                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 31 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-15837

              Plaintiff-Appellee,                D.C. Nos.    2:16-cv-01251-JCM
                                                              2:04-cr-00148-JCM-
 v.                                                          LRL-1

JEFFREY MICHAEL DONNELLY,
                                                 MEMORANDUM*
              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                       Argued and Submitted January 9, 2018
                            San Francisco, California

Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.

      1. Jeffrey Donnelly’s motion under 28 U.S.C. § 2255 is timely. He filed the

motion contesting his Armed Career Criminal Act (ACCA) sentencing

enhancement within one year of the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015), as required by 28 U.S.C. § 2255(f)(3).



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                          Page 2 of 3
Donnelly’s motion relies on Johnson, which invalidated the ACCA’s residual

clause, because it challenges a sentence that may have been based on the legal

theory that Johnson rejected. United States v. Geozos, 870 F.3d 890, 894–95 (9th

Cir. 2017). The sentence may have been based on an invalid legal theory because

“it is unclear from the record whether the sentencing court relied on the residual

clause.” Id. at 895. The Presentence Report and sentencing minutes—the only

relevant documents available—do not specify which clause was the basis for

Donnelly’s sentence. Nor does the district court’s later characterization of the

2005 sentence or the legal background in 2005 clarify the basis. See id. at 897.

      2. Donnelly’s motion must be granted. Two of Donnelly’s three predicate

convictions are for robbery and armed robbery in violation of Fla. Stat. § 812.13.

But under Geozos, which was decided after the district court ruled, convictions

under § 812.13 do not qualify as convictions for a violent felony. See id. at 897,

899 n.8, 901. Thus, Donnelly lacks the three violent felony convictions needed for

an ACCA enhancement. See 18 U.S.C. § 924(e)(1); Geozos, 870 F.3d at 893.

      We reverse the district court’s order denying Donnelly’s § 2255 motion and

remand with instructions to vacate Donnelly’s sentence. See Geozos, 870 F.3d at

901. Because Donnelly has already served more than the maximum ten year term

authorized for a § 922(g)(1) conviction absent an ACCA enhancement, the district
                                                                         Page 3 of 3
court shall direct that Donnelly be released from custody immediately. See 18

U.S.C. §§ 922(g)(1), 924(a)(2); Geozos, 870 F.3d at 901. On remand, the district

court may exercise its discretion in imposing a lawful term of supervised release.

See 18 U.S.C. § 3583. The mandate shall issue forthwith.

      REVERSED and REMANDED.
