In the

United States Court of Appeals
                For the Seventh Circuit

No. 09-2919

L UIS M. N ARVAEZ,
                                               Petitioner-Appellant,
                                  v.

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


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



        A RGUED D ECEMBER 7, 2010—D ECIDED JUNE 3, 2011


                   A MENDED D ECEMBER 6, 2011 Œ




    Before R IPPLE, K ANNE and SYKES, Circuit Judges.
  R IPPLE, Circuit Judge. In 2003, Luis Narvaez pleaded
guilty to bank robbery, a violation of 18 U.S.C. § 2113(a).
The district court sentenced Mr. Narvaez as a career
offender under the United States Sentencing Guidelines


Œ
    This opinion was released initially in typescript form.
2                                                 No. 09-2919

§ 4B1.1 because his record revealed two prior escape
convictions involving failure to return to confinement,
violations of Wisconsin Statute section 946.42(3)(a).
Mr. Narvaez later filed a motion to vacate his
sentence under 28 U.S.C. § 2255(a); he asserted that imposi-
tion of the career offender status was illegal in light of the
Supreme Court’s decisions in Begay v. United States, 

(2008), and Chambers v. United States, 

,

(2009). The district court denied
Mr. Narvaez’s motion; it ruled that Begay and Chambers did
not apply retroactively to cases on collateral review. The
court then granted him a certificate of appealability.1
  We conclude that Begay and Chambers apply retroactive-
ly to Mr. Narvaez’s case. Because Mr. Narvaez’s career
offender sentence was improper, his period of incarcera-
tion exceeds that permitted by law and constitutes
a miscarriage of justice.2 He is therefore entitled to
relief under § 2255. Accordingly, we reverse the
judgment of the district court and remand for resentencing



1
  The jurisdiction of the district court was based on 28 U.S.C.
§§ 1331 and 2255 and 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a).
2
  The term “miscarriage of justice” comes from the Supreme
Court’s holding that a non-jurisdictional, non-constitutional
error of law is not a basis for collateral attack under § 2255
unless the error is “a fundamental defect which inherently
results in a complete miscarriage of justice.” Hill v. United
States, 

, 428 (1962); see also United States v.
Addonizio, 

, 185 (1979).
No. 09-2919                                                        3

without imposition of the career offender status. No
other aspect of the sentence determination is to be dis-
turbed.3


                                 I
                        BACKGROUND
  In 2003, Mr. Narvaez pleaded guilty to bank robbery,
a violation of 18 U.S.C. § 2113(a). The sentencing court
designated him as a career offender, see U.S.S.G.
§ 4B1.1, based on two prior escape convictions, under
Wisconsin Statute section 946.42(3)(a), that involved
failing to return to confinement.4 The sentencing
court’s application of the career offender status
increased the then-mandatory sentencing range for
Mr. Narvaez from 100-125 months to 151-188 months.5


3
  This opinion has been circulated among all judges of this court
in regular active service pursuant to Circuit Rule 40(e). No judge
favored to hear this case en banc.
4
  Under existing circuit precedent at the time of sentencing, Mr.
Narvaez’s felony escape convictions constituted “crime[s] of
violence” within the meaning of the career offender guideline
because they were held to “otherwise involve[] conduct that
present[ed] a serious potential risk of physical injury to an-
other,” U.S.S.G. § 4B1.2(a)(2). See United States v. Bryant, 

, 553-54 (7th Cir. 2002).
5
   As a career offender, Mr. Narvaez was assigned an offense
level of 32. He received a three-level reduction for acceptance of
                                                     (continued...)
4                                                      No. 09-2919

The court sentenced him to 170 months’ imprison-
ment — the midpoint of the enhanced guidelines range.
  Five years later, in Begay, the Supreme Court clarified the
definition of a violent felony under the Armed Career
Criminal Act (“ACCA”). It held that driving under
the influence of alcohol did not constitute a violent felony
under the statute. See 

. The
Court explained that the crimes listed in the ACCA
“all typically involve purposeful, violent, and aggressive
conduct.” 

(internal quotation marks omitted).
Therefore, the term “violent felony” applies only to
crimes that are “roughly similar, in kind as well as in
degree of risk posed, to the examples [listed in the ACCA]
themselves.” 

5
  (...continued)
responsibility, resulting in a total adjusted offense level of 29.
Under the then-mandatory Sentencing Guidelines, pairing the
offense level of 29 with a criminal history category of VI resulted
in a guidelines range of 151-188 months.
6
    Section 924(e)(2)(B) of Title 18 defines “violent felony” as
“any crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
adult, that—(i) has as an element the use, attempted use, or
threatened use of physical force against the person of another;
or (ii) is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential
risk of physical injury to another.”
No. 09-2919                                                    5

  In Chambers, the Court further explored the definition of
a violent felony under the ACCA in the context of
a conviction under an Illinois escape statute for failure
to report for penal confinement, a statute similar
to the Wisconsin law under which Mr. Narvaez was
convicted. The Court held that the failure to report was
a “passive” offense that did not inherently involve
conduct presenting “a serious potential risk of physical
injury to an other,” 18 U .S.C. § 924(e)(2)(B),
and, therefore, “falls outside the scope of the ACCA’s
definition of ‘violent felony.’ ” 

, 693.
   Although Begay and Chambers specifically involved
the ACCA, not the Sentencing Guidelines, we have recog-
nized that the definition of a violent felony
under the ACCA was “repeated verbatim” by the Sentenc-
ing Commission in defining a “crime of violence”
in § 4B1.2 and that “[i]t would be inappropriate to
treat identical texts differently just because of a
different caption.” United States v. Templeton, 

, 380 (7th Cir. 2008); see also United States v.
Woods, 

, 403-04 (7th Cir. 2009) (noting that
the language describing crimes of violence in § 924(e)(2)(B)
of the ACCA and § 4B1.2 of the Sentencing Guidelines
is identical and, therefore, interchangeable).7


7
   Section 4B1.2(a) provides in pertinent part that “[t]he term
‘crime of violence’ means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year,
                                                  (continued...)
6                                                    No. 09-2919

  On April 15, 2009, Mr. Narvaez filed a motion under
28 U.S.C. § 2255 to vacate his sentence.8 He asserted that,
in light of the Supreme Court’s recent decisions in
Begay and Chambers, his prior convictions for failure to
return to confinement did not qualify as “crimes of vio-
lence” within the meaning of the career offender guide-
line. The district court dismissed Mr. Narvaez’s
§ 2255 motion. In its view, Begay and Chambers did not
apply retroactively to cases on collateral review. The
court nevertheless granted Mr. Narvaez a certificate of
appealability.
  The Government now concedes that Begay and Chambers
decided questions of substantive statutory construction
and that they apply retroactively on collateral review.
The Government further concedes that, after Begay



7
  (...continued)
that—(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
8
   Section 2255(a) of Title 28 provides that a federal prisoner
may claim “the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, [and] may move the court which imposed the sentence to
vacate, set aside or correct the sentence.” See also supra note 2.
No. 09-2919                                                7

and Chambers, Mr. Narvaez’s prior escape convictions
for failure to return to confinement do not constitute
crimes of violence under the career offender guideline.
Nevertheless, the Government argues that Mr. Narvaez
did not satisfy the requirement for the granting of a
certificate of appealability because the certificate does not
identify a substantial constitutional question, as required
by 28 U.S.C. § 2253(c)(2). The Government also argues that
Mr. Narvaez is not entitled to relief because no miscarriage
of justice occurred.


                             II
                      DISCUSSION
                             A.
  The parties agree that Mr. Narvaez’s motion under
§ 2255 was timely and that Mr. Narvaez is not a career
offender in light of Begay and Chambers because both
cases apply retroactively to Mr. Narvaez’s conviction.
   We agree that the motion is timely. Section 2255(f)(3)
of Title 28 provides that a motion is timely if it is
filed within one year of “the date on which the
right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable
to cases on collateral review.” There is no dispute that
the right asserted by Mr. Narvaez— the right not to receive
an enhanced sentence based on an incorrect understanding
of the term “crime of violence”— was recognized by the
8                                                       No. 09-2919

Supreme Court in Begay and Chambers. Mr. Narvaez
filed his motion within one year of both the Begay and
Chambers decisions.
  We also agree that, in these circumstances, the Begay
and Chambers decisions apply retroactively on collateral
review. The retroactivity of a Supreme Court rule
depends on whether it is procedural or substantive.
Bousley v. United States, 

, 620-21 (1998) (discuss-
ing Teague v. Lane, 

, 311 (1989)). In Welch
v. United States, 

, 415 (7th Cir. 2010), cert.
denied, 

(2011), we observed that
“Begay narrowed substantially [the defendant]’s exposure
to a sentence of imprisonment.” With the imposition of
the “violent felony” status under the ACCA, the defendant
in Welch faced, “at a minimum, five years of imprisonment
that the law otherwise could not impose upon him
under his statute of conviction. Such an increase in punish-
ment is certainly a substantive liability.” 

result, we
concluded that because the Begay rule was substantive, it
“is retroactively applicable on collateral review.” Id.9 We
have no reason to believe that Chambers requires a different
analysis. Indeed, in Welch, we noted that the Tenth Circuit
recently had held that Chambers was retroactively applica-


9
   In Welch v. United States, 

, 429 (7th Cir. 2010), cert.
denied, 

(2011), we ultimately held that the peti-
tioner’s sentence “was imposed in accordance with governing
legal principles” because his “prior conviction for the Illinois
offense of aggravated fleeing or attempting to elude a police
officer was properly treated as a ‘violent felony’ under the
ACCA.”
No. 09-2919                                                 9

ble on collateral review. See 

see also United
States v. Shipp, 

, 1089, 1091 (10th Cir. 2009)
(holding that Chambers articulated “a substantive rule
of statutory interpretation” because a defendant who
“does not constitute an armed career criminal . . . [has]
received a punishment that the law cannot impose
upon him” (internal quotation marks omitted)). Chambers,
like Begay, falls within the class of substantive
decisions that “prohibit[] a certain category of punishment
for a class of defendants because of their status or offense,”
O’Dell v. Netherland, 

, 157 (1997) (internal
quotation marks omitted).


                             B.
                              1.
   We turn now to the Government’s argument
regarding the certificate of appealability. One of
the requirements for obtaining a certificate of
appealability is that an applicant must make “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The Supreme Court
has explained that, in this context, a substantial showing
requires “a demonstration that . . . reasonable jurists could
debate whether (or, for that matter, agree that) the
petition should have been resolved in a different
manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 

, 483-84 (2000) (internal quotation
marks omitted).
10                                               No. 09-2919

   In this case, the certificate of appealability raises a
claim that Mr. Narvaez’s illegal designation as a career
offender resulted in an increase in his term of imprison-
ment that deprived him of liberty without due process
of law. Relying upon precedent that subsequently has been
overruled by Begay and Chambers, the sentencing
court concluded, understandably, that Mr. Narvaez’s
two prior violent felonies made him a career of-
fender. Consequently, Mr. Narvaez was made eligible
for roughly five additional years of incarceration
without any justification in the sentencing scheme estab-
lished by law. The Constitution grants sentencing
courts “wide discretion in determining what sentence
to impose.” United States v. Tucker, 

, 446
(1972). It is well-established, however, that the Due
Process Clause applies to certain aspects of the sentencing
process. See Hicks v. Oklahoma, 

, 346-47
(1980) (recognizing a due process violation at sentencing
when the defendant was deprived of the jury’s
discretion to impose a lower sentence than the maxi-
mum); Gardner v. Florida, 

, 358 (1977) (plurality
opinion) (noting, in a capital case, that “sentencing is
a critical stage of the criminal proceeding” and, therefore,
“the sentencing process . . . must satisfy the requirements
of the Due Process Clause”). Therefore, Mr. Narvaez has
a “constitutional right to be deprived of liberty as punish-
ment for criminal conduct only to the extent authorized
by Congress.” Whalen v. United States, 

,
690 (1980). Certainly, as the district court acknowledged,
“jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitu-
tional right.” 

.
No. 09-2919                                                        11

                                 2.
   We now turn to the merits of Mr. Narvaez’s claims.1 0
We have recognized that sentencing errors are generally
not cognizable on collateral review, especially when
such errors can be raised on direct appeal. See Scott
v. United States, 

, 342-43 (7th Cir. 1993) (observ-
ing “that arguments of the sort [the defendant] proffers
[in his § 2255 petition] must be advanced on direct appeal
or not at all”). Mr. Narvaez’s case, however, does not
come within this general rule. It presents a special and
very narrow exception: A postconviction clarification in
the law has rendered the sentencing court’s decision
unlawful. See 

(recognizing that
a sentencing error is cognizable on collateral review
“where a change in law reduces the defendant’s statutory
maximum sentence below the imposed sentence”).
More precisely, it is now clear that Mr. Narvaez never


10
   We have recognized that § 2255 relief “is appropriate only for
an error of law that is jurisdictional, constitutional, or constitutes
a fundamental defect which inherently results in a complete
miscarriage of justice.” Harris v. United States, 

,
594 (7th Cir. 2004) (internal quotation marks omitted). Mr.
Narvaez’s argument in this appeal is based on two of these
statutory grounds. First, he asserts that he is entitled to § 2255
relief because the sentencing court’s application of the career
offender status resulted in a complete miscarriage of justice.
See 

. Second, Mr. Narvaez submits
that he is entitled to § 2255 relief because the sentencing court’s
error amounted to a violation of his due process rights. Because
we believe that a miscarriage of justice entitles Mr. Narvaez
to relief, we do not reach Mr. Narvaez’s due process claim.
12                                                    No. 09-2919

should have been classified as a career offender and
never should have been subjected to the enhanced punish-
ment reserved for such repetitive and violent offenders.
  We believe that the Court’s decision in Davis v.
United States, 

, 346 (1974), speaks to the situa-
tion here.11 In Davis, the petitioner sought § 2255 relief
after a subsequent interpretation of the statute, under
which he was convicted, established that his conviction
and punishment were “for an act that the law does



11
   The Supreme Court has addressed the issue of whether a non-
constitutional, non-jurisdictional error is a miscarriage of justice
on collateral review in five cases. Four of these cases involved
errors of a procedural nature, and the Court held that no
miscarriage of justice occurred in those four cases. See Reed v.
Farley, 

, 342, 349-50 (1994) (lack of compliance with
statutory time limit for commencing trial); 

, 186-87 (subsequent change in the policies of the United
States Parole Commission to consider gravity of the offense in
whether to grant parole); United States v. Timmreck, 

, 781, 784-85 (1979) (error under Federal Rule of Criminal
Procedure 11 regarding the taking of a guilty plea); Hill v.
United States, 

, 425, 428-29 (1962) (denial of allocu-
tion at sentencing, which violated Federal Rule of Criminal
Procedure 32(a)). In the only case to involve a substantive
error, which rendered the sentence unlawful, the Court found
that a miscarriage of justice had occurred. See Davis v. United
States, 

, 346-47 (1974) (subsequent change in law
rendered defendant’s conviction and sentence unlawful). The
misapplication of the career offender status—which increased
Mr. Narvaez’s sentencing range—is certainly a substantive error
more akin to the error in Davis than the error in the other cases.
No. 09-2919                                                     13

not make criminal.” 

The Supreme Court con-
cluded that “[t]here can be no room for doubt that such a
circumstance inherently results in a complete miscarriage
of justice.” 

marks omitted);
see also Curtis v. United States, 

, 843 (7th
Cir. 2002) (“[A] person convicted of an act that the law
does not make criminal may obtain collateral relief.”).
Moreover, in In re Davenport, 

, 610 (7th
Cir. 1998), we found that the defendant was “indeed being
held in prison for a nonexistent crime,” and, accordingly,
he may be entitled to collateral relief.1 2
  Although these cases provide collateral relief when
a defendant is innocent of the underlying crime, we believe
that reasoning extends to this case, where a post-
conviction Supreme Court ruling made clear that Mr.
Narvaez was not eligible for the categorization of violent
offender wrongfully imposed upon him. We have ex-
plained that: “When the elements of a crime are narrowed,



12
    In In re Davenport, 

(7th Cir. 1998), a federal
prisoner filed a motion to vacate, in which he claimed that his
conviction under 18 U.S.C. § 924(c) for “use” of a firearm during
the commission of a drug offense was illegal in light of the
Supreme Court’s decision in Bailey v. United States, 

(1995). In Bailey, the Court resolved an open question
regarding the definition of the term “use” in the statute, holding
that “use” of a firearm requires more than “mere 

. We held in Davenport that, in light of the Court’s
Bailey decision, the prisoner was “being held in prison for a
nonexistent crime,” and, therefore, may be entitled to collateral
relief based upon his Bailey 

.
14                                                  No. 09-2919

that change serves to prohibit any punishment for
the conduct. Begay prohibits some of that punishment.
We believe, however, that this distinction is one of degree,
not one of kind.” 

(last emphasis
added). Indeed, in Welch, we found the defendant’s
challenge to his sentence under the ACCA “analogous”
to the situation in Davis where the defendant’s punish-
ment “for an act that the law does not make criminal”
resulted in “a complete miscarriage of justice.” 

n.6 (internal quotation marks omitted).
  Our decision in Welch addressed a sentence under the
ACCA, but the definition of “violent felony” under the
ACCA is the same as the definition of “crime of violence”
under the Sentencing Guidelines. As a result, “[i]t would
be inappropriate to treat identical texts differently just
because of a different caption.” 

.1 3
Moreover, at the time of Mr. Narvaez’s sentencing, the
Guidelines were mandatory. The imposition of a career
offender status therefore increased the sentencing range
the district court was authorized to employ. See United
States v. Booker, 

, 234 (2005) (“Because [the
Guidelines] are binding on judges, we have consistently
held that the Guidelines have the force and effect of
laws.”).




13
   Accord United States v. Tiger, 

, 1298 (10th Cir.
2008) (holding, on direct review of a sentence, that “the Court’s
reasoning in Begay applies equally to the sentencing guide-
lines”).
No. 09-2919                                               15

  This case therefore involves the classifying of an individ-
ual as belonging to a subgroup of defendants, repeat
violent offenders, that traditionally has been treated very
differently from other offenders. To classify Mr. Narvaez
as belonging to this group and therefore to increase,
dramatically, the point of departure for his sentence is
certainly as serious as the most grievous misinformation
that has been the basis for granting habeas relief. Cf.

(granting habeas relief because
the trial judge based the defendant’s sentence in part
upon prior convictions that were later determined to
be invalid). Accordingly, we believe that a miscarriage of
justice occurred.
  The Government submits, however, that the sentencing
court’s error in this case does not warrant § 2255 relief.
Unlike the situation under the ACCA, Mr. Narvaez’s 170-
month sentence was actually within the authorized 20-year
statutory maximum for his crime. Therefore, the Govern-
ment reasons that, because Mr. Narvaez would be exposed
to the full range of punishment authorized by Congress
for his crime at resentencing, and would remain eligible
for the identical 170-month sentence under the advisory
guidelines, his claim does not present a fundamental
defect.
  We cannot accept this argument. The fact that Mr.
Narvaez’s sentence falls below the applicable statutory-
maximum sentence is not alone determinative of whether
a miscarriage of justice has occurred. The imposition of the
career offender status branded Mr. Narvaez as a male-
factor deserving of far greater punishment than that
usually meted out for an otherwise similarly situated
16                                              No. 09-2919

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 incorrigi-
ble. 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 unchal-
lenged a premise that was not true and gave him no way of
avoiding the consequences of that designation. The sen-
tencing court’s misapplication of the then-mandatory
§ 4B1.1 career offender categorization in Mr. Narvaez’s
case was the lodestar to its guidelines calculation. It
placed him in a very special status for the calculation of
his final sentence solely because the court ruled that he
was a career offender and that the corresponding guide-
lines required such a status. Speculation that the district
court today might impose the same sentence is not
enough to overcome the fact that, at the time of his initial
sentencing, Mr. Narvaez was sentenced based upon the
equivalent of a nonexistent offense. As the Supreme Court
put it in Hicks v. Oklahoma, 

, 346 (1980), to
assume that the same sentence would have been
imposed in the absence of the career offender provision is
“frail conjecture” that evinces in itself “an arbitrary
disregard of the petitioner’s right to liberty.” This error
clearly constitutes a miscarriage of justice. The Govern-
ment is correct that Mr. Narvaez does not have an absolute
right to a lower sentence. Nevertheless, he does have an
absolute right not to stand before the court as a career
offender when the law does not impose that label on him.
No. 09-2919                                                     17

  The career offender status illegally increased Mr.
Narvaez’s sentence approximately five years beyond that
authorized by the sentencing scheme. Therefore,
Mr. Narvaez’s claim goes to the fundamental legality of
his sentence and asserts an error that constitutes a miscar-
riage of justice, entitling him to relief.1 4 Because we con-
clude that Mr. Narvaez is entitled to relief based on
his claim of miscarriage of justice, we do not reach his
due process claim.


                          Conclusion
 The judgment of the district court denying Mr. Narvaez’s
motion for relief under § 2255 is reversed and re-


14
    The Government invites our attention to the Eleventh Cir-
cuit’s recent decision in Gilbert v. United States, 

(11th Cir. 2011) (en banc), No. 11-6053 (U.S. Aug. 17, 2011). The
Eleventh Circuit in Gilbert, however, explicitly did not address
the issue in this case, namely whether a guidelines misapplica-
tion claim based on a new Supreme Court rule is cognizable in
an initial collateral attack. The Eleventh Circuit concluded that
it had “no reason to decide that issue because this is not [the
defendant]’s first collateral attack on his sentence.” 

  The Government also invites our attention to the recent
decision in Sun Bear v. United States, 

(8th Cir. 2011)
(en banc). Unlike the defendant in Sun Bear, Mr. Narvaez’s
sentence was not within the sentencing range had the career
offender status not been applied. Nevertheless, to the extent a
tension between this opinion and the Eighth Circuit’s
reasoning in Sun Bear exists, we respectfully disagree with
our colleagues on the Eighth Circuit.
18                                            No. 09-2919

manded. On remand, the district court is to impose
the sentence applicable without the imposition of a
career offender status. No other aspect of the sentence is
to be revisited.
            R EVERSED and R EMANDED with INSTRUCTIONS




                         12-16-11