United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE.
November 27, 2017, this Court granted Petitioner's motion
to correct, vacate, or set aside his sentence under 28 U.S.C.
§ 2255. The Court granted that motion on due process
grounds, holding that the trial court sentenced Defendant
based on misinformation of a constitutional magnitude or, in
the alternative, that Defendant was directly subject to the
unconstitutionally vague residual clause of the Armed Career
Criminal Act. The Government now moves the Court to
reconsider its decision pursuant to Fed.R.Civ.P. 59(e).
Because the two intra-district cases briefed by the
Government are both distinguishable and nonbinding, and
because the Government has failed to show that the
Court's decision was otherwise based on a manifest error
of law or justice, its motion for reconsideration is DENIED.
Government moves for reconsideration on three grounds. First,
it argues that Petitioner waived his due process claim
because sentencing errors are “generally not
cognizable” if never raised at sentencing or on direct
appeal. (Gov't Br. 3.) Second, the Government argues that
the Due Process Clause affords Petitioner no relief because
his plea agreement and sentence were merely the results of
his “inaccurate predictions” and “risk
avoidance.” (Gov't Br. 9-12.) Finally, the
Government argues that this Court overlooked two relevant
cases from within the district, United States v.
Knight, No. 3:14-cr-00152-BR (D. Or. Aug. 17, 2017) and
United States v. Hill, No. 3:12-cr-00276-MO (D. Or.
July 25, 2017), and that the Court's ruling creates an
intolerable intra-district conflict. (Gov't Br. 1-3.)
alter or amend a final judgment is “an extraordinary
remedy” and must be used “sparingly in the
interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Under
Fed.R.Civ.P. 59(e), reconsideration is appropriate only if a
court (1) committed a “manifest[ ] error of law,
” (2) precipitated a “manifest injustice, ”
(3) is presented with “newly discovered or previously
unavailable evidence, ” or (4) learns about an
“intervening change in the controlling law.”
Rishor v. Ferguson, 822 F.3d 482, 491-92 (9th Cir.
2016) (citations omitted). Here, the Government's
arguments are purely legal, so reconsideration is unwarranted
on the grounds of newly discovered or previously unavailable
evidence. There has also been no intervening change in the
controlling law. The Government must therefore persuade the
Court that it committed a manifest error of law or justice.
careful consideration, the Court finds that the Government
has not carried its burden. As the Court outlined in its
first Opinion and Order, most lower courts to have examined
the issue within the Ninth Circuit have vacated
petitioners' sentences if they were imposed under threat
of an unconstitutional ACCA enhancement. United States v.
Terrell, 217 F.Supp.3d 1277, 1285-87 (E.D. Wash. 2016);
Pressley v. United States, 201 F.Supp.3d 1277, 1282
(W.D. Wash. 2016); United States v. Suttle, No.
2:14-cr-00083-SBL, 2016 WL 3448598, at *4 (E.D. Wash. June
20, 2016). Moreover, the Ninth Circuit, in its only opinion
on the matter, treated the validity of ACCA-impacted plea
agreements as a matter of due process governed by its
precedent on misinformation in sentencing. United States
v. Molesky, 691 Fed.Appx. 847, 848 (9th Cir. 2017)
(unpublished) (relying on the two-part test announced in
United States v. Safirstein, 827 F.2d 1380 (9th Cir.
1987), but denying petitioner's motion because, unlike
here, his sentence was not demonstrably “based”
on the threatened ACCA enhancement). This Court's
decision and reasoning is therefore consistent with the
balance of available precedent.
intra-district cases cited by the Government are both
distinguishable and do not bind this Court. To begin, neither
Judge Mosman nor Judge Brown focused their opinions on the
question currently before the Court. Specifically, Judge
Mosman denied the petitioner's motion by minute order,
making the basis for his opinion unclear, and Judge Brown
based her decision on the distinct issue of timeliness;
neither addressed whether the risk of unconstitutional
prosecution under the ACCA independently produces a due
process violation. More importantly, whereas the
Knight and Hill petitioners accepted
below-Guidelines sentences, Mr. Walls agreed to a
significant upward variance. The sentencing record, unlike
that in Knight and Hill, clearly reflects
that Mr. Walls agreed to this upward variance specifically to
avoid the risk of ACCA exposure. In fact, the Government
urged the Knight and Hill courts to deny
relief based on this precise distinction. Gov't Br. 12,
Hill, No. 3:12-cr-00276-MO (“This is not a
situation where the potential applicability of the ACCA led
the defendant to agree to or the Court to impose a sentence
above the advisory sentencing guideline range.”);
Gov't Br. 5, Knight, No. 3:14-cr-00152-BR
(“[T]here is no evidence in the record that the
Court's decision to impose a low-end advisory guideline
sentence was [intended] to avoid a sentence under the
Government's other arguments, which should have been
presented earlier in the litigation, were already addressed
by the Court in its first Opinion and Order. Kona
Enters., Inc., 229 F.3d at 890 (holding that a motion
for reconsideration may not be used to raise arguments
“which could have reasonably been raised earlier in the
litigation”); see also United States v.
Rezonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998)
(holding that a court need not “rethink what it has
already thought through”). There is therefore no
manifest error of law or justice.
foregoing reasons, the Government's motion for
reconsideration is DENIED.
 There is no law of the district and
the intra-district cases cited by the Government are not
binding upon this Court. See Starbuck v. City of San
Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977)
(“The doctrine of stare decisis does not
compel one district ...