Spencer: 2255 relief for career offender based on Begay retroactivity

In Spencer v. U.S., No. 10-10676 (Aug. 15, 2013), the Court held that a defendant who unsuccessfully challenged his “career offender” status at both his sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court (Begay v. U.S.) validates his argument and applies retroactively. The Court found that even though the Guidelines (including the career offender designation) are now advisory, they remain “the heart of the substantive law of a criminal procedural rule.” Consequently, an erroneous application of the career offender Guideline can “amount to a fundamental defect that inherently creates a complete miscarriage of justice,” and therefore can be the basis for § 2255 relief. Noting that the career offender Guideline follows from Congress express direction, the Court noted that its punishment is severe and it is not a “vanilla-flavored application” of Sentencing Commission policy. One of Spencer’s prior convictions was for sexual intercourse inflicting “physical or mental injury to a child,” in violation of Fla. Stat. § 827.03(1). The Court found that mental injury was not physical injury. Moreover, the statute was a strict liability statute, because consent of a minor victim to sexual intercourse was not a defense, and the defendant did not need to know his victim was a minor. The more recent Sykes decision did not apply because the offense was a strict liability crime. Consequently, under Begay, the inquiry was whether the Florida sex offense involved purposeful, violent and aggressive conduct similar in kind to burglary, arson, extortion, and use of explosives. The Court that held that it did not. The Court held that it was not bound by its prior holding against Spencer on this issue, because it was decided before Begay.