En banc 8th Circuit holds career offender guideline error not cognizable under § 2255

The 8th circuit held today in  Bear v. US, No. 09-2992 (8th Cir. July 12, 2011) that “an error of law [with respect to misapplication of the Career Offender Guideline] does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’”  Id., quoting Hill v. United States, 368 U.S. 424, 428 (1962). The court went on to note that a guideline error resulting in a sentence below the statutory maximum does not rise to the level of such a miscarriage of justice.
The dissent in this case is worth noting "At sentencing and on direct appeal, Sun Bear correctly argued that he did not qualify as a career offender.  We rejected his arguments, but the Supreme Court subsequently vindicated his position in an opinion addressing the same question of law. See Begay v. United States, 553 U.S. 137 (2008).  That opinion has retroactive effect, is not clear the error below was harmless, and Sun Bear has diligently pressed his correct interpretation of the law at every available opportunity.  It is "inconsistent with the rudimentary demands of fair procedure," Hill v. United States, 368 U.S. 424, 428 (1962), and therefore amounts to a miscarriage of justice to deny Sun Bear the retroactive benefit of the Court's opinion. Accordingly, I dissent.  I would hold that Sun Bear's claim is cognizable pursuant to 28 U.S.C. § 2255(b) and that he is entitled to be resentenced.