                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1429
                         ___________________________

                              Thomas Alfred Brydon

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                          Submitted: November 13, 2012
                            Filed: December 3, 2012
                                 [Unpublished]
                                 ____________

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
                              ____________

PER CURIAM.

      Petitioner Thomas Alfred Brydon appeals the district court's1 denial of his 28
U.S.C. § 2255 petition for relief. We affirm.


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
      Brydon pleaded guilty to conspiring to manufacture methamphetamine. At
sentencing, the district court applied the career-offender provisions of United States
Sentencing Guidelines §§ 4B1.1 & 4B1.2. The court determined that four prior Iowa
convictions for operating a motor vehicle without the owner's consent and one prior
Iowa conviction for operating a motor vehicle while intoxicated qualified as predicate
crimes of violence. Subsequently, the Supreme Court issued its opinion in Begay v.
United States, 553 U.S. 137 (2008) (holding that driving while intoxicated is not a
"violent felony" pursuant to 18 U.S.C. § 924(e)(2)(B)). Later, in United States v.
Steward, 598 F.3d 960, 963 (8th Cir. 2010), we applied Begay and held that the Iowa
offense of operating a motor vehicle without the owner's consent is no longer to be
deemed a predicate "crime of violence" as defined in U.S.S.G. § 4B1.1 & 4B1.2.

       Brydon filed his § 2255 petition asserting that a failure to resentence him and
extend to him the benefit of Begay would amount to a miscarriage of justice. The
district court acknowledged the change in the law as expressed in Begay, but held that,
because Brydon's sentence was below the statutory maximum penalty for his offense,
he alleged only a Guidelines error such that § 2255 relief remained unavailable.

       Pursuant to our en banc ruling in Sun Bear v. United States, 644 F.3d 700 (8th
Cir. 2011) (en banc), we affirm the judgment of the district court. In Sun Bear, our
Court held that § 2255 provides no avenue of relief for a federal prisoner sentenced
below the applicable statutory maximum sentence even if that prisoner is sentenced
as a career offender based upon a predicate offense later determined not to be a crime
of violence in light of Begay. Id. at 704–06. Our court characterized such an error as
an "ordinary" Sentencing Guidelines question rather than a cognizable error of law or
an error that fits within any miscarriage-of-justice exception for § 2255 relief. Id. at
704. Brydon's argument is materially indistinguishable from the argument rejected
in Sun Bear.




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We affirm the judgment of the district court.
                ______________________________




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