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Ernst v. United States

United States District Court, D. Oregon, Eugene Division

February 13, 2018



          Ann Aiken United States District Judge.

         In November, I granted petitioner Daniel Carl Ernst's petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. That decision rested on my determination that, after the Ninth Circuit's decision in Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), manufacture/delivery of a controlled substance under Oregon law is not categorically a "serious drug offense" under the Armed Career Criminals Act ("ACCA") and therefore cannot trigger the ACCA's fifteen-year mandatory minimum.

         The government filed a motion for reconsideration, which the parties argued at a hearing on January 31, 2017. For the reasons set forth below, the government's motion for . reconsideration is denied.


         On November 19, 2013, petitioner was convicted of felony possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On May 14, 2014, I sentenced petitioner to fifteen years' imprisonment, to be followed by five years' supervised release. Adopting the Presentence Report in full, I concluded that fifteen years' imprisonment was the statutory mandatory minimum because petitioner had three previous state-law convictions for manufacture/delivery of a controlled substance. On appeal, the Ninth Circuit affirmed petitioner's conviction and sentence. United States v. Ernst, 623 Fed.Appx. 333, 333-35 (9th Cir. 2015) (unpublished). On June 8, 2016, the Supreme Court denied petitioner's request for review, rendering his conviction and sentence final on direct appeal. Ernst v. United States, 136 S.Ct. 2426 (2016).

         In May 2017, petitioner filed the instant petition to vacate, set aside, or correct his sentence. He asserted five claims for relief, four of which I rejected as meritless. Petitioner's remaining claim was that the ACCA's mandatory minimum was improperly applied to him because Sandoval made clear that his prior convictions under Oregon law are not qualifying ACCA predicate offenses. I agreed and vacated petitioner's sentence, holding that the Oregon manufacture/delivery statute was overbroad as to delivery and thus not a categorical match for a "serious drug offense" under the ACCA. 18 U.S.C. § 924(e)(2)(A)(ii). My analysis was guided by Sandoval, in which the Ninth Circuit held that Oregon's manufacture/delivery statute was not a categorical match for a "drug trafficking crime" under the federal immigration statutes. 866 F.3d at 993.


         Ordinarily, requests for reconsideration are governed by Federal Rule of Civil Procedure 59(e). United States v. Martin, 226 F.3d 1042, 1047 n.7 (9th Cir. 2000). But because petitioner has not yet been resentenced, there is currently no final judgment in this case-which means that Rule 59 does not apply. Id. at 1048. This Court has inherent authority to modify its own interlocutory orders. Id. at 1049; see also United States v. Jerry, 487 F.2d 600, 604 (3d. Cir. 1973) ("[T]he power to grant relief from erroneous interlocutory orders, exercised injustice and good conscience, has long been recognized as within the plenary power of courts until entry of final judgment and is not inconsistent with any of the Rules."). Even though courts have that inherent authority, however, they "should be loathe to [exercise it] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice."[1] Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (internal quotation marks omitted).


         The government urges reconsideration on two grounds. First, it asks me to reconsider my holding that Oregon's manufacture/delivery statute is overbroad as to delivery with respect to the ACCA's definition of "serious drug offense." In the alternative, it contends that even if the statute is overbroad as to delivery, it is divisible. The government argues that a review of the Shepard documents in this case shows that petitioner has three prior convictions for manufacture of a controlled substance, so that the Oregon statute's overbreadth as to delivery has no bearing on the appropriateness of petitioner's designation as an armed career criminal. The government has failed to show clear error or manifest injustice as to the first argument. And I decline to consider the second argument because the government waived it by failing to raise divisibility in its response to the § 2255 petition.

         With respect to the government's first argument, I acknowledge-as I did in the order granting the § 2255 petition-that whether Oregon's manufacture/delivery statute is overbroad as to delivery with respect to the ACCA's definition of "serious drug offense" is a "close question." Ernst v. United States, 2017 WL 5490869, *6 (D. Or. Nov. 13, 2017). Nevertheless, none of the arguments marshaled by the government here persuade me that the prior opinion is clearly erroneous or works a manifest injustice. Christianson, 486 U.S. at 817.

         Judge Hernandez recently held that, even after Sandoval, a conviction under Oregon's manufacture/delivery statute is a "controlled substance offense" under the Sentencing Guidelines. United States v. Harms, 2017 WL 4918513, *2 (D. Or. Oct. 31. 2017). But Harms does not justify reconsideration for three reasons. First, decisions of this Court are not binding precedent. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) ("A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case."). Second, Harms expressly acknowledged that Sandoval creates doubt as to whether Oregon delivery/manufacture of a controlled substance is properly classified as a controlled substance offense under the Guidelines. See Harms, 2017 WL 4918513 at *2 ("The Ninth Circuit's recent decision in Sandoval suggests, but does not require[, ] a different result.").

         Third, Harms was a Guidelines case, not an ACCA case. As a result, the outcome in Harms was dictated by United States v. Shumate, 329 F.3d 1026, 1029 (9th Cir. 2003), in which the Ninth Circuit expressly rejected the argument that Oregon's statute was overbroad as to delivery with respect to the Guidelines' definition of "controlled substance offense." When the Ninth Circuit has decided an issue in a published opinion, this Court may depart from that holding only when intervening authority has "undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Sandoval and its discussion of State v. Self, 706 P.2d 975 (Or. Ct. App. 1985), cast serious doubt on Shumate-but Sandoval and Shumate are not clearly irreconcilable.

         The tension between Shumate and Sandoval plays out differently here than in Harms because neither precedent speaks directly to whether the Oregon statute is overbroad with respect to the ACCA. On the one hand, the government is correct that there are strong similarities between the Guidelines definition of "controlled substance offense" and the ACCA's definition of "serious drug offense." The ACCA defines "serious drug offense" as "an offense under State law, involving manufacturing, distributing, or possessing with ...

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