Sun Bear v. United States

Citations: 611 F.3d 925; 2010 U.S. App. LEXIS 14802; 2010 WL 2813620Docket: No. 09-2992

Court: Court of Appeals for the Eighth Circuit; July 20, 2010; Federal Appellate Court

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Marlon Dale Sun Bear appeals the dismissal of his motion to vacate his 360-month sentence under 28 U.S.C. § 2255. His sentence, imposed for second-degree murder and enhanced as a career offender under U.S. Sentencing Guidelines § 4B1.1, is contested based on the Supreme Court's decision in Begay v. United States, which determined that certain offenses do not qualify as violent felonies. Sun Bear was sentenced on January 7, 2002, after a guilty plea, with his offense level adjusted to thirty-seven due to prior convictions for attempted escape, attempted theft of a vehicle, and attempted burglary. His criminal history category was VI, resulting in a guidelines range of 360 months to life. The district court applied a three-level upward departure for the severity of his criminal history but offset it with a three-level reduction for acceptance of responsibility, leading to a final sentence at the lower end of the range. Sun Bear’s previous appeal affirmed the career offender designation, but after Begay, which excluded certain offenses from being classified as violent, Sun Bear filed a motion asserting that his prior convictions should not count as crimes of violence. The district court dismissed his motion, citing that Begay was not retroactively applicable. However, the government has conceded that Begay is indeed retroactively applicable to Sun Bear's case, acknowledging that his prior theft conviction does not qualify as a violent crime. Despite this concession, the government contends that relief under § 2255 is unwarranted as there was no miscarriage of justice. The court has reversed the district court's dismissal and remanded the case for further proceedings.

Sun Bear is not classified as a career offender based on the precedent set by the Supreme Court in Begay, which is determined to be retroactive. The court outlines that the applicability of the career offender sentencing guideline hinges on whether prior offenses qualify as crimes of violence, as defined by U.S.S.G. 4B1.1 and the Armed Career Criminal Act (ACCA). The Supreme Court, in Begay, ruled that a DUI conviction does not meet the criteria for a violent felony, emphasizing the need to evaluate the nature and risk of physical injury associated with the offense. 

Sun Bear's guilty plea for attempted vehicle theft under Utah law parallels Missouri’s auto theft without consent, which has been determined not to be a violent crime. Consequently, the court agrees that Sun Bear’s conviction does not qualify as a crime of violence, indicating that the sentencing court mistakenly applied the career offender guideline. 

Regarding the retroactive application of Begay, Sun Bear's 2255 motion was timely filed within one year of the decision, but the court notes that the Supreme Court did not explicitly state Begay's retroactivity. Therefore, while the ruling applies to cases on direct review, its application to final convictions is limited and hinges on established principles of retroactivity.

New substantive rules that narrow a criminal statute or exempt certain conduct or individuals from punishment typically apply retroactively. In contrast, new procedural rules do not apply retroactively unless they significantly impact the fairness and accuracy of the proceedings or hinder the government's ability to criminalize specific conduct. The rule established in Begay, which requires that a crime be similar to enumerated offenses to be classified as a violent felony under the Armed Career Criminal Act (ACCA), is distinguished from procedural rules that merely suggest the possibility of acquittal under invalid procedures. Instead, Begay restricts the government's punishment authority, affecting the sentencing range without altering the elements of the offense itself.

The court noted that Begay's implications on sentencing are more akin to substantive rules than procedural ones. Although the government could argue that Begay only applies retroactively to sentencing errors under the ACCA, the court has previously determined that inquiries under both the ACCA and the U.S. Sentencing Guidelines (U.S.S.G.) 4B1.1 are equivalent. The court ruled that the right established in Begay applies retroactively in collateral review cases.

Regarding relief under 28 U.S.C. 2255, a federal prisoner may seek relief if their sentence violates constitutional or statutory provisions, is imposed without jurisdiction, exceeds authorized limits, or is otherwise subject to collateral attack. Not all legal errors justify relief; only those that represent a fundamental defect leading to a miscarriage of justice qualify. Generally, sentencing errors do not meet this criterion unless they result in a significant injustice. However, Sun Bear's claim is not a typical sentencing guideline misapplication but is based on a post-conviction legal change that invalidates the district court's sentencing decision.

A complete miscarriage of justice and exceptional circumstances justifying collateral relief under 2255 can arise when legal errors occur. In Davis v. United States, the court established that relief is warranted when a change in law reduces a defendant’s maximum sentence. Sentencing issues that were adequately addressed on direct appeal cannot be revisited in a 2255 motion unless there is a change in law. The government contends that the district court's error in applying the career offender guideline was harmless, positing that the judge would have imposed a 360-month sentence regardless. The judge indicated Sun Bear's extensive criminal history and expressed a belief that the imposed sentence was lenient due to Sun Bear's cooperation with authorities. Despite this, the court's statements did not clearly indicate that the error in applying the career offender guideline did not impact the final sentencing decision. The government has previously asserted that a sentencing error is harmless when the district court provides a clear record showing that the contested issue would not affect the sentence under 18 U.S.C. 3553(a). However, in this case, the record does not unequivocally demonstrate that the error was harmless, as the court's comments suggest it believed an upward departure was warranted. Ultimately, the sentence imposed was at the lower end of the guidelines range, leaving open questions regarding the impact of the error on the final sentence.

The sentencing judge's remark about imposing a 360-month sentence "in any event" did not clarify the potential error in applying the career offender guideline, rendering it similar to a "blanket statement" about fairness, which is insufficient for establishing harmless error. Without a clear intention from the court to impose a specific sentence regardless of the guideline application, the error cannot be deemed harmless. Although there is an overlap between the district court’s guidelines range (360 months to life) and the correct range (292 to 365 months), such overlap only mitigates review of a sentencing error if the court explicitly states it would impose the same sentence irrespective of the guideline issue. The record does not support that conclusion, nor did the district court express that the career offender guideline error would not affect its sentencing determination in a subsequent dismissal of Sun Bear’s 2255 motion. Thus, Sun Bear has raised a valid claim for relief under 2255. The appellate court reverses the district court's judgment and remands for further proceedings, noting that the government did not prove that Sun Bear’s attempted escape was a felony. Additionally, Sun Bear did not pursue a direct or collateral review of a three-level upward departure related to criminal history inadequacies. The opinion also references the retroactive application of certain legal rules and distinguishes Sun Bear's case from previous 2255 motions involving sentencing errors that faced procedural complications.