Opinion
No. 17-15837
01-31-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEFFREY MICHAEL DONNELLY, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. Nos. 2:16-cv-01251-JCM 2:04-cr-00148-JCM-LRL-1 MEMORANDUM 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.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. --------
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). 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 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.