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United States v. McAdory

United States Court of Appeals, Ninth Circuit

August 28, 2019

United States of America, Plaintiff-Appellee,
v.
Ahmad Jerome McAdory, Defendant-Appellant.

          Argued and Submitted May 14, 2019 Seattle, Washington

          Appeal 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

          Ann 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 Plaintiff-Appellee.

          Before: Michael Daly Hawkins, William A. Fletcher, and Mark J. Bennett, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         The 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.

         An 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 violation).

         The 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 § 922(g)(1).

          OPINION

          HAWKINS, SENIOR CIRCUIT JUDGE:

         When is 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).

         BACKGROUND

         In 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 pistol. ...


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