United States v. Nick West

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2022
• Docket: 20-35786
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 23 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-35786

Plaintiff-Appellee, D.C. Nos. 9:19-cv-00170-DLC 9:16-cr-00028-DLC-2 v.

NICK WEST, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted February 10, 2022** Seattle, Washington

Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.

Nick West appeals the denial of a motion under 28 U.S.C. § 2255. West

seeks relief from his conviction, arising out of a plea agreement, under the residual

clause of 18 U.S.C. § 924(c)(3)(B), which the Supreme Court held

* 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). unconstitutionally vague in United States v. Davis, 139 S. Ct. 2319, 2323–24

(2019). West did not raise the unconstitutionality of § 924(c)(3)(B) at trial or on

direct appeal. West argues that he can demonstrate cause and prejudice to

overcome the apparent procedural default of this claim. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2255(d), and we affirm the district court. Because

the parties are familiar with the facts, we do not recite them here.

A petitioner may overcome procedural default by showing either: (1) cause

and actual prejudice or (2) actual innocence. See United States v. Frady, 456 U.S.

152, 167–68 (1982) (cause and prejudice); Murray v. Carrier, 477 U.S. 478, 497

(1986) (actual innocence).1

West argues that he has cause and prejudice for the procedural default

because his trial counsel was incompetent in failing to raise the potential

unconstitutionality of the residual clause § 924(c)(3)(B) upon which Count 9 of the

plea agreement was based. Further, he contends that the unconstitutionality of the

clause following the Supreme Court’s ruling in Davis represents an independent

1 West does not argue actual innocence and, since the district court considered actual innocence below, the argument is waived. See United States v. Seschillie, 310 F.3d 1208, 1217 (2002) (“[A]rguments not raised in the opening brief are deemed waived.”); cf. Bousley v. United States, 523 U.S. 614, 623 (1998) (remanding to the district court to consider actual innocence when the district court had failed to evaluate actual innocence in the first instance). 2 reason for the plea agreement’s invalidity. West cannot demonstrate cause and

prejudice under either theory.

1. West’s trial counsel was not deficient, nor did any alleged ineffective

assistance result in prejudice to West. See Strickland v. Washington, 466 U.S. 668,

687–94 (1984). We have held time and again that a lawyer cannot be expected to

anticipate changes in the law, nor to seek a lengthy continuance to determine their

resolution. See United States v. Juliano, 12 F.4th 937, 940–41 (9th Cir. 2021);

Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). At the time of West’s plea

agreement, the Supreme Court was still nearly two and a half years away from

issuing its final decision in Davis, and over a year from deciding Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), upon which it would base its remand in Davis.

West demonstrates, at best, that his counsel failed to predict the future.

Nor was West prejudiced. Given the strength of the charges against

him—multiple eyewitnesses ready to testify (including West’s own co-

conspirators), a telephone line kept open to authorities throughout the course of

events, and the recovery of the weapon in his possession—West does not

demonstrate a reasonable probability that the government would have reduced the

length of sentence offered simply because he pointed out a potential constitutional

3 deficiency in the plea agreement, as it was written. See Strickland, 466 U.S. at

694.

2. Even if one assumes that West could show cause, he cannot otherwise

demonstrate prejudice. West committed a horrendous crime and faced iron-clad

evidence against him. Here, the plea agreement was not only the most lenient

option available to West, but it was also based on the dismissal of substantially

more serious charges, which themselves would have satisfied the predicate charge

requirements of Count 9.

West was charged with eleven counts. West’s guilty plea dismissed all but

three counts, as he pled guilty to Counts 1 (conspiracy to commit robbery affecting

commerce), 3 (carjacking), and 9 (brandishing a firearm during a crime of

violence). All told, the plea agreement reduced West’s term of imprisonment from

a possible mandatory minimum of fifty-two years to just fifteen. West provides no

rationale to suggest that the government would not have availed itself of any

number of alternative combinations of charges to reach the same result had he

disputed the constitutionality of Count 9 as pled.

The substantial benefit to West from the plea agreement, taken together with

the strength of the record against him, demonstrates that West was not prejudiced.

AFFIRMED.