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

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.