                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             SEP 16 2016
                      UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   16-35247

                Plaintiff-Appellee,               D.C. Nos.    2:14-cv-00039-EFS
                                                               2:02-cr-00056-EFS-1
 v.

RICKEY D. CHRISTIAN,                              MEMORANDUM*

                Defendant-Appellant.


                     Appeal from the United States District Court
                       for the Eastern District of Washington
                      Edward F. Shea, District Judge, Presiding

                        Argued and Submitted August 29, 2016
                                 Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and EZRA,** District Judge.

      Ricky D. Christian appeals the district court’s denial of his successive 28 U.S.C.

§ 2255 motion, in which he challenged his Armed Career Criminal Act (“ACCA”)-

enhanced sentence as unconstitutional under Johnson v. United States, 135 S. Ct. 2551


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable David A. Ezra, Senior United States District Judge for the
District of Hawaii, sitting by designation.
(2015). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, United

States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and reverse.

      The district court erred in denying relief. Christian sufficiently established and

the government appears to concede that, in sentencing Christian, the district court

relied at least in part on the unconstitutionally vague residual clause of the ACCA’s

“violent felony” definition, 18 U.S.C. § 924(e)(2)(B)(ii), which violates Johnson, 135

S. Ct. at 2563. Under the categorical/modified categorical approach as clarified by the

Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), Christian does

not have a sufficient number of “violent felony” predicates under the enumerated-

offense clause to sustain an ACCA sentence enhancement.1 Cf. In re Adams, 825 F.3d

1283, 2016 WL 3269704, at *3 (11th Cir. 2016) (applying Descamps retroactively to

evaluate a Johnson claim raised in a second or successive § 2255 motion).

      Accordingly, we reverse the district court’s denial of Christian’s § 2255 motion

and vacate his sentence. Because Christian has already served longer than the

statutory maximum sentence for a non-ACCA-enhanced felon-in-possession

conviction, 18 U.S.C. § 924(a)(2), we direct that Christian be released immediately




      1
        The government does not contend that Christian’s past convictions are
“serious drug offense” predicates, 18 U.S.C. § 924(e)(2)(A), or “violent felony”
predicates under the elements clause, id. § 924(e)(2)(B)(i).
                                           2
from custody. The Clerk of Court shall immediately notify the Director of the U.S.

Bureau of Prisons of this decision. The mandate shall issue forthwith.

      REVERSED.2




      2
         We deny Christian’s July 6, 2016, motion for judicial notice as unnecessary.
See Reid v. Johnson & Johnson, 780 F.3d 952, 962 n.4 (9th Cir. 2015) (“Judicial
notice . . . is unnecessary for materials establishing the legal principles governing a
case.”).
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