Summary
allowing a Johnson claim where, "in sentencing [the petitioner], the district court relied at least in part on the unconstitutionally vague residual clause of the ACCA's 'violent felony' definition"
Summary of this case from Kane v. United StatesOpinion
No. 16-35247
09-16-2016
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICKEY D. CHRISTIAN, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. Nos. 2:14-cv-00039-EFS 2:02-cr-00056-EFS-1 MEMORANDUM Appeal from the United States District Court for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding Argued and Submitted August 29, 2016 Seattle, Washington Before: HAWKINS and McKEOWN, Circuit Judges, and EZRA, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable David A. Ezra, Senior United States District Judge for the District of Hawaii, sitting by designation.
Ricky D. Christian appeals the district court's denial of his successive 28 U.S.C. § 2255 motion, in which he challenged his Armed Career Criminal Act ("ACCA")-enhanced sentence as unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and reverse.
The district court erred in denying relief. Christian sufficiently established and the government appears to concede that, in sentencing Christian, the district court relied at least in part on the unconstitutionally vague residual clause of the ACCA's "violent felony" definition, 18 U.S.C. § 924(e)(2)(B)(ii), which violates Johnson, 135 S. Ct. at 2563. Under the categorical/modified categorical approach as clarified by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), Christian does not have a sufficient number of "violent felony" predicates under the enumerated-offense clause to sustain an ACCA sentence enhancement. Cf. In re Adams, 825 F.3d 1283, 2016 WL 3269704, at *3 (11th Cir. 2016) (applying Descamps retroactively to evaluate a Johnson claim raised in a second or successive § 2255 motion).
The government does not contend that Christian's past convictions are "serious drug offense" predicates, 18 U.S.C. § 924(e)(2)(A), or "violent felony" predicates under the elements clause, id. § 924(e)(2)(B)(i).
Accordingly, we reverse the district court's denial of Christian's § 2255 motion and vacate his sentence. Because Christian has already served longer than the statutory maximum sentence for a non-ACCA-enhanced felon-in-possession conviction, 18 U.S.C. § 924(a)(2), we direct that Christian be released immediately from custody. The Clerk of Court shall immediately notify the Director of the U.S. Bureau of Prisons of this decision. The mandate shall issue forthwith.
We deny Christian's July 6, 2016, motion for judicial notice as unnecessary. See Reid v. Johnson & Johnson, 780 F.3d 952, 962 n.4 (9th Cir. 2015) ("Judicial notice . . . is unnecessary for materials establishing the legal principles governing a case."). --------