                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 07 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10384

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00200-WHA-1

  v.
                                                 MEMORANDUM*
RONALD McGREGOR,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                    Argued and Submitted September 10, 2014
                      Submission Vacated January 16, 2015
                            Resubmitted July 2, 2015
                            San Francisco, California

Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.

       Ronald McGregor appeals the district court’s denial of his motion to

suppress and his fifteen-year mandatory-minimum sentence imposed under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), following his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
bench-trial conviction of being a felon in possession of a firearm and ammunition,

in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742. We review de novo a district court’s denial of a

motion to suppress. United States v. Brown, 563 F.3d 410, 414 (9th Cir. 2009).

We also review de novo whether a prior conviction constitutes a predicate felony

under the ACCA. United States v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en

banc). We affirm the court’s denial of the motion to suppress, but vacate

McGregor’s sentence in light of Johnson v. United States, No. 13-7120, 2015 WL

2473450 (U.S. June 26, 2015).

      First, McGregor contends that the district court erred by denying his motion

to suppress evidence obtained after a warrantless entry into an apartment.

However, the district court properly determined that the emergency exception

applied because, considering the totality of the circumstances, it was objectively

reasonable for the officers to conclude there was an immediate need to enter the

apartment to protect any occupants or themselves from serious harm. See United

States v. Snipe, 515 F.3d 947, 952 & n.6 (9th Cir. 2008) (setting forth emergency

exception to warrant requirement and rejecting “assertion that the police must

witness ongoing violence before responding to an emergency”).

      The officers reasonably suspected that McGregor had a concealed weapon


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based on the circumstances, including McGregor’s furtive movements when he

saw the officers’ vehicle and his headlong flight to a nearby apartment when the

officers tried to contact him. See Illinois v. Wardlow, 528 U.S. 119, 124-25

(2000); United States v. Arellano-Ochoa, 461 F.3d 1142, 1145-46 (9th Cir. 2006).

Although it turned out that McGregor’s sister lived in the apartment, the officers

did not know this at the time, and it was reasonable for the officers to conclude that

McGregor had fled into a stranger’s apartment and could pose a threat to any

occupants. See Ryburn v. Huff, 132 S. Ct. 987, 992 (2012) (per curiam).

        The circumstances here differ from those in United States v. Nora, 765 F.3d

1049 (9th Cir. 2014). Unlike this case, there was no indication in Nora that the

officers thought that Nora had fled into a stranger’s home. See id. at 1051-52,

1054.

        Second, McGregor contends his prior convictions were not predicate

“violent felon[ies]” under the ACCA’s residual clause, 18 U.S.C.

§ 924(e)(2)(B)(ii). In light of Johnson, which struck down the residual clause as

unconstitutionally vague, we vacate McGregor’s sentence and remand to the

district court for re-sentencing.

        AFFIRMED in part, VACATED in part, and REMANDED.




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