In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1245

BERNARD HAWKINS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

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.

ARGUED OCTOBER 29, 2012—DECIDED FEBRUARY 7, 2013

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. This appeal from the denial of

a motion under 28 U.S.C. § 2255 to set aside the sentence

in a federal criminal case presents the question

whether an error in calculating the applicable guidelines sentencing range can be corrected in a postconviction proceeding, now that the guidelines are merely

advisory rather than, as they formerly were, mandatory.
2 No. 11-1245

Bernard Hawkins has a long, long history of violent

crimes, gun offenses, escapes, drug use, and violations

of supervised release. In May 2003 he assaulted two

U.S. marshals who were trying to arrest him pursuant

to a bench warrant stemming from his failure to attend

a court hearing on his latest violation of supervised

release. He pleaded guilty to having committed a violent assault, with a weapon, that had inflicted bodily

injury on one of the marshals. 18 U.S.C. §§ 111(a)(1), (b),

1114. Surprisingly, given the violence of his assault

with a sharply pointed piece of a banister that he had

ripped out of its moorings—an offense for which the

statutory maximum sentence was 20 years, § 111(b)—his

guidelines sentencing range would have been only 15 to

21 months’ imprisonment, or possibly 24 to 30 months

(the district judge found it unnecessary to decide

which), had he not been a career offender within the

then widely understood meaning of the career offender

guideline. U.S.S.G. § 4B1.1(a).

That guideline increases the sentencing range for a

defendant who has “at least two prior felony convictions

of either a crime of violence or a controlled substance

offense.” A criminal record of that character implies

an abnormal propensity to commit serious crimes in the

future and therefore a need for a greater punishment

to incapacitate or deter him. Ryan v. United States, 214

F.3d 877, 881 (7th Cir. 2000); United States v. Belton, 890

F.2d 9, 10 (7th Cir. 1989), overruled on other grounds by

United States v. Garecht, 183 F.3d 671, 675 (7th Cir. 1999).

Hawkins had two prior felony convictions for escape,

18 U.S.C. § 751(a), and though both were “walkaway”
No. 11-1245 3

escapes rather than violent breakouts, the law in this

circuit when he was sentenced for the assault was that

a walkaway escape is a crime of violence. United States

v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002). That made

Hawkins a career offender and so raised his guidelines

range to 151 to 188 months. The judge sentenced him to

the bottom of the range. The sentence, though far above

the guidelines range that would have been applicable

had the career offender guideline not been in play, was

well below the statutory maximum for Hawkins’ offense

of conviction, which as we said was 20 years.

At the time he was sentenced, the guidelines were

mandatory; two years later the Supreme Court in the

Booker case declared them advisory. Hawkins’s appeal

from his sentence was pending in this court when

Booker was decided, and on the authority of that decision

we directed the district judge to resentence him. United

States v. Hawkins, 136 Fed. Appx. 922 (7th Cir. 2005). On

remand the judge reimposed the 151-month sentence,

and we affirmed. 168 Fed. Appx. 98 (7th Cir. 2006). Three

years later the Supreme Court held that an “escape” that

takes the form of a failure to report is not a “violent

felony” within the meaning of the Armed Career

Criminal Act, 18 U.S.C. § 924(e). United States v. Chambers,

555 U.S. 122, 127-30 (2009). A walkaway escape is similar

and is also (given Chambers) not a violent felony within

the meaning either of that Act or of the similarly

worded career offender guideline. See United States v.

Hart, 578 F.3d 674, 681 (7th Cir. 2009); United States v.

Templeton, 543 F.3d 378, 383 (7th Cir. 2008); United States
4 No. 11-1245

v. Ford, 560 F.3d 420, 426 (6th Cir. 2009). So Hawkins

filed the section 2255 motion that is now before us. The

district judge, in his third ruling with regard to the sentence, denied the motion on the ground that the legal

error that he had committed in deeming such an escape

a violent felony was not the kind of error that can

be corrected after the judgment in a criminal case

has become final.

Section 2255(a) authorizes postconviction alteration of

a sentence that “was imposed in violation of the Constitution or laws of the United States, or that the court

was without jurisdiction to impose . . ., or that . . . was

in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Hawkins refers us

to Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir.

2011), which held that a sentence that violated the

career offender sentencing guideline could be successfully attacked in a postconviction proceeding even

though the sentence was shorter than the statutory maximum. But Narvaez, as our opinion emphasized, unlike

Hawkins, had been sentenced when the guidelines were

mandatory. Id. at 628-29; see also Brown v. Rios, 696 F.3d

638, 640 (7th Cir. 2012); United States v. Wyatt, 672 F.3d

519, 523 (7th Cir. 2012). It was arguable therefore that his

sentence exceeded the maximum authorized by “law.”

Before Booker the guidelines were the practical equivalent

of a statute. Cf. Scott v. United States, 997 F.2d 340, 341

(7th Cir. 1993). Departures were permitted on specified

grounds, but in that respect the guidelines were no different from statutes, which often specify exceptions.
No. 11-1245 5

Not only do the guidelines no longer bind the sentencing judge; the judge may not even presume that a

sentence within the applicable guidelines range would

be proper. He must determine whether it is consistent

with the sentencing considerations set forth in 18 U.S.C.

§ 3553(a), and if he finds it is not he may not impose it

even though it is within the applicable guidelines

range. Nelson v. United States, 555 U.S. 350, 351-52 (2009);

Rita v. United States, 551 U.S. 338, 351 (2007).

The first step in sentencing—calculating the guidelines

range correctly—was not changed by Booker. But the step

is less important now that the guidelines, including

the career offender guideline, United States v. Corner, 598

F.3d 411, 415 (7th Cir. 2010) (en banc), are merely advisory

and the sentencing judge, being forbidden to presume the

reasonableness of a guideline sentence, must make

an independent determination of whether a guideline

sentence would comport with the sentencing standard

set forth in 18 U.S.C. § 3553(a). That is a critical difference between Narvaez and the present case and also

between the present case and United States v. Paladino,

401 F.3d 471, 482 (7th Cir. 2005). The judge’s error in

Paladino was to deem the guidelines mandatory rather

than advisory, thus foreclosing application of the sentencing factors in section 3553(a), which might have

induced the judge to give a lighter sentence. That was

a more serious, a more consequential, error than in

the present case. Paladino called it a miscarriage

of justice; the lesser error in the present case does not

warrant such a characterization. The judge reimposed the 151-month sentence after Booker had
6 No. 11-1245

made the sentencing guidelines merely advisory, as he

well knew when he reimposed the sentence. No longer

can it be argued that he imposed a sentence “in excess of

the maximum authorized by law,” since the statutory

maximum sentence for Hawkins’s offense was as we

said 20 years (240 months). Under the regime of Booker

the sentencing judge must comply with the command of

28 U.S.C. § 3553(a) “to impose a sentence sufficient, but

not greater than necessary, to comply with the purposes

[of sentencing] set forth in” the next paragraph of

section 3553(a). In resentencing Hawkins the district

judge made clear that he considered the 151-month sentence that he had imposed appropriate, even though no

longer commanded because the career offender guideline was no longer mandatory. And on postconviction

review he confirmed that “apart from the career offender

sentencing enhancement it was appropriate for the court

to consider Hawkins’ long and violent criminal history”

(emphasis added) and therefore that “Hawkins’ sentence

was reasonable even without application of the § 4B1.1

career offender enhancement.”

Hawkins argues that he was “punished for conduct

that is not punishable,” conduct “that is not criminal,”

punished in violation of “substantive law,” “subjected to

an illegal enhancement,” and that he has been in prison

“longer than the law permitted.” None of these assertions is correct. What’s true is that the judge made a

mistake in resentencing Hawkins—he realized that the

guidelines were now merely advisory but thought that

under them a walkaway escape was a crime of violence.

But not every error is corrigible in a postconviction pro-
No. 11-1245 7

ceeding, even if the error is not harmless. Suppose

the probation service in recommending a sentence to

a district judge makes a mistake in applying the (advisory) guideline that the judge doesn’t catch. As a

result he imposes an above-guidelines sentence, which

he wouldn’t have done had he caught the error; nonetheless the sentence is below the statutory maximum. The error could not be corrected in a postconviction proceeding. Welch v. United States, 604 F.3d 408,

412 and n. 4 (7th Cir. 2010); Scott v. United States, supra,

997 F.2d at 342; Gilbert v. United States, 640 F.3d 1293, 1323

(11th Cir. 2011) (en banc); United States v. Mikalajunas, 186

F.3d 490, 495-96 (4th Cir. 1999).

Neither should an erroneous interpretation of the

guidelines be corrigible in such a proceeding—especially

when the interpretation is discovered to be erroneous

after the proceeding in which it was committed has

become final through exhaustion of appellate remedies.

For in such a case the challenge to the judgment depends on the retroactive application of a new rule (the

corrected interpretation), and such retroactivity is

disfavored because it thwarts finality in the criminal

process. Teague v. Lane, 489 U.S. 288, 308-10 (1989) (plurality opinion). Precedential decisions come pouring out

of the federal courts of appeals and the Supreme Court.

If every precedential decision interpreting the guidelines favorably to a prisoner were a ticket to being

resentenced, the Justice Department and the courts

might be forced “continually . . . to marshal resources

in order to keep in prison defendants whose trials and

appeals [and sentences] conformed to then-existing
8 No. 11-1245

constitutional [and statutory] standards.” Id. at 310. (It

has even been suggested, though we’re skeptical, that

judges might be discouraged from proposing new interpretations of the guidelines for fear that federal courts

would be inundated with claims for postconviction

relief. See John C. Jeffries, Jr., “The Right-Remedy Gap

in Constitutional Law,” 109 Yale L.J. 87, 98-99 (1999).)

Resentencing is not as heavy a burden for a district

court as a complete retrial, but it is a burden, and the

cumulative burden of resentencing in a great many stale

cases could be considerable. About 80,000 persons are

sentenced in federal district courts every year. In every

case the judge must calculate a guidelines sentencing

range. A change in the interpretation of a guideline

could therefore, if always deemed retroactive, greatly

increase both the number of section 2255 motions and

the number of resentencings. There is a difference between reversing an error on appeal and correcting the

error years later. An erroneous computation of an

advisory guidelines sentence is reversible (unless harmless) on direct appeal; it doesn’t follow that it’s

reversible years later in a postconviction proceeding.

We said in Narvaez that Chambers “is retroactively

applicable on collateral review.” 674 F.3d at 626. Finality

is an important social value, but not important enough

to subject a defendant to “a punishment that the law

cannot impose upon him,” Schriro v. Summerlin, 542

U.S. 348, 352 (2004), such as a sentence that exceeds the

statutory maximum sentence for his crime or a guideline

ceiling that has the force of a statute because the judge

is forbidden to exceed it. See Narvaez v. United States,
No. 11-1245 9

supra, 674 F.3d at 626; Welch v. United States, supra, 604

F.3d at 413-14; see also United States v. Shipp, 589 F.3d

1084, 1089, 1091 (10th Cir. 2009). An error in the interpretation of a merely advisory guideline is less serious.

Given the interest in finality, it is not a proper basis for

voiding a punishment lawful when imposed.

Though demoted by Booker to being merely advisory, the

guidelines remain influential. But how influential?

These days only a slight majority (53.1 percent) of sentences are within the applicable guidelines range. U.S.

Sentencing Commission, “Preliminary Quarterly

Data Report” 12 (3rd Quarter Release Preliminary

Fiscal Year 2012 Data Through June 30, 3012),

www.ussc.gov/Data_and_Statistics/Federal_Sentencing_

Statistics/Quarterly_Sentencing_Updates/USSC_2012_3rd_

Quarter_Report.pdf (visited Jan. 19, 2013). Still, the guideline ranges exert a gravitational pull on non-guideline

sentences, making them closer to sentences within

that range than they would be were there no guidelines.

(This is what is called in psychology an “anchoring

effect.”) So the judge might have given Hawkins a lower

sentence had Chambers been decided earlier. But he

would not have been required to do so and we don’t

think that a sentence that is well below the ceiling imposed by Congress whether directly or by delegation to

the Sentencing Commission should, as Hawkins argues,

be considered a “miscarriage of justice” that can be collaterally attacked, just because the judge committed a

mistake en route to imposing it. That’s the balance the

cases strike between the interest in finality and the
10 No. 11-1245

injustice of a possibly mistaken sentence. See, e.g., United

States v. Addonizio, 442 U.S. 178, 186 (1979); United States v.

Timmreck, 441 U.S. 780, 784 (1979); Hill v. United States,

368 U.S. 424, 428 (1962); Scott v. United States, supra, 997

F.2d at 342; United States v. Mikalajunas, supra, 186 F.3d at

495-96. Booker made reversible on direct review all sentences based on the belief, overturned by that decision,

that the guidelines were mandatory. United States v.

Paladino, supra, 401 F.3d at 483. But reversible on

appeal doesn’t mean reversible in postconviction proceedings, and in any event our defendant unlike

Narvaez was not sentenced under the mandatory guidelines regime.

In Hill v. United States, supra, 368 U.S. at 428, the

Supreme Court ruled that a denial of a criminal defendant’s right of allocution (the right to make a statement in court before he’s sentenced) was not “an error of

the character or magnitude cognizable under a writ of

habeas corpus” because it was “neither jurisdictional

nor constitutional. It is not a fundamental defect which

inherently results in a complete miscarriage of justice,

nor an omission inconsistent with the rudimentary demands of fair procedure.” Granted, the error in Hill

probably was harmless: “there is no claim that the defendant would have had anything at all to say if he had

been formally invited to speak.” Id. at 429. But it was not

harmless in United States v. Addonizio, supra, 442 U.S. at

187, where similar language—including language

quoted from Hill—appears. Id. at 185. Hawkins has not

tried to catalog the subset of miscalculations of advisory
No. 11-1245 11

guidelines that are miscarriages of justice that can be

corrected in postconviction proceedings rather than just

legal errors; he argues in effect that all errors (except,

presumably, harmless ones) are miscarriages of justice,

and with that we disagree.

Hawkins was sentenced nine years ago. He has served

almost three-quarters of the sentence that he now challenges as illegal. Yet it is “illegal” (his word, but not the

right word) in the sense not that it must be nullified, but

only that, were he correct in calling it a miscarriage of

justice, it would have to be reconsidered. If we ordered

resentencing, the judge could reimpose the identical

sentence. The defendant’s criminal record would justify

the judge’s doing that. Indeed we’re surprised that the

top of the guidelines range for a violent assault with a

weapon by a hardened criminal on two federal officers,

inflicting bodily injury, is only 21 or perhaps 30 months,

a quarter or less of the statutory maximum. It would be

no surprise if a sentencing judge, asked to choose

between 21 (or 30) and 151 months, chose the latter.

The judgment denying the section 2255 motion filed

by the defendant is

AFFIRMED.
12 No. 11-1245

ROVNER, Circuit Judge, dissenting. Last year this court

reviewed a remarkably similar case but reached the

opposite result. The majority’s rationale for a different

result here is illusory and for this reason I respectfully

dissent.

In Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011),

Luis Narvaez, like Hawkins, stood before a sentencing

court as a career offender, having been convicted (just

like Hawkins) twice before of escape for failing to return to confinement. Id. at 623. Just as with Hawkins,

the sentencing court’s application of the career offender

guideline increased Narvaez’s Guidelines range significantly, but did not increase it past the statutory maximum. Id. at 629. After the Supreme Court in Chambers

clarified that a failure to return to confinement was not

a crime of violence and thus did not trigger a career

offender enhancement (Chambers v. United States, 555

U.S. 122 (2009)), Narvaez, like Hawkins, filed a postconviction motion under 28 U.S.C. § 2255 to vacate his

sentence. We noted that although sentencing errors are

generally not cognizable on collateral review, Narvaez’s

case presented a narrow exception, one in which a miscarriage of justice entitled Narvaez to relief. Narvaez,

674 F.3d at 630.

The premise of the opinion in Narvaez was that the

defendant had “an absolute right not to stand before

the court as a career offender when the law does not

impose that label on him.” Id. at 629. Once Narvaez had

been labeled a career offender, all of the court’s calculations and assessments were filtered through that lens

and consequently,
No. 11-1245 13

[t]he imposition of the career offender status

branded Mr. Narvaez as a malefactor deserving of

far greater punishment than that usually meted out

for an otherwise similarly situated individual who

had committed the same offense. It created a legal

presumption that he was to be treated differently

from other offenders because he belonged in a

special category reserved for the violent and incorrigible. No amount of evidence in mitigation or extenuation could erase that branding or its effect on

his sentence.

Id. at 629. The Narvaez court was not assuaged by the

fact that the defendant’s sentence fell below the applicable statutory maximum sentence. Id. This, the

court concluded, was not alone determinative of whether

a miscarriage of justice had occurred. Id. The miscarriage, as highlighted in the block quotation above, was

the branding of “career offender.” Such a label, in addition to creating a legal presumption of incorrigibility (or

perhaps because of it), increased dramatically the point

of departure for the sentence. Id. “[T]o assume that

the same sentence would have been imposed in the

absence of the career offender provision,” the Narvaez

court explained, “is frail conjecture that evinces in

itself an arbitrary disregard of the petitioner’s right to

liberty.” Id. (internal citations omitted).

Despite the remarkable correlation between the facts

and legal posture in Narvaez and this case, the majority

gives Narvaez short shrift. It does so, it says, because

Narvaez was sentenced before the Supreme Court

decided United States v. Booker, when the Guidelines
14 No. 11-1245

were mandatory and thus the judge was bound by the

determination to impose a particular sentence. United

States v. Booker, 543 U.S. 220 (2005). The majority, I fear,

hangs its precedent-distinguishing hat on an illusory

distinction.

In Booker, the Supreme Court declared that the U.S.

Sentencing Guidelines, which courts before had considered mandatory, were now only advisory. Id. at 245.

Booker indeed initiated a sea change in sentencing procedures, but those changes do not affect the error in this

case. Both before and after Booker, the first step in sentencing was and is for the sentencing judge to begin

the sentencing proceeding by correctly calculating

the applicable Guidelines range. See Gall v. United

States, 552 U.S. 38, 49 (2007). This was “step one” before

Booker and remains “step one” now. Our cases post-Booker

have routinely held that “although a judge is no

longer required to give a Guidelines sentence, he is required to make a correct determination of the Guidelines sentencing range as the first step in deciding

what sentence to impose.” United States v. Vrdolyak, 593

F.3d 676, 681-82 (7th Cir. 2010), (citing Gall, 552 U.S. at 50);

United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009). The

Guidelines must be the starting point and the initial

benchmark. United States v. Hurt, 574 F.3d 439, 442-43

(7th Cir. 2009). In case after case we have emphasized

that even after Booker, a failure to initially calculate the

Guidelines properly constitutes a legal error. See, e.g.,

United States v. Chapman, 694 F.3d 908, 913 (7th Cir.

2012); United States v. Halliday, 672 F.3d 462, 472 (7th

Cir. 2012); United States v. Baker, 655 F.3d 677, 683 (7th
No. 11-1245 15

Cir. 2011); United States v. Long, 639 F.3d 293, 298 (7th

Cir. 2011); United States v. Snyder, 635 F.3d 956, 961 (7th

Cir. 2011).

In short, the error that the district court made (and it

did indeed err—even the majority admits that) occurred

in the sequence of the sentencing procedure unaltered

by Booker. Thus, there is no distinction between this

case and Narvaez.

It is true, of course, that the sentencing court in this

case was not required to sentence Hawkins according to

the Guidelines calculations. Step two of the sentencing

procedure requires the court to consider the factors

enumerated in 18 U.S.C. § 3553 to evaluate whether

the Guidelines range is truly proper given particular

considerations. Gall, 552 U.S. at 49-50. But the harm

to Hawkins had already occurred—before the court

could even turn to the advisory part of the Guidelines.

The judge could now only view Hawkins through career-offender tinted glasses, and his baseline consideration before applying the § 3553 factors was multitudes

higher than it would have been otherwise.

Suppose, for example, that a sentencing court determined that because of Hawkins’ mental or physical

condition, a below-Guidelines sentence was warranted.

If Hawkins stood before the court as a career offender,

the judge would have calculated his sentence as a career

offender and then considered those mitigating § 3553

factors, beginning from the 151-month benchmark. Were

he not a career offender, the judge would begin by cal-
16 No. 11-1245

There is some dispute as to whether the range would have 1

been 15-21 months, or 24-30 months. The district court found

it unnecessary to decide. In any event, both ranges are magnitudes less than the 151 months that Hawkins received.

The Narvaez court emphasized that Narvaez’s sentence 2

occurred when the Guidelines were mandatory, but that it

had no reason to consider whether or not the distinction

mattered. Narvaez, 674 F.3d at 628-29.

culating the 15-21 month range before considering any 1

§ 3553 factors. The majority admits that Hawkins might

not have received the same sentence had he not been

labeled a career offender. I think it rather more fair to

conclude that there was no chance that Hawkins would

have been sentenced to 151 months after Chambers.

Faced with a Guidelines range of 15-21 months, or even

24-30 months, a five to tenfold increase in the sentence

would have been shocking. In short, the injustice here

is not rectified by Booker. The error and prejudice

occurred in the proper calculation of the Guidelines as

a starting point—something that has not changed now

that the Guidelines are merely advisory. Narvaez is our

precedent and a fresh one at that. This precedent 2

demands that Hawkins be treated in just the same

manner as Narvaez.

The majority is correct that the law has changed, but

the relevant change occurred in Chambers and not

Booker. The majority admits that the judge erred when

he thought a walk-away escape was a crime of violence,

but argues that the retroactive application of the Chambers
No. 11-1245 17

rule should not apply lest it undermine the principle of

finality integral to the criminal process. Were we

writing on a blank slate, we might argue against the

majority’s elevation of finality over fairness, as did

our dissenting brothers in the 8th and 11th Circuits in

indistinguishable cases, arguing that finality must not

trump justice where a court must correct a career

offender enhancement that all agree was imposed in

error. Rozier v. United States, 701 F. 3d 681, 689-91 (11th

Cir. (Hill, J., dissenting); Meirovitz v. United States, 688

F.3d 369, 373 (8th Cir. 2012) (Bright, J., dissenting) (“without finality there can be no justice . . . [i]t is equally true

that, without justice, finality is nothing more than a

bureaucratic achievement.”) petition for cert. filed, (U.S.

Nov. 20, 2012) (No. 12-7461). But we need not engage

in this policy dispute about the virtues and failures of

finality, for although the majority discusses at some

length the burdens of retroactive application of a new

rule, such as the one announced in Chambers, that ship

has hoisted the mainsail and left port. This Circuit has

already declared that Chambers (and its closely related

ancestor, Begay) apply retroactively on collateral review.

Narvaez, 674 F.3d at 621. See also United States v. Wyatt,

672 F.3d 519, 523-24 (7th Cir. 2012) (noting retroactivity of Chambers and Begay); Brown v. Rios, 696 F.3d

638, 640 (7th Cir. 2012) (applying Begay retroactively on

collateral review); Welch v. United States, 604 F.3d 408,

415 (7th Cir. 2010) (Begay rule is retroactively applied on

collateral review), cert. denied, 131 S. Ct. 3019 (2011); United

States v. Shipp, 589 F.3d 1084, 1090-91 (10th Cir. 2009)
18 No. 11-1245

(applying Chambers retroactively on collateral review);

Sun Bear v. United States, 611 F.3d 925, 927 (8th Cir.

2010) (applying Begay on collateral review).

The majority fears that errors in the interpretation of

the Guidelines, if always retroactive, would greatly

increase the number of § 2255 motions and re-sentencings. The opinion in Narvaez did not alter the fact

that ordinarily errors in calculations of the Sentencing

Guidelines are not cognizable in a § 2255 motion. Welch,

604 F.3d at 412. An intervening change in the law made

applicable retroactively, however, can indeed require a

court to recognize a “miscarriage of justice,” that must be

correctable on collateral review. Id. at 412-13, nn.4 & 6.

Stanback v. United States, 113 F.3d 651, 654 (7th Cir. 1997).

See also Davis v. United States, 417 U.S. 333, 342 (1974).

But retroactive application of a law is not the norm

and depends on whether a new rule is considered to be

procedural or substantive. It is clear in this Circuit that

Chambers “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” and

thus is a substantive rule retroactively applied. Narvaez,

674 F.3d at 626.

Furthermore, this is not an error that Hawkins could

have raised on direct review. At the time, we would

have viewed as frivolous a challenge to the established

principle that a walk-away crime is a violent offense.

United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007),

rev’d, 555 U.S. 122 (2009); Wyatt, 672 F.3d at 520 (marking

the change in law after Chambers and noting that on the
No. 11-1245 19

defendant’s direct appeal it had been well-established

that a walk-away escape was a crime of violence); United

States v. Golden, 466 F.3d 612, 614 (7th Cir. 2006);

United States v. Rivera, 463 F.3d 598, 600-01 (7th Cir.

2006); United States v. Bryant, 310 F.3d 550, 553-55 (7th

Cir. 2002); United States v. Franklin, 302 F.3d 722, 724

(7th Cir. 2002); See also Stanback, 113 F.3d at 655-656

(noting that a defendant cannot be required to posit an

argument that would not have had any relevance prior

to an intervening change in Supreme Court law).

Thus the majority’s example of a probation service recommending the incorrect sentence to an unnoticing judge

is inapt. The latter error could have been addressed

on direct review.

The majority further characterizes this error in calculation of a guideline as “less serious” than one that violates a statute or regulation. I suspect that the defendant

sitting in prison for twelve years, rather than fifteen

months because of a conceded Guidelines miscalculation would beg to differ. Few Guidelines interpretations

have as pronounced an effect on a sentence than the

career offender designation. Does it make any sense to

the goals of justice to determine that an improperly

calculated sentence that exceeds the statutory maximum

by one month is a serious error worthy of post conviction relief, but that an improperly calculated error

that exceeds the Guidelines range by eleven years (but

is still within the statutory maximum) is not? That is

why we said in Paladino that even where a sentence

falls within the sentencing range that Congress had

created for a defendant’s conduct, it is a miscarriage of
20 No. 11-1245

justice to give a person an illegal sentence that increases

his punishment, just as it is to convict an innocent

person. United States v. Paladino, 401 F.3d 471, 483 (7th

Cir. 2005). And in the context of considering prejudice

under a Strickland analysis, the Supreme Court has instructed that any amount of errantly imposed actual jail

time matters. Glover v. United States, 531 U.S. 198, 203

(2001); United States v. Seacott, 15 F.3d 1380, 1384 (“we are

unaware of anyone who would maintain that even one

additional hour of confinement, much less a day, or

week of confinement, ‘doesn’t matter.’ ”)

The idea that Sentencing Guidelines are not “laws” that

can be challenged in a § 2255 motion was first floated

in this Circuit in Scott v. United States, 997 F.2d 340, 341

(7th Cir. 1993). In that case, we posed the issue as an

unresolved question, but it has since crept into our case

law as an accepted premise. See, e.g., Welch, 604 F.3d at

412 (citing Scott for the proposition “that deviations from the Sentencing Guidelines generally are not

cognizable on a § 2255 motion.”) But the Supreme

Court has stated only that if an error is neither jurisdictional nor constitutional, in order to be cognizable on

collateral review, it must present “exceptional circumstances” in which a fundamental defect inherently

results in a complete miscarriage of justice. See Hill v.

United States, 368 U.S. 424, 428 (1962). The Court has not

addressed whether a Guidelines case could reach such

exceptional levels. Id. See also Sun Bear v. United States,

644 F.3d 700, 707 (8th Cir. 2011) (en banc) (Melloy, J.,

dissenting) (noting that the issue of whether Sentencing

Guidelines errors are cognizable in § 2255 proceedings
No. 11-1245 21

has not been decided by the Supreme Court or the 8th

Circuit). In Scott, we surmised, without deciding, that

Guidelines errors should not be redressable upon § 2255

review because, given their status, “[o]ne full and fair

opportunity to make arguments under the Guidelines—at sentencing and on direct appeal—is enough.” Id.

at 342. We know, however, that Hawkins did not and

could not have had one full and fair opportunity to

make his argument under the Guidelines because his

argument did not exist until the Supreme Court ruled in

Chambers—after his direct appeal had concluded. It was

just such an intervening change in law which convinced

the Supreme Court to declare a miscarriage of justice

in Davis, despite the Court’s long history of denying

such a characterization for non-constitutional, non-jurisdictional errors. Davis, 417 U.S. at 346-47. The Davis

Court concluded that punishment for an act that the

law does not make criminal inherently results in a complete miscarriage of justice and presents exceptional

circumstances that justify collateral relief under § 2255.

Id. at 346-47. Thus being punished as a career offender

for an act that the law does not consider a prerequisite

for career offender status results in a complete miscarriage of justice and presents exceptional circumstances

that justify collateral relief under § 2255.

As with Davis, an intervening reinterpretation of the

law also motivated this court in Paladino to find a miscarriage of justice where the change could have influenced
22 No. 11-1245

At times we speak of Booker and Chambers as intervening 3

changes in the law. It is a helpful shorthand for the more precise

description which is that the law did not change, but rather

the Supreme Court informed the courts that they had been

misinterpreting the law all along.

Paladino consolidated several cases for review and concluded 4

that the proper procedure for remedying the error was to,

“while retaining jurisdiction of the appeal, order a limited

remand to permit the sentencing judge to determine whether

(continued...)

a judge’s baseline consideration in sentencing. Paladino,

3

401 F.3d at 483. Of course, the change in law in

Paladino occurred while the case was on direct review,

but that distinction blurs when one considers the

posture of Paladino. By the time the Paladino cases

came before this court, we had already concluded that

Booker could not be applied retroactively. Thus a Booker

error that occurs after a judgment becomes final cannot

be corrected on post-conviction review. Paladino, 401

F.3d at 481. Chambers, however is applied retroactively.

Moreover, because Paladino involved plain error review,

we were implementing the very same “miscarriage of

justice” standard in Paladino as we are in this

case—that is “whether the error would seriously affect

the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 481, (citing Johnson v. United States,

520 U.S. 461, 466-67 (1997)). In Paladino, the miscarriage

of justice occurred because, at sentencing, the judges

were under the mistaken understanding that the Guidelines were mandatory rather than advisory. That errant

4
No. 11-1245 23

(...continued) 4

he would (if required to resentence) reimpose his original

sentence.” Paladino, 401 F.3d at 484.

belief affected the judges’ thought processes as they

reviewed the sentencing options. This was not an error

that could have been knowable and thus correctable

until the Supreme Court decided Booker. The same is

true in this case—a judge’s errant belief about the sentencing law greatly affected his thought process. That

error could not have been known and thus corrected

until the Supreme Court announced its decision in Chambers.

The majority tells us that the error in Paladino was

more serious and consequential, but errantly believing

that the career offender enhancement applies when it

does not is at least as consequential to a defendant’s

sentence than errantly believing that the Guidelines are

mandatory when they are not. In the solid majority of

Paladino remands, the judge sentenced the defendant

exactly as before. See, e.g., United States v. Davis, 682 F.3d

596, 602 (7th Cir. 2012); United States v. Harrison, 355

Fed. Appx. 953, 954 (7th Cir. 2009); United States v. Sebolt,

320 Fed. Appx. 468, 468 (7th Cir. 2009); United States

v. Armstead, 309 Fed. Appx. 11, 11 (7th Cir. 2009); Coleman

v. United States, 309 Fed. Appx. 9, 10 (7th Cir. 2009);

United States v. Hall, 304 Fed. Appx. 451, 452 (7th Cir.

2008); but see United States v. Steel, 322 Fed. Appx. 455,

456 (7th Cir, 2009). Errantly believing that the career

offender enhancement applies when it does not, on the
24 No. 11-1245

other hand, creates a high probability of getting a

much longer sentence. First, because the career offender

enhancement imposes sentences multitudes higher

than otherwise and second, because, as we noted above,

the judge is required to begin sentencing with a

Guidelines calculation and therefore will commence

her sentencing process contemplating a range that is

leagues higher than it should be.

It made no difference to the Paladino court that all of

the sentences in that case were within the statutory sentencing range and thus could have been imposed by

the judge in any event. Nor should it here. Just as we

did not know in Paladino whether the judges would

have given the same sentence if they had known at sentencing that the Guidelines were merely advisory, we

cannot know whether a judge would have given the

same sentence if he had known that the career offender

enhancement did not apply. In this case, we know that

the judge was highly influenced by the Guidelines range

as he said at the Paladino remand:

Over the last 16 plus years, the Sentencing Commission has promulgated and honed the Guidelines to

achieve these Congressional purposes. Congress, as

well, has approved those Guidelines and has indicated its view that the Guideline sentences achieve

its purity. Therefore, the Court will, in exercising

its discretion, give considerable weight to those Guidelines in determining an appropriate sentence for

this defendant.
No. 11-1245 25

Also in the exercise of its discretion, the Court will

only depart from those Guidelines in unusual cases for

clearly identified persuasive reasons. The defendant’s

request for a sentence outside of the advisory Guidelines is just not persuasive today. Even though a

departure is authorized in the case, I would choose,

and I do choose, not to depart, because I believe

departure is just not warranted under the facts and

circumstances of this case.

Appellate R. at 12, Tr. 10/28/05 at 34 (emphasis added).

This sounds much like a forbidden presumption that

the Guidelines sentence is proper, and thus arguably

error of an entirely different sort. See Gall, 552 U.S. at 50.

In any event, it certainly demonstrates how, even

under an advisory Guidelines system, a mistake in the

Guidelines calculations anchored the judge to the

higher range and virtually assured Hawkins a sentence

ten times greater than one he would have received otherwise. The majority notes that the Guidelines remain

influential and asks rhetorically, “how influential?” The

answer in this case is clear. The district court judge “g[a]ve

considerable weight to the Guidelines,” and noted that

he would only “depart” (a word no longer relevant

post-Booker, and one that might indicate an inappropriate loyalty to the Guidelines) “from those Guidelines

in unusual cases.” Appellate R. at 12, Tr. 10/28/05 at 34.

The majority includes quotations (without citation) to

language implying that at resentencing the judge would

have imposed the same sentence even without the
26 No. 11-1245

career offender enhancement. Supra at 6. But the quoted

language comes from the district court’s order five years

later on post-conviction review. The district court judge’s

posthoc reasoning in denying collateral review is surely

not a reliable indicator of what he would do if ordered

to sentence Hawkins de novo without the career

offender enhancement, particularly given the dispositive

weight the court appears to have given the Guidelines

at the time of the Paladino remand. It is one thing for

the judge to say, five years later, that he would have

sentenced Hawkins to 151 months regardless, and another

for him to actually begin with a 15-21 month range and

then decide to increase the sentence by another decade.

This case, which demands reversal, will open no

flood gates as the majority fears. It involves, first, an

uncontroverted mistake of law by the district court—that

is declaring Hawkins a “career offender” when he was

not; second, an inability to address the error on direct

review due to an intervening change in the law, which is,

third, applicable retroactively. See Sun Bear, 644 F.3d at

712 (Melloy, J., dissenting). Finally we note again that

the application of the career offender enhancement

triggers sentencing ranges magnitudes higher than the

unenhanced range.

The majority, it seems, has no problem ignoring the

error and allowing Hawkins to be sentenced under a

career offender guideline that should not apply to him,

noting that he is a “hardened criminal” guilty of a

“violent assault.” And while the majority is quick to

describe the “escape” attempt that turned violent when
No. 11-1245 27

Hawkins was high on drugs, the majority neglects to

inform the reader that the other escape that qualified

Hawkins as a career offender occurred when Hawkins

merely signed himself out of a halfway house and failed

to return. But we need not dwell on these facts. Whether

a crime is a violent felony is determined by how the law

defines it and not how an individual offender might

have committed it on a particular occasion. Begay v.

United States, 553 U.S. 137, 141 (2008). Moreover and

more compellingly, this decision will not apply only to

Hawkins, but also to the mild-mannered, non-violent

offender who panics and fails to return to the halfway

house after a day at work. Because this Court has determined that an error in calculating the correct Sentencing Guidelines for such a walk-away offender is not

a miscarriage of justice and not a cognizable error, even

where the error increases an offender’s sentence

tenfold, our mild-mannered, non-violent offender could

spend not one year in prison, but twelve and a half when

neither Congress, nor the Sentencing Commission, nor

likely even the district court that sentenced him thinks

he should be there. See Wyatt, 672 F.3d at 524. That seems

a poor use of resources and, more importantly, a terrible

miscarriage of justice.

For this reason, I would reverse the decision of the

district court and remand to the district court to allow

Mr. Hawkins to stand before it without the errantly

imposed black mark of a career offender.

2-7-13