United States v. Ronald McGregor

FILED NOT FOR PUBLICATION JUL 07 2015 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 13-10384 Plaintiff - Appellee, D.C. No. 3:12-cr-00200-WHA-1 v. MEMORANDUM* RONALD McGREGOR, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted September 10, 2014 Submission Vacated January 16, 2015 Resubmitted July 2, 2015 San Francisco, California Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges. Ronald McGregor appeals the district court’s denial of his motion to suppress and his fifteen-year mandatory-minimum sentence imposed under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), following his * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. bench-trial conviction of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review de novo a district court’s denial of a motion to suppress. United States v. Brown, 563 F.3d 410, 414 (9th Cir. 2009). We also review de novo whether a prior conviction constitutes a predicate felony under the ACCA. United States v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en banc). We affirm the court’s denial of the motion to suppress, but vacate McGregor’s sentence in light of Johnson v. United States, No. 13-7120, 2015 WL 2473450 (U.S. June 26, 2015). First, McGregor contends that the district court erred by denying his motion to suppress evidence obtained after a warrantless entry into an apartment. However, the district court properly determined that the emergency exception applied because, considering the totality of the circumstances, it was objectively reasonable for the officers to conclude there was an immediate need to enter the apartment to protect any occupants or themselves from serious harm. See United States v. Snipe, 515 F.3d 947, 952 & n.6 (9th Cir. 2008) (setting forth emergency exception to warrant requirement and rejecting “assertion that the police must witness ongoing violence before responding to an emergency”). The officers reasonably suspected that McGregor had a concealed weapon 2 13-10384 based on the circumstances, including McGregor’s furtive movements when he saw the officers’ vehicle and his headlong flight to a nearby apartment when the officers tried to contact him. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); United States v. Arellano-Ochoa, 461 F.3d 1142, 1145-46 (9th Cir. 2006). Although it turned out that McGregor’s sister lived in the apartment, the officers did not know this at the time, and it was reasonable for the officers to conclude that McGregor had fled into a stranger’s apartment and could pose a threat to any occupants. See Ryburn v. Huff, 132 S. Ct. 987, 992 (2012) (per curiam). The circumstances here differ from those in United States v. Nora, 765 F.3d 1049 (9th Cir. 2014). Unlike this case, there was no indication in Nora that the officers thought that Nora had fled into a stranger’s home. See id. at 1051-52, 1054. Second, McGregor contends his prior convictions were not predicate “violent felon[ies]” under the ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). In light of Johnson, which struck down the residual clause as unconstitutionally vague, we vacate McGregor’s sentence and remand to the district court for re-sentencing. AFFIRMED in part, VACATED in part, and REMANDED. 3 13-10384