James B. Hanson v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1149
J AMES B. HANSON ,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:16-cv-00428-JPG — J. Phil Gilbert, Judge.
A RGUED SEPTEMBER 4, 2019 — D ECIDED OCTOBER 22, 2019
Before WOOD , Chief Judge, and BAUER and HAMILTON,
Circuit Judges.
BAUER , Circuit Judge. Following a six-year investigation into
a methamphetamine operation, James Hanson was indicted on
May 5, 2009, with conspiracy to manufacture, distribute, and
possess with intent to distribute methamphetamine in excess
of 500 grams. The Government established Hanson’s three

-- 1 of 7 --

2 No. 18-1149
prior drug offenses and Kentucky felony third-degree residen-
tial burglary conviction. On December 10, 2009, Hanson
pleaded guilty pursuant to a plea agreement. Per the agree-
ment, the government listed only one prior felony drug
conviction under 21 U.S.C. § 851, instead of all three potentially
qualifying convictions, and relied in part on Hanson’s prior
burglary conviction for a lesser recommended sentencing
range under the Guidelines.
In the Presentence Investigation Report (“PSR”), the
Probation Officer calculated Hanson’s total offense level as 34,
with a criminal history of VI, for a Sentencing Guidelines range
of 262 to 327 months. U.S.S.G. § 4B1.1(c)(3). After conducting
a sentencing hearing where the district court heard from both
parties, the district court adopted the PSR, sentencing Hanson
to 262 months in prison followed by ten years of supervised
release. On appeal, Hanson challenges the district court’s
denial of his collateral challenge to his sentence under 28
U.S.C. § 2255. We conclude that the district court did not
commit any reversible errors and affirm.
DISCUSSION
Hanson argues that the district court erred when it in-
cluded his third-degree burglary as a crime of violence,
enhancing Hanson’s status to a career offender. We review the
district court’s legal conclusions de novo. Hrobowski v. United
States, 904 F.3d 566, 569 (7th Cir. 2018).
Postconviction sentences may be changed if the sentence
“was imposed in violation of the Constitution or laws of the
United States, or [if] the court was without jurisdiction to
impose such sentence, or [if] the sentence was in excess of the

-- 2 of 7 --

No. 18-1149 3
maximum authorized by law … .” 28 U.S.C. § 2255(a). “[N]ot
every error is corrigible in a post-conviction proceeding, even
if the error is not harmless.” Hawkins v. United States, 706 F.3d
820, 823 (7th Cir. 2013). Even errors that are not harmless may
not be cognizable under a § 2255 proceeding. Id.
We have held that “relief under § 2255 is available ‘only in
extraordinary situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of justice.’”
United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014)
(quoting Blake v. United States, 723 F.3d 870, 878–79 (7th Cir.
2013)). A defendant may file a § 2255 motion within one year
of the latest of four dates, including the date of final judgment
and “the date on which the right asserted was initially recog-
nized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C. §§ 2255(f)(1)
and (3).
Under § 2255(f)(1), a defendant has one year from the final
judgment to file a § 2255 motion. This court dismissed
Hanson’s appeal on August 25, 2010. The conviction became
final on November 23, 2010. Hanson failed to file a § 2255
motion within one year. The statute of limitations to file a
§ 2255 motion for Hanson’s final conviction ended on Novem-
ber 23, 2011. Therefore, Hanson’s motion under § 2255(f)(1) is
untimely.
Alternatively, Hanson argues the Supreme Court in Mathis
recognized a new right on June 23, 2016, allowing him to file a
§ 2255 motion by June 23, 2017. However, the Supreme Court

-- 3 of 7 --

4 No. 18-1149
stated in Mathis that the rules being applied came from
precedent. Mathis v. United States, 136 S. Ct. 2243 (2016). “Our
precedents make this a straightforward case. For more than
25 years, we have repeatedly made clear that application of
ACCA involves, and involves only, comparing elements.” Id.
at 2257. Instead, the Supreme Court distinguished between
“elements” and “means,” where “elements” are “constituent
parts” of a crime and “means” are “various factual ways of
committing some component of the offense.” Id. at 2249.
Hanson has failed to show that the Supreme Court in Mathis
intended to create a new rule upon which the statute of
limitations may run.
We briefly address Hanson’s letter to the court, which
confuses the Government’s argument that Mathis must be
declared retroactive “by the Supreme Court.” Rather, the
Government states in its brief: “[n]evertheless, the measuring
period begins when the Supreme Court declares a new right,
not when the courts acknowledge the right to be retroactive.”
We understand the Government’s position as not requiring the
right to be declared retroactive by the Supreme Court, but
rather the Supreme Court must declare a new right for the
courts to apply retroactivity.
Hanson argues the district court misapplied the career
offender enhancement under the advisory Guidelines, result-
ing in a “miscarriage of justice.” Sentencing errors that can be
raised on direct appeal are generally not cognizable upon
collateral review. Cognizable sentencing errors include
sentencing decisions rendered unlawful by a clarification in the
law or sentencing decisions that exceed the statutory maxi-
mum. See Narvaez v. United States, 674 F.3d 621, 627 (7th Cir.

-- 4 of 7 --

No. 18-1149 5
2011) (granting relief under the pre-Booker mandatory guide-
lines); and see Welch v. United States, 604 F.3d 408, 412–13 (7th
Cir. 2010) (granting relief for errors in applying the statutory
enhancements under the Armed Criminal Career Act).
The Guidelines establish a career offender as a defendant
who is “at least eighteen years old at the time he committed the
offense of conviction; the offense of conviction must be a felony
that is either a crime of violence or a controlled substance
offense; and the defendant must have at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). A judge uses advisory
Guidelines to determine whether the sentencing range is
consistent with the appropriate considerations. 18 U.S.C.
§ 3553(a). Nonetheless, “the judge may not even presume that
a sentence within the applicable Guidelines range would be
proper. [The judge] must first determine whether … the
sentencing considerations [comply with] 18 U.S.C. § 3553(a),
and if … not [the judge] may not impose it even though it is
within the applicable guidelines range.” Hawkins v. United
States, 706 F.3d at 822.
A change in the law revoking the status under the now-
advisory Guidelines of “crime of violence” from a prior
conviction is not cognizable upon collateral review. Coleman,
763 F.3d at 708–09. Here, the government concedes that the
Kentucky third-degree burglary statute does not inherently
involve “purposeful, violent, and aggressive conduct” of a
“crime of violence” as part of the career offender designation.
But the district court did not rely solely, or even principally, on
the advisory Guidelines. Instead, it referenced multiple
considerations in imposing Hanson’s sentence, including the

-- 5 of 7 --

6 No. 18-1149
advisory Guidelines, the lengthy PSR, the argument of the
parties, and factors set forth in § 3553(a).
While this case directly involves, and is controlled by, our
precedent on § 2255, our recent decision in Chazen regarding a
§ 2241 motion is aptly distinguishable here. In Chazen, we
discussed the statutory enhancement of the Armed Career
Criminal Act, which mandated a minimum 15-year sentence
for a person with three or more prior convictions for a “violent
felony” or “serious drug offense.” Chazen v. Marske, 938 F.3d
851, 853 (7th Cir. 2019) (citing 18 U.S.C. § 924(e)(1)). Chazen
sought relief under § 2241, claiming the district court improp-
erly sentenced him to the enhanced minimum under the
statute due to his prior burglary convictions, which were not
“violent felonies.” We found that “Mathis can provide the basis
for [a] § 2241 petition … under the Armed Career Criminal
Act” because the sentence at issue mandated a minimum
sentence of incarceration. Chazen, 938 F.3d at 862.
While Mathis may provide a basis for awarding habeas
relief under 28 U.S.C. § 2241 from an Armed Career Criminal
Act sentence as in Chazen, the reasoning of Chazen does not
extend to providing habeas relief from an application of the
advisory Guidelines. Here, the district court sentenced Hanson
not with mandatory minimums, but with combined consider-
ations from the advisory Guidelines and the appropriate
factors. While the Armed Career Criminal Act requires a
mandatory minimum of 15 years, a judge must independently
determine the sentence based on 18 U.S.C. § 3553(a) factors and
whether the career offender enhancement applies. Therefore,
Chazen does not afford relief to Hanson.

-- 6 of 7 --

No. 18-1149 7
Hanson claims the district court committed an arguable
error in applying the advisory Guidelines that created a
miscarriage of justice. Hawkins and Coleman are controlling
here. As in Hawkins, the sentence imposed here was based on
advisory Guidelines, not mandatory Guidelines or statutory
minimums, as in Chazen and cases prior to Booker. An error that
may have occurred in calculating the Guidelines range does
not constitute a “miscarriage of justice” when the “sentence is
well below the ceiling imposed by Congress.” Coleman, 763
F.3d at 708 (citing Hawkins, 706 F.3d at 824–25).
The difference between the Guidelines range with the
burglary compared to the range without the burglary is moot,
because the court could have easily relied on the additional
drug offenses or other § 3553 factors. The possibility of a
different sentence in light of the error is not enough to distin-
guish this case from Hawkins or Coleman. There is no reason to
believe that the district court would be inclined to revise the
sentence based solely on the removal of the third-degree
Kentucky burglary charge, considering the additional drug
offenses. Therefore, Hanson did not suffer a “miscarriage of
justice” and his claim for collateral relief is denied.
CONCLUSION
We AFFIRM the district court’s denial of Hanson’s § 2255
motion in favor of respondent-appellee.

-- 7 of 7 --