ORDER DENYING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY
DONALD W. MOLLOY, District Judge.
On August 5, 2013, Defendant Raymond Bell filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Bell is a federal prisoner proceeding pro se.
I. Background and Bell's Claim
At his sentencing in 2010, Bell was designated a career offender under U.S.S.G. § 4B1.1 based in part on a first-degree burglary conviction under California Penal Code § 459. See Presentence Report ¶¶ 18, 24. The designation added 8 levels to his total offense level, id. ¶¶ 15, 21, effectively raising his guideline range from 92-115 months to 188-235 months. Bell was sentenced below the advisory guidelines range to a term of 150 months in prison, to be followed by a 5-year term of supervised release. Judgment (Doc. 85) at 2-3. He appealed his career-offender designation on direct review. The issue was resolved against him, and his sentence was affirmed. See Mem. at 2, United States v. Bell, No. 10-30156 (9th Cir. Nov. 29, 2011) (citing United States v. Park, 649 F.3d 1175, 1179 (9th Cir. 2011)) (Doc. 105). On April 2, 2012, the United States Supreme Court denied Bell's petition for writ of certiorari. Bell v. United States, ___ U.S. ___, 132 S.Ct. 1875 (2012); Letter (Doc. 108).
In a collateral challenge to his sentence under 28 U.S.C. § 2255, Bell now argues that the Supreme Court's decision in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013), "overrules precedent" and he "is no longer guilty of the career offenders act." Mot. § 2255 (Doc. 109) at 4. Issued on June 20, 2013, Descamps held that a conviction under California Penal Code § 459 categorically is not "burglary" within the meaning of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii). Descamps, 133 S.Ct. at 2293.
At first glance, Descamps may seem inapposite to Bell's case. Bell's case presented a guideline issue, not an issue under 18 U.S.C. § 924(e)(2)(B)(ii) or the ACCA generally. He was not in any way declared "guilty" of "the career offenders act."
But, under circuit precedent, the categorical method governs application of sentencing guidelines as well as statutes. United States v. Crews, 621 F.3d 849, 851 (9th Cir. 2010); United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir. 2003). Just as the ACCA requires a sentencing court to decide whether a prior conviction was a "violent felony, " several guidelines require sentencing courts to decide whether a prior conviction was a "crime of violence." See, e.g., U.S.S.G. §§ 2K1.3(a)(3), 2K2.1(a), 2L1.2(b)(1)(A)(ii), 2S1.1(b)(1)(B)(ii), 4B1.2(a)(2). Accordingly, since Descamps was issued, the Ninth Circuit has extended its reasoning to cases, like Bell's, decided under the Sentencing Guidelines, see United States v. Acosta-Chavez, 727 F.3d 903, 906-09 (9th Cir. 2013) (U.S.S.G. § 2L1.2), and specifically to cases, like Bell's, decided under the career offender guideline, see United States v. Spencer, 724 F.3d 1133, 1137 (9th Cir. 2013) (U.S.S.G. § 4B1.2(a)(2)).
Thus, because Descamps corrected the Ninth Circuit's application of the categorical method, it applies to guidelines cases as well as cases decided under the ACCA or another federal statute. See Descamps, 133 S.Ct. at 2282-83 & n.1, 2286-91 (abrogating United States v. Aguila-Montes de Oca, 655 F.3d 915, 917-40 (9th Cir. 2011) (en banc) (applying § 2L1.2), and United States v. Armstead, 467 F.3d 943, 947-48 (6th Cir. 2006) (applying § 4B1.2(a)(2))).
II. Is Bell's Sentence Subject to Collateral Attack?
A. 28 U.S.C. § 2255(a)
A defendant may move to "vacate, set aside, or correct" a federal sentence under 28 U.S.C. § 2255(a) where he claims his sentence "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Bell asks the Court to "correct" his federal sentence to give the appropriate effect to his criminal history.
It would seem that if any component of a federal sentence could be finally final, it would be criminal history and its meaning. But in 2005, the Supreme Court described its prior cases as acknowledging that a defendant sentenced in federal court as a career offender or armed career criminal could be re-sentenced under § 2255 if, after his federal sentencing, one or more of the predicate prior convictions supporting the federal sentencing enhancement was vacated. Johnson v. United States, 544 U.S. 295, 303-04 (2005) (discussing Daniels v. United States, 532 U.S. 374, 381 (2001), and Custis v. United States, 511 U.S. 485, 497 (1994)). Before Johnson, the Ninth Circuit, along with at least the First, Second, Fourth, Fifth, and Tenth Circuits, had already recognized that "a defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction." United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999); Farrow v. United States, 580 F.2d 1339, 1345 (9th Cir. 1978) (en banc). In these cases, a federal sentence, though perfectly correct when imposed, became open to collateral challenge when a conviction used to support an enhancement of the federal sentence was vacated, even though the vacatur occurred after the federal sentence was "final."
Bell's case is not identical. He does not claim that a prior state conviction giving rise to his federal sentencing enhancement was later vacated; he claims the prior conviction never should have been counted in the first place. But that arguably makes his claim to equitable relief stronger. If Bell is right about the application of Descamps, then - unlike Johnson, Custis, Daniels, and LaValle - Bell is serving a federal sentence that was incorrect when it was imposed. If a sentence that was correct when it was imposed can later be refashioned to maintain its correctness, it would be strange to conclude that an incorrect sentence can never be made correct.
Nor is a showing of constitutional error by the sentencing court a necessary element of a § 2255 motion. Although there is ample authority holding that "nonconstitutional sentencing errors" cannot be challenged under § 2255, that is because these errors are waived "if such errors were not challenged in an earlier proceeding, " that is, on direct review. E.g., United States v. Gianelli, 542 F.3d 1178, 1184 (9th Cir. 2008); United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996); United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995). Bell did not waive his claim that his conviction under California Penal Code § 459 did not constitute a "crime of violence." The fact that the Court of Appeals has already decided Bell's claim may indeed pose an obstacle, but at this point the question is simply whether the claim is properly brought in a motion under § 2255. It is, because Bell claims his sentence was imposed in violation of the Sentencing Guidelines, which are laws of the United States.
This case involves no issue concerning the "retroactive" application of Descamps. The Supreme Court has "laid out the framework to be used in determining whether a rule announced in one of our opinions should be applied retroactively to judgments in criminal cases that are already final on direct review":
Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.
Whorton v. Bockting, 549 U.S. 406, 416 (2007) (internal quotation marks and brackets omitted) (describing Teague v. Lane, 489 U.S. 288 (1989)).
The first step in the Teague analysis is to determine whether the rule announced is new or old. A new rule "breaks new ground, " "imposes a new obligation on the States or the Federal Government, " or is otherwise not "dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301 (emphasis in original). The Descamps Court clearly communicated its belief that its ruling in the case was "dictated" by existing precedent. E.g., Descamps, 133 S.Ct. at 2283 ("Our caselaw explaining the categorical approach and its modified' counterpart all but resolves this case."); id. at 2285 (describing the Court's prior applications of the modified categorical approach as "the only way we have ever allowed" that approach to be applied); id. at 2286 ("We know Descamps' crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over."); id. at 2286 (describing Ninth Circuit's analysis as "[d]ismissing everything we have said on the subject"); id. at 2288 (describing Ninth Circuit's analysis as "flout[ing] our reasoning"). The most recent of the cases relied on by the Descamps Court - Johnson v. United States, 559 U.S. 133 (2010) - was decided well before November 29, 2011, the date the Ninth Circuit affirmed Bell's sentence.
It is impossible to avoid the conclusion that the rule of Descamps was dictated by precedent already existing when Bell's conviction became final. Because it reiterated an old rule, Descamps need not meet the special tests of Teague and need not be declared by the Supreme Court to be retroactive in order to apply to cases on collateral review. ...