092992P.pdf   07/12/2011  Marlon Dale Sun Bear  v.  United States
   U.S. Court of Appeals Case No:  09-2992
   U.S. District Court for the District of South Dakota - Pierre   
   [PUBLISHED] [Loken, Author for the Court En Banc]
   Prisoner case - Habeas. Sun Bear's collateral attack on an application
   of the career offender guidelines provision is not cognizable under Section
   2255; miscarriage-of-justice exception does not apply because Sun Bear's
   sentence was lawful when imposed and could lawfully be reimposed under
   an advisory guidelines analysis even if the sentencing court were
   persuaded to determine a lower advisory guidelines range. Judge Melloy,
   dissenting, joined by Judges Murphy, Bye, Smith and Shepherd.
  
092992P.pdf   07/20/2010  Marlon Dale Sun Bear  v.  United States
   U.S. Court of Appeals Case No:  09-2992
   U.S. District Court for the District of South Dakota - Pierre   
   [PUBLISHED] [Melloy, Author, with Bye and Shepherd, Circuit Judges]
   Criminal case - Sentencing. Begay applies retroactively to cases on
   collateral review, and defendant was not a career offender in light of
   Begay; the district court erred, therefore in applying the career offender
   guideline to defendant; the court could not say the error was harmless
   since the court did not clearly indicate that the career offender guideline
   did not impact its sentencing determination; the matter is remanded for
   further proceedings.