En Banc Issues

1. Spencer v. United States

En Banc Hearing Date: June 24, 2014 in Atlanta, GA

En Banc Panel Composition: Chief Judge Carnes, Circuit Judges Tjoflat, Hull, Marcus, Wilson, Pryor, Martin, and Jordan

(Senior Judge Kravitch was a member of the original panel, but elected not to participate in the en banc re-hearing) 

Original Panel Composition: Opinion written by Senior District Judge Hornby (D. Me.), joined by Circuit Judge Jordan and Senior Circuit Judge Kravitch.

Original Panel Decision: The petitioner was sentenced as a career offender based on two previous felony convictions for drug trafficking crimes and/or crimes of violence.  At his sentencing, the petitioner argued that one of the two predicate convictions, a Florida conviction for third degree felony abuse of a minor, was not a crime of violence because it did not require an intent to cause physical injury or even a reasonable likelihood of physical injury—intent to cause mental injury alone was sufficient for conviction.

The district court disagreed with petitioner’s argument and sentenced him as a career offender.  This sentence was affirmed on appeal because the felony abuse conviction created a serious potential risk of physical injury.  Two weeks later, the United States Supreme Court decided Begay v. United States, 553 U.S. 137 (2008), which narrowed a portion of the crime of violence definition to crimes that are roughly similar, in kind as well as in degree of risk posed, to examples specifically listed in the statute (which are burglary, arson, extortion, and use of explosives). 

The petitioner then moved for relief under 28 U.S.C. § 2255 to set aside his sentence based on Begay.  The district court denied his motion.  A certificate of appealability was granted to address: (1) whether, in light of Begay, a free-standing challenge to a career offender sentence was cognizable under § 2255; and (2) if so, whether the district court erroneously determined that Spencer was a career offender.

The term “crime of violence” essentially uses the statutory definition for a “violent felony” from the Armed Career Criminal Act. See 18 U.S.C. § 924(e)(2)(B).  Specifically, it includes any offense under federal or state law punishable by more than one year imprisonment that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (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.  U.S. Sentencing Guidelines Manual § 4B1.2(a).

Here, the government conceded that the Florida third degree abuse of a minor conviction did not fall under subsection (1), but the district court nonetheless concluded that the conviction was a crime of violence under the residual clause of subsection (2) (“otherwise involves conduct that presents a serious potential risk of physical injury to another”).

The first issue the panel decided is whether § 2255 could be used to challenge a career offender sentence.  The fundamental question under that section is whether the claimed error was a fundamental defect which inherently results in a complete miscarriage of justice.

 

The panel cited two opinions to support its conclusion that this standard was met here.  In the first opinion, Johnson v. United States, 544 U.S. 295 (2005), the panel suggested that the Supreme Court implicitly acknowledged that section 2255 could provide relief in a career offender case if the motion was timely-filed.  The panel also cited Stewart v. United States, 646 F.3d 856 (11th Cir. 2011) (panel of Wilson, Tjoflat, and visiting judge Seymour), which permitted a convicted defendant to use section 2255 to challenge his career offender designation after the predicate state convictions were vacated following his federal sentence and appeal.

The panel acknowledged that at least five other circuits had reached the opposite conclusion.  But, the panel contended that only two of these decisions, by the Seventh and Eighth Circuit, applied specifically to cases where there was a new right recognized by the Supreme Court that affected the determination of the career offender status. 

The Eighth Circuit decision was a 6-5 opinion in Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc).  The panel sought to distinguish Sun Bear  because the sentence imposed in that case was within the Guidelines range even in the absence of the career offender status.  Meanwhile, the Seventh Circuit held that, given the current advisory state of the sentencing Guidelines, an erroneously calculated sentence was not cognizable under section 2255.  See Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013).  The panel disagreed with this opinion.

The panel went on to conclude that categorization as a career offender was not merely a formal requirement of a criminal procedural rule, since the Guidelines are still the substantive law of federal sentencing. Accordingly, here a sentencing error amounted to a complete miscarriage of justice.  The panel minimized any finality concerns because this was a first, timely-filed motion under Section 2255, and noted the cost of keeping people in prison who should no longer be there.

 

The panel next concluded that the third degree felony child abuse conviction was not a crime of violence under the residual clause. The proper analysis is two-pronged, as set forth in United States v. Chitwood, 676 F.3d 971 (11th Cir. 2012): (1) the categorical approach, under which the court considers whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of a particular approach; or (2) the modified categorical approach, where some, but not all, of the violations of a particular statute will involve the requisite violence—under this approach a court may consult a narrow universe of Sheppard documents which includes any charging documents, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the judge to which the defendant assented.

 

Accordingly, the panel concluded that the petitioner was entitled to relief and reversed the district court's denial of the petitioner's section 2255 motion. 

En Banc Issues:

The Eleventh Circuit vacated the panel decision and requested briefing on three issues:

(1)   Is Spencer’s claim that he was erroneously classified as a career offender under the advisory Guidelines cognizable under section 2255? (The panel: Yes)

(2)   Does Begay apply retroactively in cases alleging error under the advisory sentencing Guidelines? (Not specifically addressed by the panel)

(3)   Is the prior conviction for felony child abuse a crime of violence because it is “similar in risk” to the crimes listed in the residuary clause? (The panel: no, because knowing or willful action that could be expected to result in mental injury does not meet the physical injury risk)

Analysis and Prediction: 

There are two prior-decided Eleventh Circuit cases with bearing on this issue.  Both of these were essentially ignored in the panel opinion, as they were relegated to footnotes.

 

First, in Burke v. United States, 152 F.3d 1329 (11th Cir. 1998) (panel of Cox, Tjoflat, and Hull), the court held that the misapplication of a clarifying, rather than substantive amendment, to the Guidelines was not a miscarriage of justice sufficient to allow habeas relief. Second, in Hunter v. United States, 599 F.3d 1188 (11th Cir. 2011) (panel of Pryor, Tjoflat, and Anderson), the panel concluded that a sentencing error where a defendant was erroneously sentenced as an armed career criminal did not amount to the substantial showing of the denial of a constitutional right for purposes of a certificate of appealability.  The Spencer panel concluded that the substantial showing of the denial of a constitutional right was different from the issue of whether a Guidelines miscalculation was a violation of the non-constitutional “law of the United States” that are also cognizable under section 2255. 

 

Based on these past cases, there are at least three active judges who have previously intimated that sentencing error is not cognizable under the Guidelines. (Tjoflat, Hull, and Pryor).  You can almost certainly add to their number Chief Judge Carnes. The Eleventh Circuit is very conservative on habeas issues and values finality, and I would be shocked if a majority deviated from that course here (although, bear in mind, the composition of the Court is changing). 

Jordan joined the panel opinion, and he will certainly be joined by Martin in the view that this is a fundamental defect.  (See Martin's dissent in Gilbert v. United States (en banc) and her concurrence in the original panel opinion in that case).

This leaves Marcus and Wilson as the potential deciding votes.  I think it is likely that Marcus will side with the conservatives on this and that we will have either a 5-3 opinion or a 6-2 opinion finding that sentencing error is not cognizable under the Guidelines and/or that Begay is not retroactive to advisory sentencing Guidelines.  Wilson is difficult to predict, as he was recused in Gilbert, but I expect he will more than likely vote with Jordan and Martin.

 

We thus end up with a 5-3 decision affirming the district court.

Outside Circuit Effects: In the interim, a divided Fourth Circuit panel has agreed with the Spencer panel’s reasoning and held that the erroneous application of the career offender enchancement amounts to a fundamental miscarriage of justice.  See Whiteside v. United States, 2014 U.S. App. LEXIS 6425  (Gregory joined by Davis, dissent by Wilkinson).