United States District Court, D. Oregon, Medford Division
OPINION & ORDER
AIKEN, UNITED STATES DISTRICT JUDGE.
January 9, 2018, this Court granted Defendant Timothy Roger
Lewis's Motion to Vacate or Correct Sentence pursuant to
28 U.S.C. § 2255. ECF No. 45. The Government now moves
for reconsideration of that Order pursuant to Federal Rule of
Civil Procedure 59(e). ECF No. 46. The Court finds this
motion appropriate for resolution without oral argument and
the Government's motion is DENIED.
preliminary matter, the Court must address the appropriate
standard for consideration of this motion. The Government
asserts, and Lewis appears to accept, that this case involves
the application of Federal Rule of Civil Procedure 59(e),
which is the procedural mechanism for altering or amending
judgments in certain extraordinary circumstances.
Fed.R.Civ.P. 59(e); Rishor v. Ferguson, 822 F.3d
482, 489-92 (9th Cir. 2016) (applying Rule 59(e) standards to
a post-judgment motion for reconsideration in a habeas case).
The prior Order at issue here was not a final judgment,
however, but an interlocutory order vacating Lewis's
sentence and directing that he be transported for
resentencing. As there is no final judgment to alter or
amend, Rule 59(e) is not the appropriate vehicle for the
relief sought by the Government. See, e.g., Motorola Inc.
v. IB. Rodger's Meek Contractors, Inc., 215 F.R.D.
581, 582 n.l (D. Ariz. 2003). The Court therefore construes
the motion as one brought pursuant to the Court's
inherent power to reconsider its own interlocutory orders.
long as a district court has jurisdiction over the case, then
it possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by
it to be sufficient.'" City of Los Angeles,
Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885
(9th Cir. 2001) (quoting Mekmcon v. Texaxo, Inc.,
659 F.2d 551, 553 (5th Cir. 1981)). "[W]hen a district
court issues 'an interlocutory order, the district court
has plenary power over it and this power to reconsider,
revise, alter or amend the interlocutory order is not subject
to the limitations of Rule 59.'" Id.
(quoting Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1315 (11th Cir. 2000)). As there has been no appeal and
Lewis's re-sentencing has not yet taken place, the Court
concludes that it retains jurisdiction over the case.
court has the power to revisit prior decisions of its own or
of a coordinate court in any circumstance, although as a rule
court should be loathe to do so in the absence of
extraordinary circumstances such as where the initial
decision was clearly erroneous and would work a manifest
injustice." Christiamon v. Colt. Indus. Operating
Corp., 486 U.S. 800, 817 (1988) (internal quotation
marks and citation omitted). In practical terms, this means
district courts are guided by substantially the same
standards as when considering motions for reconsideration
brought pursuant to the Federal Rules of Civil Procedure.
See Marlyn Nittraceuticals, Inc. v. Mucos Pharma GmbH
& Co., 571 F.3d 873, 880 (9th Cir. 2009) (reviewing
a district court's decision to deny reconsideration of a
ruling on a preliminary injunction when the motion was
submitted after the court made its oral ruling but before it
issued a written opinion). '"[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, or if there
is an intervening change in the controlling law.'"
Id. (quoting 389 Orange St. Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). "A
motion for reconsideration 'may not be used to
raise arguments or present evidence for the first time when
they could reasonably have been raised earlier in the
litigation.'" Id. (quoting Kona
Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000)) (emphasis in original).
Court therefore turns to the substance of the
Government's motion. In granting Lewis's § 2255
motion, the Court concluded that Lewis's prior
convictions for Robbery under North Dakota law were not ACCA
predicate offenses because the relevant statute, N.D. Cent.
Code § 12.1-22-01, was indivisible and permitted
conviction based on reckless conduct. In reaching this
conclusion, the Court rejected the Government's argument
that the Supreme Court's decision in Voisine v.
United States, ___ U.S.___, 136 S.Ct. 2272 (2016), was
"clearly irreconcilable" with prior Ninth Circuit
precedent restricting ACCA predicate convictions to offenses
involving intentional or knowing conduct.
motion for reconsideration, the Government argues that the
Court's conclusion constituted a "manifest error of
law, " because the Eighth Circuit and a North Dakota
district court have concluded that Voisine expanded
the scope of the ACCA to include reckless offenses.
United States v., Fogg, 836 F, 3d 951, 956
(8th Cir. 2016); Nilsen v. United States, No.
1:16-cv-152, No. 1:12-cr-111, 2017 WL 2178313
(D.N.D May 17, 2017).
first instance, the Government is barred from raising this
issue in a motion for reconsideration. As discussed above, a
motion for reconsideration may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the litigation.
Kona Enters., 229 F, 3d at 890. The Court notes that
the reconsideration order in Nilsen was issued on
June 29, 2017, Gov't Mot. Ex. 1, while the Fogg
decision was issued on September 8, 2016. The Government
could have cited Fogg or the Nilson
reconsideration order in its Response to Lewis's §
2255 motion. ECF No. 42. The Government presents no argument
as to why it waited until the motion for reconsideration to
raise Nilsen or Fogg.
the Court based its decision on a close reading of
Voisine and prior Ninth Circuit decisions excluding
reckless offenses from serving as ACCA predicates.
Nilsen and Fogg are not binding on this
Court and it was not a "manifest error of law" for
the Court to follow existing Ninth Circuit precedent to reach
a contrary conclusion on the application of Voisine
to the ACCA elements clause. Nor do Nilsen and
Fogg represent a clear consensus of
post-Voisine persuasive authority regarding reckless
offenses under the ACCA elements clause. See, e.g. United
States v. Windley, 864 F.3d 36, 37-39 (1st Cir. 2017)
(holding that a conviction for a reckless offense does not
qualify as an ACCA predicate); United States v.
Taylor, 272 F.Supp.3d 127, 146 (D.D.C. 2017) (explicitly
rejecting the reasoning of Fogg in holding that
"a state statute that requires the mere reckless
application of force . . . does not meet the requirements of
the elements clause of the ACCA.").
best, Nilsen and Fogg are evidence of a
developing circuit split and the resolution of such a split
is not within the purview of the district courts. Zimiga
v. United Can Co.,812 F.2d 443, 450 (9th Cir. 1987). In
the absence of clear direction from the Supreme Court or the
Ninth Circuit, this ...