                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 12 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-35265

                Plaintiff-Appellant,            D.C. No.
                                                6:13-cr-00433-MC-1
 v.

GARY LEE WALLS,                                 MEMORANDUM*

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                          Submitted December 10, 2019**
                              Seattle, Washington

Before: McKEOWN and CHRISTEN, Circuit Judges, and HARPOOL,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
      The United States appeals the district court’s judgment granting Gary

Walls’s habeas corpus petition under 28 U.S.C. § 2255. The parties are familiar

with the facts, so we do not repeat them here.

      We review de novo a district court’s order granting a habeas petition. See

United States v. Jones, 877 F.3d 884, 886 (9th Cir. 2017) (per curiam). We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

      The Armed Career Criminal Act’s (“ACCA”) residual clause mandated a

sentence enhancement when a defendant who violates 18 U.S.C § 922(g) has three

previous convictions that quality as “violent felon[ies].” 18 U.S.C. § 924(e). The

Supreme Court struck down the ACCA’s residual clause as unconstitutionally

vague in Johnson v. United States, holding that “[i]ncreasing a defendant’s

sentence under the clause denies due process of law.” 135 S. Ct. 2551, 2557

(2015). Johnson’s new rule applies retroactively on collateral review. Welch v.

United States, 136 S. Ct. 1257, 1264–65 (2016).

      To prevail on a claim that a district court violated due process 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.” United States v. Hill, 915 F.3d 669, 674 (9th Cir.

2019) (quoting United States v. Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir.


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2009)).

      The threatened application of an unconstitutional sentence enhancement is

misinformation of a constitutional magnitude. Walls agreed in plea negotiations to

a sentence three times his advisory guideline range to avoid prosecution under the

ACCA’s residual clause, which in Johnson was found invalid in all its

applications. 135 S. Ct. at 2557–58. In light of Johnson, it would have been

unconstitutional to sentence Walls under the residual clause. The unconstitutional

sentence enhancement leveraged by the United States during plea negotiations was

a false premise demonstrably relied upon by the sentencing court in violation of

due process.

      The sentencing court’s pre-Johnson presumption that Walls was potentially

eligible for sentencing enhancement through the ACCA residual clause impacted

the court’s formulation of Walls’s sentence and constitutes objectively false

information. Walls’s prior Oregon Burglary II conviction would not have qualified

as a violent felony under the ACCA without reliance on the residual clause. See

United States v. Strickland, 860 F.3d 1224, 1227 (9th Cir. 2017) (holding prior

third-degree robbery conviction under Oregon law was not a violent felony under

ACCA’s force clause); United States v. Cisneros, 826 F.3d 1190, 1196 (9th Cir.

2016) (holding prior first-degree burglary convictions under Oregon law did not

qualify as violent felonies under the ACCA).


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      Discussing the risk of an ACCA sentencing enhancement, the sentencing

court acknowledged Walls was agreeing to a ten-year sentence rather than run the

risk of a guilty verdict at trial and a subsequent 15-year minimum sentence under

the ACCA. Although the plea agreement was not binding on the district court, the

court indicated that “in all likelihood I am going to follow a ten-year term.” At

Walls’s sentencing hearing, the court cited the parties’ agreement, among other

reasons, as a basis for the sentence. The district court followed the parties’

recommendation of 120 months, three times Walls’s advisory guideline range of

37 to 46 months.

      A pre-Johnson sentence demonstrably based on the threatened application of

the ACCA’s unconstitutional residual clause deprived Walls of his liberty in

violation of due process.

      AFFIRMED.




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