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

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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.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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