United States v. Ahmad McAdory , 935 F.3d 838 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30112
Plaintiff-Appellee,
D.C. No.
v. 2:17-cr-00199-RSM-1
AHMAD JEROME MCADORY,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted May 14, 2019
Seattle, Washington
Filed August 28, 2019
Before: Michael Daly Hawkins, William A. Fletcher,
and Mark J. Bennett, Circuit Judges.
Opinion by Judge Hawkins
2 UNITED STATES V. MCADORY
SUMMARY *
Criminal Law
The panel reversed a criminal judgment in a case in
which the defendant was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1), and remanded with instructions that the district
court vacate the conviction and dismiss the indictment.
An offense qualifies as a predicate felony for conviction
under § 922(g)(1) if it is “punishable by imprisonment for a
term exceeding on year.” The panel concluded that it is
bound by United States v. Valencia-Mendoza, 912 F.3d 1215(9th Cir. 2019), which defines “punishable by” as the
sentence to which the defendant is actually exposed under
Washington’s mandatory sentencing scheme, and which
explicitly overruled United States v. Murillo, 422 F.3d 1152(9th Cir. 2005) (holding that “punishable by” is defined by
the state statute of violation).
The panel held that because none of the defendant’s prior
convictions had standard sentencing ranges exceeding one
year, and none was accompanied by written findings of any
of the statutory factors that would justify an upward
departure, the defendant had no predicate offenses within the
meaning of § 922(g)(1).
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MCADORY 3
COUNSEL
Ann Wagner (argued) and Gregory Geist, Assistant Federal
Public Defenders, Office of the Federal Public Defender,
Seattle, Washington, for Defendant-Appellant.
Michael Symington Morgan (argued), Assistant United
States Attorney; Helen J. Brunner, First Assistant United
States Attorney; Brian T. Moran, United States Attorney;
United States Attorney's Office, Seattle, Washington; for
Plaintiff-Appellee.
OPINION
HAWKINS, Senior Circuit Judge:
When is a felony not a felony for the purposes of
18 U.S.C. § 922? When Ahmad McAdory (“McAdory”)
was charged and later sentenced under § 922(g)(1), the
answer was straightforward. According to United States v.
Murillo, 422 F.3d 1152 (9th Cir. 2005), a felony was a crime
punishable by a term of imprisonment exceeding one year as
defined by the statute of violation. But intervening
authority, not available below to the district court or the
parties, United States v. Valencia-Mendoza, 912 F.3d 1215(9th Cir. 2019), now defines “punishable by” as the sentence
to which the defendant is actually exposed under
Washington’s mandatory sentencing scheme, explicitly
overruling Murillo. Because we are bound by Valencia-
Mendoza and none of McAdory’s prior convictions actually
exposed him to a term of imprisonment exceeding one year,
we reverse his felon in possession conviction under
18 U.S.C. § 922(g)(1).
4 UNITED STATES V. MCADORY
BACKGROUND
In April 2017, Seattle police responded to a report of a
traffic collision. Three occupants of the crashed car fled the
scene; only two were apprehended. McAdory was not one
of them, but the police found McAdory’s wallet and
identification in the back seat of the car, along with a 9mm
Smith & Wesson pistol. Ballistics testing linked this pistol
to a drive-by shooting that took place several weeks prior.
Warrants were already pending for McAdory’s arrest in
connection with several thefts from cell phone stores in
Washington and Oregon. Seattle Police Officers went to the
residence of McAdory’s girlfriend and arrested McAdory on
the theft warrants. McAdory told the officers he had a gun,
and the officers recovered a 9mm Smith & Wesson pistol
from his pocket. Later investigation revealed that the pistol
was stolen; McAdory said he bought it from an individual in
Tacoma. McAdory admitted that he had been the third,
unapprehended occupant of the car and that he had been
present at the drive-by shooting associated with the pistol
recovered from the car. But he denied owning that pistol and
claimed he had never fired a gun.
McAdory was charged as a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The
indictment alleged he had three prior convictions, each
punishable by a term of imprisonment exceeding one year,
for: (1) Taking a Motor Vehicle without Permission in the
Second Degree, (2) Residential Burglary, and (3) Felony
Harassment.
All of McAdory’s prior convictions were in Washington,
which has a mandatory system of sentencing guidelines. See
Wash. Rev. Code § 9.94A.505(2)(a). In addition to the
statutory maximum provided for each offense, Washington
UNITED STATES V. MCADORY 5
law prescribes a “standard sentence range” based on the
offender’s “offender score” and the “seriousness level” of
the offense. See id. §§ 9.94A.505(2)(a)(i), 9.94A.510. The
presence of certain aggravating or mitigating factors can
alter a defendant’s standard sentencing range. See id.
§ 9.94A.533. The sentencing court may depart from the
standard sentencing range only if, after consideration of
certain statutorily enumerated considerations, the court finds
“that there are substantial and compelling reasons justifying
an exceptional sentence.” See id. § 9.94A.535. Should a
sentencing court depart from the standard range, it must
explain its decision to do so in writing. See id. Under this
scheme, McAdory was sentenced in each of his prior cases
as follows.
For the Taking a Motor Vehicle without Permission
conviction, McAdory pled guilty and had a standard range
of actual confinement of 0–90 days. The statutory maximum
sentence was five years. The court did not make a finding
of substantial and compelling reasons to justify a sentence
above or below the standard range, and sentenced McAdory
to fifteen days of confinement.
For the Residential Burglary conviction, McAdory pled
guilty and had a standard sentencing range of 0–30 days of
detention. The statutory maximum sentence was ten years.
The court made no special findings, allegations, or
sentencing enhancements. McAdory was sentenced to
twenty-one days confinement, with credit for twenty-one
days of pre-disposition detention.
For the Felony Harassment conviction, McAdory
initially received a deferred disposition and had a standard
sentencing range of 0–30 days of detention. The statutory
maximum sentence was five years. The court imposed no
6 UNITED STATES V. MCADORY
confinement, and there is no indication the court made any
special findings or sentencing enhancements.
McAdory pled guilty to violating § 922(g)(1) and
admitted that each of these prior offenses was “punishable
by a term of imprisonment exceeding one year.” His guilty
plea also resolved some, but not all, of his state theft charges.
He was sentenced to twenty-four months in prison, with
credit for time served. 1
McAdory timely appealed his sentence but not his
conviction. However, we granted his request to file a
supplemental opening brief addressing the effect on his
conviction of our decision in United States v. Valencia-
Mendoza, 912 F.3d 1215 (9th Cir. 2019), which was decided
after McAdory submitted his first opening brief. 2, 3
DISCUSSION
McAdory argues that our recent decision in Valencia-
Mendoza dictates that none of his prior offenses were
predicate felonies for purposes of § 922(g)(1), because none
were for offenses “punishable by imprisonment for a term
1
At sentencing, the Government did not seek an enhancement for
the use of this (or any other) firearm in the furtherance of a felony,
conceding it did not know whether McAdory was the triggerman at any
of the crimes associated with the firearm in McAdory’s possession.
2
Because we reverse the judgment of conviction, we do not reach
McAdory’s arguments about the validity of his sentence, nor do we recite
the facts relevant to them.
3
The Government’s motion for leave to file a corrected answering
brief [Dkt. #48] is GRANTED.
UNITED STATES V. MCADORY 7
exceeding one year.” We agree and reverse the judgment of
conviction against him.
a. Standard of Review
“We generally review arguments not raised before the
district court for plain error.” United States v. Garcia-Lopez,
903 F.3d 887, 892 (9th Cir. 2018) (quoting United States v.
Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)).
“However, we are not limited to this standard of review
when we are presented with [1] a question that is purely one
of law and [2] where the opposing party will suffer no
prejudice as a result of the failure to raise the issue in the trial
court.” Id. (citation omitted). Here, whether McAdory’s
prior convictions qualify as predicate felonies under
§ 922(g)(1) is a purely legal question. The Government
suffers no prejudice because of McAdory’s failure to raise
the issue to the district court—at the time, under then-current
law, the answer would have been obvious and in the
Government’s favor. On appeal, the effect of intervening
law was the subject of supplemental briefing and the main
focus of oral argument so the Government has had a full
opportunity to present its views. Accordingly, we review the
legal question presented in this case de novo.
b. Legal Framework
An offense qualifies as a predicate felony for a
conviction under § 922(g)(1) if it is “punishable by
imprisonment for a term exceeding one year.” Id.
At the time McAdory pled guilty, whether a Washington
conviction qualified as a predicate felony for conviction
under § 922(g)(1) was governed by United States v. Murillo,
422 F.3d 1152 (9th Cir. 2005). In Murillo, we held that
8 UNITED STATES V. MCADORY
in determining whether a Washington state
criminal conviction is of a crime punishable
by a term exceeding one year for purposes of
prosecution under 18 U.S.C. § 922(g)(1)
(felon in possession of a firearm), the
maximum sentence for the prior conviction is
defined by the state criminal statute, not the
maximum sentence in the particular case set
by Washington’s sentencing guidelines.
Id. at 1153. Thus, each of McAdory’s prior offenses
qualified as a felony because the statutory maximum for
each offense exceeded one year in prison.
However, after McAdory submitted his opening brief in
this appeal, we explicitly overruled Murillo in Valencia-
Mendoza. 912 F.3d at 1222. There, the defendant pled
guilty to unlawfully reentering the United States after having
been removed, in violation of the Immigration and
Nationality Act. Id. at 1612; see 8 U.S.C. § 1326(a). The
district court applied a federal Sentencing Guidelines
enhancement for individuals previously convicted of
“felonies,” defined as offenses “punishable by imprisonment
for a term exceeding one year.” See Valencia-Mendoza,
912 F.3d at 1216 (citing U.S.S.G. § 2L1.2 & cmt. n.2). The
defendant argued his prior drug possession conviction
should not count as a felony, even though the associated
statutory maximum exceeded a year, because his sentence
under Washington’s mandatory sentencing guidelines could
not have exceeded six months. Id. at 1216.
Valencia-Mendoza discussed several of our cases,
including Murillo, that interpreted the phrase “punishable
UNITED STATES V. MCADORY 9
by” in a variety of statutory contexts. 4 Id. at 1218–20. After
reciting the holdings of these cases, we analyzed their
continuing vitality in light of two intervening Supreme Court
cases, Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010),
and Moncrieffe v. Holder, 569 U.S. 184 (2013). 5 See
Valencia-Mendoza, 912 F.3d at 1218–19. We explained:
We held in . . . Murillo [and other cases] that,
when considering whether a crime is
“punishable” by more than one year, we
would look solely to the statutory maximum
term of imprisonment that corresponds to the
elements of the crime charged; we declined
to consider sentencing factors. But in
Carachuri-Rosendo and Moncrieffe, the
Supreme Court held that, when considering
whether a crime is “punishable” by more than
one year, the court must examine both the
elements and the sentencing factors that
correspond to the crime of conviction.
Accordingly, we hold that our earlier
precedents are irreconcilable with
4
We also discussed United States v. Rios-Beltran, 361 F.3d 1204(9th Cir. 2004), which addressed whether a conviction under Oregon’s
sentencing scheme was “punishable by” more than a year of
imprisonment for the purposes of applying United States Sentencing
Guideline § 2L1.2, see id. at 1208, and United States v. Crawford, 520
F.3d 1072 (9th Cir. 2008), which applied Murillo in the context of United
States Sentencing Guideline § 4B1.2(b), see id. at 1079–80. See
Valencia-Mendoza, 912 F.3d at 1218–19.
5
This issue was extensively briefed. See Appellant’s Opening Brief
at 14–20 and Appellee’s Answering Brief at 5–12, United States v.
Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019) (No. 17-30158).
10 UNITED STATES V. MCADORY
Carachuri-Rosendo and Moncrieffe and must
be overruled.
Id. at 1222. These “earlier precedents,” of course, included
Murillo. Later in our opinion, we reiterated that “we can no
longer follow our earlier precedents that eschewed
consideration of mandatory sentencing factors.” Id. at 1224.
c. Whether McAdory Has Any Predicate Felonies
Under 18 U.S.C. § 922(g)(1).
McAdory claims our rejection in Valencia-Mendoza of
Murillo’s interpretation of § 922(g)(1) requires us to hold
that none of his convictions were predicates under
§ 922(g)(1). The Government urges us to “treat this part of
the Valencia-Mendoza argument as dicta, and not binding,”
and to apply Murillo. We conclude that we are bound to
apply Valencia-Mendoza’s reading of § 922(g)(1).
“[W]here a panel confronts an issue germane to the
eventual resolution of the case, and resolves it after reasoned
consideration in a published opinion, that ruling becomes the
law of the circuit, regardless of whether doing so is
necessary in some strict logical sense.” Catacean Cmty. v.
Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (citing United
States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en
banc) (Kozinski, J., concurring); see also Barapind v.
Enomoto, 400 F.3d 744, 750–51 (9th Cir. 2005) (en banc)
(per curiam) (“In [a prior case], the [issue] was . . . presented
for review. We addressed the issue and decided it in an
opinion joined in relevant part by a majority of the panel.
Consequently, our articulation of [the issue] became law of
the circuit, regardless of whether it was in some technical
sense ‘necessary’ to our disposition of the case.” (footnotes
omitted)). In other words, “[w]ell-reasoned dicta is the law
of the circuit,” Enying Li v. Holder, 738 F.3d 1160, 1164 n.2
UNITED STATES V. MCADORY 11
(9th Cir. 2013), but we are not bound by a prior panel’s
comments “made casually and without analysis, . . . uttered
in passing without due consideration of the alternatives, or
. . . [done as] a prelude to another legal issue that commands
the panel’s full attention,” United States v. Ingham, 486 F.3d
1068, 1078 n.8 (9th Cir. 2007) (citing Johnson, 256 F.3d
at 915 (Kozinski, J., concurring)).
Considering this distinction, we are bound by our
decision in Valencia-Mendoza to overturn Murillo as resting
on an interpretation of the phrase “punishable by” that is
incompatible with Supreme Court case law. Valencia-
Mendoza made a reasoned and deliberate decision that a
Washington conviction is only “punishable by” a year or
more of imprisonment for purposes of § 922(g)(1) if the
defendant’s conviction actually exposed the defendant to
that sentence under the state’s mandatory sentencing
scheme. Even if a conviction under § 922(g)(1) was not
before us in that case, our conclusion with respect to
§ 922(g)(1) is the very type of “well-reasoned dicta” by
which we are bound. Enying Li, 738 F.3d at 1164 n.2. Our
decision in Espinosa v. United Student Aid Funds, Inc.,
553 F.3d 1193 (9th Cir. 2008), which deemed a “stray
remark in one of our opinions” to be non-binding, is not to
the contrary, see id. at 1193 n.3.
Accordingly, we consider McAdory’s prior convictions
to have been “punishable by imprisonment for a term
exceeding one year,” such that they would serve as
predicates under § 922(g)(1), only if McAdory’s convictions
actually exposed him to sentences of that length. None of
McAdory’s prior convictions had standard sentencing
ranges exceeding one year, nor were any accompanied by
written findings of any of the statutory factors that would
justify an upward departure. Thus, the district court
12 UNITED STATES V. MCADORY
convicted McAdory under § 922(g)(1) even though he had
no predicate offenses within the meaning of the statute.
REVERSED AND REMANDED. THE DISTRICT
COURT IS INSTRUCTED TO VACATE THE
JUDGMENT OF CONVICTION AND TO DISMISS
THE INDICTMENT.