USA V. THOMAS MORRISON, No. 16-56841 (9th Cir. 2019)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FEB 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 16-56841 D.C. Nos. 3:16-cv-01517-DMS 3:95-cr-00708-DMS v. THOMAS JEFFREY MORRISON, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Argued and Submitted November 6, 2018 Pasadena, California Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH,** District Judge. Thomas Jeffrey Morrison appeals the district court’s denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s denial * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. of a § 2255 motion. See United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014). We vacate and remand. In his § 2255 motion, Morrison argued that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), his prior California convictions for robbery under California Penal Code § 211 no longer qualified as “serious violent felonies” for purposes of 18 U.S.C. § 3559(c), the federal three-strikes law. The district court found Johnson distinguishable and that the residual clause contained in the § 3559(c)(2)(F)(ii) definition of serious violent felony was not unconstitutionally vague. During the pendency of this appeal, the Supreme Court issued its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Supreme Court, applying Johnson, struck down the residual clause in 18 U.S.C. § 16(b) as unconstitutionally vague. See Dimaya, 138 S.Ct. at 1223. The residual clause in § 16(b) seems materially indistinguishable from the residual clause contained in § 3559(c)(2)(F). Because the district court did not have the benefit of Dimaya at the time it denied Morrison’s motion, we vacate and remand for the district court to reconsider its ruling in light of that decision.1 1 In addition, the Supreme Court has granted certiorari in United States v. Davis, 903 F.3d 483 (5th Cir. 2018), cert. granted --- S. Ct. --- , 2019 WL 98544 (Jan. 4, 2019), a case addressing whether the “crime of violence” residual clause contained in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. 2 16-56841 Before the district court, and again on appeal, the government argued that Morrison’s § 2255 motion should be denied even if the residual clause in § 3559(c)(2)(F)(ii) is unconstitutional. The district court did not address these arguments, and we decline to do so in the first instance. Our remand is without prejudice to the government renewing those arguments before the district court. VACATED and REMANDED. 3 16-56841
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