United States v. Rickey Christian

FILED
NOT FOR PUBLICATION
SEP 16 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-35247
Plaintiff-Appellee, D.C. Nos. 2:14-cv-00039-EFS
2:02-cr-00056-EFS-1
v.
RICKEY D. CHRISTIAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted August 29, 2016
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and EZRA,** District Judge.
Ricky D. Christian appeals the district court’s denial of his successive 28 U.S.C.
§ 2255 motion, in which he challenged his Armed Career Criminal Act (“ACCA”)-
enhanced sentence as unconstitutional under Johnson v. United States, 135 S. Ct. 2551
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, Senior United States District Judge for the
District of Hawaii, sitting by designation.
(2015). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, United
States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and reverse.
The district court erred in denying relief. Christian sufficiently established and
the government appears to concede that, in sentencing Christian, the district court
relied at least in part on the unconstitutionally vague residual clause of the ACCA’s
“violent felony” definition, 18 U.S.C. § 924(e)(2)(B)(ii), which violates Johnson, 135
S. Ct. at 2563. Under the categorical/modified categorical approach as clarified by the
Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), Christian does
not have a sufficient number of “violent felony” predicates under the enumerated-
offense clause to sustain an ACCA sentence enhancement.1 Cf. In re Adams, 825 F.3d
1283, 2016 WL 3269704, at *3 (11th Cir. 2016) (applying Descamps retroactively to
evaluate a Johnson claim raised in a second or successive § 2255 motion).
Accordingly, we reverse the district court’s denial of Christian’s § 2255 motion
and vacate his sentence. Because Christian has already served longer than the
statutory maximum sentence for a non-ACCA-enhanced felon-in-possession
conviction, 18 U.S.C. § 924(a)(2), we direct that Christian be released immediately
1
The government does not contend that Christian’s past convictions are
“serious drug offense” predicates, 18 U.S.C. § 924(e)(2)(A), or “violent felony”
predicates under the elements clause, id. § 924(e)(2)(B)(i).
2
from custody. The Clerk of Court shall immediately notify the Director of the U.S.
Bureau of Prisons of this decision. The mandate shall issue forthwith.
REVERSED.2
2
We deny Christian’s July 6, 2016, motion for judicial notice as unnecessary.
See Reid v. Johnson & Johnson, 780 F.3d 952, 962 n.4 (9th Cir. 2015) (“Judicial
notice . . . is unnecessary for materials establishing the legal principles governing a
case.”).
3