United States v. Mario Weicks

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2019
• Docket: 15-16729
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-16729

Plaintiff-Appellee, D.C. Nos. 2:13-cv-00539-KJD 2:05-cr-00040-KJD-RJJ v.

MARIO WEICKS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Federal prisoner Mario Weicks appeals from the district court’s order

denying his 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction

under 28 U.S.C. § 2253. We review de novo, see United States v. Reves, 774 F.3d

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellant’s request for oral argument is, therefore, denied. 562, 564 (9th Cir. 2014), and we vacate and remand in part, and affirm in part.

Weicks contends that his convictions under 18 U.S.C. § 2423 (a) and (b) do

not qualify as crimes of violence under the residual clause of 18 U.S.C. § 924(c).

The government concedes that Weicks is entitled to relief if the residual clause of

section 924(c) is invalid. In United States v. Davis, 139 S. Ct. 2319, 2336 (2019),

the Supreme Court held that the residual clause of section 924(c) is

unconstitutionally vague and therefore void. Accordingly, we vacate the district

court’s order denying Weicks’s section 2255 motion as it pertains to Weicks’s

challenge to his conviction under section 924(c) and remand for further

proceedings concerning that claim.

Weicks also asserts that trial counsel was ineffective by misadvising Weicks

about the government’s guilty plea offer. Contrary to Weicks’ contentions, the

record does not show that trial counsel misadvised Weicks. Accordingly, Weicks

has not demonstrated that trial counsel’s advice was objectively unreasonable. See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). We further conclude that,

under the circumstances of this case, the district court did not abuse its discretion

in adjudicating this claim without conducting an evidentiary hearing. See Shah v.

United States, 878 F.2d 1156, 1158-59 (9th Cir. 1989).

VACATED and REMANDED in part; AFFIRMED in part.

2 15-16729