Petition for Writ of Certiorari — Dionte Houff, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2023

DIONTE HOUFF,

Petitioner, v.

UNITED STATES, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARK D. EIBERT

Post Office Box 1126

Half Moon Bay, CA 94019-1126

Telephone: (650) 638-2380

Fax: (650) 712-8377

Counsel of record for Petitioner

DIONTE HOUFF

QUESTION PRESENTED

Can a plea agreement that contains a waiver of appeal bar a direct appeal of a

conviction and/or sentence based on a statute that this Court later ruled is unconstitutional

and has retroactive application?

The Ninth Circuit’s decision in this case conflicts with controlling Supreme Court

precedents and creates a circuit split with the Fourth and Sixth Circuits, among other things.

ii

TABLE OF CONTENTS

THE QUESTION PRESENTED… ........................................................................... ii

TABLE OF CONTENTS… ...................................................................................... iii

TABLE OF AUTHORITIES… .................................................................................. iv

I. PRAYER FOR RELIEF… ..................................................................................... 2

II. OPINION BELOW. ............................................................................................... 3

III. JURISDICTION. ..................................................................................................3

IV. STATUTORY AND CONSTITUTIONAL ISSUES INVOLVED… .....................4

V. STATEMENT OF THE CASE… ............................................................................ 4

A. JURISDICTION OF THE COURTS OF FIRST INSTANCE..................... 4

B. FACTS MATERIAL TO THE QUESTIONS PRESENTED. ....................... 5

VI. REASONS SUPPORTING ALLOWANCE OF THE WRIT. .................................. 7

VII. CONCLUSION. .................................................................................................. 20

APPENDIX A--Unpublished Dispositive Order of the Ninth Circuit Court of

Appeals, May 18, 2023….…………..……………….……….…..……………......…….…...A-1

iii

TABLE OF AUTHORITIES

Cases

Page

Blackledge v. Perry, 417 U.S. 21 (1974)………………………………………………..2, 10

Class v. United States, 138 S. Ct. 2018)……………………………………………..2, 8, 10

Ex parte Siebold, 100 U.S. 371 (1880)……………………………………………………2, 8

Garcia-Mesa v. United States, 2022 WL 2304230 (9th Cir. 2022)…………………….…7

Griffith v. Kentucky, 497 U.S. 314 (1987)…………………………………………………2, 9

Haynes v. United States, 390 U.S. 85 (1968)…………………………………………….2, 10

Henderson v. United States, 568 U.S. 266 (2013)………………………………………...2, 9

In re Hammoud, 931 F.3d 1032 (11th Cir. 2019)……………………………………………..7

Jackson v. Felkner, 562 U.S. 594 (2011)……………………………………………………………3, 20

Johnson v. United States, 576 U.S. 591 (2015)………………………………………….2, 6, 8

King v. United States, 41 F.4th 1363 (11th Cir. 2022)……………………………………….16

McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001)……………………………………..8

Menna v. New York, 423 U.S. 51 (1975)…………………………………………………….2, 10

Munoz v. United States, 28 F.4th 973 (9th Cir. 2022)…………………………………………..7

Norton v. Shelby County, 118 U.S. 425 (1886)……………………………………………….2, 8

Oliver v. United States, 951 F.3d 841 (7th Cir. 2020)…………………………………………16

Portis v. United States, 33 F.4th 331 (6th Cir. 2022)……………………………………………16

United States v. Alvarez, 2022 WL 1135377 at 1 n. 1 (9th Cir. 2022)……………………….14

United States v. Beckett, 2022 WL 34136 at 1 (9th Cir. 2022)……………………………….13

United States v. Bibler, 495 F.3d 621 (9th Cir. 2007)…………………………………..3, 15, 18

iv

United States v. Bomber, 656 F. Appx. 812 (9th Cir. 2016)……………………………………19

United States v. Bowen, 936 F.3d 1091 (9th Cir. 2022)…………………………………..…….7

United States v. Clark-Aigner, 2022 WL 34135 (9th Cir. 2022)………………………………15

United States v. Cornett, 932 F.3d 204 (4th Cir. 2019)……………………………………...2, 16

United States v. Cotton, 535 U.S. 625 (2002)……………………………………………………..8

United States v. Davis, 139 S. Ct. 2319 (2019)…………………………………………….passim

United States v. Espinoza-Gonzalez, 2022 WL 848038 (9th Cir. 2022)……………………….15

United States v. Figueroa, 2022 WL 861035 at 1 (9th Cir. 2022)………………………………14

United States v. Fowler, 794 F.2d 1446 (9th Cir. 1986)…………………………………..3, 16, 18

United States v. Goldstein, 2022 WL 861040 at 1 (9th Cir. 2022)……………………………..15

United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009)………………………………………...9

United States v. Goodall, 21 F.4th 555 (9th Cir. 2021)………………………………………passim

United States v. Gordon, 393 F.3d 1044 (9th Cir. 2004)………………………………3, 15, 18, 19

United States v. Graham, 67 F.4th 218 (4th Cir. 2023)………………………………………....2, 16

United States v. Hass, 2023 WL 1813493 at 1 (9th Cir. 2023)……………………………………13

U n i t e d S t a t e s v . H o u f f , No. 18-10094 (9th Cir. May 18, 2023) …………………….passim

United States v. St. Hubert, 883 F.3d 1319 (11th Cir. 2018)………………………………..…….8

United States v. Juarez, 2022 WL 861032 at 1 (9th Cir. 2022)……………………………………14

United States v. Johnson, 67 F.3d 200 (9th Cir. 1995)………………………………………3, 16, 18

United States v. Johnson, 199 F.3d 1015 (10th Cir. 1999)…………………………………….……..9

United States v. McBride, 826 F.3d 293 (6th Cir. 2016)…………………………………………..2, 16

United States v. Odachyan, 749 F.3d 798 (9th Cir. 2014)……………………………………3, 15, 18

v

United States v. Rojo, 2022 WL 861039 at 1 (9th Cir. 2022)………………………..…………….14

United States v. Torres, 828 F.3d 1113 (9th Cir. 2016)……………………………….…………3, 13

United States v. Williams, 568 F. Supp. 3d 1115 (W.D. Wash. 2021)……………….………11, 17

Vowell v. United States, 938 F.3d 260 (6th Cir. 2019)……………………………………………2, 16

United States Constitution

U.S. Const., Amend. 5........................................................................................ ..…..passim

Statutes and Rules

18 U.S.C. §§ 2, 1962(d), 1959, 922(g)(1)………………………………………………………………4

18 U.S.C. § 924(c)…………………………………………………………………………………passim

18 U.S.C. § 924(j)…………………………………………………………………………………………5

18 U.S.C. § 3582…………………………………………………………………………………………19

28 U.S.C. § 1254(1)… ............................................................................................ ………3

28 U.S.C. § 1291…………………………………………………………………………………………..5

28 U.S.C. § 3742…………………………………………………………………………………………..5

vi

PRAYER FOR RELIEF

Mr. Dionte Houff respectfully petitions this Court for a writ of

certiorari to the United States Court of Appeals for the Ninth Circuit to

review its decision dismissing his direct criminal appeal of a conviction

and sentence based on a statute that was declared unconstitutional by this

Court after his guilty plea but while his direct appeal was still pending.

The basis of this petition is that the Ninth Circuit’s dismissal citing Mr.

Houff’s waiver of appeal as part of his guilty plea is-(1) Contrary to the Due Process clause of the Fifth Amendment to

the United States Constitution and in conflict with multiple binding

precedents of this Court, including but not limited to the following: United

States v. Davis, 139 S. Ct. 2319 (2019), Johnson v. United States, 576 U.S.

591 (2015), Norton v. Shelby County, 118 U.S. 425 (1886), Ex parte

Siebold, 100 U.S. 371 (1880), Class v. United States, 138 S. Ct. 2018),

Henderson v. United States, 568 U.S. 266 (2013), Griffith v. Kentucky, 497

U.S. 314 (1987), Haynes v. United States, 390 U.S. 85 (1968), Menna v.

New York, 423 U.S. 51 (1975), and Blackledge v. Perry, 417 U.S. 21 (1974).

(2) Contrary to, and creates a circuit split with decisions of the

Fourth and Sixth Circuits, in cases including but not limited to United

States v. Cornett, 932 F.3d 204 (4th Cir. 2019), Vowell v. United States,

Cir. 2016), United States v. Graham, 67 F.4th 218 (4th Cir. 2023).

2

938 F.3d 260 (6th Cir. 2019), United States v. McBride, 826 F.3d 293 (6th

Page

I.

(3) Contrary to the Ninth Circuit’s own precedents, including but

not limited to the following: United States v. Torres, 828 F.3d 1113 (9th

Cir. 2016), United States v. Bibler, 495 F.3d 621 (9th Cir. 2007), United

States v. Gordon, 393 F.3d 1044 (9th Cir. 2004), United States v.

Odachyan, 749 F.3d 798 (9th Cir. 2014), United States v. Johnson, 67 F.3d

200 (9th Cir. 1995) and United States v. Fowler, 794 F.2d 1446 (9th Cir.

1986), and

(4) Is as inexplicable as it was unexplained, in violation of this Court’s

authority in Jackson v. Felkner, 562 U.S. 594 (2011).

In addition, or in the alternative, the Ninth Circuit has decided an

important question of federal law that has not been, but should be, settled

by this Court.

II.

OPINION BELOW

A three-judge panel of the Ninth Circuit dismissed Mr. Houff’s

direct appeal in an Order that was final and unpublished. U n i t e d

S t a t e s v . H o u f f , No. 18-10094 (9th Cir. May 18, 2023), Appendix A.

III.

JURISDICTION

On May 18, 2023, a three-judge panel of the Court of Appeals for the

Ninth Circuit issued an unpublished Order dismissing Mr. Houff’s direct

criminal appeal. Appendix A. This is the final judgment for which a writ of

Page

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

3

certiorari is sought.

IV. STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous

crime…nor be deprived of life, liberty, or property, without due process of

law….

18 U.S.C. § 924(c)(1)(A) states:

Except to the extent that a greater minimum sentence is otherwise provided by

this subsection or by any other provision of law, any person who, during and in

relation to any crime of violence or drug trafficking crime (including a crime of

violence or drug trafficking crime that provides for an enhanced punishment if

committed by the use of a deadly

or dangerous weapon or device) for which the person may be prosecuted in a court

of the United States, uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the punishment provided for such

crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not

less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not

less than 10 years.

18 U.S.C § 924(c)(3) states:

3) For purposes of this subsection the term “crime of violence” means an offense

that is a felony and-(A) has as an element the use, attempted use, or threatened use of physical

force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of committing the

offense.

V.

A.

STATEMENT OF THE CASE

JURISDICTION OF COURTS OF FIRST INSTANCE

The district court had jurisdiction pursuant to 18 U.S.C. §§ 2,

Page

Appeals had jurisdiction pursuant to 28 U.S.C. §§ 1291 and 3742.

4

1962(d), 1959, 922(g)(1), 924(j), and 924(c). The Ninth Circuit Court of

B.

FACTS MATERIAL TO THE QUESTION PRESENTED

Mr. Dionte Houff and three others were jointly charged with multiple counts

of offenses relating to racketeering, all of which stemmed from a gunfight between

two rival gangs in which over one hundred shots were fired by both sides.

Tragically, a stray bullet killed an infant. It was never determined who, or even

which side, fired the fatal shot.

On August 9, 2017, Mr. Houff pled guilty to 14 counts relating to that

incident, specifically: one count of racketeering conspiracy, and multiple counts of

assault with a dangerous weapon in aid of racketeering, attempted murder in aid of

racketeering, using a firearm during and in relation to a crime of violence causing

death, and using a firearm during and in relation to a crime of violence. The plea

agreement, signed the same day, contained the standard government-drafted

language in which Mr. Houff “agree[d] to give up my right to appeal my conviction,

the judgment, and orders of the Court, as well as any aspect of my sentence…except

that I reserve the right to claim that my counsel was ineffective.”

On March 6, 2018, Mr. Houff was sentenced to 43 years in prison, consisting

of 33 years for the underlying offenses plus an additional, consecutive 10 years for

use of a firearm in a crime of violence under 28 U.S.C. §§ 924(c)(1)(A) and

924(j)(1)(2). The two Section 924 counts merged to create a single 10-year

consecutive sentence. It is the two consecutive Section 924 sentences that are the

Page

On March 12, 2017, Mr. Houff filed a timely pro se notice of appeal.

5

subject of this petition.

Prior to the filing of the instant appeal, this Court had ruled in Johnson v.

United States, 576 U.S. 591 (2015) that imposing an increased sentence under the

residual clause of the Armed Career Criminal Act is unconstitutional under the Due

Process Clause of the United States Constitution. Because there was considerable

uncertainty regarding the constitutionality of similar residual clauses in other

statutes, including the one that resulted in Mr. Houff’s consecutive ten-year

sentence, the Ninth Circuit stayed his appeal pending the outcome of various Ninth

Circuit and Supreme Court cases that were working out what offenses were and

were not “crimes of violence.” On December 6, 2022, following the rulings in various

potentially relevant cases, some of which are discussed below, the stay was lifted.

Mr. Houff then filed an Opening Brief. He argued that because the residual

clause of 18 U.S.C. § 924(c)(3)(B)—which was the basis of his ten-year consecutive

sentence--had been declared unconstitutional by this Court in United States v.

Davis, 139 S. Ct. 2319 (2019), and because the predicate California statute(s)

underlying his conviction were “crimes of violence” only under that residual clause,

he had pled guilty to offenses that were not crimes of violence and the consecutive

10 year sentence was unconstitutional and had to be vacated.

The government filed a motion to dismiss based on the waiver of appeal in

Mr. Houff’s plea agreement, and the Ninth Circuit dismissed the appeal in a one

Page

Appellee’s motion to dismiss this appeal in light of the valid

appeal waiver (Docket Entry No. 63) is granted. See United States v.

Harris, 628 F.3d 1203, 1205 (9th Cir. 2011) (knowing and voluntary

appeal waiver whose language encompasses the right to appeal on the

6

paragraph order saying:

grounds raised is enforceable). Contrary to appellant’s contention, the

claim he raises on appeal amounts to a challenge to his 18 U.S.C. §

924(c) and (j) convictions and, therefore, does not fall within the illegal

sentence exception to an appeal waiver. See United States v. Goodall,

21 F.4th 555, 562-65 (9th Cir. 2021).

DISMISSED.

Appendix A (emphasis added).

This petition for a writ of certiorari followed.

VI. REASONS SUPPORTING ALLOWANCE OF THE WRIT

This writ should be granted to allow this Court to correct the Ninth

Circuit Panel’s decision erroneously dismissing Mr. Houff’s appeal because it

conflicts with the binding precedents of both this Court and the Ninth

Circuit, and creates a Circuit split with the Fourth and Sixth Circuits, in the

cases cited above and discussed at greater length below. Appendix A.

To begin, in United States v. Davis, 1319 S. Ct. 2319 (2019), this Court

held that the residual clause of Section 924(c) was unconstitutionally vague

under the Constitution’s Due Process guarantee and the separation of

powers. This ruling was handed down while Mr. Houff’s direct appeal was

pending. Davis constitutes a substantive new constitutional rule that

applies retroactively. See, e.g., United States v. Bowen, 936 F.3d 1091, 1095

(9th Cir. 2022); In re Hammoud, 931 F.3d 1032, 1039 (11th Cir. 2019). The

government has repeatedly not even disputed the retroactive application of

Page

Garcia-Mesa v. United States, 2022 WL 2304230 (9th Cir. 2022). And in a

7

Davis. See, e.g., Munoz v. United States, 28 F.4th 973, 975 (9th Cir. 2022);

materially indistinguishable case, this Court has held that its decision in

Johnson v. United States, 576 U.S. 591 (2015), which also struck down as

unconstitutional a similar residual clause, is a substantive rule that applied

retroactively.

The relevant legal principles are longstanding. “An unconstitutional act

is not law; it confers no rights; it imposes no duties; it affords no protection;

it creates no office; it is, in legal contemplation, as inoperative as though it

had never been passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886).

Put another way, “[a]n unconstitutional law is void, and is as no law. An

offense created by it is not a crime. A conviction under it is not merely

erroneous, but is illegal and void, and cannot be a legal cause of

imprisonment.” Ex parte Siebold, 100 U.S. 371, 376-377 (1880).

This principle is as true today as when this Court first recognized it.

An act—specifically including a predicate act--prohibited by an

unconstitutional statute is a “non-offense,” and a challenge to a conviction

based on it cannot be waived on appeal by a guilty plea because “a district

court is without jurisdiction to accept a guilty plea to a non-offense.” United

States v. St. Hubert, 883 F.3d 1319, 1326 (11th Cir. 2018). This Court

agreed with that proposition in Class v. United States, 138 S. Ct. 798 (2018),

which the Eleventh Circuit found dispositive in St. Hubert, supra and in

Page

this Court’s opinion in United States v. Cotton, 535 U.S. 625 (2002), this

8

McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001). Indeed, under

jurisdictional error “requires correction regardless of whether the error was

raised in district court.” Id. at 630. See also United States v. Johnson, 199

F.3d 1015, 1019-20 (10th Cir. 1999) (discussing the unconstitutionality of the

underlying statute and the failure of the indictment to state a valid claim as

examples of non-waivable jurisdictional defects). Here, the fact that Mr.

Houff was convicted of and sentenced to prison based on a “non-offense”

constitutes a jurisdictional defect that can never be waived.

And when, as here, the law changes while a criminal case is on direct

review, the “appellate court must apply the law in effect at the time it

renders its decision,” even “if it be necessary to set aside a judgment,

rightful when rendered, but which cannot be affirmed but in violation of law,

the judgment must be set aside.” This is true even if the error was not raised

below, because whether an error is “plain” is decided at the time of review.

Henderson v. United States, 568 U.S. 266, 271, 273 (2013); accord Griffith v.

Kentucky, 497 U.S. 314, 328 (1987) (holding that “a new rule for the conduct

of criminal prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no exception for cases

in which the new rule constitutes a ‘clear break’ with the past”); United

States v. Gonzalez, 578 F.3d 1130, 1132 (9th Cir. 2009). Again, Davis was

decided while Mr. Houff’s conviction and sentence were pending on direct

Page

9

appeal.

Indeed, as recently as 2018, this Court decided the exact issue raised

here, by holding that a guilty plea by itself does not bar a federal criminal

defendant from challenging the constitutionality of the statute of conviction

on direct appeal. Class v. United States, 138 S. Ct. 798 (2018). Class cited a

long line of Supreme Court cases, as well as circuit court cases, which

upheld the same principle. See, e.g., Haynes v. United States, 390 U.S. 85,

87 n. 2 (1968); Menna v. New York, 423 U.S. 51, 63 (1975) (per curium);

Blackledge v. Perry, 417 U.S. 21, 30 (1974).

Since Section 924(c) is the statute that earned Mr. Houff a consecutive

10-year sentence, the statute that he pled guilty to was unconstitutional and

void from the beginning if Mr. Houff’s offense was a “crime of violence”

under the residual clause and not the elements clause—which is what the

appeal below was about.1

That makes it pretty simple, right? The last 10 years of Mr. Houff’s

43-year sentence must be vacated because the statute of conviction is

unconstitutional. Unfortunately, the Ninth Circuit decided to dismiss the

appeal without reaching the merits citing only one Ninth Circuit case—a

2021 case that (1) conflicts with relevant Supreme Court decisions; (2)

Page

(3) departs from prior Ninth Circuit precedent; and (4) decides an important

10

conflicts with the decisions of other circuits and thus creates a circuit split;

Because this petition is only about the effect of the appeal waiver and the Ninth Circuit did not

address the issue of whether Mr. Houff’s conviction and sentence were based only on the

residual clause of Section 924(c), that substantive issue will not be addressed here.

1

question of federal law that has not been, but should be, decided by this

Court, all as described below.

Because the Ninth Circuit construed Mr. Houff’s argument that the

sentence was unconstitutional to be an argument that the convictions were

unconstitutional, it is necessary to consider both questions separately.

A. Davis Rendered Mr.Houff’s Section 924(c) Convictions Unconstitutional and

Void

In United States v. Goodall, 21 F.4th 555 (9th Cir. 2021), the Ninth Circuit

broke with its own precedent as well as this Court’s precedents cited above to hold

that the long-established “illegal sentence” exception to waivers of appeal did not

apply to the appellant’s argument based on an intervening change in the law. After

citing boilerplate propositions about the validity and salutary effect of appellate

waivers in general, the Ninth Circuit held that United States v. Davis, 139 S. Ct.

2319 (2019) and related cases, which held the residual clause of 18 U.S.C. § 924(c)

to be unconstitutional, would not provide an exception to a waiver of appeal on the

illegality of a conviction under the illegal sentences line of cases. The argument

made by the appellant in that case was that the unconstitutionality of a sentencing

statute would invalidate his underlying conviction. The Goodall panel did not

address any other issue, as the court in United States v. Williams, 568 F. Supp. 3d

1115 (W.D. Wash. 2021) pointed out.

Page

that determines the sentences for violations of substantive statutes, primarily 18

11

To be clear, the “crime of violence” definition is part of the “Penalties” statute

U.S.C. § 924. That is why Goodall held that Davis did not justify “expand[ing] our

‘illegal sentence’ except to an appellate waiver and carve out yet another exemption

for an ‘illegal conviction.’” Goodall, 21 F.4th at 558, 562-564. The Ninth Circuit

Page

Finally, Goodall latches onto our decision in Torres, 828 F.3d at

1125, in which we held that an appellate waiver does not apply to an

“illegal sentence.” Goodall argues that we should extend Torres beyond

an “illegal sentence” and invalidate an appellate waiver if the

conviction was later found to be “illegal.” We decline to do so.

In Torres, we refused to enforce an appellate waiver when the

defendant received a sentencing enhancement under an

unconstitutionally vague provision of the Sentencing Guidelines.

Torres, 828 F.3d at 1125. Because the defendant's sentence with the

enhancement was greater than what was statutorily authorized for the

conviction, his sentence was “illegal,” and we vacated the sentence. Id.

But this case is different from Torres. Rather than challenge

his sentence, Goodall seeks to vacate his § 924(c) conviction. And that

key difference matters for two reasons.

First, we limited Torres to an “illegal sentence” based in part on

the technical definition of that term. As we have explained, “the phrase

‘illegal sentence’ has a precise legal meaning,” which does not include

illegal convictions. See United States v. Vences, 169 F.3d 611, 613 (9th

Cir. 1999) (quoting United States v. Fowler, 794 F.2d 1446, 1449 (9th

Cir. 1986)). An illegal sentence is one “not authorized by the judgment

of conviction, ... in excess of the permissible statutory penalty for the

crime, or [that] is in violation of the Constitution.” United States v.

Johnson, 988 F.2d 941, 943 (9th Cir. 1993)…. That exception for

correcting an illegal sentence allowed the defendant in Torres to vacate

his illegal sentence.

Second, our rationale for the “illegal sentence” exception rests on

the inherent uncertainty in sentencing. When the parties agree to a

plea deal, the sentence remains unknown because the sentencing “does

not occur contemporaneously with the plea and waiver.” United States

v. Medina-Carrasco, 815 F.3d 457, 464 (9th Cir. 2016) (Friedman, J.,

dissenting). Rather, the district court decides later and need not follow

the plea deal's recommendation or the Sentencing Guidelines. So the

court may impose a longer sentence than what the parties agreed

because it believes that the defendant deserves a harsher sentence….

But that uncertainty does not exist for convictions. The contours

of a conviction are fully known when the defendant pleads guilty and

12

reasoned as follows:

waives his appellate rights….

...

Lastly, we cannot turn a blind eye to the practical effect of

Goodall's argument. If the “illegal sentence” exception is as broadly

construed as Goodall urges, a defendant could try to nullify an

otherwise valid appellate waiver by simply alleging error in the

conviction.

Goodall, 21 F.4th at 562-564 (emphasis added).2

Thus, the holding of Goodall was based on the distinction between illegal

sentences and illegal convictions. In light of the Goodall case in the Ninth Circuit,

Mr. Houff argued that Davis rendered his sentence unconstitutional, which makes

this case like United States v. Torres, 828 F.3d 1113 (9th Cir. 2016), where a waiver

of appeal was held to be unenforceable in an appeal from a sentence based on the

unconstitutionality of the residual clause of a similar statute. The Ninth Circuit

itself has subsequently recognized this distinction, not once but thirteen times,

denying appeals of allegedly illegal convictions involving waivers of appeal by citing

Goodall for the proposition that such waivers only apply to illegal sentences. See

United States v. Beckett, 2022 WL 34136 at 1 (9th Cir. 2022) (“Because Beckett

attacks the purported illegality of his convictions rather than his sentence, his

petition does not fall under the illegal sentence exception [to waivers of

appeal]. See Goodall….”); United States v. Hass, 2023 WL 1813493 at 1 (9th Cir.

Page

regardless of unforeseeable intervening caselaw. See [Goodall] at 558, 562-63(also

13

2023) (“Defendant's waiver bars his claim that his conviction was legally defective,

In Mr. Houff’s case, the district court had the option to reject the plea agreement,

and it had a range of possible sentences even under the plea agreement.

2

holding that the ‘illegal sentence’ exception to appellate waiver does not apply to

challenges to illegal convictions”); United States v. Alvarez, 2022 WL 1135377 at 1

n. 1 (9th Cir. 2022) (“We may resolve this appeal without a disposition by the

Supreme Court in United States v. Taylor, No. 20-1459, as to whether attempted

Hobbs Act robbery is a crime of violence…. See United States v. Goodall, 21 F.4th

555 (9th Cir. 2021) (holding that the defendant’s appeal waiver foreclosed his

challenge to his 18 U.S.C. § 924(c) conviction because the illegal sentence exception

to appellate waivers does not apply to challenges to illegal convictions”) (emphasis

in original); United States v. Juarez, 2022 WL 861032 at 1 (9th Cir. 2022) (holding

that the Torres exception for illegal sentences “does not apply where, as in this case,

the contention is that the conviction is illegal”) (emphasis in original) (citing

Goodall); United States v. Figueroa, 2022 WL 861035 at 1 (9th Cir. 2022) (“Figueroa

argues that the waiver is not enforceable because his attack on conviction and

sentence falls within the illegal sentence exception recognized in United States v.

Torres, 828 F.3d 1113, 1125 (9th Cir. 2016). However, this exception does not apply

where, as in this case, the challenge is to a purportedly illegal conviction.

See United States v. Goodall….”) (emphasis in original); United States v. Rojo, 2022

WL 861039 at 1 (9th Cir. 2022) (“Rojo argues that the waiver is not enforceable

because his attack on his § 924(c) conviction and sentence falls within the illegal

sentence exception discussed in United States v. Torres, 828 F.3d 1113, 1125 (9th

Page

challenge is to a purportedly illegal conviction. See United States v. Goodall….”)

14

Cir. 2016). However, this exception does not apply where, as in this case, the

(emphasis in original); United States v. Goldstein, 2022 WL 861040 at 1 (9th Cir.

2022) (same, with same emphasis in original); United States v. Espinoza-Gonzalez,

2022 WL 848038 (same); United States v. Clark-Aigner, 2022 WL 34135 (9th Cir.

2022) (same).

Goodall conflicts with a number of authorities and creates a circuit split.

First, it conflicts with the bedrock principles established by this Court in cases

including Siebold, supra, Norton, supra, Class, supra, Davis, supra, and the other

Supreme Court cases cited above, as well as their unbroken line of progeny. See,

e.g., St. Hubert, supra.

Second, it conflicts with the Ninth Circuit’s own precedent, including, for

example, United States v. Torres, 828 F.3d 1113 (9th Cir. 2016). In Torres, another

case that involved the validity of a similar residual clause in a sentencing guideline,

the defendant waived his right to appeal either his conviction or his sentence. But

the Torres court found the plea agreement did not bar an appeal of the sentence. In

Mr. Houff’s case, the Ninth Circuit held that an attack on a sentence “amounts to a

challenge to his 18 U.S.C. § 924(c) and (j) convictions.” Appendix A. If that is true,

then Goodall conflicts with Torres, although Goodall did not overrule Torres.

Moreover, Goodall conflicts with the other Ninth Circuit cases establishing

that a waiver of appellate rights will not apply if a defendant’s sentence is illegal,

which includes a sentence that violates the Constitution. See, e.g., United States v.

Page

801 (9th Cir. 2014); United States v. Gordon, 393 F.3d 1044 (9th Cir. 2004); United

15

Bibler, 495 F.3d 621, 624 (9th Cir. 2007); United States v. Odachyan, 749 F.3d 798,

States v. Johnson, 67 F.3d 200, 203 n. 6 (9th Cir. 1995); United States v. Fowler,

794 F.2d 1446, 1449 (9th Cir. 1986).

Finally, Goodall creates a circuit split. Only three circuits follow the Goodall

rule—the Ninth Circuit, the Seventh Circuit and the Eleventh Circuit. See King v.

United States, 41 F.4th 1363, 1370 (11th Cir. 2022); Oliver v. United States, 951 F.3d

841 (7th Cir. 2020). King, however, recognized that its new position (and that of

Goodall) is not followed by other circuits, citing the Fourth and Sixth Circuits in

addition to the Ninth Circuit’s Torres decision. Some base their rulings on the fact

that a prison sentence for a non-offense necessarily results in a sentence that

exceeds the statutory maximum (which for a non-offense is “zero”), others by

holding that a defendant cannot waive or abandon unknown rights (established by

later changes in the law). See, e.g., United States v. Cornett, 932 F.3d 204, 210 (4th

Cir. 2019) (holding the statutory-maximum exception to cover Johnson claims);

Vowell v. United States, 938 F.3d 260, 268 (6th Cir. 2019) (same, and noting that it

does not depend on whether the waiver of appeal is knowing and voluntary); United

States v. McBride, 826 F.3d 293, 295 (6th Cir. 2016) (holding that appellate waiver

did not bar appeal based on the later Johnson case because only known rights can

be abandoned).3 See also United States v. Graham, 67 F.4th 218 (4th Cir. 2023)

established that the predicate state law offense was not a crime of violence). And

But cf. Portis v. United States, 33 F.4th 331 (6th Cir. 2022) (dismissing appeal based

on Davis in the context of a §2255 appeal).

3

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resentencing 15 years after his the guilty plea because subsequent authority had

16

(granting a pro se §2255 motion to vacate a §924(c) conviction and remanding for

even some of the district courts in the Ninth Circuit decline to follow Goodall. See,

e.g., United States v. Williams, 568 F. Supp. 3d 1115 (W.D. Wash. 2021).

This circuit split is the result of this Court holding unconstitutional

longstanding law on what constitutes a “crime of violence,” a term that occurs in

multiple statutes and sentencing guidelines and has resulted in vastly increased

prison sentences for thousands of federal defendants in cases decided both before

and after this Court’s various relevant rulings. It will continue to do so until this

Court clarifies the intended impact of its decisions. It also involves the clash

between longstanding principles that arise in numerous criminal cases—for

example, that the law at the time of an appeal applies versus the general

enforceability of appeal waivers. This is the very definition of an important

question of federal law that has not been, but should be, settled by this Court.

Supreme Court Rule 12.

In short, Goodall’s ruling that waivers of appeal bar challenges to convictions

that are later found by this Court to be unconstitutional is wrong, creates conflicts,

confusion, and inconsistent outcomes in different cases, and only this Court can

solve these issues.

B. Davis Rendered Mr. Houff’s 10-Year Consecutive Sentence Unconstitutional

and Void

recharacterizing it as a challenge to an illegal conviction. Just two points must be

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declined to even address the illegal sentence issue raised by Mr. Houff, instead

17

This issue is less complicated, but no less important. The Ninth Circuit

added.

First, as noted above, Section 924(c) is a sentencing statute. Challenging an

illegal sentence is arguably different from challenging an illegal conviction, and it is

the subject of a separate, and long, line of cases. See Torres, supra; Bibler, supra;

Odachyan, supra; Gordon, supra; Johnson, supra; and Fowler, supra.

Second, the Ninth Circuit in Goodall distinguished the long line of “illegal

sentences” cases because the appellant in that case only challenged his illegal

conviction. But if, as in Mr. Houff’s case, the Ninth Circuit now considers a

challenge to a sentence to “amount to a challenge to…his convictions,” then

Goodall erases the distinction and calls into question the entire line of “illegal

sentence” cases as an exception to the effectiveness of waivers of appeals. This is

a huge change in the law. And it makes the Ninth Circuit an outlier in the vast

sea of waiver of appeal cases, including those decided by this Court.

To be clear, for the reasons set forth above, Petitioner believes that a waiver

of appeal does not and should not bar an appeal of either a conviction or a

sentence that is found to be unconstitutional while a direct appeal is pending. But

the conflicts, confusion and inconsistent outcomes caused by the Ninth Circuit’s

new rules affect both.

C. The Ninth Circuit’s New Rule Creates Irrational Results

unconstitutional by this Court while he is on direct appeal cannot raise that issue

Page

to an offense the conviction and/or sentence of which are found to be

18

Under the Ninth Circuit’s new rule in Goodall, a defendant who pleads guilty

even in his direct appeal.

Consider, however, the following:

1. Under 18 U.S.C. § 3582, a defendant—including one who waived his right

to appeal and whose appeals are long over—can move the sentencing court

to lower his sentence retroactively based on a subsequent change in the

Sentencing Guidelines.

2. Under current law, appellate waivers do not bar direct appeals challenging

restitution amounts in Judgments. United States v. Gordon, 393 F.3d 1044,

1050 (9th Cir. 2004).

3. Under current law, appellate waivers do not bar direct appeals challenging

conditions of supervised release. United States v. Bomber, 656 F. Appx.

812, 813 (9th Cir. 2016).

So under the Ninth Circuit’s reasoning, a life sentence—or even a death

sentence—based on a statute this this Court finds to be in violation of the

Constitution, cannot be challenged on direct appeal if the defendant waived his

right to appeal before he knew that his conviction and/or sentence were void, but

the amount of restitution, or the fact of home confinement or drug testing, can be.

And if the Sentencing Commission—a body inferior to the Constitution—lowers a

sentencing range by two points it can be corrected by a simple motion brought

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have been decided against the defendant.

19

years after the guilty plea and years after all appeals, and any §2255 motions,

D. The Ninth Circuit Failed to Adequately Explain Its Reasoning

Finally, by dismissing Mr. Houff’s appeal in a single paragraph without any

sufficiently meaningful explanation, based on a recent Ninth Circuit opinion that

conflicts with numerous Supreme Court and Circuit Court cases and effects a

massive change in the law, the Ninth Circuit handed down a ruling that was “as

inexplicable as [it was] unexplained,” contrary to this Court’s stern admonition in

Jackson v. Felkner, 562 U.S. 594 (2011) (overturning an unpublished Ninth Circuit ruling).

VII. CONCLUSION

If this petition is granted and this Court subsequently upholds

Petitioner’s position, it will eliminate only 10 years of Mr. Houff’s 43-year

sentence.

For the foregoing reasons, Petitioner Dionte Houff respectfully requests

that this petition for writ of certiorari be granted.

Respectfully submitted,

/s/ Mark D. Eibert

MARK D. EIBERT

20

Counsel for Petitioner DIONTE HOUFF

Page

Dated: July 17, 2023

APPENDIX A

DISPOSITIVE ORDER OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAY 18, 2023

Case: 18-10094, 05/18/2023, ID: 12718775, DktEntry: 68, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

MAY 18 2023

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DIONTE HOUFF, AKA Bird, AKA

Birdman, AKA Tay,

No.

18-10094

D.C. No. 4:12-cr-00574-PJH-1

Northern District of California,

Oakland

ORDER

Defendant-Appellant.

Before:

BENNETT, MILLER, and VANDYKE, Circuit Judges.

Appellee’s motion to dismiss this appeal in light of the valid appeal waiver

(Docket Entry No. 63) is granted. See United States v. Harris, 628 F.3d 1203,

1205 (9th Cir. 2011) (knowing and voluntary appeal waiver whose language

encompasses the right to appeal on the grounds raised is enforceable). Contrary to

appellant’s contention, the claim he raises on appeal amounts to a challenge to his

18 U.S.C. § 924(c) and (j) convictions and, therefore, does not fall within the

illegal sentence exception to an appeal waiver. See United States v. Goodall, 21

F.4th 555, 562-65 (9th Cir. 2021).

DISMISSED.