In the

United States Court of Appeals

For the Seventh Circuit

No. 18-1149

JAMES B. HANSON,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the 

Southern District of Illinois.

No. 3:16-cv-00428-JPG — J. Phil Gilbert, Judge.

ARGUED SEPTEMBER 4, 2019 — DECIDED OCTOBER 23, 2019

Before WOOD, Chief Judge, and BAUER and HAMILTON,

Circuit Judges.

BAUER, CircuitJudge. Following a six-yearinvestigation into

a methamphetamine operation, James Hanson was indicted on

May 5, 2009, with conspiracy to manufacture, distribute, and

possess with intent to distribute methamphetamine in excess

of 500 grams. The Government established Hanson’s three
2 No. 18-1149

prior drug offenses and Kentucky felony third-degree residential burglary conviction. On December 10, 2009, Hanson

pleaded guilty pursuant to a plea agreement. Per the agreement, the government listed only one prior felony drug

conviction under 21U.S.C. § 851, instead of all three potentially

qualifying convictions, and relied in part on Hanson’s prior

burglary conviction for a lesser recommended sentencing

range under the Guidelines. 

In the Presentence Investigation Report (“PSR”), the

Probation Officer calculated Hanson’s total offense level as 34,

with a criminal history of VI, for a Sentencing Guidelines range

of 262 to 327 months. U.S.S.G. § 4B1.1(c)(3). After conducting

a sentencing hearing where the district court heard from both

parties, the district court adopted the PSR, sentencing Hanson

to 262 months in prison followed by ten years of supervised

release. On appeal, Hanson challenges the district court’s

denial of his collateral challenge to his sentence under 28

U.S.C. § 2255. We conclude that the district court did not

commit any reversible errors and affirm.

DISCUSSION

Hansonargues that the district court erred when it included

his third-degree burglary as a crime of violence, enhancing

Hanson’s status to a career offender. We review the district

court’s legal conclusions de novo. Hrobowski v. United States,

904 F.3d 566, 569 (7th Cir. 2018).

Postconviction sentences may be changed if the sentence

“was imposed in violation of the Constitution or laws of the

United States, or [if] the court was without jurisdiction to

impose such sentence, or [if] the sentence was in excess of the
No. 18-1149 3

maximum authorized by law ... .” 28 U.S.C. § 2255(a). “[N]ot

every error is corrigible in a post-conviction proceeding, even

if the error is not harmless.” Hawkins v. United States, 706 F.3d

820, 823 (7th Cir. 2013). Even errors that are not harmless may

not be cognizable under a § 2255 proceeding. Id.

We have held that “relief under § 2255 is available ‘only in

extraordinary situations, such as an error of constitutional or

jurisdictional magnitude or where a fundamental defect has

occurred which results in a complete miscarriage of justice.’”

United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014)

(quoting Blake v. United States, 723 F.3d 870, 878–79 (7th Cir.

2013)). A defendant may file a § 2255 motion within one year

of the latest of four dates, including the date of final judgment

and “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.” 28 U.S.C. §§ 2255(f)(1)

and (3).

Under § 2255(f)(1), a defendant has one year from the final

judgment to file a § 2255 motion. This court dismissed

Hanson’s appeal on August 25, 2010. The conviction became

final on November 23, 2010. Hanson failed to file a § 2255

motion within one year. The statute of limitations to file a

§ 2255 motion for Hanson’s final conviction ended on November 23, 2011. Therefore, Hanson’s motion under § 2255(f)(1) is

untimely.

Alternatively, Hanson argues the Supreme Court in Mathis

recognized a new right on June 23, 2016, allowing him to file a

§ 2255 motion by June 23, 2017. However, the Supreme Court
4 No. 18-1149

stated in Mathis that the rules being applied came from

precedent. Mathis v. United States, 136 S. Ct. 2243 (2016). “Our

precedents make this a straightforward case. For more than

25 years, we have repeatedly made clear that application of

ACCA involves, and involves only, comparing elements.” Id.

at 2257. Instead, the Supreme Court distinguished between

“elements” and “means,” where “elements” are “constituent

parts” of a crime and “means” are “various factual ways of

committing some component of the offense.” Id. at 2249.

Hanson has failed to show that the Supreme Court in Mathis

intended to create a new rule upon which the statute of

limitations may run.

We briefly address Hanson’s letter to the court, which

confuses the Government’s argument that Mathis must be

declared retroactive “by the Supreme Court.” Rather, the

Government states in its brief: “[n]evertheless, the measuring

period begins when the Supreme Court declares a new right,

not when the courts acknowledge the right to be retroactive.”

We understand the Government’s position as not requiring the

right to be declared retroactive by the Supreme Court, but

rather the Supreme Court must declare a new right for the

courts to apply retroactivity.

Hanson argues the district court misapplied the career

offender enhancement under the advisory Guidelines, resulting in a “miscarriage of justice.” Sentencing errors that can be

raised on direct appeal are generally not cognizable upon

collateral review. Cognizable sentencing errors include

sentencing decisions rendered unlawful by a clarificationin the

law or sentencing decisions that exceed the statutory maxi-
No. 18-1149 5

mum. See Narvaez v. United States, 674 F.3d 621, 627 (7th Cir.

2011) (granting relief under the pre-Booker mandatory guidelines); and see Welch v. United States, 604 F.3d 408, 412–13 (7th

Cir. 2010) (granting relief for errors in applying the statutory

enhancements under the Armed Criminal Career Act).

The Guidelines establish a career offender as a defendant

who is “at least eighteen years old at the time he committed the

offense of conviction; the offense of conviction must be a felony

that is either a crime of violence or a controlled substance

offense; and the defendant must have at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a). A judge uses advisory

Guidelines to determine whether the sentencing range is

consistent with the appropriate considerations. 18 U.S.C.

§ 3553(a). Nonetheless, “the judge may not even presume that

a sentence within the applicable Guidelines range would be

proper. [The judge] must first determine whether ... the

sentencing considerations [comply with] 18 U.S.C. § 3553(a),

and if ... not [the judge] may not impose it even though it is

within the applicable guidelines range.” Hawkins v. United

States, 706 F.3d at 822.

A change in the law revoking the status under the nowadvisory Guidelines of “crime of violence” from a prior

conviction is not cognizable upon collateral review. Coleman,

763 F.3d at 708–09. Here, the government concedes that the

Kentucky third-degree burglary statute does not inherently

involve “purposeful, violent, and aggressive conduct” of a

“crime of violence” as part of the career offender designation.

But the district court did not rely solely, or even principally, on
6 No. 18-1149

the advisory Guidelines. Instead, it referenced multiple

considerations in imposing Hanson’s sentence, including the

advisory Guidelines, the lengthy PSR, the argument of the

parties, and factors set forth in § 3553(a). 

While this case directly involves, and is controlled by, our

precedent on § 2255, our recent decision in Chazen regarding a

§ 2241 motion is aptly distinguishable here. In Chazen, we

discussed the statutory enhancement of the Armed Career

Criminal Act, which mandated a minimum 15-year sentence

for a person with three or more prior convictions for a “violent

felony” or “serious drug offense.” Chazen v. Marske, 938 F.3d

851, 853 (7th Cir. 2019) (citing 18 U.S.C. § 924(e)(1)). Chazen

sought relief under § 2241, claiming the district court improperly sentenced him to the enhanced minimum under the

statute due to his prior burglary convictions, which were not

“violent felonies.” We found that “Mathis can provide the basis

for [a] § 2241 petition ... under the Armed Career Criminal

Act” because the sentence at issue mandated a minimum

sentence of incarceration. Chazen, 938 F.3d at 862.

While Mathis may provide a basis for awarding habeas

relief under 28 U.S.C. § 2241 from an Armed Career Criminal

Act sentence as in Chazen, the reasoning of Chazen does not

extend to providing habeas relief from an application of the

advisory Guidelines. Here,the district court sentenced Hanson

not with mandatory minimums, but with combined considerations from the advisory Guidelines and the appropriate

factors. While the Armed Career Criminal Act requires a

mandatory minimum of 15 years, a judge must independently

determine the sentence based on 18 U.S.C. § 3553(a) factors and
No. 18-1149 7

whether the career offender enhancement applies. Therefore,

Chazen does not afford relief to Hanson.

Hanson claims the district court committed an arguable

error in applying the advisory Guidelines that created a

miscarriage of justice. Hawkins and Coleman are controlling

here. As in Hawkins, the sentence imposed here was based on

advisory Guidelines, not mandatory Guidelines or statutory

minimums, as inChazen and cases priorto Booker. An errorthat

may have occurred in calculating the Guidelines range does

not constitute a “miscarriage of justice” when the “sentence is

well below the ceiling imposed by Congress.” Coleman, 763

F.3d at 708 (citing Hawkins, 706 F.3d at 824–25). 

The difference between the Guidelines range with the

burglary compared to the range without the burglary is moot,

because the court could have easily relied on the additional

drug offenses or other § 3553 factors. The possibility of a

different sentence in light of the error is not enough to distinguish this case from Hawkins or Coleman. There is no reason to

believe that the district court would be inclined to revise the

sentence based solely on the removal of the third-degree

Kentucky burglary charge, considering the additional drug

offenses. Therefore, Hanson did not suffer a “miscarriage of

justice” and his claim for collateral relief is denied. 

CONCLUSION

We AFFIRM the district court’s denial of Hanson’s § 2255

motion in favor of respondent-appellee.