                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 17-35719
           Plaintiff-Appellee,
                                                  D.C. Nos.
                  v.                          3:16-cv-01241-MO
                                             3:12-cr-00276-MO-1
 ANTHONY JAMES HILL,
       Defendant-Appellant.                        OPINION


         Appeal from the United States District Court
                  for the District of Oregon
         Michael W. Mosman, Chief Judge, Presiding

           Argued and Submitted November 7, 2018
                      Portland, Oregon

                       Filed February 7, 2019

    Before: Ferdinand F. Fernandez and Sandra S. Ikuta,
    Circuit Judges, and William K. Sessions III,* District
                          Judge.

                       Opinion by Judge Ikuta




     *
       The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2                     UNITED STATES V. HILL

                            SUMMARY**


                          28 U.S.C. § 2255

   The panel affirmed the district court’s denial of Anthony
James Hill’s motion to vacate his sentence under 28 U.S.C.
§ 2255 in light of Johnson v. United States, 135 S. Ct. 2551
(2015).

    Hill claimed that Johnson established that he was
ineligible for a sentencing enhancement under the Armed
Career Criminal Act; and that but for alleged misinformation
that he was eligible for such an enhancement, he might not
have entered a plea agreement stating that he should be
sentenced to between 57 and 71 months imprisonment, and
the district court, in turn, might have imposed a different
sentence.

    The panel rejected Hill’s argument because he failed to
show that the alleged misinformation about his ACCA
eligibility was “demonstrably made the basis for the
sentence.” The panel wrote that Hill’s potential eligibility for
an ACCA enhancement was not before the sentencing court,
and Hill’s personal concerns and motivation for entering into
the plea agreement do not suffice to establish that the district
court made an error of constitutional magnitude.




    **
       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. HILL                     3

                        COUNSEL

Stephen R. Sady (argued), Chief Deputy Federal Public
Defender; Elizabeth G. Daily, Assistant Federal Public
Defender; Office of the Federal Public Defender, Portland,
Oregon; for Defendant-Appellant.

Suzanne B. Miles (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Plaintiff-Appellee.


                         OPINION

IKUTA, Circuit Judge:

    Anthony James Hill appeals the district court’s denial of
his motion to vacate his sentence under 28 U.S.C. § 2255 in
light of Johnson v. United States, 135 S. Ct. 2551 (2015),
which (he claims) established that he was ineligible for a
sentencing enhancement under the Armed Career Criminal
Act (ACCA). But for the alleged misinformation that Hill
was eligible for such a sentencing enhancement, Hill
contends, he might not have entered a plea agreement stating
that he should be sentenced to between 57 and 71 months
imprisonment, and the district court, in turn, might have
imposed a different sentence. We reject this argument,
because Hill has failed to show that the alleged
misinformation about his ACCA eligibility was
“demonstrably made the basis for the sentence.” United
States v. Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir.
2009) (quoting United States v. Ibarra, 737 F.2d 825, 827
(9th Cir. 1984)). The record establishes that Hill’s potential
4                  UNITED STATES V. HILL

eligibility for an ACCA enhancement was not before the
sentencing court, and Hill’s personal concerns and motivation
for entering into the plea agreement do not suffice to establish
that the district court made an error of constitutional
magnitude. Therefore, we affirm.

                               I

    In February 2012, Hill pointed a firearm at a woman
during a drunken argument and fled before the police could
arrive. After being arrested during a traffic stop a few months
later, Hill was subject to a one-count indictment for being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). The indictment also alleged that Hill committed
this offense after having previously been convicted of five
felonies under Oregon law, in violation of 18 U.S.C.
§ 924(e)(1). Section 924(e)(1) is part of ACCA, and
increases a defendant’s prison term to a minimum of 15 years
if a defendant who violates § 922(g) has three previous
convictions for “a violent felony or serious drug offense.”
18 U.S.C. § 924(e)(1). ACCA defines “violent felony” to
include “any crime punishable by imprisonment for a term
exceeding one year . . . that— . . . otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). This portion of the
definition of “violent felony” is referred to as ACCA’s
“residual clause.” Johnson, 135 S. Ct. at 2555–56.

                               A

    After Hill was indicted, his counsel emailed the
prosecuting attorney to discuss a plea agreement. In the
email, Hill’s counsel tried to persuade the prosecutor that
“this is the type of case that can plea without ACC[A].”
                  UNITED STATES V. HILL                      5

Hill’s counsel stated he had sought the police reports for the
prior offenses listed in the indictment, and according to the
counsel, “the crimes are fairly stale. The last one was from
2001, two of the records from 1987 and 1989 have been
destroyed, and [the Portland Police Department] could not
provide one from 1992.” Morever, Hill’s counsel argued:
“Unlike many ACC[A] predicates I’ve encountered, none of
the cases involve the use of weapons and those that involve
threat or intimidation are comical. In one case [Hill] tried to
rob a store with his finger and in another the clerk was not
intimidated at all.” Counsel went on to present background
information that he believed mitigated Hill’s criminal record.
Accordingly, Hill’s counsel requested that the prosecutor
“dismiss the ACC[A] and allow Mr. Hill to plea to a
57 month sentence.”

    The prosecutor’s response to this email is not in the
record, but the parties agreed to a plea agreement which
stated: “[p]ursuant to plea negotiations, the parties have
agreed that the defendant will be permitted to plead guilty to
the charge of being a felon in possession of a firearm without
the Armed Career Criminal enhancement.” Accordingly,
“[a]t the time of the change of plea hearing, the government
will ask the Court to strike the ‘Armed Career Criminal’
penalty provision (§ 924(e)) in Count 1.” The section of the
plea agreement entitled “Sentencing Recommendation after
applying 3553(a) Factors” stated that, after considering those
factors and the advisory sentencing guideline range, “the
parties agree that the defendant should be sentenced to
between 57 and 71 months imprisonment, to be followed by
3 years of supervised release.” It further stated that “[t]he
government believes, based upon the mitigation materials you
have provided, that a non-Armed Career Criminal sentence is
appropriate,” but, “based upon the defendant’s lengthy
6                 UNITED STATES V. HILL

criminal history and the nature of this incident,” the
government nevertheless believed that “a 71 month sentence
of imprisonment is warranted.” Hill was “free to seek a
sentence of no less than 57 months imprisonment.” Finally,
the agreement specified that it was made pursuant to Rule
11(c)(1)(B) of the Federal Rules of Criminal Procedure,
meaning that the Court was not bound to follow the parties’
recommended sentencing range.          Fed. R. Crim. P.
11(c)(1)(B).

    In the pre-sentence report (PSR), the U.S. Probation
Office calculated that Hill had a total offense level of 21, a
criminal history category of VI, and a resulting advisory
guideline range of 77–96 months’ imprisonment. The parties
agreed as to all of those conclusions. The PSR recommended
a sentence of 77 months’ imprisonment, which was “within,
but at the low end of the advisory guideline range, followed
by a 3-year term of supervised release,” given Hill’s
“significant criminal history involving firearms, violence, and
a disregard for lawful court orders.” In describing the offense
conduct, the PSR noted that “[t]he Indictment initially
charged [Hill] under the Armed Career Criminal Statute,
18 U.S.C. § 924(e)(1); however, as part of plea negotiations,
that enhancement was stricken at the time the defendant
entered his plea.”

                              B

    The district court conducted Hill’s sentencing hearing in
May 2013. The prosecutor argued in favor of a 71-month
sentence. He noted Hill’s criminal history and stated that
“while some of it is very old, and that was the reason the
Government sort of removed the armed career criminal
                   UNITED STATES V. HILL                       7

enhancement from the table, it doesn’t disappear. It’s still out
there.”

    The district court accepted Hill’s guilty plea. In providing
Hill with its reasons for the sentence, the court reviewed
Hill’s criminal history, “which [was] very serious and
lengthy,” along with “the very serious nature of th[e] offense,
and then the good parts of [Hill’s] life and character” and his
“psychological issues,” including his problem with alcohol.
The court accepted the PSR’s calculation of the advisory
sentencing guidelines range, and noted that if it “were to
follow the presentence report, the low end of [Hill’s] range
would be 77 up to 96 months.” Instead, the court “tried to
consider various factors under Section 3553(a) to fashion a
fair and just sentence here under [Hill’s] individual
circumstances.” It therefore decided to impose the below-
guidelines sentence of 67 months, which was within the 57-
to 71-month range recommended by the parties.

    After the court announced the sentence, it asked whether
there were other pending charges requiring dismissal or other
resolution. The prosecutor stated that there were none, and
continued: “It’s my understanding that when [Hill] entered
his change of plea, it was at that time that the Court struck the
armed career criminal enhancement, so there are no other
charges to be dismissed.”

    Other than the prosecutor’s brief references to the ACCA
enhancement as being inapplicable to Hill, as noted above,
there was no discussion of ACCA at the sentencing hearing.
The court did not mention ACCA in its Statement of Reasons;
rather, it indicated that a downward variance was appropriate
given Hill’s “psychological issues.”
8                 UNITED STATES V. HILL

    Judgment was entered on June 1, 2013. Because Hill did
not file a direct appeal, that judgment became final on June
15, 2013. See Fed. R. App. P. 4(b)(1)(A).

                              C

    In June 2015, the Supreme Court issued its decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). In
Johnson, the Court addressed ACCA’s residual clause; that is,
its definition of “violent felony” as a crime that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
Because that language left “grave uncertainty” about both
“how to estimate the risk posed by a crime” and “how much
risk it takes for a crime to qualify as a violent felony,” it
created “more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Johnson, 135 S. Ct. at 2557–58.
Accordingly, Johnson invalidated ACCA’s residual clause as
unconstitutionally vague and held that any sentence imposed
under that clause was likewise invalid. Id. In a subsequent
case, the Court held that Johnson’s new rule applied
retroactively on collateral review. Welch v. United States,
136 S. Ct. 1257, 1264–65 (2016).

                              D

    Within one year after Johnson, Hill filed a motion to
vacate his sentence under 28 U.S.C. § 2255. In his motion,
Hill argued that Johnson affected the calculation of his
Guidelines range. Specifically, an applicable section of the
Guidelines, U.S.S.G. § 4B1.2, defined “crime of violence”
using the same language that the Court invalidated in
Johnson. Hill argued that his sentence was unconstitutional
to the extent it was affected by this unconstitutionally vague
                  UNITED STATES V. HILL                      9

language. This argument was quickly foreclosed by the
Supreme Court’s subsequent decision in Beckles v. United
States, 137 S. Ct. 886 (2017), which held that the Sentencing
Guidelines are not subject to vagueness challenges under the
Due Process Clause. Id. at 890.

    After Beckles was decided, Hill regrouped and filed a
supplemental memorandum. In this memorandum, Hill
argued that as a result of Johnson, he was not subject to the
15-year mandatory minimum ACCA sentence because his
prior Oregon convictions did not qualify as violent felonies
without reliance on the unconstitutional residual clause. His
plea agreement and sentence were tainted, Hill contends,
because the potential for receiving ACCA’s 15-year
mandatory minimum enhancement was a key reason he
agreed to the sentencing range in the plea agreement, and the
plea agreement, in turn, influenced the sentencing judge.
Because Hill’s sentencing process was impacted by an
unconstitutionally vague law, Hill argues, the court should
vacate his sentence as unconstitutional and remand for
resentencing. Hill has not sought vacatur of his plea
agreement.

     On July 25, 2017, the court denied Hill’s § 2255 motion
in a minute order without explanation. On October 25, 2017,
it entered an additional minute order granting a certificate of
appealability on the issue of “whether Mr. Hill’s sentence
violated his constitutional rights under Johnson v. United
States, 135 S. Ct. 2551 (2015), because the Armed Career
Criminal Act’s mandatory minimums influenced his plea
negotiations.”
10                   UNITED STATES V. HILL

    In July 2017, Hill completed his 67-month prison
sentence. He is presently serving his three-year term of
supervised release.

                                   II

    The district court had jurisdiction over Hill’s motion
under 28 U.S.C. § 2255. We have jurisdiction of Hill’s
timely appeal of the denial of his motion under 28 U.S.C.
§§ 1291 and 2253(a). We review de novo the district court’s
denial of Hill’s § 2255 motion. See United States v. Jones,
877 F.3d 884, 886 (9th Cir. 2017) (per curiam).1

                                   A

    “Section 2255 is a substitute for habeas corpus relief for
federal prisoners.” United States v. Swisher, 811 F.3d 299,
306 (9th Cir. 2016) (en banc). It allows a federal prisoner to
file a motion to “vacate, set aside or correct” the prisoner’s
conviction or sentence “upon the ground that the sentence
was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence.” 28 U.S.C. § 2255(a). The Fifth
Amendment guarantee of due process is violated when a
court, in sentencing a defendant, relies on information that is


     1
       Because the government does not distinctly argue that Hill’s claim
is untimely under the one-year statute of limitations in 28 U.S.C.
§ 2255(f), it has waived this argument and we do not address it. See Day
v. McDonough, 547 U.S. 198, 206, 209 (2006) (holding that the analogous
one-year limitations period in 28 U.S.C. § 2244(d)(1)(A) for habeas
petitions brought by state prisoners is not jurisdictional so need not be
considered sua sponte); see also Entm’t Research Grp., Inc. v. Genesis
Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (holding that a
party waives an argument on appeal by failing to raise it distinctly).
                  UNITED STATES V. HILL                     11

materially false or unreliable. See Vanderwerfhorst, 576 F.3d
at 935–36; see also Townsend v. Burke, 334 U.S. 736, 741
(1948) (holding that the Due Process Clause is violated when
a pro se criminal defendant “was sentenced on the basis of
assumptions concerning his criminal record which were
materially untrue”).

    To succeed on a claim that a district court violated the
Due Process Clause by imposing a “sentence founded at least
in part upon misinformation of constitutional magnitude,”
United States v. Tucker, 404 U.S. 443, 447 (1972), a
defendant “must establish the challenged information is
(1) false or unreliable, and (2) demonstrably made the basis
for the sentence,” Vanderwerfhorst, 576 F.3d at 935–36
(quoting Ibarra, 737 F.2d at 827). To satisfy the first factor,
the challenged information must be “objectively ascertainable
error,” United States v. Addonizio, 442 U.S. 178, 187 (1979);
that is, an error “that does not require courts to probe the
mind of the sentencing judge,” United States v. Eakman,
378 F.3d 294, 301 (3d Cir. 2004). For the second factor, the
court must have “made it abundantly clear that (the
challenged information) was the basis for its sentence.”
Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978)
(internal quotation marks omitted); see also id. (“In the
context of a § 2255 proceeding, a motion must be denied
unless it affirmatively appears in the record that the court
[b]ased its sentence on improper information.”). Even a
district court’s reference to challenged information (for
example, noting that allegations of misconduct “continue to
‘swirl around’” the defendant) is not enough to satisfy this
second factor; such a passing reference is “readily
distinguishable from sentencing [the defendant] based on an
assumption that he in fact committed the predicate acts.”
Vanderwerfhorst, 576 F.3d at 936.
12                 UNITED STATES V. HILL

    Once a movant has established these factors, “[u]nless the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall
cause notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon, determine the issues
and make findings of fact and conclusions of law with respect
thereto.” 28 U.S.C. § 2255(b). After such a hearing, the
movant is entitled to relief if the sentence “might have been
different if the sentencing judge had” not relied on that
information. Tucker, 404 U.S. at 448.

                               B

     On appeal, Hill reiterates his argument that the court
should have granted his § 2255 motion because his sentence
was tainted by his eligibility for receiving an unlawful ACCA
sentence. In order to succeed on this claim, Hill must first
establish that the district court imposed a sentence founded on
misinformation of a constitutional magnitude, meaning that
it relied on information that is (1) false or unreliable, and
(2) demonstrably made the basis for the sentence. See
Vanderwerfhorst, 576 F.3d at 935–36.

    The challenged information in this case, Hill claims, is the
misinformation that Hill was eligible for an ACCA 15-year
minimum sentence. Hill argues that his prior Oregon
convictions do not qualify as violent felonies now that the
residual clause has been struck down by Johnson, and
therefore he was not eligible for an ACCA enhancement.

    We need not resolve whether this information was false
or unreliable, however, because even assuming Hill is correct,
he has not shown that such information was demonstrably
made the basis for his sentence. See Vanderwerfhorst,
                  UNITED STATES V. HILL                    13

576 F.3d at 935–36. Although Hill’s indictment included an
ACCA charge, there is no dispute that the charge was
dismissed when Hill entered his change of plea. The PSR
noted that the ACCA charge had been stricken, as did the
prosecutor at sentencing. Even the plea agreement was not
expressly based on the potential for an ACCA enhancement;
to the contrary, it stated that, based on mitigation materials
provided by Hill’s counsel, a “non-Armed Career Criminal
sentence is appropriate.” Accordingly, no ACCA-related
enhancement was before the district court at sentencing.

    During the sentencing hearing, Hill concedes, “the
sentencing court did not reference the ACCA when it
imposed sentence.” Rather, the court discussed Hill’s
criminal history, alcoholism, psychological issues, and other
factors. Further, rather than impose an enhanced sentence,
the court imposed a below-Guidelines sentence that was
within the sentencing range set forth in the plea agreement.
In fact, there is no evidence that the court even considered
whether Hill was eligible for an ACCA enhancement, let
alone that the court made it the basis for Hill’s sentence.

    Hill argues that there is nevertheless an indirect
relationship between his supposed eligibility for an ACCA
enhancement and the court’s sentence. According to Hill, the
potential for a 15-year mandatory ACCA sentence was a
looming presence in his plea negotiations, and affected the
sentencing range set forth in the plea agreement. Because the
district court considered the sentencing range in the plea
agreement, Hill argues, the court was indirectly affected by
the background presence of ACCA eligibility. This argument
fails. A defendant must show that the challenged information
was “demonstrably made the basis for the sentence”; even
evidence that the district court mentioned the challenged
14                UNITED STATES V. HILL

information in passing may not suffice. Vanderwerfhorst,
576 F.3d at 935–36. Given that Hill has provided no
evidence that the threat of an ACCA charge played a role in
the district court’s formulation of the sentence, he fails to
meet the standard here.

    Because Hill has not established that the challenged
information was the basis of the court’s sentence, we reject
Hill’s claim that his due process rights were violated, and
conclude he is not entitled to a hearing on that claim.

     AFFIRMED.
