Appeal from the United States District Court for the Western District of Wisconsin. No. 09-cv-222--Barbara B. Crabb, Judge.
AMENDED DECEMBER 6, 2011*fn1
Before RIPPLE, KANNE and SYKES, Circuit Judges.
In 2003, Luis Narvaez pleaded guilty to bank robbery, a violation of 18 U.S.C. § 2113(a). The district court sentenced Mr. Narvaez as a career offender under the United States Sentencing Guidelines § 4B1.1 because his record revealed two prior escape convictions involving failure to return to confinement, violations of Wisconsin Statute section 946.42(3)(a). Mr. Narvaez later filed a motion to vacate his sentence under 28 U.S.C. § 2255(a); he asserted that imposition of the career offender status was illegal in light of the Supreme Court's decisions in Begay v. United States, 553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009). The district court denied Mr. Narvaez's motion; it ruled that Begay and Chambers did not apply retroactively to cases on collateral review. The court then granted him a certificate of appealability.*fn2
We conclude that Begay and Chambers apply retroactively to Mr. Narvaez's case. Because Mr. Narvaez's career offender sentence was improper, his period of incarceration exceeds that permitted by law and constitutes a miscarriage of justice.*fn3 He is therefore entitled to relief under § 2255. Accordingly, we reverse the judgment of the district court and remand for resentencing without imposition of the career offender status. No other aspect of the sentence determination is to be disturbed.*fn4
In 2003, Mr. Narvaez pleaded guilty to bank robbery, a violation of 18 U.S.C. § 2113(a). The sentencing court designated him as a career offender, see U.S.S.G. § 4B1.1, based on two prior escape convictions, under Wisconsin Statute section 946.42(3)(a), that involved failing to return to confinement.*fn5 The sentencing court's application of the career offender status increased the then-mandatory sentencing range for Mr. Narvaez from 100-125 months to 151-188 months.*fn6 The court sentenced him to 170 months' imprisonment--the midpoint of the enhanced guidelines range.
Five years later, in Begay, the Supreme Court clarified the definition of a violent felony under the Armed Career Criminal Act ("ACCA"). It held that driving under the influence of alcohol did not constitute a violent felony under the statute. See Begay, 553 U.S. at 148. The Court explained that the crimes listed in the ACCA "all typically involve purposeful, violent, and aggressive conduct." Id. at 144-45 (internal quotation marks omitted). Therefore, the term "violent felony" applies only to crimes that are "roughly similar, in kind as well as in degree of risk posed, to the examples [listed in the ACCA] themselves." Id. at 143.*fn7
In Chambers, the Court further explored the definition of a violent felony under the ACCA in the context of a conviction under an Illinois escape statute for failure to report for penal confinement, a statute similar to the Wisconsin law under which Mr. Narvaez was convicted. The Court held that the failure to report was a "passive" offense that did not inherently involve conduct presenting "a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B), and, therefore, "falls outside the scope of the ACCA's definition of 'violent felony.'" Chambers, 129 S. Ct. at 691, 693.
Although Begay and Chambers specifically involved the ACCA, not the Sentencing Guidelines, we have recognized that the definition of a violent felony under the ACCA was "repeated verbatim" by the Sentencing Commission in defining a "crime of violence" in § 4B1.2 and that "[i]t would be inappropriate to treat identical texts differently just because of a different caption." United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008); see also United States v. Woods, 576 F.3d 400, 403-04 (7th Cir. 2009) (noting that the language describing crimes of violence in § 924(e)(2)(B) of the ACCA and § 4B1.2 of the Sentencing Guidelines is identical and, therefore, interchangeable).*fn8
On April 15, 2009, Mr. Narvaez filed a motion under 28 U.S.C. § 2255 to vacate his sentence.*fn9 He asserted that, in light of the Supreme Court's recent decisions in Begay and Chambers, his prior convictions for failure to return to confinement did not qualify as "crimes of violence" within the meaning of the career offender guideline. The district court dismissed Mr. Narvaez's § 2255 motion. In its view, Begay and Chambers did not apply retroactively to cases on collateral review. The court nevertheless granted Mr. Narvaez a certificate of appealability.
The Government now concedes that Begay and Chambers decided questions of substantive statutory construction and that they apply retroactively on collateral review. The Government further concedes that, after Begay and Chambers, Mr. Narvaez's prior escape convictions for failure to return to confinement do not constitute crimes of violence under the career offender guideline. Nevertheless, the Government argues that Mr. Narvaez did not satisfy the requirement for the granting of a certificate of ...