must
take is to correctly calculate the proper Guidelines
range. Gall v. United States, 552 U.S. 38, 51 (2007); Peugh, 133
S.Ct. at 2080. This does not mean that the subsequent
substantive error—creating a class of persons convicted
as career offenders when they are not—is not redressable
retroactively. I see no reason why Peugh’s brief reference
to procedural error alters this and other courts’ assess-
ments that the rule announced in Chambers was substan-
tive and applies retroactively.
  And even if the Peugh holding could not be applied
retroactively (although I think it can), the outcome here
does not require a retroactive application of Peugh’s
holding which addresses the specific ex post facto viola-
16                                               No. 11-1245

tion in that case. As the dissent initially pointed out,
Hawkins had all the legal pieces of the puzzle neces-
sary to warrant a remand for resentencing—an error con-
stituting a miscarriage of justice redressable on post-
conviction review. See Hawkins, 706 F.3d at 826-27, 832
(Rovner, J. dissenting). It is the widely applicable
rationale of Peugh as opposed to the specific holding in
cases of ex post facto violations that I am suggesting
should inform a decision in Hawkins—that is, that advisory
Guidelines do not mitigate the harm caused by errant
sentencing calculations that have extraordinary effect.
  And what of the importance of finality—an issue
the original dissent addressed in its discussion of
Rozeier and Meirovitz, and its attempts to limit the ap-
plicability of the holding in the name of finality? See
Hawkins, 706 F.3d at 828, 832 (Rovner, J. dissenting). As
a philosophical matter, I believe that fairness is the life-
blood of our system of justice, and more specifically,
justice requires the ability to rectify substantial
uncontroverted judicial errors that cause significant
injury. This is why in our anthropomorphization of
Justice, she is wearing a blindfold, and not running
shoes. If allowing fairness to prevail in limited situa-
tions involving grave miscarriages of justice subverts
finality, then I suppose I agree with my dissenting brother
in the Eleventh Circuit who, in a similar case, decried the
“elevation of form over substance; of finality over fair-
ness.” Rozier v. United States, 701 F.3d 681, 690 (7th Cir.
2012) (Hill, J. dissenting). “Due process,” Judge Hill wrote,
     is the defining virtue of our system of criminal justice.
     But we should ask ourselves why. Is it because it
No. 11-1245                                               17

    achieves finality? Or is it because we believe that,
    more often than not, we will reach a correct result
    where certain process is due the criminal defendant.
    The goal is a correct result—not simply the
    provision of process. To be sure, we do not guarantee
    a correct result. But where all know the result is error,
    to adhere to the process as though it were the end
    goal is unfair in the purest sense of the word.
Id. at 690-91.
  It simply cannot be that the judicial system is incapable
of balancing what the majority calls the “vague” notion of
fairness against finality. Rectifying errors does indeed
cause some amount of delay (although as I will address
in a moment, in this case the delay would be minimal).
But if finality were our only or even the more im-
portant institutional goal, we would not permit any post-
conviction relief at all. In fact, we could do away with
direct appeals altogether. After all, all of these lines
of finality are drawn based on theories involving the
balance between correcting unjust error and finality.
The question is where to draw the line—that is, how
to balance finality in cases, for example, where an
uncontroverted error has increased a defendant’s
sentence tenfold and where the error could not have
been raised at trial or on direct review.
  As my brother in the Eighth Circuit pointed out in a
case nearly identical to this one (and quoting another
dissent from the Eleventh Circuit), denying relief for the
sake of finality:
    does not build confidence in our court system
    because this looks to the world like a court refusing
18                                                No. 11-1245

     to acknowledge or make amends for its own mis-
     take. Second, to the extent that there have been admin-
     istrative costs and delay in considering [the peti-
     tioner’s] request for relief, they have already
     been incurred, and we need only grant him that
     relief to end his very expensive incarceration.
     Third, because the only issue before us is a purely
     legal one, there is no evidence we must consult.
     Thus spoilation [sic] is not a concern. And finally,
     [the petitioner’s] case presents no comity concerns
     insofar as he seeks to correct a sentence imposed
     in federal court and not by the state.
Sun Bear v. United States, 644 F.3d 700, 712 (8th Cir. 2011)
(Melloy, J., dissenting) (quoting Gilbert v. United States,
640 F.3d 1293, 1334 (11th Cir. 2011) (Martin, J., dissenting)).
  Moreover, we have to ask ourselves how much it
would impose on finality to correct the type of error we
lament today. We have rectified sentencing errors
before by ordering limited remands to address only the
narrow issue that warrants reconsideration. In Paladino,
we created a system in which the court of appeals could
order a limited remand to permit a sentencing judge to
determine whether she would have re-imposed her
original sentence, knowing that the Guidelines were
merely discretionary. United States v. Paladino, 401 F.3d
471, 484 (7th Cir. 2005). We used a similar mechanism
to allow a district court judge to consider whether
he would have imposed the same sentence knowing that
he had discretion to depart from the 100:1 crack cocaine
to powder cocaine disparity. United States v. Taylor, 520
No. 11-1245                                             19

F.3d 746, 747-48 (7th Cir. 2008). And in United States v.
Redmond, 667 F.3d 863, 876 (7th Cir. 2012), we remanded
where the district court suggested that the defendant’s
status as a career offender was a significant factor in
its sentence, and it was not clear that the court
recognized its complete discretion to deviate from the
Guidelines’ career-offender calculation. Lim ited
remands allow a sentencing court to correct errors with
minimal use of time and resources. In this situation,
Hawkins’ case could be remanded back to the district
court judge for a recalculation using the Guidelines
applicable to a defendant who had not been classified as
a career offender. All other sentencing factors and § 3553
factors would remain the same. The marginal cost to
the court system would be small (in this case) compared
to the incredible injury that would befall a non-career-
offender sentenced at career-offender levels (such
as Hawkins).
  This court is no stranger to this balancing of fairness
and finality. As we noted in Paladino,
   the entry of an illegal sentence is a serious error rou-
   tinely corrected on plain-error review. To tell a defen-
   dant we know your sentence would have been
   60 months shorter had the district judge known
   the guidelines were merely advisory, because he’s
   told us it would have been—but that is your tough
   luck and you’ll just have to stew in prison for 60
   additional months because of an acknowledged viola-
   tion of the Constitution—would undermine the fair-
   ness, the integrity, and the public repute of the
   federal judicial process.
20                                             No. 11-1245

Paladino, 401 F.3d at 483 (quoting United States v.
Pawlinski, 374 F.3d 536, 541 (2004)).
  Of course the violation in that case was of a constitu-
tional nature and came to the court of appeals on direct
review. And these distinctions make a difference. See,
e.g., Hawkins, 706 F.3d at 829-30 (Rovner, J., dissenting).
This is precisely why this court has held, and I whole-
heartedly agree, that ordinary sentencing errors are not
cognizable on post-conviction (§ 2255) review. But
when the magnitude of the error creates a complete
miscarriage of justice, the error begins to approximate
that of a constitutional error. How can we tell
a prisoner that he has received no justice but yet con-
siderations of finality prevent any remedy? Surely
the solution to the backlogs in Brazil and India that the
majority describes cannot be to offer no justice at all—
and that is precisely what happens when we allow a
“complete miscarriage of justice” to stand uncorrected.
  As Judge Hill of the Eighth Circuit stated in another
case involving an errantly imposed career offender en-
hancement:
     I reluctantly conclude that our court is determined
     to deny relief to every confined habeas petitioner
     whose sentence has been unlawfully enhanced
     under either the career offender guideline or the
     armed career criminal statute. We have repeatedly
     held that procedural rules deprive us of the ability
     to correct an enhancement that we all agree is error
     because it was not authorized by law when imposed.
     To the petitioner, who is serving five, ten or even
No. 11-1245                                            21

    fifteen years more than he would be in the absence
    of the error, we say, “Sorry. We know your enhance-
    ment was error, but there is nothing we can do.
    Our hands are tied by procedural rules. We cannot
    fix this.”
      We do this in the name of “finality.” We say we are
    protecting the integrity of the Great Writ; we cannot
    go about correcting old mistakes or no conviction
    or sentence will ever be final.
      Of course, finality is desirable. There was a time
    when there appeared to be no finality in our habeas
    procedures. The rules we adopted to introduce
    some finality into the habeas process were long over-
    due.
      But finality must not be our highest goal. The
    Great Writ is enshrined in our Constitution because
    we believe that no one may be deprived of life,
    liberty, or property by the government in violation
    of law. If a petitioner can show that he is illegally
    incarcerated, he is entitled to release. Fairness
    requires it. Justice is the ultimate goal in the grant
    of the Writ.
Rozier, 701 F.3d at 689-90 (Hill, J., dissenting).
  The correct result here, however, does not rely on my
personal view that justice and fairness must prevail in
our legal system, nor the similar positions of other
judges within and outside this circuit. It relies only on
a logical legal path based on the precedent of this court
and the Supreme Court. That path is simple: The
22                                              No. 11-1245

district court erred in finding that Hawkins was a
career criminal. Such an error constitutes a miscarriage
of justice that can be remedied via petition for relief
under § 2255, and, regardless of their advisory nature,
the Sentencing Guidelines are influential enough that
errors in their calculation cause harm.
  The Supreme Court’s reasoning in Peugh—which is
consistent with the tenets of fairness that are the quintes-
sence of our system of justice—calls for us to rehear
this case.




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