United States v. Gary Walls ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-35265
Plaintiff-Appellant, D.C. No.
6:13-cr-00433-MC-1
v.
GARY LEE WALLS, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted December 10, 2019**
Seattle, Washington
Before: McKEOWN and CHRISTEN, Circuit Judges, and HARPOOL,*** District
Judge.
*
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).
***
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
The United States appeals the district court’s judgment granting Gary
Walls’s habeas corpus petition under 28 U.S.C. § 2255. The parties are familiar
with the facts, so we do not repeat them here.
We review de novo a district court’s order granting a habeas petition. See
United States v. Jones, 877 F.3d 884, 886 (9th Cir. 2017) (per curiam). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.
The Armed Career Criminal Act’s (“ACCA”) residual clause mandated a
sentence enhancement when a defendant who violates 18 U.S.C § 922(g) has three
previous convictions that quality as “violent felon[ies].” 18 U.S.C. § 924(e). The
Supreme Court struck down the ACCA’s residual clause as unconstitutionally
vague in Johnson v. United States, holding that “[i]ncreasing a defendant’s
sentence under the clause denies due process of law.” 135 S. Ct. 2551, 2557
(2015). Johnson’s new rule applies retroactively on collateral review. Welch v.
United States, 136 S. Ct. 1257, 1264–65 (2016).
To prevail on a claim that a district court violated due process by imposing a
“sentence founded at least in part upon misinformation of constitutional
magnitude,” United States v. Tucker, 404 U.S. 443, 447 (1972), a defendant “must
establish the challenged information is (1) false or unreliable, and (2) demonstrably
made the basis for the sentence.” United States v. Hill, 915 F.3d 669, 674 (9th Cir.
2019) (quoting United States v. Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir.
2
2009)).
The threatened application of an unconstitutional sentence enhancement is
misinformation of a constitutional magnitude. Walls agreed in plea negotiations to
a sentence three times his advisory guideline range to avoid prosecution under the
ACCA’s residual clause, which in Johnson was found invalid in all its
applications. 135 S. Ct. at 2557–58. In light of Johnson, it would have been
unconstitutional to sentence Walls under the residual clause. The unconstitutional
sentence enhancement leveraged by the United States during plea negotiations was
a false premise demonstrably relied upon by the sentencing court in violation of
due process.
The sentencing court’s pre-Johnson presumption that Walls was potentially
eligible for sentencing enhancement through the ACCA residual clause impacted
the court’s formulation of Walls’s sentence and constitutes objectively false
information. Walls’s prior Oregon Burglary II conviction would not have qualified
as a violent felony under the ACCA without reliance on the residual clause. See
United States v. Strickland, 860 F.3d 1224, 1227 (9th Cir. 2017) (holding prior
third-degree robbery conviction under Oregon law was not a violent felony under
ACCA’s force clause); United States v. Cisneros, 826 F.3d 1190, 1196 (9th Cir.
2016) (holding prior first-degree burglary convictions under Oregon law did not
qualify as violent felonies under the ACCA).
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Discussing the risk of an ACCA sentencing enhancement, the sentencing
court acknowledged Walls was agreeing to a ten-year sentence rather than run the
risk of a guilty verdict at trial and a subsequent 15-year minimum sentence under
the ACCA. Although the plea agreement was not binding on the district court, the
court indicated that “in all likelihood I am going to follow a ten-year term.” At
Walls’s sentencing hearing, the court cited the parties’ agreement, among other
reasons, as a basis for the sentence. The district court followed the parties’
recommendation of 120 months, three times Walls’s advisory guideline range of
37 to 46 months.
A pre-Johnson sentence demonstrably based on the threatened application of
the ACCA’s unconstitutional residual clause deprived Walls of his liberty in
violation of due process.
AFFIRMED.
4