USA V. RICKEY CHRISTIAN, No. 16-35247 (9th Cir. 2016)
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FILED NOT FOR PUBLICATION SEP 16 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 16-35247 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 enumeratedoffense 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
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