United States v. William Mock

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 2018
• Docket: 17-35547
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 06 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 17-35547

Plaintiff-Appellee, DC No. CR 2-102 RHW

v.

WILLIAM WISE MOCK, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding

Argued and Submitted April 12, 2018 Seattle, Washington

Before: TASHIMA and GRABER, Circuit Judges, and MIHM,** District Judge.

William Wise Mock appeals from the district court’s denial of his second or

successive 28 U.S.C. § 2255 motion to vacate his sentence. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael M. Mihm, United States District Judge for the Central District of Illinois, sitting by designation. 1. At sentencing in 2003, the district court determined based on the

presentence investigation report (“PSR”) that Mock was a career offender under

United States Sentencing Guideline § 4B1.1(a). The PSR listed four qualifying

career offender predicates: two Washington third-degree assault convictions and

two Oregon drug manufacture and delivery convictions. In 2005, Mock filed a

motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, which

the district court denied.

In 2016, this court authorized Mock to file a second or successive § 2255

motion. Mock contended that after Johnson v. United States, 135 S. Ct. 2551

(2015), the residual clause in U.S.S.G. § 4B1.2(a) was void for vagueness and his

Washington third-degree assault convictions are not valid career offender

predicates. The district court agreed, concluding that Beckles v. United States, 137

S. Ct. 886 (2017) does not preclude a vagueness challenge to the mandatory, pre-

Booker1 Sentencing Guidelines. Nonetheless, the court denied Mock’s motion

because, it concluded, Mock remains a career offender because of his two Oregon

drug convictions.

2. On appeal, Mock contends that the district court erred in relying on

the PSR – rather than the documents approved of in Shepard v. United States, 544

1 Booker v. United States, 543 U.S. 220 (2005). 2 U.S. 13 (2005) – to determine that Mock’s two drug convictions count as separate

career offender predicates.2 Because Mock did not object to the district court’s

reliance on the PSR, and in fact encouraged the court to rely on the PSR, we

review for plain error. Fed. R. Crim. P. 52(b); Puckett v. United States, 556 U.S.

129, 135 (2009). Mock therefore must show that: “(1) there was an error; (2) the

error was plain, i.e. clear or obvious; (3) the error affected his substantial rights,

meaning that it ‘affected the outcome of the district court proceedings’; and (4) the

error ‘seriously affects the fairness, integrity or public reputation of judicial

proceedings.’” United States v. Anguiano-Morfin, 713 F.3d 1208, 1210–11 (9th

Cir. 2013) (quoting Puckett, 556 U.S. at 135).

Mock has not carried his burden. First, given our case law, Mock has not

shown that any error was “clear or obvious, rather than subject to reasonable

dispute.” Puckett, 556 U.S. at 135; see also United States v. De La Fuente, 353

F.3d 766, 769 (9th Cir. 2003) (“An error cannot be plain where there is no

controlling authority on point and where the most closely analogous precedent

leads to conflicting results.”). Second, even if the district court erred, defense

counsel represented in district court that the PSR incorporates Mock’s conviction

2 We grant Mock’s motion to strike the government’s supplemental excerpts of record because the documents in the supplemental excerpts were not clearly part of the record before the district court. 3 records – themselves Shepard documents – which undermines any argument that

the error “seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings” or “affect[ed] substantial rights.” United States v. Olano, 507 U.S.

725, 732, 734 (1993) (internal quotation marks omitted). The district court did not

plainly err.

3. We review for abuse of discretion the district court’s determination

that Mock’s two Oregon drug convictions count as separate career offender

predicates. United States v. Gasca-Ruiz, 852 F.3d 1167, 1171 (9th Cir.) (en banc),

cert. denied, 138 S. Ct. 229 (2017). Two convictions count separately if they were

separated by an intervening arrest or were not part of a “common scheme or plan.”

U.S.S.G. § 4A1.2(a), cmt. n.3 (2002). The factors relevant to whether the offenses

were part of a common scheme are: “(1) whether the crimes were committed

‘within a short period of time;’ (2) whether the crimes involved the same victim;

(3) whether the defendant was arrested by the same law enforcement agency for

both crimes; and (4) when the arrests occurred and whether both crimes were

solved during the course of one investigation.” United States v. Chapnick, 963

F.2d 224, 226 (9th Cir. 1992), superseded on other grounds by U.S.S.G. § 4A1.2,

cmt. n.3 (citation and internal quotation marks omitted).

4 More than a month after Mock’s arrest and jailing on the first drug charge,

officers received a report that Mock was living in a boxcar, raided the boxcar, and

found a methamphetamine lab. It took the officers nine days to locate and arrest

Mock at the county jail, suggesting that the offenses were discovered through

separate investigations. Moreover, the two meth labs were in different locations,

meaning the crimes may have had different victims. Therefore, the district court

did not abuse its discretion in concluding that the offenses were not part of a

common scheme and count separately for purposes of the career offender

Guideline.3

• ! •

The judgment of the district court is

AFFIRMED.

3 Because we conclude that the district court did not err in determining that Mock remains a career offender regardless of the status of his assault convictions, we do not decide whether the residual clause of U.S.S.G. § 4B1.2(a) is void for vagueness. 5