United States v. Jeremy Schlenker ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30141
Plaintiff-Appellee,
D.C. Nos.
v. 3:15-cr-05197-
BHS-1
JEREMY SCHLENKER, 3:15-cr-05197-
Defendant-Appellant. BHS
JEREMY SCHLENKER, No. 20-35612
Plaintiff-Appellant,
D.C. No.
v. 3:20-cv-05122-
BHS
UNITED STATES OF AMERICA;
UNITED STATES ATTORNEY’S
OFFICE, Western District of OPINION
Washington,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted October 5, 2021
Seattle, Washington
2 UNITED STATES V. SCHLENKER
Filed February 1, 2022
Before: Richard A. Paez, Milan D. Smith, Jr., and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Paez
SUMMARY *
Criminal Law/Declaratory Judgments
The panel affirmed the district court’s orders (1) granting
the government’s motion to dismiss Jeremy Schlenker’s
civil action seeking a declaration that filing a 28 U.S.C.
§ 2255 motion would not breach the plea agreement he
entered in his criminal case in 2016, and (2) denying
Schlenker’s motion to clarify the terms of the plea
agreement.
Schlenker pled guilty to second-degree murder in
violation of 18 U.S.C. §§ 1111 and 1153(a), and possession
of a firearm in furtherance of a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A). As part of the plea agreement,
he waived his right to collaterally attack his conviction and
sentence, except for ineffective assistance of counsel claims.
Three years after his sentencing, the Supreme Court held
that the residual clause of § 924(c)(3), the provision defining
a “crime of violence,” was unconstitutionally vague. This
court thereafter held that second-degree murder is not a
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SCHLENKER 3
“crime of violence” under the elements clause of
§ 924(c)(3). As a result of these developments, Schlenker
sought to challenge the validity of his § 924(c) sentence in a
habeas proceeding, and his counsel so informed the
government. The prosecutors responded that the
government would oppose such relief and consider the filing
of such an action to be a breach of the plea agreement.
Schlenker then filed the declaratory relief action and the
motion to clarify. In both cases, the district court concluded
that it lacked jurisdiction because there was no “case or
controversy” as required under Article III.
Citing Calderon v. Ashmus, 523 U.S. 740 (1998), and
United States v. Gutierrez, 116 F.3d 412 (9th Cir. 1997), the
panel affirmed because Schlenker’s declaratory action and
motion to clarify improperly seek to carve out a collateral
legal issue—the validity and scope of the collateral attack
waiver—from a potential § 2255 motion, and to use the
Declaratory Judgment Act as a substitute to challenge his
sentence.
4 UNITED STATES V. SCHLENKER
COUNSEL
Alan Zarky (argued), Staff Attorney; Colin A. Fieman,
Assistant Federal Public Defender; Federal Public Defender,
Tacoma, Washington; for Appellant.
Michael S. Morgan (argued), Assistant United States
Attorney; Tessa M. Gorman, Acting United States Attorney;
United States Attorney’s Office, Seattle, Washington; for
Appellee.
OPINION
PAEZ, Circuit Judge:
In April 2016, having entered into a plea agreement with
the government, Jeremy Schlenker pled guilty to second-
degree murder in violation of 18 U.S.C. §§ 1111 and
1153(a), and possession of a firearm in furtherance of a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).
As part of the plea agreement, Schlenker waived his right to
collaterally attack his conviction and sentence, except for
ineffective assistance of counsel claims. The agreement
further provided that if Schlenker were to breach the
agreement by collaterally attacking his conviction or
sentence, the government could prosecute him for any
counts dismissed or not charged. The district court imposed
a sixteen-year sentence for the second-degree murder
conviction and a mandatory consecutive sentence of ten
years for the § 924(c) conviction.
Three years after his sentencing, the Supreme Court held
that the residual clause of § 924(c)(3), the provision defining
a “crime of violence,” was unconstitutionally vague. United
UNITED STATES V. SCHLENKER 5
States v. Davis, 139 S. Ct. 2319 (2019). After Davis, our
court held that second-degree murder is not a “crime of
violence” under the elements clause of § 924(c)(3). United
States v. Begay, 934 F.3d 1033, 1041 (9th Cir. 2019). 1 As a
result of these developments, Schlenker sought to challenge
the validity of his § 924(c) sentence in a habeas proceeding,
and his counsel so informed the government. The
prosecutors responded that the government would oppose
such relief and consider the filing of such an action to be a
breach of the plea agreement. Schlenker then filed a motion
to clarify the terms of his plea agreement (“Motion to
Clarify”) in his criminal case. He also filed a civil action
seeking a declaration that filing a motion under 28 U.S.C.
§ 2255 would not breach the plea agreement. In both cases,
the district court concluded that it lacked jurisdiction
because there was no “case or controversy” as required
under Article III. See U.S. Const. Art. III, § 2, cl. 1.
We affirm because Schlenker’s declaratory action and
Motion to Clarify improperly seek to carve out a collateral
legal issue from a potential habeas petition and to use the
Declaratory Judgment Act, 28 U.S.C. § 2201, as a substitute
to challenge his sentence. See Calderon v. Ashmus, 523 U.S.
740, 749 (1998); United States v. Gutierrez, 116 F.3d 412,
415–16 (9th Cir. 1997).
I. Factual and Procedural Background
According to the factual statement in the plea agreement,
Schlenker became highly intoxicated one evening in March
2015 while at the Emerald Queen Casino, which is located
1
A majority of the court’s active judges voted to rehear Begay en
banc and vacated the panel’s opinion. United States v. Begay, 15 F.4th
1254 (9th Cir. 2021) (order).
6 UNITED STATES V. SCHLENKER
on tribal trust lands of the Puyallup Tribe. 2 As he was
driving through the parking lot, he encountered another
vehicle, in which B.W. was sitting. Following an exchange
of words with B.W., Schlenker fired two close-range shots
at him—killing him instantly. Schlenker was indicted and
charged with second-degree murder (Count 1) and
discharging a firearm in furtherance of a crime of violence
(Count 2).
A. The Plea Agreement and Sentencing
In April 2016, Schlenker and the government entered
into a plea agreement where Schlenker agreed to plead guilty
to Counts 1 and 2. The government agreed not to prosecute
Schlenker “for any additional offenses known to it” at the
time of the plea agreement. In addition to admitting to the
factual basis for Counts 1 and 2, Schlenker admitted that he
assaulted another person by brandishing and pointing the
same pistol at that person’s head; that he pointed the pistol
at his girlfriend’s head and hit her on the head with it; and
that he brandished and pointed the pistol at yet another
person.
Schlenker also agreed to waive his right to appeal or
collaterally attack his sentence or conviction. The
agreement further provided that if Schlenker were to breach
the plea agreement “by appealing or collaterally attacking
(except as to effectiveness of legal representation) the
conviction or sentence in any way,” the government could
prosecute Schlenker “for any counts, including those with
2
The tribal trust lands are within Indian country for purposes of
18 U.S.C. § 1153(a).
UNITED STATES V. SCHLENKER 7
mandatory minimum sentences, that were dismissed or not
charged pursuant to [the] Plea Agreement.”
The district court accepted Schlenker’s guilty plea in
April 2016 and sentenced him in July 2016 to a sixteen-year
sentence for the second-degree murder conviction and a
mandatory ten-year consecutive sentence for the § 924(c)
conviction, totaling twenty-six years. Neither the plea
agreement, plea colloquy, nor the district court specified
whether the second-degree murder conviction qualified as a
“crime of violence” under the “elements clause” or the
“residual clause” of 18 U.S.C. § 924(c)(3)(A)–(B).
B. Post-Conviction Events and Litigation
In 2019, the Supreme Court held that the residual clause
in § 924(c)(3) was unconstitutionally vague, Davis, 139 S.
Ct. at 2336, and our court held that second-degree murder is
not categorically a crime of violence under the elements
clause, Begay, 934 F.3d at 1041. Not surprisingly, Schlenker
asserts that his § 924(c) conviction and sentence are
unconstitutional as a result of these cases. Thus, he argues
that he should be resentenced without the mandatory
consecutive § 924(c) sentence. In December 2019,
Schlenker’s counsel contacted the prosecutors who
prosecuted Schlenker to determine whether the government
would view the filing of a § 2255 motion as a breach of the
plea agreement. Schlenker’s counsel noted that the
government had “not contended, in any of the Johnson
motions brought in other cases, that pursuing a § 2255 action
would constitute a breach of the plea agreement.” 3 The
3
Johnson v. United States held that the residual clause of the Armed
Career Criminal Act (ACCA), which contained language nearly identical
to § 924(c)(3)’s residual clause, was unconstitutional. 576 U.S. 591, 606
8 UNITED STATES V. SCHLENKER
prosecution responded in January 2020 that the government
would oppose any § 2255 motion brought by Schlenker “as
untimely (in addition to other arguments), and [would]
consider such an action to be a breach of the parties’ plea
agreement.” The present litigation followed.
Schlenker filed a civil action seeking a declaratory
judgment that filing a § 2255 motion attacking his § 924(c)
conviction and sentence would not breach the plea
agreement. He alleged that the collateral attack waiver was
invalid because: (1) the waiver was subject to a proviso that
the court sentence him within or below the mandatory
minimum, but the court failed to do so because his entire
sentence was illegal under Davis; (2) during the plea
colloquy, the court did not inform Schlenker of his collateral
attack waiver—only his appeal waiver; (3) his sentence is
illegal under Davis; (4) he is innocent of the § 924(c) charge
after Davis; and (5) the plea agreement did not contain a
“covenant” not to bring a collateral attack. In his criminal
case, Schlenker also filed a Motion to Clarify the terms of
the plea agreement, raising the same arguments as in the
declaratory action.
The government opposed Schlenker’s Motion to Clarify,
arguing that the district court lacked jurisdiction and any
resolution of a § 2255 motion should be stayed pending en
banc proceedings in Begay. Schlenker filed a reply to the
government’s opposition, and a motion for summary
judgment in the civil declaratory action. In the declaratory
action, the government moved to dismiss the action on
multiple grounds: sovereign immunity barred the
declaratory-judgment action, subject matter jurisdiction did
(2015). Davis followed from Johnson. See Davis, 139 S. Ct. at 2325–
26.
UNITED STATES V. SCHLENKER 9
not exist because there was no justiciable case or controversy
under Article III, and a declaratory action could not be used
as a substitute for a § 2255 motion to challenge the validity
of his § 924(c) sentence.
The district court granted the government’s motion to
dismiss the civil action and denied Schlenker’s Motion to
Clarify. The district court agreed with the government that
it “lack[ed] subject matter jurisdiction because there [was]
no case or controversy.” The court found there was no “clear
threat” of adverse action against Schlenker because the
“Government did not threaten any action, and in particular
did not state that it would proceed to file additional charges.”
The court further held that any harm remained “wholly
speculative” because Schlenker had not identified what
additional charges, if any, could be brought, and “the
outcome of Schenker’s as-yet unfiled § 2255 petition is
unknown, as is any response by the Government if Schlenker
were to prevail.” Schlenker timely appeals both rulings.
II. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal for “absence of a justiciable case
or controversy,” Name.Space, Inc. v. Internet Corp. for
Assigned Names & Nos., 795 F.3d 1124, 1129 (9th Cir.
2015) (internal citation omitted), 4 and whether a district
court has jurisdiction in a criminal action, United States v.
Cabaccang, 481 F.3d 1176, 1182 (9th Cir. 2007).
4
The district court did not invoke its discretionary authority in
dismissing Schlenker’s declaratory action, so the abuse of discretion
standard does not apply. See Rhoades v. Avon Prods., Inc., 504 F.3d
1151, 1156–57 (9th Cir. 2007).
10 UNITED STATES V. SCHLENKER
III. Discussion
We are not asked to decide the merits of a § 2255 motion,
nor whether Schlenker would, in fact, breach the plea
agreement by filing a § 2255 motion. Rather, the
fundamental issue we must decide is whether the facts
alleged in his declaratory action and Motion to Clarify
present a justiciable case or controversy under Article III.
Also at issue is whether the district court could properly
exercise jurisdiction to rule on Schlenker’s post-judgment
Motion to Clarify in the criminal case, and whether the
government has waived sovereign immunity for the
declaratory action. Because we hold that the declaratory
action and the Motion to Clarify do not present a justiciable
case or controversy under Supreme Court and Ninth Circuit
precedent, we do not address the government’s additional
arguments for why the court lacked jurisdiction over
Schlenker’s post-judgment motion in his criminal case or
whether the government waived sovereign immunity for
Schlenker’s declaratory action.
Under the Declaratory Judgment Act, a federal court
“may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not
further relief is or could be sought,” but only “[i]n a case of
actual controversy.” 28 U.S.C. § 2201(a). The “actual
controversy” requirement is the same as the “case or
controversy” requirement in Article III of the Constitution.
Societe de Conditionnement en Aluminium v. Hunter Eng’g
Co., 655 F.2d 938, 942 (9th Cir. 1981) (citing Aetna Life Ins.
Co. v. Haworth, 300 U.S. 227, 239–40 (1937)).
The “case or controversy” dispute here is two-fold. The
first inquiry is whether Schlenker has demonstrated a “real
and reasonable apprehension that he will be subject to
liability,” as is necessary to show that a declaratory action is
UNITED STATES V. SCHLENKER 11
justiciable. Rhoades, 504 F.3d at 1157 (quoting Hal Roach
Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555–
56 (9th Cir. 1990)). The government argues that Schlenker’s
apprehension of liability—the filing of new charges—is
unreasonable because the government has never stated that
it would seek a remedy for any breach of the plea agreement.
We agree with Schlenker that the prosecution’s January
2020 response letter, combined with the uncharged conduct
he admitted to in the plea agreement and the government’s
refusal to disavow any intent to prosecute Schlenker further,
creates a reasonable apprehension that the government
would seek an indictment for new charges were he to file a
§ 2255 motion. See Spokane Indian Tribe v. United States,
972 F.2d 1090, 1092 (9th Cir. 1992) (holding that the
plaintiff had a reasonable apprehension of litigation and loss
of property based on the government’s letter “referenc[ing]
. . . the violation of state and federal law” and the power to
confiscate and destroy the gaming devices” by court order).
We thus turn to the second inquiry: whether, as the
government argues, Schlenker’s declaratory action is barred
because it would improperly “carve out” an issue for
separate adjudication without completely resolving the
underlying controversy. Calderon, 523 U.S. at 749. In
Calderon, a class of persons with capital convictions sought
a declaratory judgment that the State of California could not
invoke the Antiterrorism and Effective Death Penalty Act’s
Chapter 154, which provides for an expedited procedure,
among other matters, that shortens the statute of limitations
for capital habeas petitions from one year to six months. Id.at 742–43. The suit was filed after California officials
publicly announced that they intended to invoke Chapter
154. Id. at 743. The Supreme Court explained that the actual
“controversy” was whether each class member was
individually entitled to federal habeas relief. Id. at 746.
12 UNITED STATES V. SCHLENKER
Consequently, the action was not justiciable because the
declaratory judgment that the plaintiffs sought “would not
resolve the entire case or controversy as to any one of them.”
Id. at 747. Instead of seeking “final or conclusive
determination” as to habeas relief, the class had “carved out”
the statute of limitations issue for resolution and that “would
merely determine a collateral legal issue governing certain
aspects of their pending or future suits.” Id. at 746–47. This
was inappropriate because it sought an “advance ruling” on
an affirmative defense in a future habeas proceeding, and
would resolve that issue “without ever having shown that
[the petitioner] ha[d] exhausted state remedies.” Id. at 747–
48.
Before Calderon, our court had held that the Declaratory
Judgment Act could not be invoked to challenge a sentence
outside of a habeas proceeding. Gutierrez, 116 F.3d at 415–
16 (citing Benson v. State Bd. of Parole & Prob., 384 F.2d
238, 239 (9th Cir. 1967)). There, the district court had
previously denied Gutierrez’s § 2255 motion seeking a
reduced sentence based on a provision in his plea agreement.
Id. at 414. Gutierrez then filed a declaratory relief action to
“clarify the meaning of the plea agreement.” Id. at 415. We
held that Gutierrez’s suit effectively challenged the validity
of his sentence, making declaratory relief an improper
substitute for a habeas proceeding. Id. at 415–16.
By Schlenker’s admission, “the district court would need
to address some of the issues that it would ultimately address
in any § 2255 proceeding,” but would not completely resolve
whether he is entitled to habeas relief. He asserts that there
was only one dispute in Calderon, habeas relief, and the
parties merely held “different positions” regarding some of
the defenses in a future § 2255 motion. He further contends
that there are two separate disputes here: whether his § 2255
UNITED STATES V. SCHLENKER 13
motion would breach the plea agreement and whether he is
entitled to habeas relief because his § 924(c) sentence is
illegal. Accordingly, Schlenker argues that his declaratory
action would completely resolve the first dispute, even if it
would not resolve the second—or “separate”—dispute of
whether he is entitled to relief on his habeas claim. A closer
look at the relief that Schlenker seeks reveals that his
framing does not withstand scrutiny.
Schlenker asked the district court to declare that a § 2255
motion would not breach the plea agreement—specifically,
his agreement to waive any collateral attack—based on the
reasons noted above. See supra, p.8. He made the same
arguments in his Motion to Clarify. If Schlenker were to file
his proposed § 2255 motion, the government could (and has
expressed that it would) raise the collateral attack waiver as
a defense. Yet each of Schlenker’s arguments for why a
§ 2255 motion would not breach the plea agreement pertains
to the validity and scope of the collateral attack waiver. The
Supreme Court has barred such use of a declaratory action
to “obtain[] an advance ruling on an affirmative defense.”
Calderon, 523 U.S. at 747. As in Calderon, a resolution of
Schlenker’s declaratory action would effectively “carve out”
an affirmative defense—the collateral attack waiver—but
“would not resolve the entire case or controversy,” i.e.,
whether Schlenker is entitled to habeas relief. Id. at 747,
749. 5
5
At oral argument, Schlenker’s counsel stated that Schlenker had
declined the government’s offer to file a § 2255 motion and the
government would not argue it was a breach of the plea agreement,
because that would have left open the government’s defense that any
such § 2255 motion would be untimely. The untimely defense is one
example of an issue that would remain unresolved even if the declaratory
action were decided on the merits.
14 UNITED STATES V. SCHLENKER
Schlenker argues that we should follow MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118 (2007)—not Calderon
or Gutierrez. There, the Supreme Court held that the
plaintiff need not “bet the farm, so to speak, by taking the
violative action” in the face of “genuine threat of
enforcement” to make a declaratory action justiciable under
Article III. Id. at 129. Although MedImmune supports
Schlenker’s reasonable apprehension of prosecution, it does
not blunt the force of Calderon. In MedImmune, the parties
disputed whether MedImmune owed the defendant royalties
under a license agreement for existing and pending patents.
After the defendant obtained approval for the pending
patent, it asserted that one of MedImmune’s products
infringed the new patent and demanded royalty payments
under the license. Id. at 121–22. MedImmune sought a
declaratory judgment that the defendant’s patent was invalid
or not infringed by its product. Id. at 120. By resolving the
patent’s validity and infringement, the declaratory action
would have—unlike the present case—resolved the entire
dispute. Indeed, the Court reiterated that “a litigant may not
use a declaratory-judgment action to obtain piecemeal
adjudication of defenses that would not finally and
conclusively resolve the underlying controversy,” and
distinguished Calderon on that basis. Id. at 127 n.7
(emphasis in original).
Under these facts, a resolution of Schlenker’s arguments
that the collateral attack waiver is invalid would be the type
of piecemeal litigation and improper substitute for habeas
litigation that Calderon and Gutierrez prohibit. Because
those cases prohibit a would-be habeas petitioner from using
an alternative forum to carve out legal issues that are
embedded in an underlying habeas proceeding, we see no
reason why this reasoning does not apply equally to
Schlenker’s Motion to Clarify in his criminal case.
UNITED STATES V. SCHLENKER 15
Accordingly, we affirm the district court’s orders granting
the government’s motion to dismiss the declaratory relief
action and denying Schlenker’s Motion to Clarify in his
criminal case.
AFFIRMED.