Retroactivity has been in the news a lot lately, thanks to the U.S. Sentencing Commission’s ongoing consideration of whether to give already-sentenced defendants the benefit of more favorable crack guidelines. But crack defendants are not the only inmates serving extraordinarily long terms based on recently discarded aspects of federal sentencing law.  Earlier this week, the Seventh Circuit approved retroactivity for another category of such inmates in Narvaez v. United States (No. 09-2919).

The Supreme Court’s recent decisions in Begay and Chambers substantially narrowed the reach of the Armed Career Criminal Act’s fifteen-year mandatory minimum.  (For background, see this post.  Ironically, shortly after Narvaez was decided, the Court issued its opinion in Sykes v. United States, which seemed to back away from Begay.)  Five years before Begay, Luis Narvaez pled guilty to bank robbery and was sentenced as a career offender under the sentencing guidelines based on his prior convictions for “violent felonies,” including two convictions for failure to return to confinement in violation of Wis. Stat. § 946.42 (3)(a).  Later, in Chambers, the Supreme Court ruled that the Illinois crime of failing to report for confinement did not count as a “violent felony.”  Narvaez then filed a motion under 28 U.S.C. § 2255 to vacate his sentence in light of Chambers.  The district judge held that Chambers did not apply retroactively, but granted Narvaez a certificate of appealability.

On appeal, the government conceded that Begay and Chambers, as decisions of substantive criminal law, applied retroactively, and that, under Chambers, Narvaez’s failure-to-return convictions were not “violent felonies” for purposes of the career offender guideline.  However, the government argued that Narvaez could not take advantage of Chambers because he raised only a statutory issue in his petition — in order to get a certificate of appealability, a § 2255 petitioner must make “a substantial showing of the denial of a constitutional right.”

The Seventh Circuit rejected the government’s theory, finding that, as a result of Chambers, Narvaez’s sentence violated the Due Process Clause:

We have recognized that sentencing errors are generally not cognizable on collateral review. See Scott v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993). Mr. Narvaez’s case, however, does not come within this general rule.  It presents a special and very narrow exception: A post-conviction change in the law has rendered the sentencing court’s decision unlawful. See Welch, 604 F.3d at 412–13 (recognizing that relief is available “where a change in law reduces the defendant’s statutory maximum sentence below the imposed sentence”). In Begay and Chambers, the Supreme Court resolved an open question regarding the kinds of crimes that fall within the meaning of “violent felony” under the ACCA, and, by implication, the career offender guideline. See Templeton, 543 F.3d at 380. The Court’s pronouncements did not simply constitute an “intervening change in the law” in the traditional sense. Rather, the decisions make clear that, at the time of his sentencing, Mr. Narvaez did not qualify as a career offender under the guidelines. An additional five years of incarceration was imposed upon him without any legal justification. Such gratuitous infliction of punishment is a fundamental defect in the court’s judgment that clearly constitutes a complete miscarriage of justice and a violation of due process.  (9-11)

The Seventh Circuit’s reasoning here seem quite broad and might open up collateral relief any time any time the Supreme Court adopts a narrowing construction of a guidelines provision.  There is perhaps a limitation, though, to sentences imposed when the guidelines were mandatory.  Consider this argument by the government and Seventh Circuit’s response:

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 statutory-maximum sentence is not alone determinative of whether a miscarriage of justice has occurred. The sentencing court’s misapplication of the then-mandatory § 4B1.1 enhancement in Mr. Narvaez’s case was central to its guidelines calculation. Nothing in the record indicates that the court would have sentenced Mr. Narvaez to five additional years of incarceration had the judge not been under the legal misapprehension, shared by the rest of the circuit, that Mr. Narvaez was a career offender and that the corresponding guidelines required such an enhancement. The application of the career offender provision increased the sentencing range for Mr. Narvaez. 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. This error clearly constitutes a miscarriage of justice and a due process violation.  (12-13)

Whether and under what circumstances the retroactivity ruling of Narvaez would apply to defendants sentenced post-Booker thus remains an open question.

Cross posted at Life Sentences Blog.