United States v. Jeffrey Donnelly , 710 F. App'x 335 ( 2018 )

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NOT FOR PUBLICATION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, No. 17-15837
Plaintiff-Appellee, D.C. Nos. 2:16-cv-01251-JCM
2:04-cr-00148-JCM-
v. LRL-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.