                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF                   No. 16-15411
AMERICA,
      Plaintiff-Appellee,            D.C. Nos.
                             1:15-cv-00461-DKW-BMK
           v.                  1:10-cr-00793-DKW-1

JAMES MCCANDLESS,
AKA Mackie,                          OPINION
   Defendant-Appellant.


     Appeal from the United States District Court
               for the District of Hawaii
    Derrick Kahala Watson, District Judge, Presiding

        Argued and Submitted October 20, 2016
                  Honolulu, Hawaii

                Filed November 10, 2016

      Before: J. Clifford Wallace, Jerome Farris,
         and Paul J. Watford, Circuit Judges.

                  Per Curiam Opinion
2               UNITED STATES V. MCCANDLESS

                            SUMMARY*


                  Habeas Corpus / Mandamus

    The panel granted federal prisoner James McCandless’
motion to construe his interlocutory appeal as a petition for a
writ of mandamus, and denied the petition, in a case in which
McCandless contends that he should be released on bail
pending a decision on his habeas corpus petition under
28 U.S.C. § 2255.

    McCandless contends that his enhancement under the
residual clause of the Sentencing Guidelines career-offender
provision is unconstitutionally vague in light of Johnson v.
United States, 135 S. Ct. 2551 (2015).

    The panel observed that a district court’s order denying
bail pending resolution of a habeas petition is not a final
decision subject to review under 28 U.S.C. § 1291, is not
otherwise appealable under the collateral order doctrine, and
is not subject to interlocutory review under 28 U.S.C.
§ 1292(b). The panel therefore construed the appeal as a
mandamus petition challenging the district court’s refusal to
grant McCandless’ motion for bail.

    The panel did not need to resolve whether district courts
have authority to grant bail pending resolution of a habeas
petition. The panel held that McCandless cannot demonstrate
clear error in the denial of his request for bail because he has
not shown either a high probability of success on the merits

    *
      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. MCCANDLESS                     3

of his habeas petition or special circumstances that would
warrant his release on appeal. The panel observed (1) that it
is far from clear how the Supreme Court, in Beckles v. United
States, 136 S. Ct. 2510 (cert. granted June 27, 2016), will rule
on whether Johnson invalidates the residual clause of the
Guidelines’ career-offender provision and whether such a rule
would apply retroactively on collateral review; and (2) that
McCandless has not shown that he will have over-served his
lawful sentence in the event that Beckles is resolved in his
favor.


                         COUNSEL

Marion Percell (argued), Assistant United States Attorney;
Florence T. Nakakuni, United States Attorney; United States
Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellant.

Peter C. Wolff, Jr. (argued), Federal Public Defender;
Alexander Silvert, First Assistant Federal Public Defender;
Hawaii Federal Public Defender, Honolulu, Hawaii; for
Defendant-Appellee.
4             UNITED STATES V. MCCANDLESS

                          OPINION

PER CURIAM:

    James McCandless is a federal prisoner who seeks bail
pending a decision by the district court on his petition for a
writ of habeas corpus under 28 U.S.C. § 2255. He is serving
a 145-month sentence for a drug-related conspiracy
conviction, with a projected release date of August 8, 2020.
He contends that he should be released on bail because if he
prevails on his habeas petition, he will likely receive a
reduced sentence of only 71 months, a period of confinement
he has already served.

    McCandless’ habeas petition relies on the Supreme
Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015), which held that the Armed Career Criminal Act’s
residual clause is unconstitutionally vague and therefore may
not serve as the basis for a sentence enhancement under the
Act. Id. at 2557. McCandless was not sentenced under the
Armed Career Criminal Act. However, he contends that his
sentence is unconstitutional under Johnson because his
advisory Sentencing Guidelines range was enhanced under
the similar residual clause of the Guidelines’ career-offender
provision.

    That provision increases a defendant’s advisory
sentencing range if, as relevant here, the defendant has two or
more prior convictions for a “crime of violence.” U.S.S.G.
§ 4B1.1. Before its recent amendment, the residual clause of
that term’s definition, like the Armed Career Criminal Act’s
residual clause, referred to any offense punishable by more
than one year of imprisonment that “involves conduct that
presents a serious potential risk of physical injury to another.”
             UNITED STATES V. MCCANDLESS                    5

U.S.S.G. § 4B1.2(a) (2011). McCandless alleges that the
district court enhanced his advisory sentencing range based
in part on its determination that one of his prior convictions
fell within the scope of this clause. He contends that if
Johnson applies to the Guidelines’ career-offender provision,
and if that holding is applied retroactively to cases on
collateral review, then he will be entitled to be resentenced
under an advisory sentencing range calculated without the
career-offender enhancement.

    The district court has stayed a decision on the merits of
McCandless’ habeas petition in anticipation of a decision by
the Supreme Court this Term in Beckles v. United States,
136 S. Ct. 2510 (cert. granted June 27, 2016). In Beckles, the
Court is expected to decide whether Johnson applies to
sentences imposed under the residual clause of the
Guidelines’ career-offender provision and, if so, whether that
rule applies retroactively to cases on collateral review. In
other words, the Supreme Court’s decision in Beckles will
likely resolve—one way or the other—the merits of the claim
raised in McCandless’ habeas petition. However, the Court
may not render a decision in Beckles for at least several more
months.

    McCandless moved for bail pending resolution of his
habeas petition even before the Supreme Court granted
review in Beckles. The district court denied his motion, and
McCandless appeals from that order.

    Our precedent holds that a district court’s order denying
bail pending resolution of a habeas petition is not a final
decision subject to review under 28 U.S.C. § 1291 and is not
otherwise appealable under the collateral order doctrine.
Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per
6               UNITED STATES V. MCCANDLESS

curiam).1 Nor is the order subject to interlocutory review
under 28 U.S.C. § 1292(b) because a bail determination
cannot materially advance the ultimate termination of the
litigation. We must therefore construe this appeal as a
petition for a writ of mandamus challenging the district
court’s refusal to grant McCandless’ motion for bail. See
Land, 878 F.2d at 318.

    A writ of mandamus may issue in cases involving
“exceptional circumstances amounting to a judicial
usurpation of power.” Bauman v. United States District
Court, 557 F.2d 650, 654 (9th Cir. 1977) (internal quotation
marks omitted). To be entitled to mandamus relief, a
petitioner must show at a minimum that the district court’s
order was clearly erroneous as a matter of law. United States
v. Guerrero, 693 F.3d 990, 999 (9th Cir. 2012). We must
therefore decide whether the district court committed clear
error in denying McCandless’ request for bail.

    McCandless cannot demonstrate clear legal error. We
have not yet decided whether district courts have the
authority to grant bail pending resolution of a habeas petition,
and we need not resolve that question today. See In re Roe,
257 F.3d 1077, 1080 (9th Cir. 2001) (per curiam). If district
courts have that authority, we have indicated that it is
reserved for “extraordinary cases involving special

    1
       We are aware that a lopsided circuit split exists on this issue. At
least six circuits have held, contrary to Land, that an order denying bail
pending resolution of a habeas petition is appealable under the collateral
order doctrine; only the First Circuit shares our view (albeit with some
ambivalence) that such orders are not appealable. See Dotson v. Clark,
900 F.2d 77, 77–78 (6th Cir. 1990) (describing the circuit split).
Nonetheless, as a three-judge panel, we remain bound by Land’s holding
on this point.
              UNITED STATES V. MCCANDLESS                     7

circumstances or a high probability of success.” Land,
878 F.2d at 318; see Roe, 257 F.3d at 1080. McCandless has
not shown either a high probability of success on the merits
of his habeas petition or special circumstances that would
warrant his release on bail.

     To demonstrate a high probability of success, McCandless
must establish that the Supreme Court is likely to hold in
Beckles that Johnson invalidates the residual clause of the
Sentencing Guidelines’ career-offender provision and that
such a rule applies retroactively to cases on collateral review.
There are substantial arguments on both sides of the case, and
it is far from clear how the Supreme Court will rule. That
alone precludes us from holding that McCandless has shown
a high probability of success.

    Nor has McCandless shown that this case involves special
circumstances. He contends that if Beckles is resolved in his
favor and he is forced to remain incarcerated while waiting
for that decision to issue, he will in the interim have over-
served his lawful sentence. But if Beckles is resolved in his
favor, McCandless would not necessarily be entitled to
“immediate release,” as his motion for bail asserts. He would
instead be entitled to be resentenced under an advisory
sentencing range calculated without the career-offender
enhancement. The Supreme Court will likely decide Beckles
at the latest by June 2017, at which point McCandless will
have served approximately 108 months. To establish that he
will have over-served his lawful sentence if he remains
incarcerated while awaiting the outcome in Beckles,
McCandless must show that he will likely receive a sentence
of less than 108 months in the event that Beckles is resolved
in his favor.
8             UNITED STATES V. MCCANDLESS

     McCandless has not made that showing, even if we credit
for the sake of argument his description of the sentencing
parameters involved. If McCandless is resentenced without
the career-offender enhancement, his advisory Sentencing
Guidelines range will be 130 to 162 months, the low end of
which is obviously above 108 months. But McCandless
contends that he would be eligible for a departure below that
range, and indeed that he would be eligible for a departure
below the mandatory minimum sentence of 120 months. (At
his initial sentencing, the government filed a motion pursuant
to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 to reward
McCandless for his substantial assistance.) McCandless
points out that the district court originally departed downward
to a sentence of 145 months from an advisory sentencing
range of 262 to 327 months, a 45% departure from the low
end of that range. If the district court were to grant a
comparable downward departure from the low end of a
revised advisory sentencing range of 130 to 162 months,
McCandless asserts, he would receive a sentence of just 71
months, well below the amount of time he has already served.

     McCandless’ contention that he would receive a post-
Beckles sentence of less than 108 months is entirely
speculative. A defendant’s advisory Sentencing Guidelines
range is only one of several factors that the court must
consider in evaluating what sentence to impose. See
18 U.S.C. § 3553(a). So even with a revised advisory
sentencing range of 130 to 162 months, there is no way of
predicting whether the district court would grant a downward
departure below that range or by how much. In that respect,
it is worth noting that the district court had the authority at
the original sentencing hearing to depart below the mandatory
minimum sentence of 120 months but determined not to do
so.
              UNITED STATES V. MCCANDLESS                     9

    For these reasons, McCandless has not shown that he has
a high probability of success on the merits of his habeas
petition or that he will likely end up over-serving his
constitutionally permissible sentence if he is denied bail.
Because McCandless cannot show that the district court
clearly erred as a matter of law in denying his motion for bail,
mandamus relief is unwarranted. For this reason we need not
consider the other Bauman factors to decide this petition.

    McCandless’ motion to construe his appeal in the
alternative as a petition for a writ of mandamus is
GRANTED, and his petition is DENIED.
