United States v. Ray Heffington

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2019
• Docket: 16-15906
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-15906

Plaintiff-Appellee, D.C. Nos. 1:15-cv-01850-LJO 1:93-cr-05021-LJO-1 v.

RAY MARTIN HEFFINGTON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Ray Martin Heffington 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. Reviewing de novo, see United States v. Fultz, 923 F.3d 1192,

1194 (9th Cir. 2019), we affirm.

* 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). Heffington claims he should no longer be subject to a mandatory life

sentence under 21 U.S.C. § 841 because his prior state felony convictions, which

were used to enhance his federal sentence, have been reclassified as misdemeanors.

As Heffington concedes, that argument is foreclosed. See United States v. Diaz,

838 F.3d 968, 975 (9th Cir. 2016), cert. denied, 137 S. Ct. 839 (2017) (post-

conviction state actions do not disturb a prior federal sentencing enhancement

under 21 U.S.C. § 841). Heffington argues that Diaz was wrongly decided, but we

can only overrule a prior decision by a three-judge panel when there is clearly

irreconcilable intervening higher authority, which is absent in this case. See

Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 979 (9th Cir.

2012).

Heffington also seeks en banc review of Diaz, a petition he does not have

standing to submit. See 9th Cir. R. 35(b). Moreover, the Diaz panel already

denied petitions for panel rehearing and rehearing en banc, and ordered that no

subsequent petitions for rehearing en banc may be filed. See Diaz, 838 F.3d at

970.

Nothing in this disposition precludes Heffington from filing a petition for

rehearing en banc in this case pursuant to the applicable rules.

AFFIRMED.

2 16-15906