Bland v. United States ( 2019 )

1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 3 AT TACOMA 4 BARRY SCOTT BLAND, CASE NO. CV19-5482 BHS 5 Petitioner, (17-cr-05385-BHS-1) v. 6 UNITED STATES OF AMERICA, ORDER GRANTING 7 PETITIONER’S UNOPPOSED Respondent. MOTION TO VACATE 8 CONVICTION AND SENTENCE 9 This matter comes before the Court on Petitioner Barry Scott Bland’s (“Bland”) 10 motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Dkt. 1. 11 On May 31, 2019, Bland filed a motion to vacate his 2018 conviction for Felon in 12 Possession of Ammunition in violation of 18 U.S.C. § 922(g)(1). Dkt. 1. Bland argued 13 that his § 922(g) conviction was unlawful because he did not have a qualifying predicate 14 felony offense under the reasoning of United States v. Valencia-Mendoza, 912 F.3d 1215 15 (9th Cir. 2019) (“Valencia-Mendoza”) because his mandatory state guideline range for 16 any predicate offense was a sentence of less than one year. Id. 17 While Bland’s motion was pending, the Ninth Circuit took up the issue in United 18 States v. McAdory, C.A. No. 18-30112 (“McAdory”). This Court stayed Bland’s motion 19 pending the outcome of McAdory. Dkt. 4. The Circuit issued the McAdory opinion on 20 August 28, 2019. United States v. McAdory, 935 F.3d 838 (9th Cir. 2019). In relevant 21 part, the panel concluded that it was bound by Valencia-Mendoza’s holding that an 22 1 offense is not punishable by more than one year if the defendant is not actually exposed 2 to a sentence exceeding one year under Washington’s mandatory sentencing scheme. Id. 3 Therefore, the panel vacated the defendant’s § 922(g) conviction for lack of a predicate 4 felony. Id. 5 On September 23, 2019, the Court held a status conference where the Government 6 argued that Bland’s motion should be further stayed while the Solicitor General decided 7 whether to pursue en banc review in McAdory. Dkt. 6. On November 19, 2019, the 8 Government filed a surreply stating that the Solicitor General had decided not to seek en 9 banc review. Dkt. 9. The Government also conceded in its surreply that “McAdory 10 controls the outcome of Bland’s timely § 2255 motion . . . .” Id. 11 Because Bland lacks a qualifying predicate offense under Valencia-Mendoza and 12 McAdory, his conviction for violation of § 922(g)(1) is unlawful. Therefore, his motion 13 for relief pursuant to 28 U.S.C. § 2255 is GRANTED, his judgment of conviction in 14 United States v. Bland, No. 17-cr-5385 BHS is VACATED, and the one-count 15 indictment in that case is DISMISSED. The Probation Office shall release Bland from 16 any supervision obligations forthwith. Regarding the instant matter, the Clerk shall enter 17 a judgment in Bland’s favor and close this case. 18 IT IS SO ORDERED. 19 Dated this 2nd day of December, 2019. A 20 21 BENJAMIN H. SETTLE 22 United States District Judge