Kevin Spencer v. United States

Opinion

Case: 10-10676 Date Filed: 11/14/2014 Page: 1 of 107

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 10-10676 ________________________

D.C. Docket Nos. 3:08-cv-00914-VMC-MCR, 3:06-cr-00349-VMC-MCR-1

KEVIN SPENCER,

Petitioner–Appellant,

versus

UNITED STATES OF AMERICA,

Respondent–Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida _______________________

(November 14, 2014)

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN and ROSENBAUM, Circuit Judges.∗

∗ Senior United States Circuit Judge Phyllis A. Kravitch elected not to participate in the en banc proceedings in this matter. See 28 U.S.C. § 46(c). Judge Julie E. Carnes joined the Court on July 31, 2014, and did not participate in these en banc proceedings. Judge Jill Pryor joined the Court on October 6, 2014, and did not participate in these en banc proceedings. Case: 10-10676 Date Filed: 11/14/2014 Page: 2 of 107

WILLIAM PRYOR, Circuit Judge:

This appeal concerns whether a federal prisoner may relitigate an alleged

misapplication of the advisory United States Sentencing Guidelines in a collateral

attack on a final sentence. After he pleaded guilty to distributing cocaine and we

affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of

imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the

advisory guidelines. Spencer argues that an intervening decision of the Supreme

Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear

that the district court and this Court erroneously classified him as a “career

offender” based on a prior conviction for felony child abuse, which he argues is not

a “crime of violence.” United States Sentencing Guidelines Manual § 4B1.1 (Nov.

2006). Spencer maintains that this alleged error represents a “fundamental defect

which inherently results in a complete miscarriage of justice,” Hill v. United States,

368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral

review. We disagree.

Spencer cannot collaterally attack his sentence based on a misapplication of

the advisory guidelines. Spencer’s sentence falls below the statutory maximum,

and his prior conviction for felony child abuse has not been vacated. Spencer’s

sentence was and remains lawful. We affirm the denial of Spencer’s motion to

vacate his sentence.

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I. BACKGROUND

A federal grand jury indicted Kevin Spencer for distributing cocaine base in

2006. See 21 U.S.C. § 841(a)(1), (b)(1)(C). Spencer pleaded guilty to that federal

charge in 2007. Spencer’s plea came after repeated encounters with the criminal

justice system.

Spencer had previously pleaded guilty to eight crimes committed between

2003 and 2006, and the State of Florida charged Spencer with other crimes during

that period too. In November of 2003, Spencer was arrested for selling cocaine

within 1000 feet of a school. Two months later, officers arrested Spencer after

discovering cocaine, marijuana, and drug paraphernalia in his vehicle. Spencer

pleaded guilty to both cocaine-related offenses on the same day. The trial court

sentenced him to concurrent one-year sentences for those crimes, but the state did

not prosecute the charges for possession of marijuana and drug paraphernalia. One

month after his arrest for possession of drugs, officers arrested Spencer for driving

without a license. He pleaded guilty, and the court sentenced him to 16 days in jail.

Less than six months later, Spencer engaged in sexual intercourse with a 14-year-

old girl. He pleaded guilty to felony child abuse and received a one-year sentence

for that crime. Then in March of 2005, officers arrested Spencer for driving

without a valid license and possession of marijuana and drug paraphernalia. The

state did not prosecute the drug charges, and Spencer pleaded guilty to driving

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without a valid license. One month later, officers arrested Spencer for possession

of cocaine and resisting an officer. Spencer pleaded guilty, and the court sentenced

him to four months in jail for possession of cocaine. The state did not prosecute the

other charge. Eight months later, officers arrested Spencer for drug possession and

trespassing on posted property. The state dropped the charges for drug possession,

but Spencer pleaded guilty to the trespassing charge. And in 2006, Spencer pleaded

guilty to curb drinking.

Based on Spencer’s prior convictions for selling cocaine and felony child

abuse, the district court concluded that Spencer was a career offender under the

guidelines, U.S.S.G. § 4B1.1, and sentenced him to 151 months of imprisonment.

The guidelines define a career offender as having at least two prior felony

convictions for crimes of violence or controlled substance offenses. Id. A “crime of

violence” is any crime punishable by a term of more than one year of

imprisonment that either “has as an element the use, attempted use, or threatened

use of physical force against the person of another,” or “is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)–(b).

Spencer argued that his prior conviction for felony child abuse is not a

“crime of violence.” When he was 18 years old, Spencer engaged in sexual

intercourse with a 14-year-old female victim. The state charged him with lewd or

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lascivious battery, see Fla. Stat. § 800.04(4) (2004), but he pleaded guilty to a

lesser offense of third-degree felony child abuse. He admitted during the plea

colloquy that he had “engage[d] in sexual activity with a minor,” which “could

reasonably cause physical or mental injury to that child.” Under Florida law, when

an offender “knowingly or willfully abuses a child without causing great bodily

harm, permanent disability, or permanent disfigurement to the child,” the offender

commits third-degree felony child abuse. Id. § 827.03(2)(c). “Child abuse” under

Florida law includes “[a]n intentional act that could reasonably be expected to

result in physical or mental injury to a child.” Id. § 827.03(1)(b)(2).

In Spencer’s direct appeal, we rejected his argument that the district court

erroneously sentenced him as a career offender, and we affirmed his sentence.

Spencer v. United States, 271 F. App’x 977, 978–79 (11th Cir. 2008). We relied on

prior panel precedent that sexual offenses against minors are crimes of violence,

see, e.g., United States v. Ivory, 475 F.3d 1232, 1238 (11th Cir. 2007), abrogated

by United States v. Owens, 672 F.3d 966 (11th Cir. 2012), and we ruled that

Spencer’s conviction for felony child abuse was a crime of violence because it

“involved a serious potential risk of physical injury to another.” Spencer, 271 F.

App’x at 979.

Two weeks later, the Supreme Court decided Begay, which prompted

Spencer to move to vacate his sentence, 28 U.S.C. § 2255. The Supreme Court

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held that driving under the influence of alcohol was not a “violent felony” under

the Armed Career Criminal Act because it did not involve purposeful, violent, or

aggressive conduct and was not similar to burglary, arson, extortion, or crimes

involving explosives. Begay, 553 U.S. at 145, 148, 128 S. Ct. at 1588; see also

Sykes v. United States, ___ U.S. ___, 131 S. Ct. 2267, 2275 (2011) (declining to

extend Begay to vehicle flight). Because the career-offender provision of the

guidelines uses language nearly identical to the definition of “violent felony” in the

Armed Career Criminal Act, see James v. United States, 550 U.S. 192, 206, 127 S.

Ct. 1586, 1596 (2007), Begay also limited the meaning of a “crime of violence” for

purposes of the career-offender enhancement. Spencer argued that Begay applies

retroactively to his sentence and makes clear that felony child abuse is not a crime

of violence. Spencer moved that he be resentenced without the career-offender

enhancement.

The district court denied Spencer’s motion to vacate his sentence, but we

then granted a certificate of appealability on the following two issues:

Whether in light of Begay . . . , Gilbert v. United States, No. 09-12513 (11th Cir. June 21, 2010), and United States v. Hunter, 559 F.3d 1188 (11th Cir. 2009), the movant’s freestanding challenge to a career offender sentence imposed under U.S.S.G. § 4B1.1 is cognizable under 28 U.S.C. § 2255? If so, whether the district court, in light of Begay . . . erroneously determined that the movant was properly classified as a career offender where he had a prior state conviction for felony child abuse under Fla. Stat. § 827.03(1)?

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After a panel of this Court answered both questions in the affirmative, Spencer v.

United States, 727 F.3d 1076 (11th Cir. 2013), vacated pending reh’g en banc, No.

10-10676 (11th Cir. Mar. 7, 2014), we voted to vacate the panel opinion and rehear

this appeal en banc.

II. STANDARD OF REVIEW

When we review the denial of a motion to vacate a sentence, 28 U.S.C.

§ 2255, “we review legal conclusions de novo and findings of fact for clear error.”

Mamone v. United States, 559 F.3d 1209, 1210 (11th Cir. 2009).

III. DISCUSSION

We divide our discussion in two parts. First, we explain why we exercise our

discretion to decide this appeal despite a defective certificate of appealability.

Second, we conclude that the district court lacked the authority to review Spencer’s

claim that he was erroneously sentenced under the advisory guidelines.

A. The Certificate of Appealability Is Defective, But We Exercise Our Discretion to Consider the Merits of this En Banc Appeal at this Late Stage.

Prisoners who move to vacate their sentences may contest only a narrow

subset of issues to our Court. A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). The certificate must specify what issue or issues raised by the

prisoner satisfy that requirement. Id. § 2253(c)(3). The Supreme Court has held

that the issuance a certificate of appealability devoid of an underlying 7 Case: 10-10676 Date Filed: 11/14/2014 Page: 8 of 107

constitutional issue does not constitute a jurisdictional defect. See Gonzalez v.

Thaler, ___ U.S. ___, ___, 132 S. Ct. 641, 649–52 (2012). But even so, we cannot

ignore the clear command of Congress articulated in subsections 2253(c)(2) and

(3).

Neither issue in the certificate for this appeal even purports to involve an

underlying error of constitutional magnitude, but we decline to vacate the

certificate at this late hour. The parties have litigated this matter before the district

court, before a panel of this Court, and before our en banc Court. See Rayner v.

Mills, 685 F.3d 631, 635 n.1 (6th Cir. 2012) (“[A]s the issues have already been

briefed and presented to this Court, we will not review the grant of the COA.”);

Phelps v. Alameda, 366 F.3d 722, 728 (9th Cir. 2004) (“In many cases, . . . the

effective deployment of substantial legal resources favors turning directly to the

merits.”). They have briefed and orally argued this appeal twice, and we have

heard an amicus curiae, the National Association of Criminal Defense Lawyers, in

the second round. And notably both parties have urged us not to vacate the

defective certificate that we erroneously issued.

We will not be so lenient in future appeals when a certificate fails to

conform to the gatekeeping requirements imposed by Congress. Going forward, a

certificate of appealability, whether issued by this Court or a district court, must

specify what constitutional issue jurists of reason would find debatable. Even when

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a prisoner seeks to appeal a procedural error, the certificate must specify the

underlying constitutional issue. Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct.

1595, 1604 (2000) (“When the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim, a

[certificate] should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.”). A failure to specify that issue

would violate the text enacted by Congress, see 28 U.S.C. § 2253(c)(3), and will

result in the vacatur of the certificate.

B. The District Court Lacked the Authority To Consider Whether Spencer Was Erroneously Sentenced under the Guidelines.

Section 2255 does not provide a remedy for every alleged error in conviction

and sentencing. When a prisoner, like Spencer, alleges that his “sentence was

imposed in violation of the . . . laws of the United States . . . or is otherwise subject

to collateral attack,” 28 U.S.C. § 2255(a), a district court lacks the authority to

review the alleged error “unless the claimed error constitute[s] ‘a fundamental

defect which inherently results in a complete miscarriage of justice,’” United

States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 2240 (1979) (quoting Hill,

368 U.S. at 428, 82 S. Ct. at 471). The Supreme Court first applied this standard

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when it ruled that a prisoner could not collaterally attack his sentence for a

violation of Federal Rule of Criminal Procedure 32(a). Hill, 368 U.S. at 425–26, 82

S. Ct. at 470. The prisoner argued that the trial court failed to offer him an

opportunity to make a personal statement at sentencing, but the Supreme Court

held that the error was not “of the character or magnitude cognizable under a writ

of habeas corpus” because it was not “a fundamental defect which inherently

results in a complete miscarriage of justice.” Id. at 428, 82 S. Ct. at 471.

The Supreme Court further distilled this standard in United States v.

Addonizio, in which it ruled that a “lawful” sentence did not result in a “complete

miscarriage of justice.” 442 U.S. at 186–87, 99 S. Ct. at 2241. Addonizio argued

that he had been incarcerated longer than the sentencing court had intended. At

sentencing, the court expressed that it expected Addonizio to serve only one-third

of his sentence. Id. at 181, 183, 99 S. Ct. at 2238, 2239. But after the trial court

sentenced Addonizio, the Parole Commission instituted a new policy that required

him to serve a greater fraction of his sentence before he was eligible for parole. Id.

at 182, 99 S. Ct. at 2238–39. The Supreme Court held that Addonizio failed to

establish a fundamental defect where his sentence was less than the statutory

maximum sentence prescribed by Congress. Id. at 186–87, 99 S. Ct. at 2241.

Likewise, the alleged error in this appeal—erroneously designating a defendant as

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a career offender—is not a fundamental defect that inherently results in a complete

miscarriage of justice.

A prisoner may challenge a sentencing error as a “fundamental defect” on

collateral review when he can prove that he is either actually innocent of his crime

or that a prior conviction used to enhance his sentence has been vacated, but

Spencer’s motion alleges nothing of the kind. In Davis v. United States, for

example, the Supreme Court collaterally reviewed a prisoner’s conviction for

conduct that was no longer illegal. 417 U.S. 333, 346–47, 94 S. Ct. 2298, 2305

(1974). Because the prisoner was incarcerated “for an act that the law does not

make criminal,” “[t]here [could] be no room for doubt that such a circumstance

inherently results in a complete miscarriage of justice.” Id. at 346, 94 S. Ct. at

2305 (internal quotation marks omitted). A prisoner might also collaterally attack a

sentence enhanced by a prior conviction if that prior conviction has since been

vacated. In Johnson v. United States, the Supreme Court explained that “a

defendant given a sentence enhanced for a prior conviction is entitled to a

reduction if the earlier conviction is vacated.” 544 U.S. 295, 303, 125 S. Ct. 1571,

1577 (2005) (emphasis added); see also Stewart v. United States, 646 F.3d 856,

859, 864–65 (11th Cir. 2011) (“The vacatur order gives a defendant . . . the basis to

challenge an enhanced federal sentence . . . .”). But the Supreme Court has rejected

collateral attacks of other sentencing errors, including the failure of the sentencing

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court to mention the right to appeal or to explain parole terms, where the prisoner

could establish no prejudice. See Peguero v. United States, 526 U.S. 23, 24, 119 S.

Ct. 961, 963 (1999); United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085,

2087 (1979).

This limited realm of fundamental defects that result in a complete

miscarriage of justice comports with our understanding of the similarly phrased

exception to the rule of procedural default for state prisoners. If a state prisoner

procedurally defaults his claim, he can overcome that procedural default if he

establishes that a “fundamental miscarriage of justice” would result if he were not

able to raise the claim on collateral review. Murray v. Carrier, 477 U.S. 478, 496–

97, 106 S. Ct. 2639, 2650 (1986); see also Wainwright v. Sykes, 433 U.S. 72, 87,

97 S. Ct. 2497, 2506 (1977). For a state prisoner to establish a fundamental

miscarriage of justice, he must prove that he is innocent. See Schlup v. Delo, 513

U.S. 298, 316, 115 S. Ct. 851, 861 (1995); McCleskey v. Zant, 499 U.S. 467, 494,

111 S. Ct. 1454, 1470 (1991); Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d

1000, 1011 (11th Cir. 2012). The similarly worded federal standard should not be

more lenient than the exception for procedural default for state prisoners. See, e.g.,

United States v. Cuch, 79 F.3d 987, 994 (10th Cir. 1996) (concluding that alleged

defects did not result in a “complete miscarriage of justice” because there was “no

indication that an innocent person may have been convicted for crimes he did not

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commit” (internal quotation marks omitted)). When a federal prisoner, sentenced

below the statutory maximum, complains of a sentencing error and does not prove

either actual innocence of his crime or the vacatur of a prior conviction, the

prisoner cannot satisfy the demanding standard that a sentencing error resulted in a

complete miscarriage of justice.

Judge Jordan’s dissenting opinion suggests that the Supreme Court granted

collateral relief in United States v. Behrens, 375 U.S. 162, 84 S. Ct. 295 (1963), to

correct a garden-variety sentencing error, but the error in Behrens was far more

profound than a misapplication of advisory sentencing guidelines. In Behrens, the

district court violated Federal Rule of Criminal Procedure 43, which requires that

the defendant be present “at every stage of the trial including . . . the imposition of

sentence.” Id. at 165, 84 S. Ct. at 297. The district court imposed a sentence

without the defendant or even his counsel present. Id. That error in turn deprived

the defendant of the right to allocute and present information in mitigation of

punishment in violation of Rule 32(a). Id. We have described the guarantee of the

right to be present at sentencing as being “constitutionally based.” United States v.

Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991); see also United States v. Huff, 512

F.2d 66, 71 (1975). And Behrens described the right to allocute as “ancient in the

law” and “of most importance.” 375 U.S. at 165, 84 S. Ct. at 297. Imposing a

sentence without a defendant’s counsel present also implicates a defendant’s Sixth

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Amendment right to effective assistance of counsel. See Mempa v. Rhay, 389 U.S.

128, 134, 88 S. Ct. 254, 256–57 (1967). A misapplication of advisory sentencing

guidelines, in contrast, does not violate an “ancient” right, nor does it raise

constitutional concerns.

Our dissenting colleagues would grant Spencer’s collateral attack to correct

an alleged misapplication of the advisory sentencing guidelines, but they fail to

explain what sort of misapplication of the advisory guidelines they would not

correct, much less provide a principled test for distinguishing between

misapplications of the guidelines that can be collaterally challenged and those that

cannot. Perhaps our colleagues view all misapplications of the advisory guidelines

as “fundamental defects which inherently result in a complete miscarriage of

justice.” But if not, we are left to guess about which types of guideline error could

be corrected on collateral review from their perspective.

We lack the authority to provide Spencer relief. Even if he is not a career

offender, his sentence is lawful. See Addonizio, 442 U.S. at 186–87, 99 S. Ct. at

2241. Spencer does not allege that he is actually innocent of the crime for which he

was indicted, nor that any of his prior convictions have been vacated. Instead, he

contends only that the district court erroneously classified him as a career offender

under the advisory guidelines. But any miscalculation of the guideline range

cannot be a complete miscarriage of justice because the guidelines are advisory. If

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the district court were to resentence Spencer, the district court could impose the

same sentence again. See Gilbert v. United States, 640 F.3d 1293, 1304 (11th Cir.

2011) (en banc) (“There is, however, no guarantee that his new sentence under the

post-Booker advisory guidelines system will be shorter than 292 months. It could

be the same or even longer.”); Hawkins v. United States, 706 F.3d 820, 825 (7th

Cir. 2013); Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc).

In a resentencing, the district court would again review Spencer’s prior conviction

for felony child abuse, whether or not it is a “crime of violence,” and could decide

that his slew of prior convictions warrants a greater sentence than the guidelines

prescribe. See Hawkins, 706 F.3d at 825.

Both the Seventh and Eighth Circuits have held that federal courts lack the

power to provide a prisoner relief on the ground that he was misclassified as a

career offender, because that error does not render his sentence unlawful. See

Hawkins, 706 F.3d at 823; Sun Bear, 644 F.3d at 704–06; see also United States v.

Peterman, 249 F.3d 458, 462 (6th Cir. 2001) (“[C]ourts have generally declined to

collaterally review sentences that fall within the statutory maximum.”); United

States v. Segler, 37 F.3d 1131, 1133–34 (5th Cir. 1994); Scott v. United States, 997

F.2d 340, 341 (7th Cir. 1993) (“A claim that the judge misapplied the Sentencing

Guidelines does not challenge the jurisdiction of the court or assert that the judge

exceeded the statutory maximum.”). But cf. Narvaez v. United States, 674 F.3d

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621, 628 (7th Cir. 2011) (concluding that a prisoner sentenced under “mandatory”

guidelines could establish a “complete miscarriage of justice” if the prisoner was

erroneously sentenced as a career offender). In Sun Bear v. United States, the

prisoner argued that he was entitled to resentencing because Begay called into

question whether his prior felonies were “crime[s] of violence.” 644 F.3d at 703–

04. The Eighth Circuit held that he was not entitled to resentencing based on a

misapplication of the guidelines. Id. Spencer would have us distinguish Sun Bear

because, even though the prisoner was sentenced as a career offender, his sentence

was within the applicable guideline range absent the career-offender enhancement.

But the en banc Eighth Circuit made clear that, “in sentencing, a miscarriage of

justice cognizable under § 2255 occurs when the sentence is in excess of that

authorized by law.” Id. at 706. In Sun Bear, the prisoner’s sentence, which was

below the statutory maximum, was not “unlawful” because “[a]n unlawful or

illegal sentence is one imposed without, or in excess of, statutory authority.” Id. at

705. And in Hawkins v. United States, the Seventh Circuit refused to entertain a

prisoner’s argument on collateral review that he was erroneously sentenced as a

career offender. The Seventh Circuit reasoned that, even if a district judge imposes

a sentence in excess of the correct advisory guideline range, the error is not

“corrigible in a postconviction proceeding” because “the sentence is below the

statutory maximum.” 706 F.3d at 823.

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Spencer relies heavily on the now-vacated opinion of the Fourth Circuit in

Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014), vacated pending reh’g en

banc, No. 13-7152, 2014 WL 3377981 (4th Cir. July 10, 2014). That divided

panel, over the persuasive dissent of Judge Wilkinson, held that erroneously

classifying a prisoner as a career offender was a “fundamental defect” that a

federal court could remedy on collateral review. Id. at 555. But as Judge

Wilkinson’s dissent explained, no fundamental defect occurs when a court

erroneously sentences a prisoner as a career offender under advisory guidelines. Id.

at 560 (Wilkinson, J., dissenting). Even if a court vacated the sentence on collateral

review, the district court would be free to impose the same sentence on remand. Id.

Spencer asks us to distinguish a career-offender error from other guideline

errors because the career-offender enhancement is the result of a congressional

mandate. See 28 U.S.C. § 994(h). Congress directed the United States Sentencing

Commission to “assure that the guidelines specify a sentence to a term of

imprisonment at or near the maximum term authorized” for defendants convicted

of crimes of violence or certain drug crimes and who have two or more prior

felonies that qualify as crimes of violence or certain drug crimes. Id. The career-

offender enhancement, U.S.S.G. § 4B1.1, satisfies that congressional directive.

Spencer’s argument fails to appreciate the advisory nature of every provision

of the guidelines. Although Congress directed the Sentencing Commission to

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create a guideline for career offenders, a district judge cannot treat that guideline as

mandatory. See Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465

(2007) (“[T]he sentencing court does not enjoy the benefit of a legal presumption

that the Guidelines sentence should apply.”). Moreover, all of the guidelines are

the result of a congressional directive—the Sentencing Reform Act of 1984—but

none is tantamount to the laws of Congress. See Mistretta v. United States, 488

U.S. 361, 395, 109 S. Ct. 647, 667 (1989) (“Prior to the passage of the Act, the

Judicial Branch, as an aggregate, decided precisely the questions assigned to the

Commission. . . . It was the everyday business of judges, taken collectively, to

evaluate and weigh the various aims of sentencing and to apply those aims to the

individual cases that came before them. The Sentencing Commission does no more

than this . . . .”).

Spencer also contends that career-offender errors are more serious than other

guideline errors, but “[e]very Guidelines calculation may affect the sentencing

range to a greater or lesser degree.” Whiteside, 748 F.3d at 561 (Wilkinson, J.,

dissenting). The greater impact of one enhancement versus the lesser impact of

another enhancement is immaterial because, in either scenario, the sentence will be

within the statutory limits imposed by Congress. See U.S.S.G. § 5G1.1(a) (“Where

the statutorily authorized maximum sentence is less than the minimum of the

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applicable guideline range, the statutorily authorized maximum sentence shall be

the guideline sentence.”).

We are also unpersuaded by the argument of both Spencer and the amicus

curiae that Spencer’s advisory guideline sentence is unlawful because it could be

vacated on direct review for substantive unreasonableness. In this post-Booker

world, we refuse to speculate whether a sentence exceeding an advisory guideline

range would be vacated on direct review. To be sure, the guidelines are a

“lodestone of sentencing,” Peugh v. United States, ___ U.S. ___, ___, 133 S. Ct.

2072, 2084 (2013), but treating the guidelines as mandatory is reversible error,

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). And even

though district courts “must begin their analysis with the Guidelines and remain

cognizant of them throughout the sentencing process,” id. at 50 n.6, 128 S. Ct. at

596 n.6, only half (51.2 percent) of the defendants sentenced in 2013 received a

sentence within the guideline range, United States Sentencing Commission, 2013

Annual Report and 2013 Sourcebook of Federal Sentencing Statistics, at A-39

(2013). Approximately one-quarter (27.9 percent) of sentences were imposed

below the guideline range at the request of the government. Id. And district courts

imposed the remaining sentences (20.8 percent) above or below the guideline

range. Id. at 40.

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Spencer argues that errors involving the career-offender enhancement are

somehow different, but sentencing courts depart or vary from the guideline range

more often when they sentence career offenders. Only 30 percent of career

offenders were sentenced within the guideline range in 2013. When Spencer was

sentenced, the district court concluded—over Spencer’s objection that his prior

conviction was not a crime of violence—that Spencer deserved a harsh sentence

within the guideline range. Perhaps the district court would impose a less severe

sentence on resentencing; perhaps it would not, especially given Spencer’s prior

conviction for felony child abuse and his repeated run-ins with the law. But we

need not speculate because, as our sister circuits have concluded in routine,

unpublished decisions, the reimposition of the same sentence ordinarily will not be

substantively unreasonable given the defendant’s criminal history, whether or not

he qualifies as a career offender. See, e.g., United States v. Lewis, 496 F. App’x

425 (5th Cir. 2012) (affirming as substantively reasonable the same 360-month

sentence without the career-offender enhancement); United States v. Logan, 456 F.

App’x 224 (4th Cir. 2011) (affirming as substantively reasonable the same 36-

month sentence without the career-offender enhancement); see also United States

v. Miles, 395 F. App’x 149 (5th Cir. 2010) (affirming as substantively reasonable a

210-month sentence, which was two times greater than the guideline range without

the career-offender enhancement).

20 Case: 10-10676 Date Filed: 11/14/2014 Page: 21 of 107

Even if a variance from the guideline range is “substantively unreasonable,”

that standard is not synonymous with the standard we employ on collateral review.

A substantively unreasonable sentence does not result in a “complete miscarriage

of justice” if that sentence is less than the statutory maximum sentence Congress

has enacted. Spencer’s attempt to equate the alleged guideline error in his

sentencing with an error in the application of the Armed Career Criminal Act, 18

U.S.C. § 924(e), illustrates our point. Even if we were to assume that the district

court incorrectly classified Spencer as a career offender—nearly doubling his

guideline range—his sentence of 151 months of imprisonment falls well below the

statutory maximum of 20 years. 21 U.S.C. § 841(b)(1)(C). In contrast with that

alleged guideline error, an error in the application of the Armed Career Criminal

Act catapults a defendant beyond the 10-year statutory maximum sentence for his

crime. Compare id. § 924(a)(2) (providing for punishment of not more than 10

years of incarceration), with id. § 924(e) (requiring punishment of not less than 15

years of incarceration if the defendant has three prior violent felony or serious drug

convictions). We can collaterally review a misapplication of the Armed Career

Criminal Act because, unlike an advisory guideline error, that misapplication

results in a sentence that exceeds the statutory maximum.

Spencer also likens his alleged sentencing error to Johnson and Stewart, in

which the movants’ prior convictions, used to enhance their sentences, had been

21 Case: 10-10676 Date Filed: 11/14/2014 Page: 22 of 107

vacated. And Judge Jordan’s dissenting opinion argues that there is no meaningful

distinction between the vacated convictions in Johnson and Stewart and Spencer’s

conviction for felony child abuse. We disagree.

Spencer’s prior conviction has not been vacated, and that distinction matters.

When a conviction is vacated, that vacatur constitutes a “new ‘fact’” with which

the petitioner can challenge his sentence. Stewart, 646 F.3d at 858. But here,

Spencer argues no new factual basis for reversing his sentence. He presents instead

an argument of legal innocence. Even if we were to agree with Spencer that he is

“innocent” as a career offender, that legal innocence falls far short of factual

innocence, the kind of innocence involved in Johnson and Stewart. See McKay v.

United States, 657 F.3d 1190, 1199 (11th Cir. 2011) (“[A]ctual innocence means

factual innocence, not mere legal insufficiency.” (internal quotation marks

omitted)). If we were to conclude that felony child abuse was not a “crime of

violence,” that legal conclusion would not negate the fact that Spencer committed a

serious crime. The sentencing judge would consider his prior conviction for felony

child abuse anew during resentencing. Johnson and Stewart cannot stand for the

proposition that a prisoner sentenced under advisory guidelines whose prior

convictions remain valid can establish that an error in sentencing is a complete

22 Case: 10-10676 Date Filed: 11/14/2014 Page: 23 of 107

Spencer urges us to forget about finality, at least for the first round of

collateral review. He argues that our en banc decision in Gilbert, 640 F.3d at 1307–

08, distinguished between claims raised in a first motion to vacate and those raised

in second or successive motions. We are unpersuaded by this distinction.

Finality is a concern not only for a second or successive motion to vacate,

but also for a first motion to vacate a sentence. Finality “is essential to the

operation of our criminal justice system. Without finality, the criminal law is

deprived of much of its deterrent effect.” Teague v. Lane, 489 U.S. 288, 309, 109

S. Ct. 1060, 1074 (1989). And “[a] procedural system which permits an endless

repetition of inquiry into facts and law in a vain search for ultimate certitude

implies a lack of confidence about the possibilities of justice that cannot but war

with the effectiveness of underlying substantive commands.” McCleskey, 499 U.S.

at 492, 111 S. Ct. at 1469 (internal quotation marks omitted); see also Henry J.

Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.

Chi. L. Rev. 142, 145 (1970) (“The proverbial man from Mars would surely think

we must consider our system of criminal justice terribly bad if we are willing to

tolerate such efforts at undoing judgments of conviction.”). Spencer must establish

that his sentencing error resulted in a complete miscarriage of justice before we set

aside our interest in finality. He cannot do so.

23 Case: 10-10676 Date Filed: 11/14/2014 Page: 24 of 107

Finally, Spencer, the amicus curiae, and our dissenting colleagues place far

too much weight on the relevance of Peugh, which involved a direct appeal of a

sentence. 133 S. Ct. 2072. Peugh says nothing about the authority to consider an

advisory guideline error on collateral review. See Hawkins v. United States, 724

F.3d 915, 916–19 (7th Cir. 2013) (denying rehearing en banc because the

intervening decision in Peugh did not affect collateral review of sentencing errors).

In Peugh, the Supreme Court held, “A retrospective increase in the Guidelines

range applicable to a defendant creates a sufficient risk of a higher sentence to

constitute an ex post facto violation.” 133 S. Ct. at 2084. The Court reasoned that a

retrospective increase in the applicable advisory guideline range created a

“sufficient risk of a higher sentence” because advisory sentences are still

“anchored by the Guidelines.” Id. at 2083–84. But the standard employed in

Peugh, id. at 2085 (requiring a “significant risk of a higher sentence”), is far less

demanding than the standard Spencer must satisfy: that an error in the application

of advisory guidelines “inherently results in a complete miscarriage of justice,”

Hill, 368 U.S. at 428, 82 S. Ct. at 471; see also Hawkins, 724 F.3d at 917. Because

Spencer cannot establish that his alleged sentencing error resulted in a “complete

miscarriage of justice,” we do not have the authority to consider Spencer’s claim

on collateral review. Peugh is inapposite.

24 Case: 10-10676 Date Filed: 11/14/2014 Page: 25 of 107

Spencer’s sentence was and is lawful. It does not exceed the statutory

maximum sentence. See 21 U.S.C. § 841(b)(1)(C). A resentencing court could

reimpose the same sentence, and the court would again consider Spencer’s valid

prior conviction for felony child abuse in determining his sentence. Because there

has been no “complete miscarriage of justice,” there can be no collateral review of

Spencer’s sentence.

IV. CONCLUSION

We AFFIRM the denial of the motion to vacate Spencer’s sentence.

25 Case: 10-10676 Date Filed: 11/14/2014 Page: 26 of 107

WILSON, Circuit Judge, joined by MARTIN, JORDAN, and ROSENBAUM,

Circuit Judges, dissenting:

Kevin Spencer has served approximately eight years of the prison sentence

he received after pleading guilty to selling two rocks of crack cocaine to an

undercover police officer. Had the district court correctly applied the sentencing

guidelines, Spencer would likely be a free man today. Instead, because of the

district court’s erroneous application of the career offender enhancement, Spencer

faces the prospect of spending nearly six more years in prison unnecessarily.

Contrary to the Majority, I do not read Supreme Court precedent to say that

a “lawful” sentence forecloses a determination by us that a complete miscarriage of

justice has taken place in Spencer’s case. Accordingly, I would reach the merits of

Spencer’s claim because I believe that an erroneous guideline determination that is

likely to result in a person spending such a considerable amount of additional time

in prison—here, six years—constitutes a fundamental error resulting in a complete

I.

An allegation of legal error that is neither constitutional nor jurisdictional is

not cognizable on collateral review “unless the claimed error constituted a

fundamental defect which inherently results in a complete miscarriage of justice.”

United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 2240 (1979)

26 Case: 10-10676 Date Filed: 11/14/2014 Page: 27 of 107

(internal quotation marks omitted). The question before us, then, is whether the

error alleged by Spencer—the erroneous application of the career offender

enhancement—meets that standard.

The Majority answers this question in the negative because the sentence

Spencer received was “lawful”. This answer follows from two rules the Majority

distills from Supreme Court precedent. The first: errors that yield unlawful

sentences are cognizable on collateral review. See Maj. Op. at 10–11 (recognizing

that a claim that a sentence was based on conduct “the law does not make

criminal” is cognizable on collateral review (quoting Davis v. United States, 417

U.S. 333, 346, 94 S. Ct. 2298, 2305 (1974))). The second: errors that yield lawful

sentences are not cognizable on collateral review. See Maj. Op. at 10 (“‘[L]awful’

sentences do not result in a ‘complete miscarriage of justice.’” (quoting Addonizio,

442 U.S. at 186–87, 99 S. Ct. at 2241)). The Majority, then, has identified a

dichotomy. When a claim of non-constitutional, non-jurisdictional error is raised

on collateral review, we may consider that claim only if the alleged error resulted

in an unlawful sentence. If the alleged error resulted in a lawful sentence, then

there is no basis for the collateral attack. I reject this dichotomy. For the reasons

explained below, I believe that the fact that a sentence is deemed “lawful” does not

prohibit us from determining that a complete miscarriage of justice has occurred on

collateral review.

27 Case: 10-10676 Date Filed: 11/14/2014 Page: 28 of 107

A.

If the line dividing cognizable claims from non-cognizable claims is the line

between lawful and unlawful sentences, then the definitions of lawful and unlawful

become exceedingly important. The Majority does not explicitly define either, but

does indicate that a sentence is lawful if it is within the scope of a court’s authority.

See Maj. Op. at 10 (noting that the sentence in Addonizio was lawful because it

“was less than the statutory maximum sentence prescribed by Congress”); id. at

22–23 (“Spencer’s sentence . . . is lawful [because i]t does not exceed the statutory

maximum sentence [and] [a] resentencing court could reimpose the same

sentence . . . .” (citation omitted)). And if lawful sentences are those within the

scope of a court’s authority, then logic would dictate that unlawful sentences must

be those outside the scope of that authority. This conclusion is supported by the

Majority’s reliance on Davis as an example of error that results in a complete

miscarriage of justice, see Addonizio, 442 U.S. at 186–87, 99 S. Ct. at 2241 (stating

that “the conviction and sentence [in Davis] were no longer lawful” because the

charged conduct was not criminal), and the Majority’s approval of an Eighth

Circuit case defining “‘an unlawful or illegal sentence [as] one imposed without, or

in excess of, statutory authority,’” Maj. Op. at 15 (quoting Sun Bear v. United

States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc)).

28 Case: 10-10676 Date Filed: 11/14/2014 Page: 29 of 107

The Majority’s dichotomy serves to distinguish cases that are cognizable on

collateral review—i.e., cases where error led to an unlawful sentence—from cases

that are not cognizable on collateral review—i.e., cases where error led to a lawful

sentence. However, the Majority interprets Supreme Court and Eleventh Circuit

case law as providing an avenue for collateral attack even when a sentence is

lawful. If lawful sentences can result in a complete miscarriage of justice, then the

Majority’s dichotomy and its basis for denying Spencer relief are simply wrong.

Today’s opinion recognizes the continuing validity of the Supreme Court’s

decision in Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571 (2005), and

reaffirms our own decision in Stewart v. United States, 646 F.3d 856 (11th Cir.

2011), see Maj. Op. at 11, both of which recognize that a petitioner is entitled to

collaterally attack a sentence when he can show that a prior conviction used to

trigger a sentencing enhancement has been vacated, see Johnson, 544 U.S. at 303,

125 S. Ct. at 1577 (“[A] defendant given a sentence enhanced for a prior

conviction is entitled to a reduction if the earlier conviction is vacated.” (emphasis

added)); Stewart, 646 F.3d at 859 (noting that Johnson established that the vacatur

of a state conviction used to enhance a federal sentence “gives a defendant . . . the

basis to challenge [that] sentence”). For the reasons set out in Judge Rosenbaum’s

dissent, which I join, I believe that Johnson’s holding requires us to recognize the

cognizability of Spencer’s claim. Under Johnson, a lawful sentence reached after

29 Case: 10-10676 Date Filed: 11/14/2014 Page: 30 of 107

an erroneous guideline range calculation can be the foundation for a cognizable §

2255 claim, and, as Judge Rosenbaum accurately details, Spencer’s claim is one of

those that actually is cognizable.

B.

The Majority says that its survey of Supreme Court precedent concerning the

miscarriage of justice standard requires it to say that “[w]e lack the authority to

provide Spencer relief because . . . his sentence is lawful.” Maj. Op. at 13. The

Supreme Court has announced no such rule. To be sure, the Supreme Court has

clearly held that an error resulting in an unlawful sentence—i.e., a sentence that is

beyond the scope of a court’s legal authority—is sufficient to satisfy the complete

miscarriage of justice standard. See Davis, 417 U.S. at 346–47, 94 S. Ct. at 2305;

Addonizio, 442 U.S. at 186–87, 99 S. Ct. at 2241 (stating that refusing to vacate the

sentence in Davis “would surely have been a complete miscarriage of justice, since

the conviction and sentence were no longer lawful” (emphasis added) (internal

quotation marks omitted)). But nowhere has the Supreme Court held that a finding

of unlawfulness is necessary to satisfy the complete miscarriage of justice

standard. In fact, Addonizio itself indicates that the fact that a sentence is lawful

does not necessarily preclude a court from determining that a complete miscarriage

of justice has occurred. See 442 U.S. at 187–88, 99 S. Ct. at 2241–42 (determining

that prior case law did not support allowing a petitioner to collaterally attack his

30 Case: 10-10676 Date Filed: 11/14/2014 Page: 31 of 107

sentence and then considering whether there was a “basis for enlarging the grounds

for collateral attack”).

In Addonizio, the petitioners argued that “a postsentencing change in the

policies of the United States Parole Commission . . . prolonged their actual

imprisonment beyond the period intended by the sentencing judge.” Id. at 179, 99

S. Ct. at 2237. The Court’s analysis of whether the claimed error was sufficient to

allow a collateral attack began with a comparison to cases “in which collateral

attacks were permitted.” Id. at 186, 99 S. Ct. at 2241. The Court noted that

Addonizio’s claim, like the claim in Davis, was that “a judgment that was lawful

when it was entered should be set aside because of a later development.” Id.

However, the Court distinguished Davis because the subsequent development there

“was a change in the substantive law that established that” petitioner’s sentence

was unlawful. Id. at 186–87, 99 S. Ct. at 2241. Because the errors alleged in

Addonizio did not render the sentences unlawful, the Court found that Davis did

not entitle the petitioners to relief. See id. That finding, however, merely signaled

to the Court that the rule announced in Davis did not provide Addonizio with a

basis for relief. See id. at 187, 99 S. Ct. at 2241 (“Our prior decisions, then,

provide no support for Addonizio’s claim that he is entitled to relief under §

2255.”).

31 Case: 10-10676 Date Filed: 11/14/2014 Page: 32 of 107

The Majority interprets the Court’s reasoning in Addonizio as establishing a

per se rule: lawful sentences do not result in a complete miscarriage of justice.

However, that rule is belied by the fact that, after determining that the sentences

were lawful, the Court nevertheless went on to consider whether it would be

appropriate to allow a collateral attack to proceed. See id. (deciding that “there is

no basis for enlarging the grounds for collateral attack to include claims” like

Addonizio’s). The Majority, then, has taken the rule announced in Davis and

reaffirmed in Addonizio—unlawful sentences result in a complete miscarriage of

justice—and inferred that the negative must also be true to arrive at the rule it

announces today—lawful sentences do not result in a complete miscarriage of

justice. In doing so, the Majority claims to be bound by a rule the Supreme Court

has not recognized. I believe that we are entitled to consider whether the erroneous

enhancement of an advisory guideline range is a fundamental error that results in a

II.

Not “every asserted error of law can be raised on a § 2255 motion.” Davis,

417 U.S. at 346, 94 S. Ct. at 2305. When a petitioner alleges legal error that is

neither constitutional nor jurisdictional in nature, that error is not cognizable on

collateral review “unless the claimed error constituted a fundamental defect which

inherently results in a complete miscarriage of justice.” Addonizio, 442 U.S. at

32 Case: 10-10676 Date Filed: 11/14/2014 Page: 33 of 107

185, 99 S. Ct. at 2240 (internal quotation marks omitted). As I have stated, no

precedent precludes our consideration of Spencer’s petition. To determine whether

we can reach the merits of Spencer’s claim, we are entitled to look to prior

precedent concerning the complete miscarriage of justice standard and decide for

ourselves whether there is a “basis for enlarging the grounds for collateral attack to

include claims” like Spencer’s. See id. at 187, 99 S. Ct. at 2241. In doing so, we

must keep in mind that this standard is satisfied only in “exceptional circumstances

where the need for the remedy afforded by the writ of habeas corpus is apparent.”

United States v. Timmreck, 441 U.S. 780, 783, 99 S. Ct. 2085, 2087 (1979)

(internal quotation marks omitted).

The Supreme Court tells us that those exceptional circumstances are not met

unless a petitioner has suffered prejudice. Davis, 417 U.S. at 346, 94 S. Ct. at 2305

(“In Hill v. United States, 368 U.S. 424, 429 (1962), for example, we held that

‘collateral relief is not available when all that is shown is a failure to comply with

the formal requirements’ of a rule of criminal procedure in the absence of any

indication that the defendant was prejudiced by the asserted technical error.”

(emphasis added)); Peguero v. United States, 526 U.S. 23, 24, 119 S. Ct. 961, 963

(1999) (holding that “a district court’s failure to advise the defendant of his right to

appeal [did] not entitle him to habeas relief if he knew of his right and hence

suffered no prejudice from the omission” (emphasis added)); Timmreck, 441 U.S.

33 Case: 10-10676 Date Filed: 11/14/2014 Page: 34 of 107

at 784, 99 S. Ct. at 2087 (noting that the violation of Rule 11 did not result in a

complete miscarriage of justice where the defendant was aware of his rights and

would not have acted differently even if the rule had been followed). Prejudice,

then, is a necessary part of a determination that there has been a complete

miscarriage of justice. But given the exceptional nature of this standard, not all

prejudice will be sufficient. In both cases where the Supreme Court determined

that a complete miscarriage of justice had occurred, the prejudice suffered by the

petitioners amounted to a complete deprivation of freedom by virtue of a longer-

than-deserved prison sentence. See Davis, 417 U.S. at 346, 94 S. Ct. at 2305

(recognizing that an error resulting in a sentence that punished the petitioner for

“an act that the law does not make criminal” was sufficient to satisfy the complete

miscarriage of justice standard); Johnson, 544 U.S. at 303, 125 S. Ct. at 1577

(recognizing a basis for relief when a sentence is erroneously enhanced under the

mandatory guidelines). Those opinions tell us that the relief provided by the

complete miscarriage of justice standard should be reserved for those rare instances

like this one when a person’s individual freedom is at stake.

It seems clear to me based on this record that it is highly unlikely that

Spencer would receive the same sentence on remand in the absence of the career

offender enhancement. At sentencing, the sentencing judge’s statements suggested

that Spencer’s sentence would be different in the absence of the career-offender

34 Case: 10-10676 Date Filed: 11/14/2014 Page: 35 of 107

enhancement: “You’re a young man. 150 months is a long time to spend in

prison.” The judge told Spencer that in the absence of the career-offender

enhancement, “instead of looking at a 32, you’d have been looking at a level 23.

It’s, in essence, half the sentence, in essence.” Sentencing Tr. at 20 (Record No.

49). The erroneous enhancement increased Spencer’s guideline range from 70 to

87 months to 151 to 180 months.

The Majority touts that finality is an important principle of vital importance

to our system of justice. But, “[W]ithout justice, finality is nothing more than a

bureaucratic achievement,” Gilbert, 640 F.3d 1293, 1337 (11th Cir. 2011) (en

banc) (Hill, J., dissenting), so we should resist the temptation to “prostrate[]

[ourselves] at the altar of finality, draped in the sacred shroud of judicial restraint,”

Whiteside v. United States, 748 F.3d 541, 556 (4th Cir. 2014) (Davis, J.,

concurring), reh’g en banc granted, 2014 WL 337798 (July 10, 2014), when the

facts indicate that a particular result is completely unjust.

Accordingly, I would treat Spencer’s claim as cognizable and consider this

appeal on the merits.

35 Case: 10-10676 Date Filed: 11/14/2014 Page: 36 of 107

MARTIN, Circuit Judge, joined by WILSON and JORDAN,

The majority and dissenting opinions issued by the court today set out the

academic debate over the scope of relief provided by 28 U.S.C. § 2255 to prisoners

now in federal prisons, based on incorrect sentences mistakenly imposed by federal

judges. I write separately to talk about Kevin Spencer, and what has happened to

him as a criminal defendant who came into federal court in 2007.

At the age of 21, Mr. Spencer walked into a federal courtroom in

Jacksonville, Florida, and pleaded guilty to one count of distributing crack cocaine,

a violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Specifically, Mr. Spencer admitted

to selling a “cooperating individual two pieces of crack cocaine in exchange for

$20.” The crack weighed less than a gram. And as the majority opinion

extensively recounts, this 2007 conviction was not Mr. Spencer’s first brush with

the law. His earlier legal problems included another conviction for selling cocaine,

from when he was 17 years old. Also, at the age of 18, Mr. Spencer pleaded guilty

in state court to felony child abuse, under Florida Statute § 827.03.

Because the federal sentencing scheme is set up to cause those who have a

violent past to serve longer sentences, the nature of Mr. Spencer’s earlier criminal

problems was highly relevant. Before his sentencing hearing in federal court, Mr.

36 Case: 10-10676 Date Filed: 11/14/2014 Page: 37 of 107

Spencer got notice that the presentence report prepared for the judge characterized

his felony child abuse conviction as a “crime of violence.”

The 2006 Guideline Manual, used for Mr. Spencer’s sentencing, defines a

crime of violence to include a state crime, punishable by a term of more than a

year, that “has as an element the use, attempted use, or threatened use of physical

force against the person of another” or “is burglary of a dwelling, arson, or

extortion, involves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” United States Sentencing

Guidelines (USSG) § 4B1.2(a)(1)–(2) (2006). Mr. Spencer argued to his

sentencing court that his felony child abuse conviction, which arose out of his

relationship with a female four years his junior, did not meet this definition. At the

time of Mr. Spencer’s 2007 sentencing, the government took the contrary view,

and argued to the sentencing court (quite extensively) that Mr. Spencer’s felony

child abuse conviction was a violent crime.

In keeping with the government’s 2007 argument that Mr. Spencer’s earlier

conviction for felony child abuse was a crime of violence, the District Court

overruled Mr. Spencer’s objection and sentenced him as a “career offender.” See

USSG § 4B1.1. Under the U.S. Sentencing Guidelines, this designation put him

into “a category of offender subject to particularly severe punishment.” Buford v.

United States, 532 U.S. 59, 60, 121 S. Ct. 1276, 1278 (2001). That is because the

37 Case: 10-10676 Date Filed: 11/14/2014 Page: 38 of 107

career offender guideline was created by a congressional directive that required the

U.S. Sentencing Commission to set guideline ranges “at or near the maximum”

authorized by statute for certain defendants who have two or more prior

convictions for crimes of violence or drug trafficking offenses. See 28 U.S.C. §

994(h). Just as Congress intended, the career offender guideline had a profound

effect on Mr. Spencer’s sentence.

For Mr. Spencer, his career offender status got him a sentence nearly twice

as long as would otherwise be imposed. The District Court said as much at the

time of sentencing, stating:

Mr. Spencer, had you not had that career—career offender enhancement, instead of looking at a level 32, you’d have been looking at a level 23.1 It’s, in essence, half the sentence, in essence.

So you’re paying a big price today for your record. What happens under the sentencing guidelines when you commit some of the crimes that you have committed, the sentencing guidelines come down hard on people, and they come down hard on people for a reason.

Mr. Spencer’s non-career offender guideline range was 70 to 87 months based on

the total amount of drugs involved in his offense, his criminal history, and his

1 I understand the District Court to be comparing Mr. Spencer’s career offender base offense level without deductions for acceptance of responsibility (offense level 32) to his non- career offender base offense level with a three-level reduction for acceptance of responsibility (offense level 23). 38 Case: 10-10676 Date Filed: 11/14/2014 Page: 39 of 107

acceptance of responsibility. 2 His career offender guideline range was 151 to 188

months. Mr. Spencer was sentenced to 151 months. Assuming a low-end

guideline sentence, this is an 81 month (6 ¾ years) difference. Mr. Spencer’s

expected release date from his 151 month sentence is September 18, 2017. See

Bureau of Prisons Inmate Locator, http://www.bop.gov/inmateloc/. If he had been

sentenced without the enhancement for a violent crime (i.e., not as a career

offender), he would no longer be serving time in the federal penitentiary.

Since 2007, when Mr. Spencer was first labeled a career offender, he has

effectively been punished twice again for that status. As discussed, his sentence

was imposed on August 16, 2007. The U.S. Sentencing Commission has lowered

the guideline ranges for defendants convicted for crack cocaine offenses two times

since that date. First, on November 1, 2007, the Commission issued Amendment

706, which lowered the crack sentencing guidelines for most crack offenses by two

2 Although Mr. Spencer’s conviction was for the sale of .06 grams of crack cocaine, he was punished for 5.5 grams of crack cocaine, based on his relevant conduct. The sentencing guideline that applies to drug offenses is USSG § 2D1.1. It provides that a defendant’s base offense level is set by the amount of drugs involved in the offense. At the time of Mr. Spencer’s sentencing in 2007, the guidelines provided a base offense level 26 for offenses involving at least 5 grams but less than 20 grams of crack cocaine. Drug Quantity Table, USSG § 2D1.1(c)(7) (2006). He received a three level reduction for acceptance of responsibility which brought his non-career offender total offense level down to 23. Mr. Spencer’s non-career offender criminal history category was IV. But a career offender criminal history category mandates a criminal history category of VI. See USSG § 4B1.1(b). The maximum sentence allowed by statute in Mr. Spencer’s case was 20 years without any minimum mandatory sentence. See 21 U.S.C. § 841(b)(1)(C). 39 Case: 10-10676 Date Filed: 11/14/2014 Page: 40 of 107

levels based on drug quantity. See USSG App. C, Amend. 706 (2007). The

Commission put Amendment 706 in place, effective March 3, 2008, not only for

those who would be convicted of crack offenses in the future, but also for those

who were already serving sentences for crack crimes. See USSG App. C, Amend.

713 (Supp. May 1, 2008). This allowed some offenders who had been convicted of

crack offenses before November 1, 2007, to get a two level reduction in their

sentence pursuant to 18 U.S.C. § 3582(c)(2). See id. (listing Amendment 706

under USSG § 1B1.10(c) as a retroactively applicable amendment). But Mr.

Spencer was not eligible for a sentence reduction under Amendment 706 because

he had been sentenced as a career offender. See United States v. Moore, 541 F.3d

1323, 1330 (11th Cir. 2008) (holding that Amendment 706 does not apply to

defendants who were sentenced as career offenders). If Mr. Spencer had not been

sentenced as a career offender, his sentencing range could have been reduced to 51

to 71 months. 3

Then, in 2010, Congress enacted the Fair Sentencing Act, which became

effective on August 3, 2010. Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111–

220 § 2(a), 124 Stat. 2372 (2010). The FSA “reduc[ed] the crack-to-powder

cocaine disparity from 100–to–1 to 18–to–1.” Dorsey v. United States, ___ U.S.

3 Based on 5.5 grams of crack cocaine, Mr. Spencer’s sentencing guideline base offense level would have been reduced from 26 to 24, see Drug Quantity Table, USSG § 2D1.1(c)(8) (2007). This in turn would have reduced his total offense level to 21, criminal history category IV. 40 Case: 10-10676 Date Filed: 11/14/2014 Page: 41 of 107

___, ___, 132 S. Ct. 2321, 2326 (2010). The FSA was Congress’ response to

nearly two decades of criticism from the “Commission and others in law

enforcement community” about “Congress’ decision to set the crack-to-powder

minimum ratio at 100–to–1.” Id. at 2328; see also id. at 2328–29 (citing four

separate Sentencing Commission reports telling Congress that the ratio was “too

high and unjustified”). Among other things, Commission research showed “the

relative harm between crack and powder cocaine less severe than 100–to–1” and

“the public had come to understand sentences embodying the 100–to–1 ratio as

reflecting unjustified race-based differences.” Id. at 2328. In section 8 of the FSA,

Congress directed the Commission to promulgate conforming emergency guideline

amendments to implement the Act. See FSA § 8, 124 Stat. at 2374. The

Commission did just that through temporary Amendment 748, which once again

lowered the base offenses (and therefore the sentences) for crack cocaine offenses

in the Drug Quantity Table in USSG § 2D1.1(c), effective November 1, 2010. See

Supp. to the 2010 Guidelines Manual, Amend. 748 (Nov. 1, 2010). This

amendment was made permanent by Amendment 750 and retroactively applicable

by Amendment 759. See USSG App. C, Amends. 750, 759 (2011).

41 Case: 10-10676 Date Filed: 11/14/2014 Page: 42 of 107

Under Amendment 750, Mr. Spencer’s sentencing guidelines range would

have been reduced to 24 to 30 months. 4 So now we know that Mr. Spencer’s 151-

month career offender sentence is at least six times the low end of the guideline

range he would receive if he were sentenced today with the full benefit of these

reductions in the crack sentencing guidelines. But once again, Mr. Spencer was

not eligible for a sentence reduction under Amendment 750 because he had been

designated a career offender back in 2007. See United States v. Lawson, 686 F.3d

1317, 1321 (11th Cir. 2012) (per curiam); see also Moore, 541 F.3d at 1327, 1330.

III.

We also now know that Mr. Spencer’s argument at the time of his

sentencing that he was not a career offender was prescient. Since he made that

argument at his sentencing hearing, the Supreme Court has schooled us all about

how to decide whether a federal defendant’s prior state conviction should be

counted as a violent felony. 5 Based on this teaching, the government has come to

4 Mr. Spencer’s 5.5 grams of crack cocaine would have given him a base offense level 16 under Amendment 750. See USSG § 2D1.1(c)(12). Taking into account his acceptance of responsibility, his total offense level would have been 13, criminal history category IV, without the career offender designation.

5 See, e.g., Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013); Sykes v. United States, ___ U.S. ___, 131 S. Ct. 2267 (2011) (considering whether Indiana felony offense of knowing or intentional vehicular flight from a law enforcement officer is a “violent felony” under the ACCA); Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008) (considering whether New Mexico felony offense of driving under the influence of alcohol is a “violent felony” under the ACCA); Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009) 42 Case: 10-10676 Date Filed: 11/14/2014 Page: 43 of 107

agree with the argument made by Mr. Spencer’s counsel back in 2007—that

Spencer’s felony child abuse conviction is not a crime of violence.

I believe the federal courts as an institution would be stronger if we simply

acknowledge that we got Mr. Spencer’s sentence wrong from the start, and fix it.

The government now concedes that, contrary to its argument to Mr. Spencer’s

sentencing court in 2007, he had no prior crime of violence conviction at the time

he was sentenced. But the government nevertheless urges this Court to lay the

burden of its mistaken 2007 argument upon Mr. Spencer. The majority of this

Court has done just that. So Mr. Spencer will continue to serve an extra many

years of a mistaken sentence, even though he has been right about how we got his

sentence wrong from the start.

The Antiterrorism and Effective Death Penalty Act of 1996 allows one

Section 2255 petition to be brought as a matter of right. For Mr. Spencer, this is it.

This Court has spent a lot of time talking about the limitations on a federal

inmate’s ability to get relief by way of a second or successive petition under

Section 2255(h).6 But those opinions do not govern Mr. Spencer’s case. This is

(considering whether Illinois failure-to-report felony offense is a “violent felony” under the ACCA); James v. United States, 550 U.S. 192, 127 S. Ct. 1586 (2007) (whether Florida felony offense of attempted burglary is a “violent felony” under the ACCA’s elements prong). 6 See, e.g., Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013); Turner v. Warden, Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013); Williams v. Warden, Fed. Bureau of 43 Case: 10-10676 Date Filed: 11/14/2014 Page: 44 of 107

his first petition. The government recognizes (and the majority agrees) that the

Supreme Court has never gone as far as it asks us to go in denying relief based on a

first petition. More to the point, the government acknowledges that the Supreme

Court has never said that so-called Sentencing Guideline errors are beyond the

reach of the relief offered by § 2255. And on that point, it cannot be denied that

the Supreme Court has allowed a federal prisoner to use a § 2255 petition to reduce

his sentence where his prior conviction, used to support his career offender

enhancement, was vacated. See Johnson v. United States, 544 U.S. 295, 303, 125

S. Ct. 1571, 1577 (2005) (“[A] defendant given a sentence enhanced for a prior

conviction is entitled to a reduction if the earlier conviction is vacated.”). This is

part of what makes the majority opinion so hard to understand. It punishes Mr.

Spencer for a mistake we made in sentencing him when neither Supreme Court

precedent nor the plain language of § 2255 requires this result. Indeed, Judge

Rosenbaum is persuasive in her view that Johnson requires the result opposite of

that reached by the majority here.

IV.

I can think of no good reason not to give Mr. Spencer his correct sentence.

He timely objected to his career offender designation at the time he was sentenced.

Prisons, 713 F.3d 1332 (11th Cir. 2013); Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc). 44 Case: 10-10676 Date Filed: 11/14/2014 Page: 45 of 107

And on direct appeal, Mr. Spencer again pressed his argument that he should not

have been classified as a career offender. See United States v. Spencer, 271 F.

App’x 977, 977–78 (11th Cir. 2008) (per curiam). We affirmed his career offender

classification. Id. at 78. A little more than six months later, Mr. Spencer filed his

first § 2255 motion to vacate and correct his sentence—which is the subject of this

appeal—in which he argued that he is not a career offender because his prior

conviction for child abuse is not a crime of violence based upon the Supreme

Court’s intervening decision in Begay. There is no procedural obstacle preventing

our granting habeas relief to Mr. Spencer such as a procedural default, statute of

limitations problems, or even retroactivity concerns. Despite all of this, the

Majority concludes that Mr. Spencer cannot challenge the sentencing error in his

first § 2255 petition unless “he is either actually innocent of his crime or . . . a prior

conviction used to enhance his sentence has been vacated.” Maj. Op. at 11.

It seems to me to draw an arbitrary line to say (on the one hand) that a

prisoner may use § 2255 to collaterally attack his career offender status if that prior

conviction has been vacated, see Majority Op. at 11 (citing Johnson, 544 U.S. at

303, 125 S. Ct. at 1577), but not (on the other) if that same prior conviction was

never a qualifying conviction in the first place—in light of an authoritative

statutory interpretation by the Supreme Court. For the defendant in both situations,

we know with certainty he is not a career offender. And assuming similarly

45 Case: 10-10676 Date Filed: 11/14/2014 Page: 46 of 107

situated defendants, we also know that his career offender sentence is below the

statutory maximum, with the District Court therefore having discretion to

resentence the defendants to the same sentence which was mistakenly imposed to

begin with. For both defendants we know, because of what happened later, that the

District Court dropped the anchor of its sentencing analysis in the wrong place.

See Peugh v. United States, ___ U.S. ___, ___, 133 S. Ct. 2072, 2084 (2013)

(recognizing the Sentencing Guidelines remain the “lodestone of sentencing”

“even after Booker rendered [them] advisory”). I recognize that the Majority

makes a distinction between these two types of defendants, i.e., legal and factual

innocence, see Majority Op. at 20, but this distinction is nowhere found in § 2255.

Indeed, it may be that the balance of equities favors granting habeas relief to

people like Mr. Spencer—as between the two. Where a prior conviction has been

vacated by a state court after a defendant was sentenced in federal court, that

defendant was properly characterized as a career offender at the time he was

sentenced. The burden is on him to come back into federal court with proof that

his later vacated prior conviction should not have been used to enhance his federal

sentence. For Mr. Spencer, he was wrongfully characterized as a career offender

from the day his sentence was imposed. That is because we now have “an

authoritative statement of what the statute meant before as well as after the

decision of the case giving rise to that construction.” Rivers v. Roadway Express,

46 Case: 10-10676 Date Filed: 11/14/2014 Page: 47 of 107

Inc., 511 U.S. 298, 312–13 & n.12, 114 S. Ct. 1510, 1519 & n.12 (1994); see also

Bunkley v. Florida, 538 U.S. 835, 840–42, 123 S. Ct. 2020, 2022–24 (2003); Fiore

v. White, 531 U.S. 225, 226, 121 S. Ct. 712, 713 (2001).

I fully understand that finality is an important consideration in deciding the

scope of collateral relief in § 2255 proceedings. But Mr. Spencer also has an

important interest in correcting a wrongfully imposed sentence. I had an earlier

occasion, in the context of a second or successive habeas petition, to review the

reasons given in support of finality in sentencing. Those reasons include:

(1) to build confidence in the integrity of the judicial system; (2) to minimize administrative costs and delay; (3) to avoid spoliation of evidence; and (4) to honor comity. See United States v. Addonizio, 442 U.S. 178, 184 n.11, 99 S. Ct. 2235, 2240 n. 11, 60 L. Ed. 2d 805 (1979); see also Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 451–53 (1962).

Gilbert, 640 F.3d at 1334 (Martin, J., dissenting). None of these values compel our

decision today.

In the intervening years since this Court decided the Gilbert case, I have

gained no insight into how insisting on the finality of a sentence that was

calculated based on a judge-made mistake instills confidence in the courts. I

cannot imagine what words might explain to Mr. Spencer (or those who care about

him) why the courts of this great nation are impotent to fix a mistake we made in

formulating his sentence. This is particularly true when he has told us about the

47 Case: 10-10676 Date Filed: 11/14/2014 Page: 48 of 107

mistake since the day we made it, and it is a mistake now acknowledged by even

his adversary.

Now after close to five years pending in this Court (not counting the time in

district court), with enormous resources already devoted to Mr. Spencer’s case, no

one can make a straight-faced argument that denying Mr. Spencer relief will save

administrative costs or minimize delay. I hear the idea that today’s ruling will save

costs and delay for cases we consider in the future. But the judicial branch of

government is the one where people come into court, like Mr. Spencer did here,

seeking justice for their own individual case. It is not the role of the courts to enact

rules of sweeping administrative convenience.

Most provocative for me (as to this reason given in support of finality) is

that today’s ruling will increase costs in the criminal justice system to the extent

that the U.S. taxpayer will have to spend dozens of thousands of dollars

incarcerating Mr. Spencer for time he should not be in prison. At oral argument,

the government was not able to identify a single law enforcement purpose served

by keeping Mr. Spencer in jail for years beyond what his sentence should rightfully

have been. When asked about the existence of a law enforcement purpose for Mr.

Spencer’s continued incarceration, the government responded:

I can’t speak to Mr. . . . I don’t know his personal record. I don’t know, you know, there is no information in the record about how he has behaved or whether he needs, you know, additional. . . . I can’t speak to that. That would be speculating beyond the record. But what 48 Case: 10-10676 Date Filed: 11/14/2014 Page: 49 of 107

I can say is there are systemic interests in keeping individuals, not just Mr. Spencer, but all the similarly situated individuals. . . .

This seems important for two reasons. First, Attorney General Eric Holder has

said that “[t]oo many Americans go to too many prisons for far too long, and for no

truly good law enforcement reason.” Attorney General Eric Holder, Remarks at

the Annual Meeting of the Amer. Bar Assoc. House of Delegates (Aug. 12, 2013)

(transcript available at http://www.

justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html); see also Douglas A.

Berman, Symposium, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4

Wake Forest J.L. & Pol’y 151, 176 (2004) (arguing that “modern mass

incarceration in the United States now calls for policy-makers, executive officials,

and judges to be less concerned about sentence finality, and more concerned about

punishment fitness and fairness when new legal developments raise doubts or

concerns about lengthy prison sentences”). Second, career offender sentences are

among the most severe sentences imposed, so it makes sense to be sure they are

given only to those deserving of this designation. See Amy Baron–Evans, Jennifer

Coffin & Sara Silva, Deconstructing the Career Offender Guideline, 2 Charlotte L.

Rev. 39, 40–41 (2010) (citing United States Sentencing Commission, Fifteen Years

of Guidelines Sentencing: An Assessment of How Well the Federal Criminal

Justice System is Achieving the Goals of Sentencing Reform, at 133–34 (2004)).

49 Case: 10-10676 Date Filed: 11/14/2014 Page: 50 of 107

By denying Mr. Spencer relief today, we lavishly spend U.S. taxpayer money and

resources for no law enforcement purpose that I know of.

In terms of other reasons supporting finality, there is no issue about

spoliation of evidence here. As one scholar aptly put it, “records of convictions do

not go ‘stale’ in the way that witnesses and some types of physical evidence may.”

Sarah French Russell, Reluctance to Resentence: Courts, Congress, and Collateral

Review, 91 N.C. L. Rev. 79, 153 (2012). Mr. Spencer has been and will remain

convicted of this crime for which he is incarcerated. There are no disputed facts

left for us to decide in his case. See generally Meghan J. Ryan, Symposium,

Finality and Rehabilitation, 4 Wake Forest J.L. & Pol’y 121, 135–37 & n.92

(2014) (noting that “scholars have suggested that traditional interests underlying

the finality doctrine have significantly less relevance in the sentencing context”).

Today, the only question before us is whether to end his sentence now or leave it to

run into the future. And finally, there is no issue of comity here. Mr. Spencer is

serving a federal sentence imposed in federal court. We review our own mistake,

and there is no state act requiring our deference.

V.

When 28 U.S.C. § 2255 became law, it was challenged as an

unconstitutional suspension of the writ. Of course, the United States Constitution

protects the writ of habeas corpus, providing that “The Privilege of the Writ of

50 Case: 10-10676 Date Filed: 11/14/2014 Page: 51 of 107

Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or

Invasion the public Safety may require it.” U.S. Const. Art. I, § 9, cl. 2. The

Supreme Court turned back the challenge against 28 U.S.C. § 2255, holding that

the statute was as broad as the writ of habeas corpus. United States v. Hayman,

342 U.S. 205, 72 S. Ct. 263 (1952). And the Supreme Court has continued since

that time to “emphasize[] the fundamental importance of the writ of habeas corpus

in our constitutional scheme.” Johnson v Avery, 393 U.S. 483, 485, 89 S. Ct. 747,

749 (1969). Indeed, the Supreme Court has “constantly emphasized the

fundamental importance of the writ of habeas corpus in our constitutional scheme”

and “steadfastly insisted that there is no higher duty than to maintain it

unimpaired.” Id. (quotation marks omitted). I believe today’s decision by the

Majority fails to carry out this important duty.

I respectfully dissent from the denial of relief to Mr. Spencer.

51 Case: 10-10676 Date Filed: 11/14/2014 Page: 52 of 107

JORDAN, Circuit Judge, joined by WILSON, MARTIN, and ROSENBAUM,

At the end of the day, what constitutes a fundamental defect resulting in a

complete miscarriage of justice comes down to a matter of considered judgment.

In my judgment, having an individual serve an additional 81 months in prison due

to an erroneous career offender designation under the advisory Sentencing

Guidelines constitutes such a miscarriage of justice, and for that reason I

respectfully dissent.

I Kevin Spencer is serving more than 12 years in prison (151 months to be

exact) for selling $20 worth of crack cocaine. The panel found, see Spencer v.

United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now

concedes, see En Banc Brief for the United States at 57-58, and the majority does

not dispute, that Mr. Spencer’s mistaken career offender designation more than

doubled his advisory sentencing range from 70-87 months to 151-188 months. For

those of us familiar with—and sometimes numbed by—the ranges produced by

application of the Sentencing Guidelines, it may be easy to overlook the dramatic

increase resulting from the error. To put it in perspective, the 81-month increase is

roughly the time needed to complete both college and law school. Case: 10-10676 Date Filed: 11/14/2014 Page: 53 of 107

Mr. Spencer timely and consistently objected to the career offender

designation, only to be told he was wrong. As it turns out, he was right.

Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. §

2255 to correct the error.

II The majority holds that Mr. Spencer’s claim is not cognizable in a timely-

filed first motion to vacate under § 2255 for two basic reasons. First,

Mr. Spencer’s 151-month sentence, though erroneous, was within the statutory

maximum. Second, Mr. Spencer’s prior conviction has not been vacated. Neither

reason, it seems to me, is convincing.

A Under § 2255, a federal prisoner “claiming the right to be released upon the

ground that the sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack, may move the court which imposed the

sentence to vacate, set aside or correct the sentence.” Despite the breadth of this

statutory language, the Supreme Court has held that not “every asserted error of

law can be raised on a § 2255 motion.” Davis v. United States, 417 U.S. 333, 346

(1974). Instead, “the appropriate inquiry” when dealing with a non-constitutional

53 Case: 10-10676 Date Filed: 11/14/2014 Page: 54 of 107

claim is “whether the claimed error of law [is] a fundamental defect which

inherently results in a complete miscarriage of justice.” Id. (quotation marks

omitted). See also Hill v. United States, 368 U.S. 424, 428 (1962) (holding that

collateral relief is permitted where there is a “fundamental defect which inherently

results in a complete miscarriage of justice,” “an omission inconsistent with the

rudimentary demands of fair procedure,” or “exceptional circumstances where the

need for the remedy afforded by the writ of habeas corpus is apparent”).

The Supreme Court has never defined the phrase “the laws of the United

States” in § 2255. But there are strong reasons to believe that a career offender

error under the advisory Sentencing Guidelines fits easily within that language.

First, an error in computing the guideline range renders a sentence procedurally

unreasonable and reversible on direct appeal. See, e.g., Gall v. United States, 552

U.S. 38, 51 (2007); United States v. Dougherty, 754 F.3d 1353, 1358 (11th Cir.

2014). Second, the Supreme Court has recently held that the incorrect application

of the advisory Sentencing Guidelines can result in an ex post facto violation. In

so ruling, the Court expressly rejected the argument that “the Sentencing

Guidelines lack sufficient legal effect to attain the status of a ‘law’ within the

meaning of the Ex Post Facto Clause.” Peugh v. United States, 133 S. Ct. 2072,

2085-87 (2013). If the advisory Sentencing Guidelines are laws for ex post facto

purposes, it is difficult to see why they are not also laws under § 2255.

54 Case: 10-10676 Date Filed: 11/14/2014 Page: 55 of 107

B Contrary to the majority’s suggestion, there is no absolute rule (announced

by the Supreme Court or by us) that a prisoner serving a sentence less than the

statutory maximum (regardless of the number of additional years in prison he or

she is serving as a result of the alleged error) cannot establish that a sentencing

error constitutes a fundamental defect inherently resulting in a complete

miscarriage of justice. That may be the rule that the majority thinks appropriate,

but it is certainly not one carved in precedential stone. As the United States

recognized at oral argument, the Supreme Court has left open whether any non-

constitutional sentencing errors are cognizable under § 2255. Cf. Davis, 417 U.S.

at 345 (“[W]e conclude that the text of the statute cannot sustain the Government’s

position that only claims of ‘constitutional dimension’ are cognizable under

§2255.”).

Before discussing the relevant Supreme Court decisions on the scope of §

2255, a cautionary note is in order. Most of the important decisions applying the

complete miscarriage of justice standard were decided in the 1960s and 1970s, at a

time when federal sentencing was very different than it is today. Back then, there

were no Sentencing Guidelines, mandatory or advisory. And federal sentences at

or below the statutory maximum generally could not be reviewed on direct appeal.

See United States v. Tucker, 404 U.S. 443, 447 (1972) (“a sentence imposed by a

55 Case: 10-10676 Date Filed: 11/14/2014 Page: 56 of 107

federal district judge, if within statutory limits, is generally not subject to review”);

United States v. Vice, 562 F.2d 1004, 1005 (5th Cir. 1977) (“The sentence itself is

within the statutory limits and therefore is not subject to appella[te] review.”).

Now, of course, we have Sentencing Guidelines, currently of an advisory nature,

and the length of a sentence can be reviewed on direct appeal for substantive

reasonableness. So we need to be careful when analyzing or relying on Supreme

Court cases from 40 to 50 years ago to decide the issue before us today.

Nevertheless, a look at that precedent convinces me that Mr. Spencer’s claim is

cognizable under § 2255.1

C

The Supreme Court decided United States v. Behrens, 375 U.S. 162 (1963),

less than two years after it formulated the complete miscarriage of justice standard

in Hill, 368 U.S. at 428. Behrens affirmed the grant of § 2255 relief to a defendant

who was not present when his sentence was ultimately imposed in violation of a

federal rule, even though that sentence was within (and well below) the statutory

limit. Under the statutory scheme existing at the time, the district court committed

the defendant (who was convicted of assault with intent to murder) to the custody

of the Attorney General for the statutory maximum sentence of 20 years pending a

1 For a chronological summary of how federal criminal procedure has changed since § 2255 was enacted in 1948, see Sarah French Russell, Reluctance to Resentence: Courts, Congress, and Collateral Review, 91 N. C. L. Rev. 79, 90-97 (2012). 56 Case: 10-10676 Date Filed: 11/14/2014 Page: 57 of 107

study by the Director of the Bureau of Prisons. At the time of the initial sentencing

hearing, the “defendant and his counsel were afforded the usual right of

allocution[.]” Behrens v. United States, 312 F.2d 223, 227 (7th Cir. 1962) (Knoch,

J., dissenting).

The district court’s order in Behrens “provided that after the results of the

study and the Director’s recommendations were reported to the court, [the

defendant’s] commitment, deemed to be for 20 years, would be subject to

modification in accordance with . . . 18 U.S.C. § 4208(b).” Behrens, 375 U.S. at

163. After receiving the report, the district court—without the presence of the

defendant or his counsel—entered an order reducing the defendant’s sentence from

20 years to 5 years. Id. at 163-64. Despite acknowledging that a defendant’s

presence is not always required when a sentence is modified, the Supreme Court

ruled that the defendant should have been present—under Rule 32(a) of the Federal

Rules of Criminal Procedure—when the district court reduced his sentence.

Otherwise, he would be denied the right to allocute and present information in

mitigation of punishment before the final imposition of sentence. Id. at 166 (“We

hold that it was error to impose this sentence in the absence of [the defendant] and

his counsel.”).

The Supreme Court in Behrens, therefore, used § 2255 to set aside a

sentence below the statutory maximum (i.e., a sentence the majority would

57 Case: 10-10676 Date Filed: 11/14/2014 Page: 58 of 107

characterize as “lawful”) for a non-constitutional violation (i.e., the violation of a

federal rule). Behrens, which has not been overruled (or criticized) by the

Supreme Court since its issuance, and whose continued viability we recognized in

United States v. Tamayo, 80 F.3d 1514, 1518 n.5 (11th Cir. 1996), runs counter to

the majority’s restrictive interpretation of § 2255.

There are, of course, a number of Supreme Court cases holding that certain

types of non-constitutional error are not subject to collateral attack. These include

Hill, 368 U.S. at 428 (defendant who was not affirmatively told of his right to

allocute under Rule 32(a) could not use § 2255 to set aside his sentence), and

United States v. Timmreck, 441 U.S. 780, 784 (1979) (defendant who was not

informed of special parole term during guilty plea colloquy could not use § 2255 to

set aside his conviction). But these decisions are relatively narrow in scope.

In Hill, the defendant “was [not] affirmatively denied an opportunity to

speak,” the district court was not “misinformed or uninformed as to any the

relevant circumstances,” and there was “no claim that the defendant would have

had anything at all to say if he had been formally invited to speak.” 368 U.S. at

429. There was, in other words, no prejudice; “all that [wa]s shown [wa]s a failure

to comply with the formal requirements of the Rule.” Id. (“Whether § 2255 relief

would be available if a violation of Rule 32(a) occurred in the context of other

aggravating circumstances is a question we . . . do not consider.”).

58 Case: 10-10676 Date Filed: 11/14/2014 Page: 59 of 107

Similarly, in Timmreck the defendant alleged only a “technical violation” of

Rule 11, and did not argue “that he was actually unaware of the special parole term

or that, if he had been properly advised by the [district court], he would not have

pleaded guilty.” 441 U.S. at 784. In other words, the defendant did not assert that

he suffered any prejudice from the Rule 11 violation. “As in Hill,” the Supreme

Court in Timmreck found it “unnecessary to consider whether § 2255 relief would

be available if a violation of Rule 11 occurred in the context of other aggravating

circumstances.” Id. at 784-85.

Not surprisingly, the Supreme Court has explained its holdings in Hill and

Timmreck as being based on the lack of prejudice. See Peguero v. United States,

526 U.S. 23, 27-28 (1999). “Our precedents establish,” the Supreme Court said,

“as a general rule . . . that a court’s failure to give a defendant advice required by

the Federal Rules is a sufficient basis for collateral relief only when the defendant

is prejudiced by the court’s error.” Id. at 27 (emphasis added). Here, Mr. Spencer

has certainly shown that he was prejudiced by the erroneous career offender

designation; his advisory guideline range increased by 81 months as a result of the

error. We should heed the Supreme Court’s characterization of its own decisions

and not read cases like Hill and Timmreck as barring § 2255 relief on advisory

guideline claims no matter what the circumstances. See also Reed v. Farley, 512

U.S. 339, 357 (1994) (Scalia, J., concurring in part and concurring in the judgment)

59 Case: 10-10676 Date Filed: 11/14/2014 Page: 60 of 107

(“As for [the reservation in] Hill and Timmreck[ ] of the question whether habeas

would be available ‘in the context of other aggravating circumstances,’ that seems

to me clearly a reference to circumstances that cause additional prejudice to the

defendant, thereby elevating the error to a fundamental defect or a denial of

rudimentary procedural requirements . . . .”).

D

To support its contention that so-called “lawful” sentences—i.e., those not

exceeding the statutory maximum—cannot be challenged under § 2255 for

advisory guideline errors, the majority relies heavily on United States v. Addonizio,

442 U.S. 178 (1979). That case, however, cannot bear the weight the majority

places on it.

The defendant in Addonizio filed a § 2255 motion after a post-sentencing

change in the Parole Commission’s policies defeated the sentencing court’s

subjective expectation that he “would be actually confined for a period of

approximately three and one-half to four years of the ten-year sentence.” Id. at

183. The Supreme Court held that the defendant failed to establish a fundamental

defect that could provide a basis for a collateral attack pursuant to § 2255.

According to the majority, the Supreme Court ruled this way in Addonizio simply

because the defendant’s sentence was less than the statutory maximum term that

could have been imposed. But there was much more than that to the Supreme

60 Case: 10-10676 Date Filed: 11/14/2014 Page: 61 of 107

Court’s holding. The Court concluded that the defendant’s claim was “based not

on any objectively ascertainable error but on the frustration of the subjective intent

of the sentencing [court].” Id. at 187. As a result, the Court explained, “[t]he

claimed error here—that the [court] was incorrect in [its] assumptions about the

future course of parole proceedings—d[id] not meet any of the established

standards of collateral attack.” Id. at 186. In sum, “[t]here [was] no claim of a

constitutional violation; the sentence imposed was within the statutory limits; and

the proceeding was not infected with any error of fact or law of the ‘fundamental’

character that renders the entire proceeding irregular and invalid.” Id. Thus,

although the sentence imposed “was and [remained] a lawful one,” id. at 187, that

fact was not the sole independent basis for the Court’s decision.

Unlike the defendant in Addonizio, Mr. Spencer points to an “objectively

ascertainable [legal] error,” and one that I believe is of a “fundamental character.”

That error was the incorrect and prejudicial calculation of the advisory Sentencing

Guidelines, which the Supreme Court has told us “anchor both the district court’s

discretion and the appellate review process[.]” Peugh, 133 S.Ct. at 2087. Nothing

in Addonizio prohibits Mr. Spencer from collaterally challenging his below-the-

maximum sentence. See Behrens, 375 U.S. at 165-66. 2

2 In today’s sentencing regime, a claim similar to the one rejected in Addonizio would be a contention that the district court, in imposing sentence, overestimated the amount of good time credit a defendant would receive from the Bureau of Prisons for a specific term of imprisonment. 61 Case: 10-10676 Date Filed: 11/14/2014 Page: 62 of 107

III

Significantly, the Supreme Court and our circuit have held that a federal

prisoner sentenced as a career offender may use § 2255 to vacate his sentence

where a prior predicate conviction has been set aside post-sentencing, regardless of

whether the sentence exceeded the statutory maximum. See, e.g., Johnson v.

United States, 544 U.S. 295, 298 (2005); Stewart v. United States, 646 F.3d 856,

858-59 (11th Cir. 2011). The precursor to cases like Johnson and Stewart is

Tucker, 404 U.S. at 448-49, in which the Supreme Court allowed a defendant to

vacate his federal sentence on a § 2255 motion because certain prior state

convictions, taken into consideration by the district court, had later been set aside

due to a violation of the right to counsel.

In a Johnson/Stewart scenario, the federal career offender sentence initially

imposed was purportedly “lawful” within the meaning of Addonizio because it was

not above the statutory maximum and because the prior state conviction had not

been vacated or overturned at the time of the federal sentencing hearing.

Nevertheless, we allow a defendant who later gets a prior predicate conviction

overturned to return to federal court and use § 2255 to vacate his then lawfully-

imposed career offender federal sentence and be resentenced without the (now

See generally 18 U.S.C. § 3624(b). Such a claim is far removed from the one presented by Mr. Spencer.

62 Case: 10-10676 Date Filed: 11/14/2014 Page: 63 of 107

non-existent) prior conviction. We do this, of course, because otherwise there

would be a miscarriage of justice.

The United States conceded during oral argument that the Johnson/Stewart

scenario is “not materially different” from the one we confront here. From my

perspective, that was a candid, apt, and telling concession. There is no principled

reason for allowing § 2255 review of a career offender sentence where a prior

conviction has been vacated post-sentencing, while at the same time precluding §

2255 review of a career offender sentence where a prior conviction, due to a

retroactive change in Supreme Court precedent, no longer constitutes a predicate

offense. Under either scenario, the pertinent prior conviction cannot lawfully be

used to establish career offender status, and the sentence imposed constitutes a

miscarriage of justice. In my view, Johnson and Stewart compel us to set aside

Mr. Spencer’s sentence. 3

3 The rule established in Johnson, I note, is not limited to career offender enhancements. Some circuits have applied Johnson to allow defendants to reopen any federal sentence enhanced by prior convictions that are subsequently vacated, set aside, expunged, or dismissed. See, e.g., United States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996) (“Although defendant’s sentence was correct at the time of sentencing, subsequent events suggest that a different sentence now may be appropriate. Because there may be a change in defendant’s criminal history category after his sentencing and direct appeal, the district court should have reopened defendant’s sentence.”); United States v. Doe, 239 F.3d 473, 475 (2d Cir. 2001) (“We agree with our sister Circuits and hold that defendants who successfully attack state convictions may seek review of federal sentences that were enhanced on account of such state convictions.”); United States v. Hairston, 754 F.3d 258, 262 (4th Cir. 2014) (following Stewart in case where vacated prior conviction had affected defendant’s criminal history score). 63 Case: 10-10676 Date Filed: 11/14/2014 Page: 64 of 107

The majority says that, because the Sentencing Guidelines are advisory, the

district court could have imposed the same sentence even without characterizing

Mr. Spencer as a career offender. The latter observation is correct, but it is also

irrelevant to the cognizability question because the Supreme Court has told us so.

In Tucker, the United States argued against granting § 2255 relief because,

given the defendant’s background and other information possessed by the district

court, “it [was] highly unlikely that a different sentence would have been imposed

even if the [court] had known that two of the [defendant’s] prior convictions were

constitutionally invalid.” 404 U.S. at 446. Even though Tucker was decided at a

time when district courts had virtually unreviewable discretion to sentence within

statutory limits, the Supreme Court rejected this argument, explaining that it was

dealing not “with a sentence imposed in the informed discretion of a [district

court], but with a sentence founded at least in part upon misinformation of

constitutional magnitude.” Id. at 447. And because the district court took the prior

(and now-vacated) convictions into account, vacatur was required. Id.

The same, I submit, should happen here. The district court’s sentence was

based upon, and took into account, a legally incorrect anchor: a career offender

designation which substantially increased Mr. Spencer’s advisory guideline range.

The “real question,” in the words of Tucker, is whether Mr. Spencer’s 151-month

sentence “might have been different if the sentencing [court] had known [that Mr.

64 Case: 10-10676 Date Filed: 11/14/2014 Page: 65 of 107

Spencer was not a career offender under the Sentencing Guidelines].” Id. at 448

(emphasis added). For me, the answer to that question is an emphatic yes.

Although district courts do not presume that the advisory guideline range is

reasonable, see Gall, 552 U.S. at 50, they certainly know that within-guidelines

sentences are effectively immune from reversal on appeal—think of them as

appellate safe harbors—and can feel comfortable in imposing such sentences. We

routinely tell district courts that we ordinarily expect a sentence within the

Sentencing Guidelines to be reasonable, see, e.g., United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008), and it is folly to pretend that such pronouncements do

not have an impact on sentencing decisions in the trenches.

In any event, a district court is always free to specify that it would have

imposed the same sentence even if its guideline calculations turn out to be

incorrect. If it does so, an appellate court can decide on the merits whether the

sentence in question, even without the guideline error, is reasonable. See, e.g.,

United States v. Keene, 470 F.3d 1347, 1348-50 (11th Cir. 2006). Even if we

engaged in the speculation suggested by the majority, there is no reason to presume

that the district court here would have imposed (or will now impose) the same

sentence absent the erroneous career offender designation, because it did not say

(or suggest) that it would have done so.

65 Case: 10-10676 Date Filed: 11/14/2014 Page: 66 of 107

On remand, Mr. Spencer’s corrected guideline range of 70-87 months would

provide the anchor for the exercise of the district court’s discretion and for the

reasonableness review that would follow on appeal. See Peugh, 133 S. Ct. at 2087.

See also Rita v. United States, 551 U.S. 338, 347 (2007) (holding that appellate

courts may presume that a sentence within the Sentencing Guidelines is

reasonable). If the district court chose to vary upward in Mr. Spencer’s case, it

would have to “consider the extent of the deviation and ensure that the justification

[was] sufficiently compelling to support the degree of the variance.” Gall, 552

U.S. at 50. And, “[a]fter settling on the appropriate sentence, [the district court

would be required to] adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.” Id.

Due to the erroneous career offender designation, Mr. Spencer was stripped of

these meaningful safeguards that, “in practice, make the imposition of a non-

Guidelines sentence less likely.” Peugh, 133 S. Ct. at 2083-84.4

4 The cognizability of a career offender error under § 2255 should not depend on whether the sentence was imposed under a mandatory or advisory Sentencing Guidelines regime. Even when the Sentencing Guidelines were mandatory, district courts retained discretion to depart downward along the criminal history axis—under U.S.S.G. § 4A1.3—if they concluded that a career offender designation was over-representative of a defendant’s past. See, e.g., United States v. Webb, 139 F.3d 1390, 1395 (11th Cir. 1998) (“Consistent with every other circuit to have addressed this issue, we now hold that [U.S.S.G.] § 4A1.3 does authorize the sentencing court to downward depart regardless of a defendant’s status as a career offender[.]”) (citing cases). 66 Case: 10-10676 Date Filed: 11/14/2014 Page: 67 of 107

IV Compounding its error, the majority puts a further gloss on the § 2255

cognizability standard. It holds that where a federal prisoner, sentenced below the

statutory maximum, complains of sentencing error but does not prove either actual

innocence of his crime or vacatur of a prior conviction, § 2255 is unavailable. This

means that Mr. Spencer and defendants like him, who accept guilt but challenge an

illegal sentence, can never use § 2255 to obtain relief.

To reach this result, the majority “woodenly applies” habeas cases (such as

McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013), and Murray v. Carrier, 477

U.S. 478, 495-96 (1986)), which hold only that a showing of actual innocence (a

form of “fundamental miscarriage of justice”) can overcome a procedural default

or a statute of limitations bar. The majority does so “without any regard to the

significant differences between [procedural default and time bars on the one hand]

and [the cognizability of a preserved claim in a first filed and timely § 2255 motion

on the other], and without regard to the import of its decision.” Codispoti v.

Pennsylvania, 418 U.S. 506, 535-36 (1974) (Rehnquist, J., dissenting). The

Supreme Court has never so much as hinted, much less held, that a showing of

actual innocence, or the vacatur of a prior conviction, is a necessary prerequisite

for a properly preserved sentencing claim presented in an initial § 2255

proceeding. And that should not come as a surprise, for if the majority were

67 Case: 10-10676 Date Filed: 11/14/2014 Page: 68 of 107

correct, Behrens (with a defendant who did not challenge his guilt and only sought

resentencing relief due to a Rule 32(a) error) could not have come out the way that

it did.

Mr. Spencer did not procedurally default his claim of sentencing error, and

he did not file his § 2255 motion past the filing deadline. There is no valid reason

to saddle Mr. Spencer, who did everything we could ask a defendant to do in terms

of preserving a claim, with the burden of proving actual innocence—a safety valve

requirement that has been developed for use by those who have forfeited their

claims by not presenting them in a timely and proper manner. Even the United

States has not asked for the imposition of such a burden.

V

I close with a suggestion that the Supreme Court address the § 2255

cognizability issue and some thoughts about the choice between finality and

justice.

A

We decide today’s case by a 5-4 vote. Some of our sister circuits, as

explained below, have issued closely divided decisions on the same or similar

issue.

68 Case: 10-10676 Date Filed: 11/14/2014 Page: 69 of 107

Four years ago, a unanimous panel of the Eighth Circuit held that a career

offender designation, shown to be incorrect due to intervening Supreme Court

precedent, can be challenged under § 2255. See Sun Bear v. United States, 611

F.3d 925, 929-31 (8th Cir. 2010). The full Eighth Circuit, in a 6-5 decision,

reversed course and ruled that a career offender error is not cognizable under §

2255. See Sun Bear v. United States, 644 F.3d 700, 704-06 (8th Cir. 2011) (en

banc).

In 2011, a panel of the Seventh Circuit, without dissent, held that an

erroneous career offender error is cognizable under § 2255 if the Sentencing

Guidelines were mandatory at the time of the error. Two years later, a divided

panel of the Seventh Circuit ruled that such error is not cognizable if the

Guidelines were merely advisory. Compare Narvaez v. United States, 674 F.3d

621, 627-30 (7th Cir. 2011) (3-0 decision), with Hawkins v. United States, 706

F.3d 820, 823-25 (7th Cir. 2013) (2-1 decision), as supplemented on denial of

rehearing en banc, 724 F.3d 915 (7th Cir. 2013).

More recently, a divided panel of the Fourth Circuit, agreeing with the

panel’s decision in this case, held that the incorrect designation of a defendant as a

career offender is the type of error that is cognizable under § 2255. See Whiteside

v. United States, 748 F.3d 541, 548-55 (4th Cir. 2014) (2-1 decision). The full

Fourth Circuit, however, vacated that decision and agreed to hear the case en banc. 69 Case: 10-10676 Date Filed: 11/14/2014 Page: 70 of 107

See Whiteside v. United States, ___ F.3d ___, 2014 WL 3377981 (4th Cir. 2014)

(en banc).

In my opinion, it is time for the Supreme Court to address the important §

2255 cognizability question, one which the First Circuit has called “longstanding”

and “interesting.” Damon v. United States, 732 F.3d 1, 3, 4 (1st Cir. 2013). Much

has changed since the Supreme Court first held that claims alleging a violation of

the “laws of the United States” are only cognizable on collateral attack if the

asserted violation also constitutes a fundamental defect that results in a complete

miscarriage of justice. Given the “Court’s historic willingness to overturn or

modify its earlier views of the scope of the writ, even where the statutory language

authorizing judicial action has remained unchanged,” Wainwright v. Sykes, 433

U.S. 72, 81 (1977), the Court may wish to reconsider the standard announced in

cases like Hill to give effect to the plain text of § 2255.

In light of the historic uses of the writ of habeas corpus, to some the

language of § 2255 may seem too broad. “Yet this defect—if defect it is—is

inherent in the statute as written, and its correction must lie with Congress.”

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985). See also Pa. Dep’t of

Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“[T]he fact that a statute can be applied

in situations not expressly anticipated by Congress does not demonstrate

ambiguity. It demonstrates breadth.”) (internal quotation marks omitted). As the

70 Case: 10-10676 Date Filed: 11/14/2014 Page: 71 of 107

Supreme Court has told us repeatedly, “when the statute’s language is plain, the

sole function of the courts—at least where the disposition required by the text is

not absurd—is to enforce it according to its terms.” Lamie v. U.S. Trustee, 540

U.S. 526, 534 (2004) (internal quotation marks omitted).

B

Federal courts, entrusted with the administration of criminal law and

procedure, are often faced with a difficult judgment call: choosing between finality

and justice. In the words of the Eighth Circuit, “[f]or matters not settled it must be

recognized that any decision which allows or refuses collateral attack rests upon a

choice between achieving finality and assuring substantial justice[.]” Houser v.

United States, 508 F.2d 509, 513 (8th Cir. 1974). Admittedly, finality is often the

easier value to quantify, as it is viewed in terms of efficiency. Justice, given its

focus on notions of fairness, is usually perceived as more difficult to define. That

does not mean, however, that we should prefer the former over the latter in the case

before us today. See, e.g., Russell, Reluctance to Resentence, 91 N. C. L. Rev. at

139 (“A close examination of the arguments favoring finality reveals that there is

considerably less justification for treating sentences as final compared to

convictions. Courts have been overstating the interests in finality of sentences, and

they should be fixing more sentencing mistakes.”).

71 Case: 10-10676 Date Filed: 11/14/2014 Page: 72 of 107

The majority asserts that its decision promotes finality in the criminal justice

system, and I do not doubt that it does. But finality is not “the central concern of

the writ of habeas corpus”—“fundamental fairness is.” Strickland v. Washington,

466 U.S. 668, 697 (1984). My vote here is for justice generally, and for fairness

to Mr. Spencer specifically. Refusing to correct a sentencing error that has resulted

in an extra 81 months of prison time ignores that § 2255, like the correlative writ of

habeas corpus, “is, at its core[,] an equitable remedy.” Schlup v. Delo, 513 U.S.

298, 319 (1995).

72 Case: 10-10676 Date Filed: 11/14/2014 Page: 73 of 107

ROSENBAUM, Circuit Judge, joined by WILSON, MARTIN, and JORDAN,

Today the Court holds that Sentencing Guidelines error that does not cause

the imposition of a sentence greater than the statutory maximum can never be

cognizable under § 2255 unless a prior conviction on which an enhancement is

based is vacated or the petitioner is actually innocent of the crime for which he was

sentenced. The reason for this, the Court explains, is that all sentences based on

errors under the Sentencing Guidelines but still lower than the statutory maximum

are necessarily “lawful,” and “lawful” sentences are not cognizable under § 2255.

But the notion that “lawful” sentences cannot be challenged on a § 2255 petition is

not supported by United States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235 (1979),

the case on which the Court relies for the proposition, and is undermined by the

statute’s own text.

Moreover, Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571 (2005)—

a case where the Supreme Court implicitly recognized the cognizability under §

2255 of challenges to “lawful” sentences arising out of enhancements based on

legal nullities—requires us to grant Spencer’s petition and remand his case for

resentencing. Nor can the Court’s reasoning for why Johnson does not control the

outcome in this case withstand scrutiny. Because I believe that Johnson alone

73 Case: 10-10676 Date Filed: 11/14/2014 Page: 74 of 107

requires the granting of Spencer’s petition and the remand of this case, I write

separately.

I. Addonizio does not hold that “lawful” sentences can never constitute a fundamental defect that results in a complete miscarriage of justice under § 2255.

Congress has set forth five categories of cognizable § 2255 claims: those

where (1) “the sentence was imposed in violation of the Constitution or [(2)] laws

of the United States, . . . [(3)] the court was without jurisdiction to impose such a

sentence, . . . [(4)] the sentence was in excess of the maximum authorized by law,

or [(5)] [the sentence] is otherwise subject to collateral attack.” 28 U.S.C. §

2255(a). Today the Majority holds that, unless a prisoner proves actual innocence

or, after being sentenced, obtains vacatur of a predicate felony used to enhance his

guidelines range, claims alleging only Sentencing Guidelines error can never be

cognizable if the resulting sentence is “lawful,” a term that the Court apparently

defines as a sentence below the statutory maximum. See supra at 10. Necessarily,

then, the Majority also must have concluded that “lawful” sentences that do not

meet the two narrow exceptions and that nevertheless erroneously apply the

Sentencing Guidelines can never fall within any of the five categories explicitly

authorized by the statute.

The Court takes the term “lawful” from United States v. Addonizio, 442

U.S. 178, 99 S. Ct. 2235 (1979), which it suggests stands for the proposition that

74 Case: 10-10676 Date Filed: 11/14/2014 Page: 75 of 107

“lawful” sentences do not result in a complete miscarriage of justice. See supra at

14 (citing Addonizio, 442 U.S. at 186–87, 99 S. Ct. at 2241, for support for the

proposition that “[w]e lack the authority to provide Spencer relief. Even if he is

not a career offender, his sentence is lawful.”); see also id. at 10-11.

I respectfully disagree that Addonizio holds or otherwise requires the

conclusion that so-called “lawful” sentences necessarily do not result in a

“complete miscarriage of justice” and that they can never be cognizable on a §

2255 petition. Instead, Addonizio holds only that a lawful sentence that is imposed

because of a judge’s incorrect subjective expectation of the actual amount of time

that a defendant will serve in prison under the judge’s sentence—and only from a

sentencing judge’s frustrated subjective intent—does not result in a complete

miscarriage of justice and is not cognizable under § 2255.

In Addonizio, the district judge sentenced Addonizio to ten years’

imprisonment with the expectation that Addonizio would be eligible for parole

after he had served a third of his sentence. 442 U.S. at 180–81, 99 S. Ct. at 2238.

Not long after Addonizio was sentenced, however, the Parole Commission

significantly changed its policies, and based on the new policies, twice refused

Addonizio parole. Id. at 182, 99 S. Ct. at 2238–39. Addonizio then filed a

petition under § 2255 to challenge his sentence. Id. at 183, 99 S. Ct. at 2239.

75 Case: 10-10676 Date Filed: 11/14/2014 Page: 76 of 107

The Supreme Court determined that Addonizio’s claim was not cognizable

under § 2255 because “there is no basis for enlarging the grounds for collateral

attack to include claims based not on any objectively ascertainable error but on

the frustration of the subjective intent of the sentencing judge.” Id. at 187, 99 S.

Ct. at 2241 (emphasis added). In reaching this conclusion, the Supreme Court

emphasized the practical difficulties of allowing the alleged frustration of the

subjective expectations of the sentencing judge to govern the cognizability of a

claim under § 2255:

As a practical matter, the subjective intent of the sentencing judge would provide a questionable basis for testing the validity of his judgment. The record made when Judge Barlow pronounced sentence against Addonizio, for example, is entirely consistent with the view that the judge then thought that this was an exceptional case in which the severity of Addonizio’s offense should and would be considered carefully by the Parole Commission when Addonizio became eligible for parole. If the record is ambiguous, and if a § 2255 motion is not filed until years later, it will often be difficult to reconstruct with any certainty the subjective intent of the judge at the time of sentencing. Regular attempts to do so may well increase the risk of inconsistent treatment of defendants; on the other hand, the implementation of the Parole Commission’s policies may reduce that risk.

Id. at 187–88, 99 S. Ct. at 2242. Thus, Addonizio’s holding is grounded in

significant part on the Supreme Court’s distinction between “objectively

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ascertainable error” and “the frustration of the subjective intent of the sentencing

judge.”1

It is true, as the Court suggests, see supra at 10, that in Addonizio, the

Supreme Court stated, “According to all of the objective criteria—federal

jurisdiction, the Constitution, and federal law—the sentence was and is a lawful

one.” Addonizio, 442 U.S. at 187, 99 S. Ct. at 2241. But that sentence cannot be

read in isolation. In context, the statement takes on its intended meaning:

According to all of the objective criteria—federal jurisdiction, the Constitution, and federal law—the sentence was and is a lawful one. And in our judgment, there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge.

Id. (Emphasis added).

The first quoted sentence refers to the specifically identified categories of

matters cognizable under the express language of § 2255—sentences where the

court lacked jurisdiction, violated the Constitution, or transgressed federal law—

thus making the sentences “unlawful.” Under § 2255, however, a sentence may be

vacated not only if “the sentence was imposed in violation of the Constitution or

laws of the United States, or . . . the court was without jurisdiction to impose such

1 The remainder of the holding in Addonizio is based on the statutory scheme as it related at that time to the duties of the Parole Commission, and it is not relevant to Spencer’s case. See id. at 188–89, 99 S. Ct. at 2242–43. 77 Case: 10-10676 Date Filed: 11/14/2014 Page: 78 of 107

sentence, or . . . the sentence was in excess of the maximum authorized by law . . .

,” but also if the sentence “is otherwise subject to collateral attack . . . .” 28 U.S.C.

§ 2255(a).

The first quoted sentence, therefore, does no more than state that

Addonizio’s sentence was a “lawful” one by definition because it did not fall into

any of the expressly named categories. It does not in any way suggest that all

“lawful” sentences—which, under Addonizio, appear to be all sentences that do not

fall into one of the first four categories expressly enumerated under § 2255—can

never be cognizable under § 2255. If it did, it would necessarily cause the phrase

“otherwise subject to collateral attack,” which appears in § 2255, to be

meaningless, violating the “elementary canon of construction that a statute should

be interpreted so as not to render one part inoperative . . . .” Mountain States Tel.

Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S. Ct. 2587, 2594 (1985)

(citation and internal quotation marks omitted).

Significantly, the second quoted sentence begins by design with the

conjunction “[a]nd,” clearly signaling that the thought contained within it is part

and parcel of the thought set forth in the sentence preceding it. See Addonizio, 442

U.S. at 187, 99 S. Ct. at 2241. And it explains that a lawful sentence challenged on

a subjective basis only—not on an objectively ascertainable standard such as is at

issue in Spencer’s case—does not qualify as “otherwise subject to collateral

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attack” under § 2255. The second sentence—and, in particular, both sentences

read together, as they were written—says only that. Entirely absent from the

quoted sentences, as it must be to avoid neutering a part of § 2255, is any

suggestion that a “lawful” sentence can never qualify as “otherwise subject to

collateral attack” under § 2255. Indeed, in light of the four other enumerated

categories, the “otherwise subject to collateral attack” category is necessary only to

the extent that Congress intended to provide prisoners with otherwise “lawful”

sentences an opportunity to attack them.

II. The Supreme Court’s decision in Johnson, which implicitly found that an otherwise “lawful” sentence that was enhanced based on a legal nullity was cognizable under § 2255, controls the outcome of Spencer’s case and requires granting Spencer’s petition and remanding for resentencing.

A. Necessarily, Johnson implicitly holds that an otherwise “lawful” sentence that was enhanced based on a legal nullity is cognizable under the “otherwise subject to collateral attack” category of § 2255 because it is a “fundamental defect that results in a complete miscarriage of justice.”

In Johnson, Johnson was sentenced as a career offender under § 4B1.1 of the

Sentencing Guidelines. 544 U.S. at 298, 125 S. Ct. at 1575. On appeal, we

affirmed the sentence. Id. at 299, 125 S. Ct. at 1575 (citing United States v.

Johnson, No. 94-9402 (Dec. 22, 1995) (per curiam)).

More than two years after we issued our opinion in Johnson’s direct appeal,

Johnson sought in state court to have a guilty plea in one of his predicate offenses

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invalidated “because he had not knowingly, intelligently, and voluntarily waived

his right to counsel.” Id. at 300, 125 S. Ct. at 1576. Although the state denied

Johnson’s contentions, it did not file hearing transcripts. Id. at 301, 125 S. Ct. at

1576. Based on the only records that were in fact filed, the state court concluded

that the state “did not show an affirmative waiver of [Johnson’s] right to an

attorney,” so it vacated the predicate conviction. Id. (alteration in original)

About three months later, Johnson filed a petition under § 2255 seeking to

vacate his federal sentence based on the state’s vacatur of one of the predicate

offenses used to establish career-offender status. Id. The district court denied the

motion as untimely, and once again, we affirmed. Id. at 301, 125 S. Ct. at 1577.

The Supreme Court granted certiorari “to resolve a disagreement among the

Courts of Appeals as to whether vacatur of a prior state conviction used to enhance

a federal sentence [is a matter of fact for purposes of [determining under §

2255(f)(4)] “the date on which the facts supporting the [§ 2255] claim or claims

presented could have been discovered through the exercise of due diligence”],”

and, if so, when the one-year limitation period begins to run where vacatur of a

predicate offense occurs. Id. at 302, 125 S. Ct. at 1577. Although the Court

decided that vacatur of an underlying conviction does qualify as a “fact” for

purposes of triggering the start of the one-year statutory period under § 2255(f)(4),

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it nonetheless affirmed our decision denying Johnson’s petition because it found

that Johnson had failed to demonstrate due diligence in seeking the order of

vacatur. Id.

The Johnson dissent took issue only with the Court’s determination of when

the one-year limitation period should begin when vacatur of a predicate offense

occurs. See id. at 312−19, 125 S. Ct. at 1582–87 (Kennedy, J., dissenting).

Neither the Supreme Court’s opinion nor the dissent in Johnson suggests

that Johnson’s claim of objectively discernible Sentencing Guidelines error based

on alleged erroneous application of the career-offender guideline is not cognizable

under § 2255. To the contrary, both opinions strongly imply──indeed, necessarily

implicitly find──that it is.2 Moreover, this Court agrees that Johnson stands for

2 First and perhaps most significantly, if Johnson’s claim of Sentencing Guidelines error were not cognizable on a § 2255 petition, the entirety of both the Court’s opinion and the dissent would be dicta. This is necessarily the case because it would never be necessary to determine at what point the one-year statute of limitations begins to run under § 2255 when a predicate offense supporting a career-offender enhancement is vacated if a challenge to the application of career-offender status under the Sentencing Guidelines were not cognizable on a § 2255 petition in the first place. That is, the question of timeliness could never be reached because all § 2255 petitions challenging career-offender status following vacatur of a qualifying predicate conviction would have to be denied as not cognizable. Second, while neither opinion in Johnson explicitly states that Sentencing Guidelines career-offender error is cognizable under § 2255, both opinions make statements that are inconsistent with the conclusion that it is not. For example, the Supreme Court notes, “Our cases applying [mandatory enhancements under the Sentencing Guidelines and the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),] assume . . . that a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated.” Id. at 302−03, 125 S. Ct. at 1577 (emphasis added) (citations omitted). It further explains that “a defendant who successfully attacked his state conviction in state court or on federal habeas review could then ‘apply for reopening of any federal sentence enhanced by the state sentences.’” Id. at 303, 125 S. Ct. at 1578 (emphasis added) (citations omitted). 81 Case: 10-10676 Date Filed: 11/14/2014 Page: 82 of 107

the proposition that “[a] prisoner might . . . collaterally attack a sentence enhanced

by a prior conviction if that prior conviction has since been vacated[],” and that

such a petition raises “sentencing error[]” as its basis. See supra at 11 (“But the

Supreme Court has rejected collateral attacks of other sentencing errors . . . .)

(emphasis added).

So, although Johnson’s original sentence was necessarily “lawful” under the

Majority’s reasoning, the Supreme Court nonetheless found Johnson’s claim

cognizable under § 2255. It could have done so only if Johnson’s sentence was

“otherwise subject to collateral attack” under § 2255.

This is necessarily so since Johnson’s sentence was not cognizable under

any of the four other categories set forth in § 2255. That is, Johnson’s sentence did

not violate the Constitution, was not imposed by a court that lacked jurisdiction,

and was not in excess of the statutory maximum; nor did the sentence violate the

“laws of the United States” since, according to today’s Majority, the Sentencing

Guidelines, even when mandatory, are not “laws of the United States.” See supra

at 18 (“[A]ll of the guidelines are the result of a congressional directive—the

And the Johnson dissent states that Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732 (1994), and Daniels v. United States, 532 U.S. 374, 121 S. Ct. 1578 (2001), “suggest that the proper procedure for reducing a federal sentence enhanced on the basis of an invalid state conviction is to seek a vacatur of a state conviction, and then proceed through federal habeas.” Id. at 313, 125 S. Ct. at 1583 (Kennedy, J., dissenting). While it is true that Custis and Daniels both involved sentences enhanced under the ACCA, the Johnson dissent apparently saw no basis for distinguishing Johnson’s enhancement under the career-offender provision of the Sentencing Guidelines from those of Custis and Daniels under the ACCA. 82 Case: 10-10676 Date Filed: 11/14/2014 Page: 83 of 107

Sentencing Reform Act of 1984—but none is tantamount to the laws of

Congress”). Although I need not opine here on whether the Sentencing Guidelines

are or ever were “laws of the United States” for § 2255 purposes, the fact that the

Majority takes this position necessarily means that, under the Majority’s reasoning,

Johnson’s sentence was “lawful.” Therefore, Johnson’s claim could have been

cognizable only under the “otherwise subject to collateral attack” portion of §

2255. The circumstance that made Johnson’s sentence “otherwise subject to

collateral attack” and allowed Johnson to breach the § 2255 barrier in spite of his

“lawful” sentence was the fact that the predicate felony on which his enhanced

sentence had been based had been vacated—that is, it was a legal nullity at the

time of Johnson’s § 2255 petition.

In short, Supreme Court precedent renders a challenge to the application of

the career-offender guideline cognizable under § 2255 when one of the underlying

predicate convictions on which it is based is effectively a nullity and that

circumstance is timely identified. That is precisely the situation that exists in this

case.

B. Spencer’s enhanced sentence is based on a legal nullity like Johnson’s was, so it qualifies under Johnson as “a complete miscarriage of justice” and is cognizable as “otherwise subject to collateral attack” under § 2255 to the same extent as Johnson’s sentence was in Johnson.

83 Case: 10-10676 Date Filed: 11/14/2014 Page: 84 of 107

Turning to the record before us, it is clear that, as in Johnson, one of the

predicate felonies upon which Spencer’s career-offender status was based is

effectively a legal nullity. Consequently, Spencer has a cognizable claim under §

2255.

Section 4B1.2(a) of the United States Sentencing Guidelines Manual

(“U.S.S.G”) defines “crime of violence” in part as “any offense under federal or

state law, punishable by imprisonment for a term exceeding one year, that— . . .

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury

to another.” In this case, the district court concluded that third-degree felony child

abuse “equate[s] with a crime of violence,” or, in other words, that it qualifies as a

“crime of violence” under the residual clause of Section 4B1.2(a)(2). This clause

provides that the crime must “otherwise involve[] conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (emphasis

added). The district court reasoned that “any conviction of Florida Statute 827.03,

a third-degree felony, has the underlying elements of a crime of violence.”

But, under Florida law, the state may prove third-degree felony child abuse

in two different ways. In particular, and as relevant here, Florida law makes it a

third-degree felony for any person to “knowingly or willfully [engage in “[a]n

intentional act that could reasonably be expected to result in physical or mental

84 Case: 10-10676 Date Filed: 11/14/2014 Page: 85 of 107

injury to a child”] without causing great bodily harm, permanent disability, or

permanent disfigurement to the child.” Fla. Stat. §§ 827.03(2)(c), 827.03(a)(b)(2)

(emphasis added). Therefore, a person may be convicted of this crime if he

performs an act that could reasonably be expected to result in only mental injury or

if he does something that could reasonably be expected to result in only physical

injury or, finally, if he commits an act that could reasonably be expected to result

in both physical and mental injury.

Obviously, and by definition, if a person is convicted of engaging in an act

that could reasonably be expected to result in mental injury only, that is not a crime

that “involves conduct that presents a serious potential risk of physical injury to

another” under § 4B1.2(a)(2) (emphasis added). As a result, it cannot qualify as a

predicate offense under the career-offender guideline. On the other hand, if a

person is convicted of acting in a way that could reasonably be expected to result

in either physical injury only or in both mental and physical injury, that person

necessarily engages in “conduct that presents a serious potential risk of physical

injury to another” under § 4B1.2(a)(2). Because one version of third-degree felony

child abuse qualifies as a “crime of violence” and another does not, it was

incumbent on the district court to determine to which version of the statute Spencer

pled guilty. See Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265,

85 Case: 10-10676 Date Filed: 11/14/2014 Page: 86 of 107

1273 (2010)3 (citing Nijhawan v. Holder, 577 U.S. 29, 40–41, 129 S. Ct. 2294,

2302 (2009); Chambers v. United States, 555 U.S. 122, 126–27, 129 S. Ct. 687,

691 (2009); Shepard, 544 U.S. 13, 26, 125 S. Ct. 1254 (2005) (plurality opinion);

Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143 (1990)).

This the district court never did. Instead, the court apparently did not

recognize that more than one version of § 827.03 exists, so it did not ascertain to

which version of third-degree felony child abuse Spencer had pled guilty. The

judge simply concluded, “I think [Spencer’s prior conviction] comes within [Fla.

Stat. §] 827.03(b), an intentional act that could reasonably be expected to result in

physical or mental injury to a child.” (Emphasis added).

It is nonetheless clear in looking at the sentencing record before the district

court that no sufficient basis existed to conclude that Spencer pled guilty to the

version of third-degree felony child abuse that requires an act that could reasonably

3 No retroactivity concern arises because, as Johnson’s citation to Shepard and Taylor demonstrates, Supreme Court decisions predating Spencer’s sentencing necessarily required this procedure. See United States v. Mathews, 453 F.3d 830, 834 (7th Cir. 2006) (observing that Shepard, 544 U.S. at 17, 125 S. Ct. 1254, and Taylor, 495 U.S. at 599–600, 110 S. Ct. 2143, “establish that, for state statutes that are ‘divisible[,]’ . . . a sentencing court may examine [Shepard materials] in order to determine which portion of the state statute the defendant violated”); see also Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276, 2283 (2013) (“Our caselaw explaining the categorical approach and its ‘modified’ counterpart all but resolves this case.”); id. at 2285 (“Applied in that way—which is the only way we have ever allowed— the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.”). Taylor was expressly referenced during Spencer’s sentencing hearing, and Spencer urged the district court to apply the Shepard procedure, albeit not by name but by description, to assess whether Spencer had pled guilty to the “violent or nonviolent aspect of the statute.” 86 Case: 10-10676 Date Filed: 11/14/2014 Page: 87 of 107

be expected to result in physical injury. In Shepard, 544 U.S. at 16, 125 S. Ct. at

1257, the Supreme Court explained that a sentencing court generally may consider

only “the statutory definition [of the crime], charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented” (i.e., the “Shepard documents”) when

determining to what crime a defendant previously pled guilty for purposes of

assessing whether the crime qualifies as a “violent felony” under the ACCA.

The reason for this limitation is simple: the Sixth and Fourteenth

Amendments guarantee that, with the exception of the existence of a prior felony

conviction, any findings of fact that will be used to increase a statutory mandatory

minimum or maximum term of imprisonment──such as a determination that a

person has sufficient predicate offenses under the ACCA──must be submitted to

and found by a jury beyond a reasonable doubt. Id. at 25, 125 S. Ct. at 1262

(plurality opinion); see also Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.

2348, 2262–63 (2000); Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151,

2155 (2013). Going beyond the Shepard documents would generally require a

sentencing judge to “make a disputed finding of fact about what the defendant and

state judge must have understood as the factual basis of the prior plea . . . ,”

Shepard, 544 U.S. at 25, 125 S. Ct. at 1262 (plurality opinion), a practice that

would violate the constitutional prohibition against allowing facts not submitted to

87 Case: 10-10676 Date Filed: 11/14/2014 Page: 88 of 107

a jury and proven beyond a reasonable doubt to increase the mandatory minimum

and statutory maximum. Therefore, the Supreme Court has further explained,

“[W]hen a defendant pleads guilty to a crime, he waives his right to a jury

determination of only that offense’s elements; whatever he says, or fails to say,

about superfluous facts cannot license a later sentencing court to impose extra

punishment.” Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276, 2288

(citing Shepard, 544 U.S. at 24−26, 125 S. Ct. 1254 (plurality opinion)). As a

result, it is not constitutionally permissible in considering whether a defendant

qualifies for sentencing enhancement under the ACCA for a sentencing judge to

make any factual findings about the conviction that the defendant did not

knowingly, voluntarily, and intelligently waive his right to submit to a jury to be

proven beyond a reasonable doubt.

It is true that Spencer’s sentence was enhanced under the career-offender

guideline, not the ACCA, and the same Sixth Amendment concerns do not exist

with respect to the guideline because application of the career-offender

enhancement cannot increase a mandatory minimum or statutory maximum term of

imprisonment. 4 But we have previously concluded that our determinations about

whether a conviction constitutes a “violent felony” under the ACCA apply to the

4 If application of the career-offender enhancement caused the Guidelines range to exceed the statutory maximum, the statutory maximum of the offense for which the defendant is sentenced would become the Guidelines sentence. U.S.S.G. § 5G1.1(a). 88 Case: 10-10676 Date Filed: 11/14/2014 Page: 89 of 107

analysis of whether an offense qualifies as a “crime of violence” under the

Sentencing Guidelines. 5 United States v. Chitwood, 676 F.3d 971, 975 n.2 (11th

Cir. 2012) (citing United States v. Archer, 531 F.3d 1347, 1350 n.1 (11th Cir.

2008)). And I am aware of no case that has suggested that courts should apply

different standards under the career-offender guideline and the ACCA for

assessing to what particular predicate crime a defendant pled guilty. On the

contrary, we ourselves have recently applied the Shepard-analysis procedures to

determine whether a prior conviction under a divisible statute qualified as a

predicate crime for purposes of a different guideline enhancement. See United

States v. Estrella, 758 F.3d 1239, 1248–54 (11th Cir. 2014) (applying Shepard-

analysis procedure to case involving enhancement under U.S.S.G. § 2L1.2). For

these reasons,6 I consider only the Shepard documents in identifying the version of

third-degree felony child abuse to which Spencer pled guilty.

5 To the limited extent that, with respect to a particular crime, the Commentary to the Guidelines requires a conclusion different from the case law construing the phrase “violent felony” under the ACCA, offenses qualifying as “crimes of violence” under the career-offender guideline may not qualify as “violent felonies” under the ACCA. Denson v. United States, 569 F. App’x 710, 712, No. 14-10211, 2014 WL 2722494, at *2–3 (11th Cir. June 17, 2014) (citing Hall, 714 F.3d at 1272 (quoting Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913 (1993)). Here, though, no commentary to the career-offender guideline affects the issue before the Court. 6 In addition, considering the factual circumstances of a conviction for purposes of determining whether to apply the career-offender enhancement would result in “a particular crime . . . sometimes [being] count[ed] towards enhancement and sometimes not, depending on the facts of the case.” Taylor, 495 U.S. at 601, 110 S. Ct. at 2159 (explaining why courts do not evaluate particular facts of a conviction in determining whether they qualify as predicate felonies under statutory sentencing-enhancement provisions). Moreover, quite apart from the 89 Case: 10-10676 Date Filed: 11/14/2014 Page: 90 of 107

The record contains no charging document for the predicate crime to which

Spencer pled guilty, and the only Shepard document referred to during the

sentencing proceeding was the transcript of Spencer’s hearing where he pled guilty

to Section 827.03(2)(c). But the entire transcript is not a part of the sentencing

record. Instead, the sole statement from the transcript that appears in the

sentencing record is the state-court prosecutor’s factual basis for the conviction. In

its entirety, it reads, “As to [Spencer], . . . he did engage in sexual activity with a

minor and that action could reasonably cause physical or mental injury to that

child, contrary to the provisions of 827.03.” 7 (Emphasis added).

This statement sheds no light on to which version of the statute Spencer pled

guilty—the version where the act could reasonably cause physical injury, or the

version where the act could reasonably cause only mental injury. While it is true

jurisprudential concerns raised by applying different standards, it would be impractical and “potential[ly] unfair” to require sentencing courts to undertake a factual inquiry into the circumstances of predicate felonies to determine whether the career-offender guideline applies. See Taylor, 495 U.S. at 601–02, 110 S. Ct. at 2159–60 (explaining why courts do not conduct factual inquiries into particular convictions to determine whether they qualify as predicate felonies under statutory sentencing-enhancement provisions). Sentencing courts would face mini-trials on crimes previously adjudicated before different tribunals every time that the court or the government raised enhancement under a guideline. 7 No indication exists in the district-court sentencing record that Spencer agreed with this statement during the state-court change-of-plea proceedings, so, on the district-court record, it would be questionable whether the statement even qualified as Shepard information. However, Spencer did attach to his initial appellate brief a copy of the transcript from his change-of-plea hearing in the third-degree felony child abuse case. In that transcript, Spencer stated that he took “no exceptions” to the prosecutor’s factual basis as set forth above. Although the transcript is outside the record on appeal, in the interests of completeness, I nonetheless note Spencer’s lack of exception. 90 Case: 10-10676 Date Filed: 11/14/2014 Page: 91 of 107

that many types of sexual activity could reasonably cause physical injury to a

child, not all sexual activity necessarily could reasonably cause physical injury to a

child, particularly because, for purposes of Section 827.03, Fla. Stat. § 827.01(2)

defines the term “child” to include anyone up to, though not including, the age of

eighteen. So this statement by the prosecutor does not demonstrate that Spencer

necessarily must have pled to the physical-injury version of the statute.8

Nor does the record contain any indication that Spencer himself understood

that he was pleading to the version of the statute requiring that he have knowingly

participated in activity with a child that could reasonably cause physical injury. In

fact, during the sentencing hearing, Spencer argued that he had not pled guilty to

the physical-injury version of the statute before the state court. Based on the

record, it cannot be said that when Spencer pled guilty to violating Fla. Stat. §

827.03, Spencer knowingly, voluntarily, and intelligently gave up his Sixth

8 In support of his § 2255 petition, Spencer filed an affidavit from the person with whom he engaged in sexual activity, written by her after she attained the age of majority. In that affidavit, she attested under oath that she had called Spencer, who himself was eighteen years old at the time, and asked him to visit her at her residence. When he arrived, she stated, she “provoked sexual intercourse with Spencer, which was consensual between the both of us.” She further attested that “[a]t all times prior to this night, I misrepresented to Spencer that I was eighteen . . . years old. I did not want Spencer to know that I was fourteen . . . because I felt my age would scare him off. . . . Spencer did not abuse me, intimidate me, coerce me, nor sexually assault me. Unfortunately, I coerced him.” While laws criminalizing sexual activity between an adult and a minor, regardless of the adult’s alleged lack of knowledge of the minor’s age, certainly exist for good reason, the facts as alleged in this affidavit explain how Spencer reasonably viewed himself as not pleading guilty to the physical-injury version of the statute. I do not consider this affidavit in my analysis because it was not part of the Shepard documents. Instead, I note it only as an example of how not every incident of “sexual activity with a minor” would reasonably cause physical injury. 91 Case: 10-10676 Date Filed: 11/14/2014 Page: 92 of 107

Amendment right to have submitted to a jury and proven beyond a reasonable

doubt the element of the qualifying version of the statute that he engaged in

activity that could reasonably cause physical injury to a child. As a result,

Spencer’s conviction for third-degree felony child abuse cannot be viewed as a

conviction for the physical-injury version of the statute. Even the Government

concedes this point. Quite simply, Spencer’s conviction for third-degree felony

child abuse never qualified as a “crime of violence” at any point.

This situation differs from when a court mistakenly concludes that a

particular crime or version of a crime constitutes a “crime of violence,” but later

Supreme Court jurisprudence makes clear that that same crime, in fact, is not a

crime of violence. See, e.g., United States v. Archer, 531 F.3d 1347 (11th Cir.

2008). We have previously described a petitioner in such a case as being “legally

innocent” of the predicate crime of conviction. See McKay v. United States, 657

F.3d 1190, 1199 (11th Cir. 2011). In those circumstances, identifying the

particular crime that the petitioner was convicted of is not the question; that is

beyond dispute throughout all stages of the legal proceedings. Instead, the only

question concerns whether the particular crime at issue is properly classified as a

“crime of violence.”

Here, however, the opposite situation exists: we know and have always

known that the mental-injury version of the statute is not a “crime of violence,”

92 Case: 10-10676 Date Filed: 11/14/2014 Page: 93 of 107

and we know and have always known that the physical-injury version of the statute

is. But the sentencing court did not identify which version of the crime was the

subject of Spencer’s conviction. Had it done so, it would have determined that no

Shepard information shows that Spencer knowingly, voluntarily, and intelligently

waived his Sixth Amendment right to have the physical-injury version of the

statute submitted to a jury and proven beyond a reasonable doubt. So the

sentencing court could not properly have relied on a conviction of the physical-

injury version of the statute in determining whether Spencer qualified as a career

offender. Put simply, in Spencer’s case, no amount of clarification by the Supreme

Court of the phrase “crime of violence” could affect whether Spencer’s predicate

conviction was a conviction for a crime of violence; that is, the record lacks

evidence that Spencer ever pled guilty to the physical-injury version of the statute

which is the only version of the statute that could ever have been viewed as a crime

of violence. For this reason, a conviction for the only version of third-degree

felony child abuse that qualifies as a crime of violence—the physical-injury

version—never occurred in the first place. In other words, it is effectively a legal

nullity.

For purposes of cognizability under § 2255, to the extent that it is any

different for the sentencing court to have relied on Spencer’s non-existent

conviction for the physical-injury version of third-degree felony child abuse in

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affirming his career-offender status than it is for a sentencing court to base career-

offender status on a subsequently vacated conviction as in Johnson, Spencer’s case

presents even more of a problem if left unaddressed. Unlike Johnson, who was at

least convicted of the predicate offense at some point, Spencer never was. Because

Spencer’s alleged predicate conviction, like Johnson’s vacated predicate

conviction, is effectively a legal nullity, Spencer’s § 2255 petition is cognizable to

the same extent as was Johnson’s.

C. The Majority’s reasoning for why Johnson does not require us to grant Spencer’s petition and remand for resentencing does not withstand scrutiny.

The Majority, though, resists this natural conclusion, offering three reasons.

First, the Majority explains, “Spencer’s prior conviction has not been vacated, and

that distinction matters. When a conviction is vacated, that vacatur constitutes a

‘new “fact”’ with which the petitioner can challenge his sentence.” Supra at 22

(citing United States v. Stewart, 646 F.3d 856, 858 (11th Cir. 2011) (emphasis in

original)). Second, the Majority posits, “Even if we were to agree with Spencer

that he is ‘innocent’ as a career offender, that legal innocence falls far short of

factual innocence, the kind of innocence involved in Johnson . . . .” See id. at 20

(emphasis in original). And third, the Majority suggests that Spencer is not entitled

to application of the same § 2255 cognizability rule as Johnson because,

supposedly unlike with Johnson, “[i]f the district court were to resentence Spencer,

94 Case: 10-10676 Date Filed: 11/14/2014 Page: 95 of 107

the district court could impose the same sentence again.” See id. at 14-15. None

of these reasons can withstand scrutiny.

1.

The Majority is correct in recognizing that “[w]hen a conviction is vacated,

that vacatur constitutes a “new ‘fact’” with which the petitioner can challenge his

sentence.” Supra at 22 (emphasis omitted). But this legal truth is irrelevant to the

issue of cognizability under § 2255. Instead, it relates only to the separate and

independent issue of whether a § 2255 application has been timely filed within the

statute of limitations—a requirement that is not at issue here because it is beyond

all doubt that Spencer timely filed his § 2255 application.

In Stewart, the case that the Majority quotes and relies upon in trying to

distinguish the vacatur of a predicate conviction from the reliance from the outset

on a nonexistent conviction, we explained that “the state court vacatur of a

predicate conviction is a new ‘fact’ that triggers a fresh one-year statute of

limitations under § 2255(f)(4),[] so long as the petitioner exercised due diligence in

seeking that order.” Section 2255(f), however, is the statute-of-limitations

provision in § 2255; it has nothing to do with cognizability under § 2255, which is

governed by § 2255(a). Section 2255(f), provides, in relevant part,

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

95 Case: 10-10676 Date Filed: 11/14/2014 Page: 96 of 107

(1) the date on which the judgment of conviction becomes final;

...

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

Stewart’s claim was timely under § 2255(f)(4) of the statute of limitations

and Johnson’s was not because Stewart filed his § 2255 petition within one year of

the vacatur of his underlying predicate conviction, which, in turn, Stewart pursued

with due diligence, while Johnson did not. Spencer, however, does not need to

rely on § 2255(f)(4) of the statute of limitations because his claim is timely under §

2255(f)(1), since he filed his § 2255 petition within one year of the date on which

the judgment of his conviction became final. Thus, Spencer and Stewart each

complied with the statute of limitations applicable to his claim, so each filed a

timely petition, and, provided that each man satisfied the separate cognizability

requirement under §2255(a)—which, for the reasons discussed elsewhere in this

dissent, Spencer did—Spencer’s and Stewart’s petitions were equally reviewable

under § 2255(f), regardless of whether Spencer’s case involved a new “fact” for

purposes of § 2255(f)(4).

Johnson, on the other hand, did not file a timely petition because he did not

file his petition within one year of when, with due diligence, he could have 96 Case: 10-10676 Date Filed: 11/14/2014 Page: 97 of 107

obtained vacatur of his predicate conviction. Perhaps ironically, that makes

Spencer’s claim more appropriate for review under § 2255 than Johnson’s, which

the Supreme Court implicitly found cognizable (though not timely). In any case,

the mere fact that Johnson’s and Stewart’s claims sought to satisfy the statute of

limitations set forth at § 2255(f)(4) while Spencer met the statute of limitations set

forth at § 2255(f)(1) does not somehow make Spencer’s cognizable claim not

cognizable. Section 2255(f) has nothing to do with cognizability.

2.

Second, the Majority confuses the concepts of “actual innocence,” “factual

innocence,” and “legal innocence.” In this regard, the Majority notes, “Actual

innocence means factual innocence, not mere legal insufficiency.” Supra at 22

(emphasis in original) (quoting McKay v. United States, 657 F.3d 1190, 1199 (11th

Cir. 2011)). As the Supreme Court has explained, “actual innocence” means that

the petitioner is actually innocent of the crime of conviction. Bousley v. United

States, 523 U.S. 614, 623–24, 118 S. Ct. 1604, 1611–12 (1998). That is, as a

matter of fact, he did not commit the crime of conviction. See id. Therefore, “[t]o

establish actual innocence, petitioner must demonstrate that, in light of all the

evidence, it is more likely than not that no reasonable juror would have convicted

him.” Id. at 623, 118 S. Ct. at 1611 (citations and internal quotation marks

omitted).

97 Case: 10-10676 Date Filed: 11/14/2014 Page: 98 of 107

This standard, of course, does not describe Johnson’s situation. Johnson’s

predicate conviction was set aside only because, years after his conviction, the

state could not locate the hearing transcripts that showed that he had waived the

right to counsel, not because Johnson presented evidence showing that he had not

committed the crime.

The term “actual innocence” has also been used in the context of death-

penalty sentences. In Sawyer v. Whitley, 505 U.S. 333, 112 S. Ct. 2514 (1992), the

Supreme Court considered whether a petitioner could be “actually innocent” of the

death penalty. To be “actually innocent” of a death-penalty sentence, a petitioner

must present evidence showing “a fair probability that a rational trier of fact would

have entertained a reasonable doubt as to the existence of those facts that are

prerequisites under state or federal law for the imposition of the death penalty.” Id.

at 346, 112 S. Ct. at 2523 (citation and internal quotation marks omitted).

If the Majority is not suggesting that Johnson was “actually innocent” of his

vacated predicate crime, which it cannot be since he wasn’t, it appears that the

Majority may be attempting to apply the concept of actual innocence of a death-

penalty sentence (as opposed to actual innocence of the crime of conviction

underlying the death-penalty sentence) to the non-death-penalty sentencing realm.

The Majority, then, appears to be suggesting that Johnson was “actually innocent”

98 Case: 10-10676 Date Filed: 11/14/2014 Page: 99 of 107

of the career-offender enhancement because, as a matter of fact, the underlying

predicate conviction no longer existed.

In McKay, we declined to determine whether the concept of actual

innocence of a sentence can apply outside the death-penalty context.9 Instead, we

concluded that we did not need to reach that issue. 657 F.3d at 1199. As we

explained, even though one of the predicate crimes on which McKay’s career-

offender enhancement depended had been reclassified as not qualifying as a

predicate “crime of violence” after McKay’s sentencing, McKay could not show

“actual innocence” in the sentencing context since McKay’s conviction for the

predicate crime still remained. Id. In other words, he was only “legally innocent”

of the predicate crime, not actually innocent. Id.

Since Johnson was not actually innocent of the predicate crime itself, today

the Court appears necessarily to implicitly reach the conclusion that Johnson’s

claim was cognizable under §2255 because he was actually innocent of the career-

offender sentence since the underlying predicate conviction had ceased to exist.

Like Johnson after his predicate conviction was vacated, Spencer lacks the second

predicate conviction on which his sentence was based. But unlike Johnson, whose

conviction existed at the time of sentencing, Spencer never had a conviction for a

9 Although McKay was issued six years after Johnson, we further concluded that the Supreme Court had not so held, either. See McKay, 657 F.3d at 1197 (“Neither the Supreme Court nor this Court has yet ruled on whether Sawyer’s actual innocence of sentence exception extends to the noncapital sentencing context.”). 99 Case: 10-10676 Date Filed: 11/14/2014 Page: 100 of 107

second predicate crime that ever qualified as such. That renders Spencer at least as

“actually innocent” of the predicate crime as Johnson was of his when the Supreme

court implicitly found his claim to be cognizable under § 2255.10 Nor is this a

situation where Spencer could be fairly described as being only “legally innocent”

since Spencer was never convicted of the only version of third-degree felony child

abuse that ever qualified as a “crime of violence.”

But, unlike Johnson, Spencer timely filed his § 2255 petition and raised this

issue at both his sentencing and on direct appeal. Therefore, under Johnson’s

reasoning, Spencer is entitled to have his § 2255 petition granted.

3.

The Majority’s third reason for not applying Johnson appears to be its

suggestion that, supposedly unlike with Johnson, a “resentencing court could

reimpose the same sentence . . .” on Spencer. See supra at 22; see also id. at 14-15

(“If the district court were to resentence Spencer, the district court could impose

the same sentence again.”). But the fact that a sentencing court could reimpose the

same sentence on Spencer does not in any way distinguish Spencer’s situation

from Johnson’s.

10 Indeed, requiring Spencer to serve a career-offender sentence based on a conviction for the mental-injury version of the Florida statute is no different from requiring a defendant to serve a career-offender sentence based on a prior conviction for failing to file his taxes. Neither the mental-injury version of the statute nor the tax crime has ever qualified as a “crime of violence” for purposes of the career-offender enhancement, and the hypothetical defendant and Spencer are both actually innocent of career-offender status. 100 Case: 10-10676 Date Filed: 11/14/2014 Page: 101 of 107

Although Spencer was sentenced under the advisory guidelines and Johnson

under the mandatory guidelines, a resentencing court still could have reimposed

the same sentence that Johnson initially received through the use of departures,

which might have been especially relevant in Johnson’s mandatory-guidelines case

since Johnson had obtained vacatur of seven prior convictions over a ten-year

period where he had previously pled guilty but the state was unable to produce

transcripts showing that Johnson had knowingly and intelligently waived his right

to counsel—that is, the state court entered vacatur in all seven prior felony cases

for reasons of legal insufficiency, not actual innocence. See Johnson, 544 U.S. at

300–01, 125 S. Ct. at 1576.

Under the mandatory guidelines framework, § 5H1.8, p.s., 11 provided, “A

defendant’s criminal history is relevant in determining the applicable criminal

history category.” U.S.S.G. § 5H1.8, p.s. The section then referred to § 4A1.3,

p.s., id., which provided in relevant part,

Departures Based on Inadequacy of Criminal History Category (Policy Statement)

(a) UPWARD DEPARTURES

(1) STANDARD FOR UPWARD DEPARTURE.—If reliable information indicates that the defendant’s criminal history category substantially under- represents the seriousness of the defendant’s

11 Policy statements are authoritative. See Williams v. United States, 503 U.S. 193, 200- 02 (1992). 101 Case: 10-10676 Date Filed: 11/14/2014 Page: 102 of 107

criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted.

Id.

As a result, just as the Majority points out that the “sentencing judge would

consider [Spencer’s] prior conviction for felony child abuse anew during

resentencing,” supra at 22, so too could the sentencing judge consider Johnson’s

guilty plea for the vacated predicate conviction (along with his six other vacated

guilty pleas) anew in Johnson’s case, if the sentencing judge determined that the

pleas constituted “reliable information.” Indeed, there are several departures that

the sentencing judge could have considered when resentencing Johnson. See, e.g.,

U.S.S.G. § 5K2.0, p.s. (“Grounds For Departure”).

But attempting to divine any sentence imposed on resentencing in both

Spencer’s and Johnson’s cases constitutes pure speculation and certainly provides

no objectively ascertainable basis for distinguishing Johnson from Spencer’s case.

The point is simply that in either case, and contrary to the Majority’s suggestion,

Johnson and Spencer each could have had the same sentence reimposed.

Therefore, on this ground, there is no logical basis for the proposition that the

Sentencing Guidelines error in Johnson constituted a “fundamental defect that

resulted in a complete miscarriage of justice,” while the error in Spencer’s case

does not. Therefore, I would hold that Sentencing Guidelines error that was based

102 Case: 10-10676 Date Filed: 11/14/2014 Page: 103 of 107

upon what amounts to effectively an objectively ascertainable legal nullity creates

a cognizable claim under § 2255 because such errors constitute a “fundamental

defect that result in a complete miscarriage of justice.”

III. Under the circumstances of this case, Spencer’s valid claim of a fundamental defect that results in a complete miscarriage of justice is not barred because he raised it on direct appeal and we incorrectly rejected it.

Despite the obvious merit to Spencer’s claim, some might suggest that

Spencer’s claim is procedurally barred because he raised the issue on direct appeal

and we rejected it at that time. See Stoufflet v. United States, 757 F.3d 1236, 1239

(11th Cir. 2014). While at least one court has described this procedural bar as the

“law-of-the-case doctrine,” see, e.g., White v. United States, 371 F.3d 900, 902 (7th

Cir. 2004) (“Relitigation is forbidden (subject to exceptions built into the law of

the case doctrine . . . ) even if it is the first collateral attack.”), this Court recently

rejected that characterization. 12 See Stoufflet, 757 F.3d at 1239-43.

In explaining why, this Court reasoned that

Congress and the courts have imposed far greater limitations on collateral attacks than the limitations

12 If the procedural bar to relitigation of an issue raised on direct appeal were considered a form of the law-of-the-case doctrine, see, e.g., Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012) (in citations for the proposition that “a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding,” characterizing some out-of-circuit cases as “[i]nvoking the doctrine of the law of the case” or as otherwise relying on the “law of the case” to bar relitigation in a § 2255 proceeding of the previously raised issue), the well-established exception to that doctrine allowing reconsideration of a “prior decision [that] was clearly erroneous and would result in a manifest injustice,” see Stoufflet, 757 F.3d at 1240, would apply here. 103 Case: 10-10676 Date Filed: 11/14/2014 Page: 104 of 107

imposed by the law-of-the-case doctrine and its exceptions. . . . For example, new evidence, by itself, is not a ground for relief in a motion to vacate unless that new evidence establishes an error of constitutional proportions or a “fundamental defect which inherently results in a complete miscarriage of justice.”

Id. at 1240 (citations omitted) (emphasis added). We similarly noted that an

intervening change in the law will not warrant relief on collateral review unless

that change in the law rendered our earlier ruling “incorrect as a matter of

constitutional law or a complete miscarriage of justice.” Id. at 1242 (emphasis

added). And, particularly significant to Spencer’s case, we stated, “[A] court of

appeals reviewing a motion to vacate will not disturb a prior decision—even if so

clearly erroneous that it results in manifest injustice—if that decision did not

result in a constitutional error or a complete miscarriage of justice.” Id. at 1241

To determine whether Stoufflet’s argument allowed him to escape the

procedural bar to raising the same issue in § 2255 proceedings as we rejected on

Stoufflet’s direct appeal, we then considered whether Stoufflet’s claim in his §

2255 petition qualified under the particular “limitation[] on collateral attacks” that

Stoufflet proposed was applicable—that a change in the law caused our earlier

ruling to be “incorrect as a matter of constitutional law or a complete miscarriage

of justice.” See id. at 1242. We concluded that it did not. Id.

104 Case: 10-10676 Date Filed: 11/14/2014 Page: 105 of 107

But the point is that we evaluated whether the procedural bar to raising an

issue previously raised on direct appeal applied in Stoufflet’s case by the standards

of cognizability under § 2255. This makes perfect sense because procedurally

barring claims that are cognizable under § 2255 would impermissibly elevate

court-made doctrine, developed for the purpose of controlling our docket and

promoting finality, above a congressionally enacted statute authorizing habeas

review of claims where a complete miscarriage of justice has occurred.

Here, for all of the reasons explained earlier in this dissent, under Johnson, a

“fundamental defect that results in a complete miscarriage of justice” has

happened. In summary, under the Majority’s reasoning, the Supreme Court has

already determined in Johnson that a sentence based on the career-offender

enhancement, which, in turn, incorrectly relied on a legal nullity, is “otherwise

subject to collateral attack” because it is a fundamental defect that results in a

complete miscarriage of justice. Like Johnson’s sentence, Spencer’s sentence was

based on the career-offender enhancement, which was wrongly applied to him

because the sentencing court relied on a legal nullity to find the enhancement

applicable. So, like Johnson’s sentence, Spencer’s sentence must also be a

fundamental defect that results in a complete miscarriage of justice and therefore

“otherwise subject to collateral attack” under § 2255. As a result, under Stoufflet,

105 Case: 10-10676 Date Filed: 11/14/2014 Page: 106 of 107

it is not subject to the procedural bar against raising the same claim that was

brought on direct appeal in § 2255 proceedings.

Finally, the Majority writes, “Our dissenting colleagues . . . fail to . . .

provide a principled test for distinguishing between misapplications of the

guidelines that can be collaterally challenged and those that cannot.” Supra at 14

(emphasis in original). But there is no reason for this dissent to set forth a test for

identifying all misapplications of the guidelines that can be collaterally challenged

and distinguishing them from those that cannot because existing Supreme Court

precedent already renders the misapplication of the guidelines that occurred in

Spencer’s case to be cognizable. 13

In Johnson, the Supreme Court explicitly recognized that situations besides

vacatur could raise a cognizable § 2255 claim when it opined, “[T]here may be rare

cases in which no channel of review was actually available to a defendant with

respect to a prior conviction, due to no fault of his own, in which case a prisoner

might be able to use a motion under § 2255 to challenge the prior [“]conviction[”]

13 I recognize that my proposed resolution of this case may not apply to many—if any— other cases and that it leaves for another day the issue of where to draw the line between a sentence that is cognizable under § 2255 and one that is not. But we are looking at Spencer’s case right now, and the law requires that his sentence be vacated. So we should not hesitate to vacate his sentence, merely because, as a practical matter, the rule taken from such a resolution may not have wide application. It is, after all, Spencer’s appeal that we are considering.

106 Case: 10-10676 Date Filed: 11/14/2014 Page: 107 of 107

as well as the federal sentence based on it.” 544 U.S. at 304 n.4, 125 S. Ct. at 1578

n.4 (citing Daniels v. United States, 532 U.S. 374, 382, 121 S. Ct. 1578, 149

L.Ed.2d 590 (2001)) (citation and internal quotation marks omitted). This is that

rare case.

Spencer could not have had his “crime of violence” predicate conviction

vacated because he was never convicted of or pled guilty to such a crime in the

first place. As in Johnson, the “fact” upon which the sentencing court relied to

conclude that Spencer was a career offender was effectively a legal nullity,

resulting in an erroneous application of the Sentencing Guidelines. Despite

Spencer’s protestations at sentencing and on direct appeal that he had not been

convicted of the violent-felony version of third-degree felony child abuse, the

sentencing judge erred in not identifying to which version of the predicate crime

Spencer had pled guilty, and we made the same mistake on direct appeal. Now we

are saying that Spencer is the one who must pay for our mistakes with what are

likely years of his life. That is a “fundamental defect that results in a complete

miscarriage of justice.” I would grant the petition and remand for resentencing. I

therefore respectfully dissent.