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.