Jerome Carlos, Jr. v. United States ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEROME STANLEY CARLOS, Jr., No. 19-16944
Petitioner-Appellant, D.C. Nos. 2:16-cv-04583-NVW
2:05-cr-00252-NVW-1
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted June 7, 2023**
San Francisco, California
Before: MILLER and KOH, Circuit Judges, and MOLLOY,*** District Judge.
Jerome Stanley Carlos appeals the district court’s denial of his federal
habeas petition. We granted a certificate of appealability on Carlos’s claim that his
*
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 Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
18 U.S.C. § 924(c) conviction must be vacated because his assault conviction
under 18 U.S.C. § 113(a)(6) did not qualify as predicate crime of violence. We
have jurisdiction under 28 U.S.C. §§ 1291, 2253(a), and 2255(d). We vacate the
conviction and sentence, and we remand.
1. Carlos filed a second 28 U.S.C. § 2255 motion, challenging his
conviction under 18 U.S.C. § 924(c) on the ground that 18 U.S.C. § 113(a)(6) is
not a crime of violence. He contends that the district court erred when it denied the
motion, finding the motion untimely and the claims procedurally barred. The
government concedes this error. See Jones v. United States, 36 F.4th 974, 986 (9th
Cir. 2022) (holding that “an assault resulting in serious bodily injury under
§ 113(a)(6) can be committed recklessly” and therefore “cannot qualify as a
predicate offense under § 924(c)(3)(A)”).
However, the government asserts that remand for resentencing is not
necessary in light of Carlos’s other conviction for which he received a concurrent
sentence of 216 months’ imprisonment. We disagree. It is our “customary practice”
to “remand for resentencing” when the “sentencing package becomes
‘unbundled.’” United States v. Hanson, 936 F.3d 876, 886–87 (9th Cir. 2019)
(citations omitted). Here, the district court appears to have sentenced Carlos by
“bundling” his multiple convictions. Thus, in our discretion, we vacate all of the
sentences imposed by the district court and remand for it to resentence Carlos on
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the remaining three counts. See United States v. Jenkins, 884 F.2d 433, 441 (9th
Cir. 1989) (remanding for resentencing on unchallenged count where district court
may have “regarded the sentences for the two counts as parts of a single
‘sentencing package’” (citation omitted)); see also United States v. Evans-
Martinez, 611 F.3d 635, 645 (9th Cir. 2010).
2. Carlos raises two uncertified issues in his opening brief, arguing that
18 U.S.C. § 113(a)(3) is not a crime of violence. Specifically, Carlos challenges
our decision in United Sates v. Gobert, which held to the contrary. 943 F.3d 878,
882 (9th Cir. 2019). He argues that Gobert conflicts with United States v. Flores-
Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013), and the Supreme Court’s decision
in Johnson v. United States, 559 U.S. 133 (2010).
Where a petitioner briefs uncertified issues, we construe that action as a
motion to expand the certificate of appealability. See 9th Cir. R. 22–1(e). We will
only expand a certificate of appealability where “the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Carlos’s arguments lack merit. Carlos has failed to demonstrate that
“reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Miller–El v. Cockrell, 537 U.S. 322, 338 (2003)
(citation omitted). Accordingly, we decline to expand the certificate.
VACATED and REMANDED.
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