## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3333

___________ Michael Eugene Seebeck, *
* Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. United States of America, * * [UNPUBLISHED] Appellee. *

___________ Submitted: June 16, 2010 Filed: August 9, 2010

___________ Before LOKEN, ARNOLD and GRUENDER, Circuit Judges.

___________ PER CURIAM.

A federal grand jury returned a s uperseding indictment charging Michael Seebeck with numerous drug offenses. Pu rsuant to a plea agreement with the Government, Seebeck pled guilty to one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and waived his right to appeal a sentence of 188 months or less.

The Presentence Investigation Report (“ PSR”) classified Seebeck as a career offender under U.S.S.G. § 4B1.1, and calculate d an offense level of 29, a criminal history category of VI, and an advisory sentencing guidelines range of 151 to 188-2- months. Seebeck’s career offender status was based on his August 2003 conviction for second-degree assault and his November 2003 conviction for fleeing a peace officer in a motor vehicle in Minnesota. At the March 17, 2008 sentencing hearing, the district court adopted the PSR’s calcula tion of the advisory guidelines range and sentenced Seebeck to 151 months’ imprisonm ent. No direct appeal was filed.

Less than a month after Seebeck was sentenced, the Supreme Court decided Begay v. United States , 553 U.S. 137 (2008). In Begay , the Court addressed how to determine whether an offense qualifies as a “violent felony” under the “otherwise” clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Section 924(e)(2)(B)(ii) defines “violent felony” to in clude “burglary, arson, or extortion, [and crimes that] involve[] use of explosives, or otherwise involve[] conduct that presents a serious potential risk of physical injury to another.” The Supreme Court observed in Begaythat the example crimes listed in § 924(e)(2)(B)(ii) “typically involve purposeful, violent, and aggressive conduc t,” 553 U.S. at 144-45 (citation and internal quotation marks omitted), and announced thatin applying the “otherwise” clause, courts “should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves,” id. at 143. Because the definitions of “violent felony” in § 924(e) and “crime of violence” in U.S.S.G. § 4B1.2 are nearly identical, the holding in Begay is relevant to determining whether a defendant is a car eer offender under the sentencing guidelines. See United States v. Hennecke , 590 F.3d 619, 621 n.2 (8th Cir. 2010), petition for cert. filed , --- U.S.L.W. --- (U.S. Mar. 30, 2010) (No. 09-9972).

On November 10, 2008, Seebeck filed a pr o se motion to vacate, correct, or set aside the sentence under 28 U.S.C. § 2255, arguing that his conviction for fleeing a peace officer in a motor vehicl e is not a “crime of violen ce,” and that he therefore should not have been sentenced as a career offender. On August 13, 2009, the district1 Noting that Seebeck had not addressed “cause, prejudice, or actual innocence in his § 2255 motion,” the di strict court concluded that it could not “excuse the procedural default on these bases.” Seeb eck did, however, argue in his § 2255 motion that his attorney provided ineffective as sistance, which can excuse a procedural default. See Becht v. United States , 403 F.3d 541, 544-45 (8th Cir. 2005). Citing United States v. Kendrick , 423 F.3d 803, 809 (8th Cir. 2005) (holding that the Oregon crime of fleeing a police officer in a mo tor vehicle is a crime of violence under U.S.S.G. § 4B1.1), the district court concl uded that Seebeck had not shown prejudice under Strickland v. Washington , 466 U.S. 668 (1984).
-3- court denied Seebeck’s motion, concluding that Seebeck’s failure to challenge his career offender classification in a direct appeal “constitutes a procedural default.” 1

Seebeck, still acting pro se, filed a motion to alter or amend the denial of his § 2255 motion under Federal Rule of Ci vil Procedure 59(e), arguing that Begayapplies retroactively to cases on collateral review. While Seebeck’s motion to alter or amend was pending before the district court, we decided United States v. Tyler , 580 F.3d 722 (8th Cir. 2009). There, applyi ng the principles set out in Begay , we held that the Minnesota crime of fleeing a peace officer in a motor vehicle —the same crime for which Seebeck was convicted in Novemb er 2003—does not constitute a “crime of violence.” Id. at 726.

In a subsequent order, the district c ourt granted a certificate of appealability, “based on the recent Eighth Circuit Court of Appeals decision in United States v. Tyler ,” on the following issue: “[W]hether the holding of [ Begay ] applies retroactively, permitting Petitioner to collaterally attack his designation as a Career Offender, in spite of Petitioner’s failure to file a direct appeal on this issue and the passage of more than one year since entr y of judgment in Petitioner’s case.” In the same order, the district court denied Seebeck’s motion to alter or amend without further discussion.2 We are puzzled by the distri ct court’s reference to “the passage of more than one year since entry of judgment in [Seeb eck’s] case.” The district court sentenced Seebeck on March 17, 2008, and Seebeck filed his § 2255 motion on November 10, 2008, less than eight months later. See 28 U.S.C. § 2255(f) (“A 1-year period of limitation shall apply to a motion under this section.”). The district court denied Seebeck’s § 2255 motion on August 13, 2009, a nd Seebeck filed his motion to alter or amend on August 26, 2009, well within the 28-day period prescribed by Federal Rule of Civil Procedure 59(e).
-4- “[A] district court has broad discreti on to alter or amend a judgment under Rule 59(e), and we will reverse only for a clear abuse of discretion.” SFH, Inc. v. Millard Refrigerated Servs., Inc. , 339 F.3d 738, 746 (8th Cir. 2003) (citing Innovative Home Health Care, Inc. v. P.T.O.T. Assocs. , 141 F.3d 1284, 1286 (8th Cir. 1998)). “A district court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding of fact.” United States v. Bailey , 571 F.3d 791, 804 (8th Cir. 2009) (quoting Roach v. Stouffer , 560 F.3d 860, 863 (8th Cir. 2009)).

Because the district court failed to offer any analysis in its order, we can only surmise that its denial of Seebeck’s motion to alter or amend was based on an implicit finding that Begaydoes not apply retroactively to cases on collateral review. 2 Not only does the Government concede on appeal that Begayis retroactively applicable, but we recently held that “the rule in Begayis applicable retroactively to cases on collateral review,” Sun Bear v. United States , --- F.3d ---, 2010 WL 2813620 at *4 (8th Cir. July 20, 2010). The district cour t’s contrary ruling wa s legal error and thus a clear abuse of discretion. See Bailey , 571 F.3d at 804.

For the foregoing reasons, we vacate the district court’s order denying Seebeck’s motion to alter or amend and remand for further proceedings.

LOKEN, Circuit Judge, dissents.

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