United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge.
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
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.
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(unpublished).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).
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.
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." Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 817 (1988)
(internal quotation marks omitted).
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 §
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.
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
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.
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 ...