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 2022-02

United States v. Nick West ( 2022 )


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  •                                                                             FILED
NOT FOR PUBLICATION
FEB 23 2022
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No.    20-35786
Plaintiff-Appellee,                D.C. Nos.    9:19-cv-00170-DLC
9:16-cr-00028-DLC-2
v.
NICK WEST,                                       MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted February 10, 2022**
Seattle, Washington
Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.
Nick West appeals the denial of a motion under
    28 U.S.C. § 2255
    . West
seeks relief from his conviction, arising out of a plea agreement, under the residual
clause of
    18 U.S.C. § 924
    (c)(3)(B), which the Supreme Court held
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
unconstitutionally vague in United States v. Davis,
    139 S. Ct. 2319
    , 2323–24
(2019). West did not raise the unconstitutionality of § 924(c)(3)(B) at trial or on
direct appeal. West argues that he can demonstrate cause and prejudice to
overcome the apparent procedural default of this claim. We have jurisdiction
under
    28 U.S.C. §§ 1291
     and 2255(d), and we affirm the district court. Because
the parties are familiar with the facts, we do not recite them here.
A petitioner may overcome procedural default by showing either: (1) cause
and actual prejudice or (2) actual innocence. See United States v. Frady,
    456 U.S. 152
    , 167–68 (1982) (cause and prejudice); Murray v. Carrier,
    477 U.S. 478
    , 497
(1986) (actual innocence).1
West argues that he has cause and prejudice for the procedural default
because his trial counsel was incompetent in failing to raise the potential
unconstitutionality of the residual clause § 924(c)(3)(B) upon which Count 9 of the
plea agreement was based. Further, he contends that the unconstitutionality of the
clause following the Supreme Court’s ruling in Davis represents an independent
1
West does not argue actual innocence and, since the district court
considered actual innocence below, the argument is waived. See United States v.
Seschillie,
    310 F.3d 1208
    , 1217 (2002) (“[A]rguments not raised in the opening
brief are deemed waived.”); cf. Bousley v. United States,
    523 U.S. 614
    , 623 (1998)
(remanding to the district court to consider actual innocence when the district court
had failed to evaluate actual innocence in the first instance).
2
reason for the plea agreement’s invalidity. West cannot demonstrate cause and
prejudice under either theory.
1.     West’s trial counsel was not deficient, nor did any alleged ineffective
assistance result in prejudice to West. See Strickland v. Washington,
    466 U.S. 668
    ,
687–94 (1984). We have held time and again that a lawyer cannot be expected to
anticipate changes in the law, nor to seek a lengthy continuance to determine their
resolution. See United States v. Juliano,
    12 F.4th 937
    , 940–41 (9th Cir. 2021);
Lowry v. Lewis,
    21 F.3d 344
    , 346 (9th Cir. 1994). At the time of West’s plea
agreement, the Supreme Court was still nearly two and a half years away from
issuing its final decision in Davis, and over a year from deciding Sessions v.
Dimaya,
    138 S. Ct. 1204
     (2018), upon which it would base its remand in Davis.
West demonstrates, at best, that his counsel failed to predict the future.
Nor was West prejudiced. Given the strength of the charges against
him—multiple eyewitnesses ready to testify (including West’s own co-
conspirators), a telephone line kept open to authorities throughout the course of
events, and the recovery of the weapon in his possession—West does not
demonstrate a reasonable probability that the government would have reduced the
length of sentence offered simply because he pointed out a potential constitutional
3
deficiency in the plea agreement, as it was written. See Strickland,
    466 U.S. at 694
    .
2.    Even if one assumes that West could show cause, he cannot otherwise
demonstrate prejudice. West committed a horrendous crime and faced iron-clad
evidence against him. Here, the plea agreement was not only the most lenient
option available to West, but it was also based on the dismissal of substantially
more serious charges, which themselves would have satisfied the predicate charge
requirements of Count 9.
West was charged with eleven counts. West’s guilty plea dismissed all but
three counts, as he pled guilty to Counts 1 (conspiracy to commit robbery affecting
commerce), 3 (carjacking), and 9 (brandishing a firearm during a crime of
violence). All told, the plea agreement reduced West’s term of imprisonment from
a possible mandatory minimum of fifty-two years to just fifteen. West provides no
rationale to suggest that the government would not have availed itself of any
number of alternative combinations of charges to reach the same result had he
disputed the constitutionality of Count 9 as pled.
The substantial benefit to West from the plea agreement, taken together with
the strength of the record against him, demonstrates that West was not prejudiced.
AFFIRMED.
4