ILNews

Man’s prior conviction doesn’t render him a career offender

Back to TopCommentsE-mailPrintBookmark and Share

The 7th Circuit Court of Appeals reversed the denial of a man’s habeas petition, finding his conviction of arson in the third degree in Delaware doesn’t qualify as a crime of violence under U.S.S.G. Section 4B.1. As such, his current sentence should be reduced to reflect he isn’t a career offender.

Royce Brown was convicted in Delaware of one count each of possession with intent to distribute cocaine and possession of a firearm by a felon in 1996 and classified as a career offender based in part on his prior arson conviction. Now incarcerated in Indiana, Brown filed a pro se habeas petition under 28 U.S.C. Section 2241 contending that under Begay v. United States, 553 U.S. 137 (2008), that conviction doesn’t qualify as a crime of violence under Section 4B1.1. The District Court dismissed the petition sua sponte because “the savings clause embodied in 2255(e) requires a claim of actual innocence directed to the underlying conviction, not merely the sentence.”

The 7th Circuit found that the District judge erred in concluding that challenges to a sentence are categorically barred under Section 2241. Brown is entitled to relief under that section because under Begay, his arson in the third degree conviction under Delaware law doesn’t qualify as “generic” arson under the enumerated crimes clause of the career offender guideline, nor is it covered by the residual clause, Judge Joel Flaum wrote in Royce Brown v. John F. Caraway, Warden, 12-1439.

The judges ruled that provided other (In re Davenport, 147 F.3d 605 (7th Cir. 1998)) conditions are present, a petitioner may utilize the savings clause to challenge the misapplication of the career offender guideline, at least where the defendant was sentenced in the pre-Booker era (543 U.S. 220 (2005)).

The judges sent the case back to the District Court to reduce Brown’s 360-month sentence.

Chief Judge Frank Easterbrook, who did not sit on the panel deciding this case, wrote separately that the 7th Circuit’s holding that combines Davenport with Navarez v. United States, 674 F.3d 621 (7th Cir. 2011), “puts us in conflict with at least two circuits, as the panel acknowledges, with no other circuit on our side” in that the savings clause of Section 2255(e) doesn’t permit a prisoner to bring in Section 2241 petition a guidelines miscalculation claim that is barred from being presented in a Section 2255 motion.

“Notwithstanding what I have said, Davenport and Narvaez enjoy support in this circuit. I appear to be the only judge who doubts their soundness. It would therefore be pointless to sit en banc. Resolution of the conflict belongs to Congress or the Supreme Court. That is why I did not call for a hearing en banc following the panel’s circulation under Circuit Rule 40(e),” he wrote.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  2. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  3. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  4. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  5. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

ADVERTISEMENT