FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF

AMERICA,

Plaintiff-Appellee,

v.

JAMES MCCANDLESS,

AKA Mackie,

Defendant-Appellant.

No. 16-15411

D.C. Nos.

1:15-cv-00461-DKW-BMK

1:10-cr-00793-DKW-1

OPINION

Appeal from the United States District Court

for the District of Hawaii

Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted October 20, 2016

Honolulu, Hawaii

Filed November 10, 2016

Before: J. Clifford Wallace, Jerome Farris,

and Paul J. Watford, Circuit Judges.

Per Curiam Opinion
2 UNITED STATES V. MCCANDLESS

SUMMARY*

Habeas Corpus / Mandamus

The panel granted federal prisoner James McCandless’

motion to construe his interlocutory appeal as a petition for a

writ of mandamus, and denied the petition, in a case in which

McCandless contends that he should be released on bail

pending a decision on his habeas corpus petition under

28 U.S.C. § 2255.

McCandless contends that his enhancement under the

residual clause of the Sentencing Guidelines career-offender

provision is unconstitutionally vague in light of Johnson v.

United States, 135 S. Ct. 2551 (2015).

The panel observed that a district court’s order denying

bail pending resolution of a habeas petition is not a final

decision subject to review under 28 U.S.C. § 1291, is not

otherwise appealable under the collateral order doctrine, and

is not subject to interlocutory review under 28 U.S.C.

§ 1292(b). The panel therefore construed the appeal as a

mandamus petition challenging the district court’s refusal to

grant McCandless’ motion for bail.

The panel did not need to resolve whether district courts

have authority to grant bail pending resolution of a habeas

petition. The panel held that McCandless cannot demonstrate

clear error in the denial of his request for bail because he has

not shown either a high probability of success on the merits

* 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. MCCANDLESS 3

of his habeas petition or special circumstances that would

warrant his release on appeal. The panel observed (1) that it

is far from clear how the Supreme Court, in Beckles v. United

States, 136 S. Ct. 2510 (cert. granted June 27, 2016), will rule

on whether Johnson invalidates the residual clause of the

Guidelines’ career-offender provision and whether such a rule

would apply retroactively on collateral review; and (2) that

McCandless has not shown that he will have over-served his

lawful sentence in the event that Beckles is resolved in his

favor.

COUNSEL

Marion Percell (argued), Assistant United States Attorney;

Florence T. Nakakuni, United States Attorney; United States

Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellant.

Peter C. Wolff, Jr. (argued), Federal Public Defender;

Alexander Silvert, First Assistant Federal Public Defender;

Hawaii Federal Public Defender, Honolulu, Hawaii; for

Defendant-Appellee.
4 UNITED STATES V. MCCANDLESS

OPINION

PER CURIAM:

James McCandless is a federal prisoner who seeks bail

pending a decision by the district court on his petition for a

writ of habeas corpus under 28 U.S.C. § 2255. He is serving

a 145-month sentence for a drug-related conspiracy

conviction, with a projected release date of August 8, 2020. 

He contends that he should be released on bail because if he

prevails on his habeas petition, he will likely receive a

reduced sentence of only 71 months, a period of confinement

he has already served.

McCandless’ habeas petition relies on the Supreme

Court’s decision in Johnson v. United States, 135 S. Ct. 2551

(2015), which held that the Armed Career Criminal Act’s

residual clause is unconstitutionally vague and therefore may

not serve as the basis for a sentence enhancement under the

Act. Id. at 2557. McCandless was not sentenced under the

Armed Career Criminal Act. However, he contends that his

sentence is unconstitutional under Johnson because his

advisory Sentencing Guidelines range was enhanced under

the similar residual clause of the Guidelines’ career-offender

provision.

That provision increases a defendant’s advisory

sentencing range if, as relevant here, the defendant has two or

more prior convictions for a “crime of violence.” U.S.S.G.

§ 4B1.1. Before its recent amendment, the residual clause of

that term’s definition, like the Armed Career Criminal Act’s

residual clause, referred to any offense punishable by more

than one year of imprisonment that “involves conduct that

presents a serious potential risk of physical injury to another.” 
UNITED STATES V. MCCANDLESS 5

U.S.S.G. § 4B1.2(a) (2011). McCandless alleges that the

district court enhanced his advisory sentencing range based

in part on its determination that one of his prior convictions

fell within the scope of this clause. He contends that if

Johnson applies to the Guidelines’ career-offender provision,

and if that holding is applied retroactively to cases on

collateral review, then he will be entitled to be resentenced

under an advisory sentencing range calculated without the

career-offender enhancement.

The district court has stayed a decision on the merits of

McCandless’ habeas petition in anticipation of a decision by

the Supreme Court this Term in Beckles v. United States,

136 S. Ct. 2510 (cert. granted June 27, 2016). In Beckles, the

Court is expected to decide whether Johnson applies to

sentences imposed under the residual clause of the

Guidelines’ career-offender provision and, if so, whether that

rule applies retroactively to cases on collateral review. In

other words, the Supreme Court’s decision in Beckles will

likely resolve—one way or the other—the merits of the claim

raised in McCandless’ habeas petition. However, the Court

may not render a decision in Beckles for at least several more

months.

McCandless moved for bail pending resolution of his

habeas petition even before the Supreme Court granted

review in Beckles. The district court denied his motion, and

McCandless appeals from that order.

Our precedent holds that a district court’s order denying

bail pending resolution of a habeas petition is not a final

decision subject to review under 28 U.S.C. § 1291 and is not

otherwise appealable under the collateral order doctrine. 

Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per
6 UNITED STATES V. MCCANDLESS

curiam).1 Nor is the order subject to interlocutory review

under 28 U.S.C. § 1292(b) because a bail determination

cannot materially advance the ultimate termination of the

litigation. We must therefore construe this appeal as a

petition for a writ of mandamus challenging the district

court’s refusal to grant McCandless’ motion for bail. See

Land, 878 F.2d at 318.

A writ of mandamus may issue in cases involving

“exceptional circumstances amounting to a judicial

usurpation of power.” Bauman v. United States District

Court, 557 F.2d 650, 654 (9th Cir. 1977) (internal quotation

marks omitted). To be entitled to mandamus relief, a

petitioner must show at a minimum that the district court’s

order was clearly erroneous as a matter of law. United States

v. Guerrero, 693 F.3d 990, 999 (9th Cir. 2012). We must

therefore decide whether the district court committed clear

error in denying McCandless’ request for bail.

McCandless cannot demonstrate clear legal error. We

have not yet decided whether district courts have the

authority to grant bail pending resolution of a habeas petition,

and we need not resolve that question today. See In re Roe,

257 F.3d 1077, 1080 (9th Cir. 2001) (per curiam). If district

courts have that authority, we have indicated that it is

reserved for “extraordinary cases involving special

1 We are aware that a lopsided circuit split exists on this issue. At

least six circuits have held, contrary to Land, that an order denying bail

pending resolution of a habeas petition is appealable under the collateral

order doctrine; only the First Circuit shares our view (albeit with some

ambivalence) that such orders are not appealable. See Dotson v. Clark,

900 F.2d 77, 77–78 (6th Cir. 1990) (describing the circuit split). 

Nonetheless, as a three-judge panel, we remain bound by Land’s holding

on this point.
UNITED STATES V. MCCANDLESS 7

circumstances or a high probability of success.” Land,

878 F.2d at 318; see Roe, 257 F.3d at 1080. McCandless has

not shown either a high probability of success on the merits

of his habeas petition or special circumstances that would

warrant his release on bail.

To demonstrate a high probabilityof success, McCandless

must establish that the Supreme Court is likely to hold in

Beckles that Johnson invalidates the residual clause of the

Sentencing Guidelines’ career-offender provision and that

such a rule applies retroactively to cases on collateral review. 

There are substantial arguments on both sides of the case, and

it is far from clear how the Supreme Court will rule. That

alone precludes us from holding that McCandless has shown

a high probability of success.

Nor has McCandless shown that this case involves special

circumstances. He contends that if Beckles is resolved in his

favor and he is forced to remain incarcerated while waiting

for that decision to issue, he will in the interim have overserved his lawful sentence. But if Beckles is resolved in his

favor, McCandless would not necessarily be entitled to

“immediate release,” as his motion for bail asserts. He would

instead be entitled to be resentenced under an advisory

sentencing range calculated without the career-offender

enhancement. The Supreme Court will likely decide Beckles

at the latest by June 2017, at which point McCandless will

have served approximately 108 months. To establish that he

will have over-served his lawful sentence if he remains

incarcerated while awaiting the outcome in Beckles,

McCandless must show that he will likely receive a sentence

of less than 108 months in the event that Beckles is resolved

in his favor.
8 UNITED STATES V. MCCANDLESS

McCandless has not made that showing, even if we credit

for the sake of argument his description of the sentencing

parameters involved. If McCandless is resentenced without

the career-offender enhancement, his advisory Sentencing

Guidelines range will be 130 to 162 months, the low end of

which is obviously above 108 months. But McCandless

contends that he would be eligible for a departure below that

range, and indeed that he would be eligible for a departure

below the mandatory minimum sentence of 120 months. (At

his initial sentencing, the government filed a motion pursuant

to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 to reward

McCandless for his substantial assistance.) McCandless

points out that the district court originallydeparted downward

to a sentence of 145 months from an advisory sentencing

range of 262 to 327 months, a 45% departure from the low

end of that range. If the district court were to grant a

comparable downward departure from the low end of a

revised advisory sentencing range of 130 to 162 months,

McCandless asserts, he would receive a sentence of just 71

months, well below the amount of time he has already served.

McCandless’ contention that he would receive a postBeckles sentence of less than 108 months is entirely

speculative. A defendant’s advisory Sentencing Guidelines

range is only one of several factors that the court must

consider in evaluating what sentence to impose. See

18 U.S.C. § 3553(a). So even with a revised advisory

sentencing range of 130 to 162 months, there is no way of

predicting whether the district court would grant a downward

departure below that range or by how much. In that respect,

it is worth noting that the district court had the authority at

the original sentencing hearing to depart below the mandatory

minimum sentence of 120 months but determined not to do

so.
UNITED STATES V. MCCANDLESS 9

For these reasons, McCandless has not shown that he has

a high probability of success on the merits of his habeas

petition or that he will likely end up over-serving his

constitutionally permissible sentence if he is denied bail. 

Because McCandless cannot show that the district court

clearly erred as a matter of law in denying his motion for bail,

mandamus relief is unwarranted. For this reason we need not

consider the other Bauman factors to decide this petition.

McCandless’ motion to construe his appeal in the

alternative as a petition for a writ of mandamus is

GRANTED, and his petition is DENIED.