This opinion was released initially in typescript form. 

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2919

LUIS M. NARVAEZ,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 09-cv-222—Barbara B. Crabb, Judge.

ARGUED DECEMBER 7, 2010—DECIDED JUNE 3, 2011

AMENDED DECEMBER 6, 2011

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. In 2003, Luis Narvaez pleaded

guilty to bank robbery, a violation of 18 U.S.C. § 2113(a).

The district court sentenced Mr. Narvaez as a career

offender under the United States Sentencing Guidelines
2 No. 09-2919

The jurisdiction of the district court was based on 28 U.S.C. 1

§§ 1331 and 2255 and 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a).

The term “miscarriage of justice” comes from the Supreme 2

Court’s holding that a non-jurisdictional, non-constitutional

error of law is not a basis for collateral attack under § 2255

unless the error is “a fundamental defect which inherently

results in a complete miscarriage of justice.” Hill v. United

States, 368 U.S. 424, 428 (1962); see also United States v.

Addonizio, 442 U.S. 178, 185 (1979).

§ 4B1.1 because his record revealed two prior escape

convictions involving failure to return to confinement,

violations of Wisconsin Statute section 946.42(3)(a).

Mr. Narvaez later filed a motion to vacate his

sentence under 28 U.S.C. § 2255(a); he asserted that imposition of the career offender status was illegal in light of the

Supreme Court’s decisions in Begay v. United States, 553

U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122,

129 S. Ct. 687 (2009). The district court denied

Mr. Narvaez’s motion; it ruled that Begay and Chambers did

not apply retroactively to cases on collateral review. The

court then granted him a certificate of appealability.1

We conclude that Begay and Chambers apply retroactively to Mr. Narvaez’s case. Because Mr. Narvaez’s career

offender sentence was improper, his period of incarceration exceeds that permitted by law and constitutes

a miscarriage of justice. He is therefore entitled to 2

relief under § 2255. Accordingly, we reverse the

judgment of the district court and remand for resentencing
No. 09-2919 3

This opinion has been circulated among all judges of this court 3

in regular active service pursuant to Circuit Rule 40(e). No judge

favored to hear this case en banc.

Under existing circuit precedent at the time of sentencing, Mr. 4

Narvaez’s felony escape convictions constituted “crime[s] of

violence” within the meaning of the career offender guideline

because they were held to “otherwise involve[] conduct that

present[ed] a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2). See United States v. Bryant, 310 F.3d

550, 553-54 (7th Cir. 2002).

 As a career offender, Mr. Narvaez was assigned an offense 5

level of 32. He received a three-level reduction for acceptance of

(continued...)

without imposition of the career offender status. No

other aspect of the sentence determination is to be disturbed.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. The sentencing 4

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
4 No. 09-2919

(...continued) 5

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.

 Section 924(e)(2)(B) of Title 18 defines “violent felony” as 6

“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.”

The court sentenced him to 170 months’ imprisonment—the midpoint of the enhanced guidelines range.

Five years later, in Begay, the Supreme Court clarified the

definition of a violent felony under the Armed Career

Criminal Act (“ACCA”). It held that driving under

the influence of alcohol did not constitute a violent felony

under the statute. See Begay, 553 U.S. at 148. The

Court explained that the crimes listed in the ACCA

“all typically involve purposeful, violent, and aggressive

conduct.” Id. at 144-45 (internal quotation marks omitted).

Therefore, the term “violent felony” applies only to

crimes that are “roughly similar, in kind as well as in

degree of risk posed, to the examples [listed in the ACCA]

themselves.” Id. at 143.6
No. 09-2919 5

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...)

In Chambers, the Court further explored the definition of

a violent felony under the ACCA in the context of

a conviction under an Illinois escape statute for failure

to report for penal confinement, a statute similar

to the Wisconsin law under which Mr. Narvaez was

convicted. The Court held that the failure to report was

a “passive” offense that did not inherently involve

conduct presenting “a serious potential risk of physical

injury to another,” 18 U.S.C. § 924(e)(2)(B),

and, therefore, “falls outside the scope of the ACCA’s

definition of ‘violent felony.’ ” Chambers, 129 S. Ct. at

691, 693.

Although Begay and Chambers specifically involved

the ACCA, not the Sentencing Guidelines, we have recognized that the definition of a violent felony

under the ACCA was “repeated verbatim” by the Sentencing Commission in defining a “crime of violence”

in § 4B1.2 and that “[i]t would be inappropriate to

treat identical texts differently just because of a

different caption.” United States v. Templeton, 543 F.3d

378, 380 (7th Cir. 2008); see also United States v.

Woods, 576 F.3d 400, 403-04 (7th Cir. 2009) (noting that

the language describing crimes of violence in § 924(e)(2)(B)

of the ACCA and § 4B1.2 of the Sentencing Guidelines

is identical and, therefore, interchangeable).

7
6 No. 09-2919

(...continued) 7

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).

 Section 2255(a) of Title 28 provides that a federal prisoner 8

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.

On April 15, 2009, Mr. Narvaez filed a motion under

28 U.S.C. § 2255 to vacate his sentence. He asserted that, 8

in light of the Supreme Court’s recent decisions in

Begay and Chambers, his prior convictions for failure to

return to confinement did not qualify as “crimes of violence” within the meaning of the career offender guideline. The district court dismissed Mr. Narvaez’s

§ 2255 motion. In its view, Begay and Chambers did not

apply retroactively to cases on collateral review. The

court nevertheless granted Mr. Narvaez a certificate of

appealability.

The Government now concedes that Begay and Chambers

decided questions of substantive statutory construction

and that they apply retroactively on collateral review.

The Government further concedes that, after Begay
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

 In Welch v. United States, 604 F.3d 408, 429 (7th Cir. 2010), cert. 9

denied, 131 S. Ct. 3019 (2011), we ultimately held that the petitioner’s sentence “was imposed in accordance with governing

legal principles” because his “prior conviction for the Illinois

offense of aggravated fleeing or attempting to elude a police

officer was properly treated as a ‘violent felony’ under the

ACCA.”

Supreme Court in Begay and Chambers. Mr. Narvaez

filed his motion within one year of both the Begay and

Chambers decisions.

We also agree that, in these circumstances, the Begay

and Chambers decisions apply retroactively on collateral

review. The retroactivity of a Supreme Court rule

depends on whether it is procedural or substantive.

Bousley v. United States, 523 U.S. 614, 620-21 (1998) (discussing Teague v. Lane, 489 U.S. 288, 311 (1989)). In Welch

v. United States, 604 F.3d 408, 415 (7th Cir. 2010), cert.

denied, 131 S. Ct. 3019 (2011), we observed that

“Begay narrowed substantially [the defendant]’s exposure

to a sentence of imprisonment.” With the imposition of

the “violent felony” status under the ACCA, the defendant

in Welch faced, “at a minimum, five years of imprisonment

that the law otherwise could not impose upon him

under his statute of conviction. Such an increase in punishment is certainly a substantive liability.” Id. As a result, we

concluded that because the Begay rule was substantive, it

“is retroactively applicable on collateral review.” Id. We 9

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-
No. 09-2919 9

ble on collateral review. See id. at 413-14; see also United

States v. Shipp, 589 F.3d 1084, 1089, 1091 (10th Cir. 2009)

(holding that Chambers articulated “a substantive rule

of statutory interpretation” because a defendant who

“does not constitute an armed career criminal . . . [has]

received a punishment that the law cannot impose

upon him” (internal quotation marks omitted)). Chambers,

like Begay, falls within the class of substantive

decisions that “prohibit[] a certain category of punishment

for a class of defendants because of their status or offense,”

O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (internal

quotation marks omitted).

B.

1.

We turn now to the Government’s argument

regarding the certificate of appealability. One of

the requirements for obtaining a certificate of

appealability is that an applicant must make “a

substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). The Supreme Court

has explained that, in this context, a substantial showing

requires “a demonstration that . . . reasonable jurists could

debate whether (or, for that matter, agree that) the

petition should have been resolved in a different

manner or that the issues presented were adequate

to deserve encouragement to proceed further.” Slack

v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation

marks omitted).
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 imprisonment that deprived him of liberty without due process

of law. Relying upon precedent that subsequently has been

overruled by Begay and Chambers, the sentencing

court concluded, understandably, that Mr. Narvaez’s

two prior violent felonies made him a career offender. Consequently, Mr. Narvaez was made eligible

for roughly five additional years of incarceration

without any justification in the sentencing scheme established by law. The Constitution grants sentencing

courts “wide discretion in determining what sentence

to impose.” United States v. Tucker, 404 U.S. 443, 446

(1972). It is well-established, however, that the Due

Process Clause applies to certain aspects of the sentencing

process. See Hicks v. Oklahoma, 447 U.S. 343, 346-47

(1980) (recognizing a due process violation at sentencing

when the defendant was deprived of the jury’s

discretion to impose a lower sentence than the maximum); Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality

opinion) (noting, in a capital case, that “sentencing is

a critical stage of the criminal proceeding” and, therefore,

“the sentencing process . . . must satisfy the requirements

of the Due Process Clause”). Therefore, Mr. Narvaez has

a “constitutional right to be deprived of liberty as punishment for criminal conduct only to the extent authorized

by Congress.” Whalen v. United States, 445 U.S. 684,

690 (1980). Certainly, as the district court acknowledged,

“jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 484.
No. 09-2919 11

 We have recognized that § 2255 relief “is appropriate only for 10

an error of law that is jurisdictional, constitutional, or constitutes

a fundamental defect which inherently results in a complete

miscarriage of justice.” Harris v. United States, 366 F.3d 593,

594 (7th Cir. 2004) (internal quotation marks omitted). Mr.

Narvaez’s argument in this appeal is based on two of these

statutory grounds. First, he asserts that he is entitled to § 2255

relief because the sentencing court’s application of the career

offender status resulted in a complete miscarriage of justice.

See Addonizio, 442 U.S. at 185. Second, Mr. Narvaez submits

that he is entitled to § 2255 relief because the sentencing court’s

error amounted to a violation of his due process rights. Because

we believe that a miscarriage of justice entitles Mr. Narvaez

to relief, we do not reach Mr. Narvaez’s due process claim.

2.

We now turn to the merits of Mr. Narvaez’s claims.10

We have recognized that sentencing errors are generally

not cognizable on collateral review, especially when

such errors can be raised on direct appeal. See Scott

v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993) (observing “that arguments of the sort [the defendant] proffers

[in his § 2255 petition] must be advanced on direct appeal

or not at all”). Mr. Narvaez’s case, however, does not

come within this general rule. It presents a special and

very narrow exception: A postconviction clarification in

the law has rendered the sentencing court’s decision

unlawful. See Welch, 604 F.3d at 412-13 (recognizing that

a sentencing error is cognizable on collateral review

“where a change in law reduces the defendant’s statutory

maximum sentence below the imposed sentence”).

More precisely, it is now clear that Mr. Narvaez never
12 No. 09-2919

 The Supreme Court has addressed the issue of whether a non- 11

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, 512 U.S. 339, 342, 349-50 (1994) (lack of compliance with

statutory time limit for commencing trial); Addonizio, 442 U.S.

at 179, 186-87 (subsequent change in the policies of the United

States Parole Commission to consider gravity of the offense in

whether to grant parole); United States v. Timmreck, 441 U.S.

780, 781, 784-85 (1979) (error under Federal Rule of Criminal

Procedure 11 regarding the taking of a guilty plea); Hill v.

United States, 368 U.S. 424, 425, 428-29 (1962) (denial of allocution at sentencing, which violated Federal Rule of Criminal

Procedure 32(a)). In the only case to involve a substantive

error, which rendered the sentence unlawful, the Court found

that a miscarriage of justice had occurred. See Davis v. United

States, 417 U.S. 333, 346-47 (1974) (subsequent change in law

rendered defendant’s conviction and sentence unlawful). The

misapplication of the career offender status—which increased

Mr. Narvaez’s sentencing range—is certainly a substantive error

more akin to the error in Davis than the error in the other cases.

should have been classified as a career offender and

never should have been subjected to the enhanced punishment reserved for such repetitive and violent offenders.

We believe that the Court’s decision in Davis v.

United States, 417 U.S. 333, 346 (1974), speaks to the situation here. In Davis, the petitioner sought § 2255 relief 11

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
No. 09-2919 13

 In In re Davenport, 147 F.3d 605 (7th Cir. 1998), a federal 12

prisoner filed a motion to vacate, in which he claimed that his

conviction under 18 U.S.C. § 924(c) for “use” of a firearm during

the commission of a drug offense was illegal in light of the

Supreme Court’s decision in Bailey v. United States, 516 U.S.

137 (1995). In Bailey, the Court resolved an open question

regarding the definition of the term “use” in the statute, holding

that “use” of a firearm requires more than “mere possession.”

516 U.S. at 143. We held in Davenport that, in light of the Court’s

Bailey decision, the prisoner was “being held in prison for a

nonexistent crime,” and, therefore, may be entitled to collateral

relief based upon his Bailey claim. 147 F.3d at 610.

not make criminal.” Id. at 346. The Supreme Court concluded that “[t]here can be no room for doubt that such a

circumstance inherently results in a complete miscarriage

of justice.” Id. (internal quotation marks omitted);

see also Curtis v. United States, 294 F.3d 841, 843 (7th

Cir. 2002) (“[A] person convicted of an act that the law

does not make criminal may obtain collateral relief.”).

Moreover, in In re Davenport, 147 F.3d 605, 610 (7th

Cir. 1998), we found that the defendant was “indeed being

held in prison for a nonexistent crime,” and, accordingly,

he may be entitled to collateral relief.

12

Although these cases provide collateral relief when

a defendant is innocent of the underlying crime, we believe

that reasoning extends to this case, where a postconviction Supreme Court ruling made clear that Mr.

Narvaez was not eligible for the categorization of violent

offender wrongfully imposed upon him. We have explained that: “When the elements of a crime are narrowed,
14 No. 09-2919

Accord United States v. Tiger, 538 F.3d 1297, 1298 (10th Cir.

13

2008) (holding, on direct review of a sentence, that “the Court’s

reasoning in Begay applies equally to the sentencing guidelines”).

that change serves to prohibit any punishment for

the conduct. Begay prohibits some of that punishment.

We believe, however, that this distinction is one of degree,

not one of kind.” Welch, 604 F.3d at 415 (last emphasis

added). Indeed, in Welch, we found the defendant’s

challenge to his sentence under the ACCA “analogous”

to the situation in Davis where the defendant’s punishment “for an act that the law does not make criminal”

resulted in “a complete miscarriage of justice.” Id. at 413

n.6 (internal quotation marks omitted).

Our decision in Welch addressed a sentence under the

ACCA, but the definition of “violent felony” under the

ACCA is the same as the definition of “crime of violence”

under the Sentencing Guidelines. As a result, “[i]t would

be inappropriate to treat identical texts differently just

because of a different caption.” Templeton, 543 F.3d at 380.13

Moreover, at the time of Mr. Narvaez’s sentencing, the

Guidelines were mandatory. The imposition of a career

offender status therefore increased the sentencing range

the district court was authorized to employ. See United

States v. Booker, 543 U.S. 220, 234 (2005) (“Because [the

Guidelines] are binding on judges, we have consistently

held that the Guidelines have the force and effect of

laws.”).
No. 09-2919 15

This case therefore involves the classifying of an individual as belonging to a subgroup of defendants, repeat

violent offenders, that traditionally has been treated very

differently from other offenders. To classify Mr. Narvaez

as belonging to this group and therefore to increase,

dramatically, the point of departure for his sentence is

certainly as serious as the most grievous misinformation

that has been the basis for granting habeas relief. Cf.

Tucker, 404 U.S. at 447 (granting habeas relief because

the trial judge based the defendant’s sentence in part

upon prior convictions that were later determined to

be invalid). Accordingly, we believe that a miscarriage of

justice occurred.

The Government submits, however, that the sentencing

court’s error in this case does not warrant § 2255 relief.

Unlike the situation under the ACCA, Mr. Narvaez’s 170-

month sentence was actually within the authorized 20-year

statutory maximum for his crime. Therefore, the Government reasons that, because Mr. Narvaez would be exposed

to the full range of punishment authorized by Congress

for his crime at resentencing, and would remain eligible

for the identical 170-month sentence under the advisory

guidelines, his claim does not present a fundamental

defect.

We cannot accept this argument. The fact that Mr.

Narvaez’s sentence falls below the applicable statutorymaximum sentence is not alone determinative of whether

a miscarriage of justice has occurred. The imposition of the

career offender status branded Mr. Narvaez as a malefactor deserving of far greater punishment than that

usually meted out for an otherwise similarly situated
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 incorrigible. No amount of evidence in mitigation or extenuation

could erase that branding or its effect on his sentence. His

designation as a career offender simply took as unchallenged a premise that was not true and gave him no way of

avoiding the consequences of that designation. The sentencing court’s misapplication of the then-mandatory

§ 4B1.1 career offender categorization in Mr. Narvaez’s

case was the lodestar to its guidelines calculation. It

placed him in a very special status for the calculation of

his final sentence solely because the court ruled that he

was a career offender and that the corresponding guidelines required such a status. Speculation that the district

court today might impose the same sentence is not

enough to overcome the fact that, at the time of his initial

sentencing, Mr. Narvaez was sentenced based upon the

equivalent of a nonexistent offense. As the Supreme Court

put it in Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), to

assume that the same sentence would have been

imposed in the absence of the career offender provision is

“frail conjecture” that evinces in itself “an arbitrary

disregard of the petitioner’s right to liberty.” This error

clearly constitutes a miscarriage of justice. The Government is correct that Mr. Narvaez does not have an absolute

right to a lower sentence. Nevertheless, he does have an

absolute right not to stand before the court as a career

offender when the law does not impose that label on him.
No. 09-2919 17

 The Government invites our attention to the Eleventh Cir- 14

cuit’s recent decision in Gilbert v. United States, 640 F.3d 1293

(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 misapplication claim based on a new Supreme Court rule is cognizable in

an initial collateral attack. The Eleventh Circuit concluded that

it had “no reason to decide that issue because this is not [the

defendant]’s first collateral attack on his sentence.” Id. at 1306.

The Government also invites our attention to the recent

decision in Sun Bear v. United States, 644 F.3d 700 (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.

The career offender status illegally increased Mr.

Narvaez’s sentence approximately five years beyond that

authorized by the sentencing scheme. Therefore,

Mr. Narvaez’s claim goes to the fundamental legality of

his sentence and asserts an error that constitutes a miscarriage of justice, entitling him to relief. Because we con- 14

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-
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.

REVERSED and REMANDED with INSTRUCTIONS

12-16-11