                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 11 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-56841

                Plaintiff-Appellee,             D.C. Nos.    3:16-cv-01517-DMS
                                                             3:95-cr-00708-DMS
 v.

THOMAS JEFFREY MORRISON,                        MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                    Dana M. Sabraw, District Judge, Presiding

                     Argued and Submitted November 6, 2018
                              Pasadena, California

Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH,** District
Judge.

      Thomas Jeffrey Morrison appeals the district court’s denial of his motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We have

jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s denial



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
of a § 2255 motion. See United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014).

We vacate and remand.

      In his § 2255 motion, Morrison argued that, in light of Johnson v. United

States, 135 S. Ct. 2551 (2015), his prior California convictions for robbery under

California Penal Code § 211 no longer qualified as “serious violent felonies” for

purposes of 18 U.S.C. § 3559(c), the federal three-strikes law. The district court

found Johnson distinguishable and that the residual clause contained in the

§ 3559(c)(2)(F)(ii) definition of serious violent felony was not unconstitutionally

vague.

      During the pendency of this appeal, the Supreme Court issued its decision in

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Supreme Court,

applying Johnson, struck down the residual clause in 18 U.S.C. § 16(b) as

unconstitutionally vague. See Dimaya, 138 S.Ct. at 1223. The residual clause in

§ 16(b) seems materially indistinguishable from the residual clause contained in

§ 3559(c)(2)(F). Because the district court did not have the benefit of Dimaya at

the time it denied Morrison’s motion, we vacate and remand for the district court to

reconsider its ruling in light of that decision.1



1
  In addition, the Supreme Court has granted certiorari in United States v. Davis,
903 F.3d 483 (5th Cir. 2018), cert. granted --- S. Ct. --- , 2019 WL 98544 (Jan. 4,
2019), a case addressing whether the “crime of violence” residual clause contained
in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

                                            2                                 16-56841
      Before the district court, and again on appeal, the government argued that

Morrison’s § 2255 motion should be denied even if the residual clause in

§ 3559(c)(2)(F)(ii) is unconstitutional. The district court did not address these

arguments, and we decline to do so in the first instance. Our remand is without

prejudice to the government renewing those arguments before the district court.

      VACATED and REMANDED.




                                          3                                    16-56841
