09-2919 Narvaez v. U.S.

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Sentencing
Career offender enhancement; retroactivity

A defendant unlawfully sentenced as a career offender can collaterally attack the sentence.

“The fact that Mr. Narvaez’s sentence falls below the applicable statutory-maximum sentence is not alone determinative of whether a miscarriage of justice has occurred. The sentencing court’s misapplication of the then-mandatory § 4B1.1 enhancement in Mr. Narvaez’s case was central to its guidelines calculation.

Nothing in the record indicates that the court would have sentenced Mr. Narvaez to five additional years of incarceration had the judge not been under the legal misapprehension, shared by the rest of the circuit, that Mr. Narvaez was a career offender and that the corresponding guidelines required such an enhancement. The application of the career offender provision increased the sentencing range for Mr. Narvaez. Speculation that the district court today might impose the same sentence is not enough to overcome the fact that, at the time of his initial sentencing, Mr. Narvaez was sentenced based upon the equivalent of a nonexistent offense. This error clearly constitutes a miscarriage of justice and a due process violation.”

Reversed and Remanded.

09-2919 Narvaez v. U.S.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Ripple, J.

TAGS: 7th Circuit Digest, Criminal Digest, Sentencing Digest

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