United States v. Jimmy Torres

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF No. 14-10210
AMERICA,
Plaintiff-Appellee, D.C. No.
2:12-cr-00154-KJD-GWF-1
v.

JIMMY TORRES, OPINION
Defendant-Appellant.

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

Argued and Submitted December 8, 2015
San Francisco, California

Filed July 14, 2016

Before: Kim McLane Wardlaw, William A. Fletcher,
and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia
2 UNITED STATES V. TORRES

SUMMARY*

Criminal Law

The panel affirmed the district court’s denial of a motion
to suppress evidence of a handgun found during an inventory
search in the air filter compartment of a vehicle operated by
the defendant, vacated his sentence, and remanded for
resentencing.

The panel held that Las Vegas Metropolitan Police
Department officers’ decision to impound the vehicle was
permissible under the Fourth Amendment because it was
consistent with LVMPD policy and served legitimate
caretaking purposes: to promote other vehicles’ convenient
ingress and egress to a parking area, and to safeguard the car
from vandalism or theft.

The panel held that the district court’s conclusion that an
officer’s search of the air filter compartment was authorized
by LVMPD policy is not clearly erroneous. The panel held
that the LVMPD inventory search policy appears to have
been reasonably “designed to produce an inventory,” and
ensures sufficient uniformity to protect the owners and
occupants of impounded vehicles from the risk that officers
will exercise discretion in performing an inventory search
only when they suspect they will uncover the fruits of
criminal activity. The panel held that in fulfilling his duty to
search “all containers,” the officer acted within the
parameters of LVMPD policy when he unlatched the air filter

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. TORRES 3

compartment, and that the inventory search did not violate the
Fourth Amendment. The panel rejected the defendant’s due
process challenge to the district court’s order adopting and
accepting the magistrate judge’s recommendation that the
motion to suppress be denied.

Based on the government’s concession, the panel assumed
without deciding that Johnson v. United States, 135 S. Ct.
2551 (2015), which held that the Armed Career Criminal
Act’s residual clause is unconstitutionally vague, nullifies the
identically worded residual clause in U.S.S.G. § 4B1.2(a)(2).
The panel therefore accepted the government’s concession
that the district court sentenced the defendant to a provision
in the Sentencing Guidelines that is unconstitutionally vague,
which renders the sentence “illegal” such that the defendant’s
waiver in his plea agreement does not bar this appeal.
Because the government agrees that the defendant’s prior
convictions do not justify imposition of U.S.S.G.
§ 2K2.1(a)(2)’s crime-of-violence enhancement absent the
residual clause, the panel vacated the sentence and remanded
for resentencing.

COUNSEL

Rachel Korenblat (argued), Alina Maria Shell and Amy B.
Cleary, Assistant Federal Public Defenders; Rene L.
Valladares, Federal Public Defender; Federal Public
Defender’s Office, Las Vegas, Nevada; for Defendant-
Appellant.
4 UNITED STATES V. TORRES

Elizabeth O. White (argued), Appellate Chief; Camille W.
Damm, Assistant United States Attorney; Daniel G. Bogden,
United States Attorney; United States Attorney’s Office,
Reno, Nevada; for Plaintiff-Appellee.

OPINION

MURGUIA, Circuit Judge:

Jimmy Torres appeals the district court’s denial of his
motion to suppress evidence of a handgun that was found
during an inventory search in the air filter compartment of a
vehicle occupied by Torres. Torres, who has a criminal
history that included previous felony convictions, was
charged with one count of unlawful possession in violation of
18 U.S.C. § 922(g)(1). He entered a guilty plea pursuant to
a plea agreement in which he reserved the right to appeal the
denial of his suppression motion. Torres now appeals that
denial as well as his sentence. We have jurisdiction pursuant
to 28 U.S.C. § 1291. We affirm the denial of Torres’s motion
to suppress, but vacate Torres’s sentence and remand for re-
sentencing in light of the conceded unconstitutionality of
section 2K2.1(a)(2) of the U.S. Sentencing Guidelines.

BACKGROUND

On April 24, 2012, Las Vegas Metropolitan Police
Department (“LVMPD”) officers responded to a call from
dispatch regarding a domestic battery occurring in a moving
car in Las Vegas, Nevada. An individual had called 911 to
report a male driver pulling the hair of a female passenger.
The caller told dispatch that the vehicle had turned into a
 UNITED STATES V. TORRES 5

private apartment complex, at which point the caller lost sight
of the car.

Officer Jason Evans was the first to arrive at the complex,
where he observed a Saturn Vue matching the 911 caller’s
description in the parking lot with two occupants, a male
driver—later identified as Torres—and a female passenger
named Cara Young. Officer Joseph Donaldson arrived on the
scene shortly thereafter. The vehicle was found near a red
zone—i.e. a designated no-parking-or-stopping area.
According to officers, the car had been stopped in the middle
of the parking lot and backed up toward the curb, with
vehicles parked in stalls perpendicularly to it on both sides.

When Officer Evans approached the driver’s side of the
vehicle, he smelled the odor of alcohol on Torres’s breath.
Evans decided to investigate a possible driving-under-the-
influence (“DUI”) offense and had Torres exit the vehicle.
Evans administered two field sobriety tests to Torres, which
he failed. Consequently, Evans arrested Torres for DUI and
placed him, in handcuffs, in the back of the patrol vehicle.
Evans conducted a records check on Torres that revealed he
was a convicted felon. It was also determined that the
passenger, Young, did not have a valid driver’s license.
Although she told officers that the car was hers, the
registration had apparently lapsed.1 Neither Torres nor

1
A subpoena was later served on the Nevada Department of Motor
Vehicles to produce the records regarding the car, which included
documents obtained from the California Department of Motor Vehicles.
The California records identify Young as the last registered owner.
According to the Nevada records, there was no owner. Citifinancial Auto
was also listed as a lienholder on the vehicle for the Vue’s previous
owner; Citifinancial Auto’s listed address is a P.O. Box in Texas.
6 UNITED STATES V. TORRES

Young lived at the apartment complex. Accordingly, the
officers decided to impound the car.

Officer Donaldson performed an inventory search of the
vehicle and prepared a departmental Vehicle Impound
Report. The impound report contains a list of 51 “features”
and requires the officer to circle the items applicable to the
subject vehicle. The features to be checked include the
engine, battery, and radiator, as well as the registration, radio,
type of transmission, and window tinting, among other things.
The report also includes space for an officer to note pre-
existing damage to the vehicle, and to list any personal
property found inside.

Donaldson began his search at the front driver’s side door,
and proceeded to check the trunk, the passenger’s side, and
the engine compartment. During his search, Donaldson found
a hydraulic press, tools, and rolls of coins, which he noted on
the impound report. Donaldson also unlatched the lid of the
engine’s air filter compartment, where he discovered a Sig
Sauer P229 semi-automatic pistol and a holster. Upon
locating the handgun, Donaldson stopped the inventory
search and called LVMPD’s firearms detail. Detective
Robert Orth responded to the call and applied telephonically
for a warrant to seize the gun. A records check was
conducted on the firearm, which revealed that it had been
stolen during a burglary earlier that day.

The United States Attorney for the District of Nevada
filed an indictment charging Torres with one count of being
a Felon in Possession of a Firearm, in violation of 18 U.S.C.
§ 922(g)(1). Torres filed a motion to suppress evidence of the
handgun on the grounds that it was the product of an
unconstitutional search and seizure. A magistrate judge
 UNITED STATES V. TORRES 7

conducted an evidentiary hearing on the motion to suppress
at which Officer Evans, Officer Donaldson, and Detective
Orth testified. Officers Evans and Donaldson testified that
searching the air filter compartment is standard practice
within the LVMPD, and that people commonly hide property
such as money, narcotics, and weapons in automobile engine
compartments. Officer Donaldson further stated that he
searched the air filter because he had found contraband in
engine compartments in the past. After the hearing, the
magistrate judge issued a report containing findings of fact
and a recommendation that Torres’s motion be denied. The
magistrate judge noted in closing that “[t]he search of the air
cleaner box in this case may be at the boundary of what may
be permissibly searched during an inventory search. It does
not, however, cross that boundary.” Over Torres’s timely
objections, the district court, in a brief order, adopted the
magistrate judge’s recommendation and denied Torres’s
motion to suppress.

Torres subsequently entered a conditional plea of guilty
pursuant to a plea agreement that included a waiver of his
appellate rights, with the exception that Torres could appeal
the denial of his motion to suppress. The district court
sentenced Torres to a term of imprisonment of ninety-two
months, followed by three years of supervised release. Torres
now appeals the district court’s denial of his motion to
suppress as well as his sentence.

DISCUSSION

We review the denial of a motion to suppress evidence de
novo, and any underlying factual findings for clear error.
United States v. Cervantes, 703 F.3d 1135, 1138 (9th Cir.
2012). This Court also reviews de novo the question of
8 UNITED STATES V. TORRES

whether a defendant’s due process rights were violated,
United States v. Ridgway, 300 F.3d 1153, 1155 (9th Cir.
2002), and whether a pleading defendant has waived his right
to appeal. United States v. Medina-Carrasco, 815 F.3d 457,
461 (9th Cir. 2016).

Torres argues that the officers’ impoundment of the Vue
and the inclusion of the air filter compartment in Officer
Donaldson’s inventory search exceeded the bounds of
LVMPD policy and the Fourth Amendment. Torres also
challenges the district court’s order adopting the magistrate
judge’s report and recommendation on the ground that the
court made factual findings that are inconsistent with those of
the magistrate judge, in violation of his due process rights.
Lastly, Torres objects that his sentence is unlawful in light of
the Supreme Court’s recent decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), which held that the so-called
“residual clause” of the Armed Career Criminal Act
(“ACCA”) is unconstitutionally vague.

I.

“The impoundment of an automobile is a seizure within
the meaning of the Fourth Amendment.” Miranda v. City of
Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). The Fourth
Amendment proscribes warrantless searches and seizures by
law enforcement officers as “per se unreasonable . . . subject
only to a few specifically established and well-delineated
exceptions.” Cervantes, 703 F.3d at 1138–39 (quoting Katz
v. United States, 389 U.S. 347, 357 (1967)).

Under the “community caretaking” doctrine, police may,
without a warrant, impound and search a motor vehicle so
long as they do so in conformance with the standardized
 UNITED STATES V. TORRES 9

procedures of the local police department and in furtherance
of a community caretaking purpose, such as promoting public
safety or the efficient flow of traffic. Id. at 1141. This
requirement ensures that impoundments are conducted “on
the basis of something other than suspicion of evidence of
criminal activity.” Miranda, 429 F.3d at 863 (quoting
Colorado v. Bertine, 479 U.S. 367, 375 (1987)); see also
Florida v. Wells, 495 U.S. 1, 4 (1990) (“[A]n inventory
search must not be a ruse for a general rummaging in order to
discover incriminating evidence.”). The government bears
the burden of establishing that a vehicle’s impoundment and
search are justified under an exception to the warrant
requirement. Cervantes, 703 F.3d at 1140–41.

A.

The LVMPD officers’ decision to impound the Vue was
permissible under the Fourth Amendment because it was
consistent with LVMPD policy and served legitimate
caretaking purposes: to promote other vehicles’ convenient
ingress and egress to the parking area, and to safeguard the
car from vandalism or theft.

The LVMPD has two written policies dealing with the
impoundment of motor vehicles. Section 5/202.20 of the
LVMPD policy manual provides, in pertinent part:

The arresting officer has the option of
allowing the arrestee, provided they are the
registered owner, to leave his vehicle parked
or have it towed if the following conditions
exist:

1. The arrestee is 18 years or older.
10 UNITED STATES V. TORRES

2. The arrestee is not under the influence
of intoxicating liquors or drugs.

3. The vehicle is parked legally on the
roadway or private property open to
the public.

4. The vehicle is not needed for
evidence.

If the arrestee is not the registered owner, the
officer will attempt to notify the registered
owner that the vehicle in question will be
towed if they do not come to the scene and
take custody of their vehicle. The registered
owner would be advised they need to respond
in a timely manner (generally 30 minutes).

Section 5/204.06 of the police manual also specifies twelve
circumstances under which a vehicle may be impounded,
including:

1. Whenever a driver is arrested and is [sic]
no physical or mental condition to turn the
vehicle over to the custody and care of a
relative or friend. . . .

6. When ownership and rightful possession
by the driver is in doubt. . . .

12. If there is not a licensed driver in the
vehicle and it is not legally parked.
 UNITED STATES V. TORRES 11

And, section 5/204.06 states, “It is the policy of this
department that to impound a vehicle without cause is strictly
forbidden.”

The LVMPD policies that canalize law enforcement
officers’ decision whether to impound a vehicle are
sufficiently standardized to satisfy the dictates of the Fourth
Amendment. See Miranda, 429 F.3d at 865 (“The decision
to impound must be guided by conditions which
‘circumscribe the discretion of individual officers’ in a way
that furthers the caretaking purpose.” (quoting Bertine,
479 U.S. at 376 n.7)). Sections 5/202.20 and 5/204.06 of the
LVMPD policy manual enumerate a limited set of
circumstances in which a vehicle may be towed, and outline
procedures to be followed prior to impoundment that comport
with the police’s role as “caretakers” of the streets.

In this case, the officers’ impoundment of the Vue also
complied with the LVMPD policy manual. Officers Evans
and Donaldson testified that there was legitimate confusion
regarding the identity of the Vue’s owner. Although Young
claimed that the vehicle was hers, the Nevada DMV computer
records did not list her as the registered owner, apparently
because the Vue was last registered in California. The Vue’s
California registration had also lapsed. The evidence
suggests that there was no information available to the
officers on scene that clearly identified Young—or anyone
else—as the registered owner of the Vue. In any event, the
officers could not have discharged the Vue to Young because
they knew that she did not have a valid driver’s license at the
12 UNITED STATES V. TORRES

time.2 Thus, the officers’ decision to impound the vehicle
was consistent with LVMPD policies. See Bertine, 479 U.S.
at 375 (sanctioning routine impoundments where authorized
by standardized police procedures).

Moreover, towing the Vue from the parking lot under the
circumstances furthered a valid caretaking purpose. Officers
testified that the vehicle was positioned in a manner that
could impede emergency services to the apartment complex.
The Vue was also blocking other vehicles from accessing or
exiting the parking stalls on either side of it. See Cervantes,
703 F.3d at 1141 (“[P]olice officers may impound vehicles
that jeopardize public safety and the efficient movement of
vehicular traffic.” (quoting Miranda, 429 F.3d at 864)).
Because neither Torres nor Young could legally drive the
vehicle, the officers could not allow either of them to move
the car to a less obtrusive location. Cf. United States v.
Caseres, 533 F.3d 1064, 1074–75 (9th Cir. 2008) (finding
that police lacked authority to impound a car where the car

2
Torres argues that if officers determined that Young was the registered
owner of the Vue, they could have offered her the opportunity to contact
someone to move the vehicle in lieu of impounding it, thus vitiating the
need to conduct an inventory search. However, neither the Fourth
Amendment nor LVMPD policy compels officers to exhaust alternatives
before they may impound a vehicle. See Bertine, 479 U.S. at 373–74
(holding that inventory search incident to impoundment was reasonable
even though defendant could have made other arrangements for the
safekeeping of his property); United States v. Penn, 233 F.3d 1111, 1116
(9th Cir. 2000) (“[T]he police had no Fourth Amendment obligation to
offer the driver an opportunity to avoid impoundment.”). “[T]he real
question is not what ‘could have been achieved,’ but whether the Fourth
Amendment requires such steps . . . .The reasonableness of any particular
governmental activity does not necessarily or invariably turn on the
existence of alternative ‘less intrusive’ means.” Bertine, 479 U.S. at 374
(quoting Illinois v. Lafayette, 462 U.S. 640, 647 (1983)).
 UNITED STATES V. TORRES 13

was lawfully parked on the street two houses away from the
defendant’s residence, and there was no showing that the car
was likely to be stolen, be broken into, or impede traffic). In
addition, the arresting officers had a reasonable interest in
preventing the vehicle from being a target for vandalism or
theft in the parking lot of an apartment complex where neither
Torres nor Young lived. See Ramirez v. City of Buena Park,
560 F.3d 1012, 1025 (9th Cir. 2009) (holding that
impoundment was warranted under the community caretaking
doctrine where the defendant was arrested in a drugstore
parking lot and would have been unable to “return to the
drugstore to retrieve his car,” and leaving the car there
“would have made it an easy target for vandalism or theft”);
Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4
(9th Cir. 1993). Under the circumstances, we conclude that
impounding the Vue was permissible under the Fourth
Amendment.

B.

Once a vehicle has been legally impounded, the police
may conduct an inventory search without a warrant.
Cervantes, 703 F.3d at 1141 (citing South Dakota v.
Opperman, 428 U.S. 364, 375–76 (1976)). Like the decision
to impound, the scope of the inventory search must conform
to the standard procedures of the local police department. See
Bertine, 479 U.S. at 375. Although a policy may accord the
searching officer significant discretion to determine whether
a particular recess should be searched, the policy cannot
constitutionally authorize officers to “rummag[e]” for
evidence of criminal activity under the guise of logging an
inventory. Wells, 495 U.S. at 4; see also Cervantes, 703 F.3d
at 1141.
14 UNITED STATES V. TORRES

The policy manual and the officers’ unchallenged
testimony established that there is a policy in place at
LVMPD requiring officers to perform a complete inventory
search of a vehicle and its contents when it is impounded.
Specifically, Section 5/204.06 states that “[i]mpounding
officers must thoroughly search vehicles and containers
located therein per 5/200.04.” It also requires that “[p]ersonal
property must be inventoried on the Vehicle Impound
Report.” Section 5/200.04 provides:

It is the policy of this department to conduct
motor vehicle searches that are both legal and
thorough. Searches are conducted in strict
observance of the constitutional rights of the
owner and occupants of the vehicle, and with
due regard for the safety of all officers,
citizens, and property involved.

...

An inventory is not a search for evidence of
crime, but is justified to protect an owner’s
property while it is in the custody of the
police, to ensure against claims of lost or
stolen property, and to guard the police from
danger.

When a vehicle is lawfully impounded (See
5/204.06), an officer shall conduct an
inventory search of that vehicle and containers
found therein and report all personal property
on the LVMPD 503, Vehicle Impound Report.
 UNITED STATES V. TORRES 15

The manual indicates that “all containers within the vehicle
must be inventoried . . . and their contents must be
inventoried also.” No containers are specifically designated
off-limits by LVMPD policy. Thus, the LVMPD policy
plainly contemplates that inventory searches of impounded
vehicles will encompass closed spaces, and affords officers
little to no discretion in what areas of the vehicle must be
searched.

This policy appears to extend to the engine cabin of a
vehicle; the manual requires impounding officers to itemize
personal property found during an inventory search on a
standardized Vehicle Impound Report that lists the engine,
battery, and radiator among the 51 features to be checked.
Officers Evans and Donaldson also testified that their
standard practice when inspecting the engine cabin is to
search the air filter compartment, even though they do not
actually verify the presence of an air filter on the impound
report. The district court’s conclusion that Officer
Donaldson’s search of the air filter compartment was
authorized by LVMPD policy is therefore not clearly
erroneous.

This case thus turns on whether it was reasonable for
Officer Donaldson to unlatch the air filter box in the engine
compartment as part of the inventory search. We hold that it
was. The Supreme Court has repeatedly approved police
policies that permit inventory searches of closed
compartments within automobiles. In South Dakota v.
Opperman, the Supreme Court held that it was reasonable to
open an unlocked glove compartment as part of an inventory
search in order to safeguard the owner’s personal property,
“to which vandals would have had ready and unobstructed
access once inside the car.” 428 U.S. at 376 n.10. Similarly,
16 UNITED STATES V. TORRES

in Colorado v. Bertine the Court upheld an inventory search
of a backpack found in a van and of containers found inside
the backpack. 479 U.S. at 369, 372–73. The Bertine Court
explained that inventorying the contents of the backpack was
consistent with the police’s caretaking role because, “[b]y
securing the property, the police protected the property from
unauthorized interference. Knowledge of the precise nature
of the property helped guard against claims of theft,
vandalism, or negligence. Such knowledge also helped to
avert any danger to police or others that may have been posed
by the property.” Id. at 373.

In Cady v. Dombrowski, 413 U.S. 433 (1973), the
Supreme Court likewise found an automobile inventory
search was justified by the legitimate caretaking purpose of
safeguarding the “general public who might be endangered if
an intruder removed a revolver from the . . . vehicle.” Id. at
447. The defendant in Cady was a member of the Chicago
police force who was severely injured during a car accident.
Id. at 435–36. After the defendant’s disabled vehicle was
lawfully towed to the police station, the officers—mistakenly
believing that Chicago police officers were required by
regulation to carry their service revolver at all
times—undertook a search of the vehicle in order to locate
the defendant’s missing firearm. Id. at 436–47. The
searching officer found fruits of a crime in the trunk of the
impounded car. Id. at 437–38.

In upholding the constitutionality of the search, the
Supreme Court observed that it was the standard procedure of
the local police department to check impounded vehicles for
firearms in order to protect public safety. Id. at 437, 443,
447. The Supreme Court held it was constitutionally
reasonable to believe that someone could happen upon the
 UNITED STATES V. TORRES 17

revolver if it had been left in the defendant’s trunk, because
the car was parked outside in a lot several miles from the
police station without a guard posted over it. Id. at 443, 447.
The Court concluded by stating that “[w]here, as here, the
trunk of an automobile, which the officer reasonably believed
to contain a gun, was vulnerable to intrusion by vandals, we
hold that the search was not ‘unreasonable’ within the
meaning of the Fourth and Fourteenth Amendments.” Id. at
448.

The same is true in this case. Officer Donaldson’s search
of the engine cabin was motivated, at least in part, by
concerns for the safety of the police or others. See Bertine,
479 U.S. at 373. The air filter compartment was obviously
large enough to hold a firearm, and could be opened by lifting
the hood and releasing the latches on the box. Officer
Donaldson testified that he commonly checks the air filter
compartment because, based on his training and experience,
“criminals” hide contraband there such as narcotics and
weapons. In light of this uncontradicted evidence that
firearms and other weapons have been located in air filter
compartments in the past, it is reasonable for the LVMPD to
maintain an inventory search protocol that encompasses areas
where weapons may be stored in a manner reasonably
accessible to the owners of vehicles in the process of being
impounded, or others who may have access to the vehicle
after it is impounded. Officer Donaldson’s search of the air
filter compartment in this case was justified by the need to
“protect the public from the possibility that a revolver would
fall into untrained or perhaps malicious hands.” Cady,
413 U.S. at 443; accord Bertine, 479 U.S. at 373 & n.5
(finding a valid public safety purpose justified an inventory
search where department policy required inventory searches
“in order to check for any dangerous items such as explosives
18 UNITED STATES V. TORRES

or weapons,” and an “officer had testified that he had found
such items in vehicles”).

In sum, the LVMPD inventory search policy appears to
have been reasonably “designed to produce an inventory,”
and ensures sufficient uniformity to protect the owners and
occupants of impounded vehicles from the risk that officers
will exercise discretion in performing an inventory search
only when they suspect they will uncover the fruits of
criminal activity. Wells, 495 U.S. at 4 (explaining that
officers may not conduct inventory searches solely to
discover evidence of criminal activity). Accordingly, the
purposes underlying the requirement of a process to
discourage inventory searches from becoming a “ruse for a
general rummaging” are satisfied with respect to the LVMPD
policy at issue. See id. In fulfilling his duty to search “all
containers,” Officer Donaldson acted within the parameters
of LVMPD policy when he unlatched the air filter
compartment. For this reason, the inventory search did not
violate the Fourth Amendment, and the district court properly
denied Torres’s motion to exclude evidence of the firearm.

C.

Torres also raises a due process challenge to the district
court’s order accepting the magistrate judge’s
recommendation and denying Torres’s motion to suppress.
Torres argues that, in conducting a de novo review of the
magistrate judge’s report, the district court engaged in
improper fact-finding. In particular, Torres contends that the
district court’s statement that “[a]ll officers testified that a
search of the air filter box was standard for every inventory
search, particularly in light of their experience that personal
items were frequently found in air filter boxes,” was
 UNITED STATES V. TORRES 19

inconsistent with the officers’ testimony that they had
previously discovered contraband in air filter compartments,
and the magistrate judge’s finding that “[t]he air cleaner box
. . . is not a place one would reasonably expect a vehicle
owner to store personal property.”

However, the district court adopted and affirmed the
magistrate judge’s recommendation in full. Thus, the
magistrate judge’s findings are the findings of the district
court, whether or not specifically restated in the district
court’s order. This practice does not violate due process.
United States v. Raddatz, 447 U.S. 667, 680–81 & n.7 (1980)
(discussing 28 U.S.C. § 636(b)(1)). In any event, it requires
minimal effort to read the orders as consistent. The “personal
items” that the district court noted had been “frequently found
in air filter boxes” may well have referred to firearms that
pose a threat to officers.

II.

Torres also challenges his sentence on the grounds that
the district court incorrectly enhanced his offense level under
section 2K2.1 of the U.S. Sentencing Guidelines, in light of
the Supreme Court’s June 2015 decision in Johnson v. United
States, 135 S. Ct. at 2557–60. Johnson held that the ACCA’s
catch-all “residual clause,” see 18 U.S.C. § 924(e)(2)(B)(ii),
was unconstitutionally vague because it failed to specify the
crimes that fell within its scope sufficiently clearly to satisfy
the dictates of due process. Johnson, 135 S. Ct. at 2557–58,
2563. Torres argues that section 2K2.1(a)(2)’s identically
worded residual clause is likewise unconstitutional.

Because Torres did not object at sentencing, we will
generally reverse only if we find plain error in his sentence.
20 UNITED STATES V. TORRES

United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.
2010); Fed. R. Crim. P. 52(b). “However, we are not limited
to this standard of review when,” as here, “we are presented
with a question that ‘is purely one of law’ and where ‘the
opposing party will suffer no prejudice as a result of the
failure to raise the issue in the trial court.’” Evans-Martinez,
611 F.3d at 642 (quoting United States v. Saavedra-
Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)).

A.

After the district court denied his motion to suppress,
Torres pleaded guilty to one count of being a felon in
possession of a firearm pursuant to a conditional plea
agreement. In his plea agreement, Torres stipulated to a base
offense level of 24 under section 2K2.1(a)(2) of the
Guidelines, which provides for an enhancement in unlawful
firearms cases “if the defendant committed any part of the
instant offense subsequent to sustaining at least two felony
convictions of . . . a crime of violence.” See U.S. Sentencing
Guidelines Manual § 2K2.1(a)(2) (U.S. Sentencing Comm’n
2015). The Guidelines define a “crime of violence” in
section 2K2.1’s career offender provision equivalently to the
phrase “violent felony” in the ACCA’s residual clause, as an
offense that, “by its nature, presents a serious potential risk of
physical injury to another.”3 Compare id. §§ 2K2.1(a)(2)
cmt. 1, 4B1.2 cmt. 1, with 18 U.S.C. § 924(e)(2)(B)(ii). We
have historically interpreted and applied the two sections in
a “parallel manner.” United States v. Terrell, 593 F.3d 1084,
1087 n.1 (9th Cir. 2010) (citation omitted).

3
Section 2K2.1(a)(2) incorporates by reference the definition for “crime
of violence” set forth at § 4B1.2, which governs career-offender sentences
generally. U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) cmt. 1.
 UNITED STATES V. TORRES 21

The district court concluded that, under existing law,
Torres had previously committed two predicate “crimes of
violence” for purposes of section 2K2.1(a)(2)’s career
offender provision: two counts of felony flight from law
enforcement.4 Accordingly, the district court calculated
Torres’s sentence based on an adjusted offense level of
23—reflecting, among other things, the crime-of-violence
enhancement and a 3-level reduction for acceptance of
responsibility. Paired with Torres’s criminal history category
(VI), the district court sentenced Torres to a 92-month term
of incarceration, which was at the low end of Torres’s
Guidelines range of 92–115 months. Assuming Torres
received the same acceptance-of-responsibility reduction, but
for the crime-of-violence enhancement Torres’s adjusted
offense level would have been 13, and his Guidelines range
would have been 33–41 months. See U.S. Sentencing
Guidelines Manual § 2K2.1(a)(6)(A).

B.

Before we can decide whether Torres is entitled to relief
on his sentencing claim, we must first determine whether his
appeal is precluded by his plea agreement, in which Torres

knowingly and expressly waive[d]: (a) the
right to appeal any sentence imposed within
or below the applicable guidelines range as
determined by the Court, with the exception
of preserving the right to appeal a

4
In Sykes v. United States, 131 S. Ct. 2267 (2011), the Supreme Court
held that a prior conviction under state law for fleeing law enforcement
was a violent felony for purposes of an ACCA enhancement. Id. at
2273–74, 2277. Johnson overruled Sykes. 135 S. Ct. at 2563.
22 UNITED STATES V. TORRES

determination that the [he] qualifies as an
Armed Career Criminal;5 (b) the right to
appeal the manner in which the Court
determined that sentence on the grounds set
forth in 18 U.S.C. § 3742;6 and (c) the right to
appeal any other aspect of the conviction or
sentence.

Although we retain jurisdiction over an appeal by a defendant
who has signed an appellate waiver, we will not ordinarily
exercise that jurisdiction to review the merits of an appeal if
the defendant has validly waived his right to appeal. United
States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007)
(en banc).

Standard principles of contract law guide our
interpretation of the terms of a plea agreement. United States
v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005). We will
thus enforce an appeal waiver contained in a plea agreement
if “the language of the waiver encompasses [the defendant’s]
right to appeal on the grounds raised, and if the waiver was
knowingly and voluntarily made.” United States v. Joyce,
357 F.3d 921, 922 (9th Cir. 2004) (citing United States v.
Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)). The analogy
between plea agreements and private contracts is imperfect,
however, because the Constitution imposes a floor below

5
Torres also reserved the right to appeal the denial of his suppression
motion.
6
Section 3742 permits appellate consideration of whether a defendant’s
sentence was imposed in violation of law, was the result of an incorrect
application of the sentencing guidelines, is outside the applicable
guideline range, or was imposed for an offense for which there is no
sentencing guideline and is plainly unreasonable. 18 U.S.C. § 3742(e).
 UNITED STATES V. TORRES 23

which a defendant’s plea, conviction, and sentencing may not
fall. For example, an appeal waiver does not deprive a
defendant of a constitutional ineffective assistance of counsel
claim. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.
2005). A waiver of appellate rights will also not apply if a
defendant’s sentence is “illegal,” which includes a sentence
that “violates the Constitution.” United States v. Bibler,
495 F.3d 621, 624 (9th Cir. 2007) (citing United States v.
Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986)); accord United
States v. Odachyan, 749 F.3d 798, 801 (9th Cir. 2014);
United States v. Johnson, 67 F.3d 200, 203 n.6 (9th Cir.
1995).

It is an open question whether § 4B1.2(a)(2)’s residual
clause remains valid in light of Johnson, although several
circuits, including ours, have signaled concern about its
constitutionality. See United States v. Willis, 795 F.3d 986,
996 (9th Cir. 2015); see also United States v. Maldonado, No.
12-3487-CR, 2016 WL 229833, at *2 & n.1 (2d Cir. Jan. 20,
2016) (collecting cases); Ramirez v. United States, 799 F.3d
845, 856 (7th Cir. 2015); United States v. Taylor, 803 F.3d
931, 933 (8th Cir. 2015). Here, the Government asserted in
its supplemental briefing that it believes Johnson applies to
the Sentencing Guidelines. See Government’s Proposed
Suppl. Answering Br. 11. Based on the Government’s
concession, we assume without deciding that Johnson’s
holding nullifies § 4B1.2(a)(2)’s identically worded residual
clause. We therefore accept the Government’s concession
that the district court sentenced Torres pursuant to a provision
in the Guidelines that is unconstitutionally vague. This
renders Torres’s sentence “illegal,” and therefore the waiver
in his plea agreement does not bar this appeal. See Bibler,
495 F.3d at 624. And, because the government agrees that
Torres’s prior convictions do not justify the imposition of
24 UNITED STATES V. TORRES

§ 2K2.1(a)(2)’s crime-of-violence enhancement absent the
residual clause, we vacate Torres’s sentence and remand for
re-sentencing.

AFFIRMED in part; VACATED and remanded in
part.