USA V. JEFFREY DONNELLY, No. 17-15837 (9th Cir. 2018)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION JAN 31 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 17-15837 D.C. Nos. 2:16-cv-01251-JCM 2:04-cr-00148-JCMLRL-1 JEFFREY MICHAEL DONNELLY, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted January 9, 2018 San Francisco, California Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges. 1. Jeffrey Donnelly’s motion under 28 U.S.C. § 2255 is timely. He filed the motion contesting his Armed Career Criminal Act (ACCA) sentencing enhancement within one year of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), as required by 28 U.S.C. § 2255(f)(3). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 3 Donnelly’s motion relies on Johnson, which invalidated the ACCA’s residual clause, because it challenges a sentence that may have been based on the legal theory that Johnson rejected. United States v. Geozos, 870 F.3d 890, 894–95 (9th Cir. 2017). The sentence may have been based on an invalid legal theory because “it is unclear from the record whether the sentencing court relied on the residual clause.” Id. at 895. The Presentence Report and sentencing minutes—the only relevant documents available—do not specify which clause was the basis for Donnelly’s sentence. Nor does the district court’s later characterization of the 2005 sentence or the legal background in 2005 clarify the basis. See id. at 897. 2. Donnelly’s motion must be granted. Two of Donnelly’s three predicate convictions are for robbery and armed robbery in violation of Fla. Stat. § 812.13. But under Geozos, which was decided after the district court ruled, convictions under § 812.13 do not qualify as convictions for a violent felony. See id. at 897, 899 n.8, 901. Thus, Donnelly lacks the three violent felony convictions needed for an ACCA enhancement. See 18 U.S.C. § 924(e)(1); Geozos, 870 F.3d at 893. We reverse the district court’s order denying Donnelly’s § 2255 motion and remand with instructions to vacate Donnelly’s sentence. See Geozos, 870 F.3d at 901. Because Donnelly has already served more than the maximum ten year term authorized for a § 922(g)(1) conviction absent an ACCA enhancement, the district Page 3 of 3 court shall direct that Donnelly be released from custody immediately. See 18 U.S.C. §§ 922(g)(1), 924(a)(2); Geozos, 870 F.3d at 901. On remand, the district court may exercise its discretion in imposing a lawful term of supervised release. See 18 U.S.C. § 3583. The mandate shall issue forthwith. REVERSED and REMANDED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
