and Submitted May 14, 2019 Seattle, Washington
from the United States District Court for the Western
District of Washington D.C. No. 2:17-cr-00199-RSM-1, Ricardo
S. Martinez, Chief District Judge, Presiding
Wagner (argued) and Gregory Geist, Assistant Federal Public
Defenders, Office of the Federal Public Defender, Seattle,
Washington, for Defendant-Appellant.
Michael Symington Morgan (argued), Assistant United States
Attorney; Helen J. Brunner, First Assistant United States
Attorney; Brian T. Moran, United States Attorney; United
States Attorney's Office, Seattle, Washington; for
Before: Michael Daly Hawkins, William A. Fletcher, and Mark
J. Bennett, Circuit Judges.
panel reversed a criminal judgment in a case in which the
defendant was convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and
remanded with instructions that the district court vacate the
conviction and dismiss the indictment.
offense qualifies as a predicate felony for conviction under
§ 922(g)(1) if it is "punishable by imprisonment
for a term exceeding on year." The panel concluded that
it is bound by United States v. Valencia-Mendoza,
912 F.3d 1215 (9th Cir. 2019), which defines "punishable
by" as the sentence to which the defendant is actually
exposed under Washington's mandatory sentencing scheme,
and which explicitly overruled United States v.
Murillo, 422 F.3d 1152 (9th Cir. 2005) (holding that
"punishable by" is defined by the state statute of
panel held that because none of the defendant's prior
convictions had standard sentencing ranges exceeding one
year, and none was accompanied by written findings of any of
the statutory factors that would justify an upward departure,
the defendant had no predicate offenses within the meaning of
HAWKINS, SENIOR CIRCUIT JUDGE:
a felony not a felony for the purposes of 18 U.S.C. §
922? When Ahmad McAdory ("McAdory") was charged and
later sentenced under § 922(g)(1), the answer was
straightforward. According to United States v.
Murillo, 422 F.3d 1152 (9th Cir. 2005), a felony was a
crime punishable by a term of imprisonment exceeding one year
as defined by the statute of violation. But intervening
authority, not available below to the district court or the
parties, United States v. Valencia-Mendoza, 912 F.3d
1215 (9th Cir. 2019), now defines "punishable by"
as the sentence to which the defendant is actually exposed
under Washington's mandatory sentencing scheme,
explicitly overruling Murillo. Because we are bound
by Valencia-Mendoza and none of McAdory's prior
convictions actually exposed him to a term of imprisonment
exceeding one year, we reverse his felon in possession
conviction under 18 U.S.C. § 922(g)(1).
April 2017, Seattle police responded to a report of a traffic
collision. Three occupants of the crashed car fled the scene;
only two were apprehended. McAdory was not one of them, but
the police found McAdory's wallet and identification in
the back seat of the car, along with a 9mm Smith & Wesson