IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RAHSAAN LATIF SLOAN, 

Case No. 3:15-cv-00342-MO 

Petitioner, 

v. 

MARION FEATHER, 

OPINION AND ORDER 

Respondent. 

Stephen R. Sady, Chief Deputy Federal Defender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Frederic N. Weinhouse, Assistant United States Attorney 

1000 SW Third Avenue, Suite 600 

Portland, OR 97204-2902 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 1 of 11
MOSMAN, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2241 challenging the legality of his 15-year mandatory 

minimum sentence under the Armed Career Criminal Act ("ACCA") for 

felon in possession of a firearm. Because petitioner has three 

qualifying predicate offenses so as to justify the ACCA sentence, 

the Petition for Writ of Habeas Corpus (#1) is dismissed. 

BACKGROUND 

In February 2006, petitioner pleaded guilty to a single count 

of felon in possession of a firearm in the District of Oregon. In 

his Plea Petition, petitioner acknowledged that the Government had 

filed a Notice of Enhanced Punishment as Armed Career Criminal 

under the ACCA such that the mandatory minimum prison sentence for 

the crime to which he was pleading guilty was 15 years. As a 

result of the plea, the court sentenced petitioner to 180 months in 

prison. 

On July 14, 2006, petitioner filed a 28 U.S.C. § 2255 motion, 

but on December 19, 2006, he dismissed that action on his own 

motion. 

Petitioner filed this 28 U.S.C. § 2241 habeas corpus case on 

February 27, 2015, and the court appointed counsel to represent him 

shortly thereafter. In his Petition, as supplemented by counsel, 

petitioner asserts that he is actually innocent of his ACCA 

sentencing enhancement because two of his three prior convictions 

2 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 2 of 11
justifying the ACCA sentence are minor marijuana trafficking 

convictions that do not constitute qualifying predicate offenses 

under the ACCA. He claims that these are not "serious drug 

offenses" as contemplated by the ACCA where his state sentencing 

exposure under the Oregon Sentencing Guidelines did not begin to 

approach the 10-year statutory maximum, and where the federal 

government treats the same conduct as a minor offense. 

DISCUSSION 

"A federal prisoner who seeks to challenge the legality of 

confinement must generally rely on a § 2255 motion to do so." 

Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). However, 

under the "savings clause" or "escape hatch" of § 2255 (e), a 

federal inmate may seek relief pursuant to 28 U.S.C. § 2241 "if, 

and only if, the remedy under § 2255 is 'inadequate or ineffective 

to test the legality of his detention.'" Id (citing Stephens v. 

Herrera, 464 F. 3d 895, 897 (9th Cir. 2006)). 

A petitioner satisfies the savings clause of§ 2255(e) where 

he: "(l) makes a claim of actual innocence, and (2) has not had an 

unobstructed procedural shot at presenting that claim." Stephens 

v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (internal quotation 

marks omitted). The two factors to consider when assessing whether 

petitioner had an unobstructed procedural opportunity to present 

his claim of innocence are: ( 1) whether the legal basis for 

petitioner's claim did not arise until the conclusion of his direct 

3 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 3 of 11
appeal and first 28 U.S. C. § 2255 motion; and (2) whether the 

applicable law changed in any relevant way after the conclusion of 

the petitioner's first § 2255 motion. Harrison v. Ollison, 519 

F.3d 952, 960 (9th Cir. 2008). 

Assuming petitioner may be "actually innocent" of a portion of 

his sentence without attempting to establish his factual innocence 

as to his crime of conviction, 1 his ability to prove his innocence, 

establish habeas jurisdiction, and prevail in this case necessarily 

depend upon his assertion that his ACCA sentence is not supported 

by his criminal record. 

The ACCA provides for a 15-year mandatory minimum sentence for 

certain defendants who have three or more prior convictions for a 

serious drug offense or a violent felony. 18 U.S.C. § 924(e). The 

ACCA defines the term "serious drug offense" to mean: 

(i) an offense under the Controlled Substances 

Act (21 U.S.C. 801 et seq.), the Controlled 

Substances Import and Export Act ( 21 U.S. C. 

951 et seq.), or chapter 705 of title 46, for 

which a maximum term of imprisonment of ten 

years or more is prescribed by law; or 

(ii) an offense under State law, involving 

manufacturing, distributing, or possessing 

with intent to manufacture or distribute, a 

controlled substance (as defined in section 

1 See Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) 

(claim of wrongful classification as a career offender is a 

"purely legal argument" that is "not cognizable as a claim of 

actual innocence under the escape hatch"); see also Mitchell v. 

Hildreth, 318 Fed. Appx. 600, 601 (9th Cir. 2009) (one cannot be 

innocent of a sentencing enhancement, but must instead show 

factual innocence) . 

4 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 4 of 11
102 of the Controlled Substances Act (21 

U.S. C. 802)), for which a maximum term of 

imprisonment of ten years or more is 

prescribed by law; 

18 U.S.C. § 924 (e) (2) (A). 

The question petitioner poses is whether his minor marijuana 

trafficking convictions amounted to "serious drug offenses" for 

ACCA purposes where trafficking in less than 50 kilograms or less 

of marijuana is categorically not a serious drug offense under the 

Controlled Substances Act ("CSA") . He asserts that where he would 

have faced a maximum sentencing exposure of only five years in 

prison under the CSA had his prior marijuana trafficking 

convictions been prosecuted as federal crimes, they cannot possibly 

constitute "serious drug offenses" under the 10-year threshold 

contemplated by the ACCA. He contends that under the rules of 

statutory construction, the definition of "serious drug offense" 

should be based only on federal law so as to promote uniformity. 

To support his argument, petitioner directs the court to 

decisions issued well after he dismissed his § 2255 challenge 

including Ca'rachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and 

Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). He believes these 

cases stand for the proposition that a state offense cannot 

constitute more severe criminal conduct for ACCA purposes than if 

the conduct had been charged as a federal offense. 

Carachuri-Rosendo instructs that where a state convicts a 

defendant of a misdemeanor crime that would have supported a felony 

5 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 5 of 11
conviction under the CSA had the prosecutor charged it differently, 

federal courts cannot construe such misdemeanors as aggravated 

felonies so as to render a noncitizen ineligible for cancellation 

of removal. 560 u. S. at 582. Moncrieffe, also an immigration 

case, explores whether a prior state misdemeanor conviction for 

social sharing of a small amount of marijuana amounts to an 

aggravated felony for removal purposes where the crime could 

correspond to either a felony or a misdemeanor under the CSA. The 

court concluded that such a conviction could not constitute an 

aggravated felony for removal purposes. Id at 1693-94. 

In a Notice of Supplemental Authority, petitioner points out 

that the Fourth Circuit, relying on Carachuri-Rosendo, rejected the 

proposition that hypothetical aggravating factors could render a 

prior drug offense punishable by more than one year in prison under 

the CSA. United States v. Simmons, 649 F.3d 237, 243-45 (4th Cir. 

2011) (en bane). The Fourth Circuit then applied its reasoning in 

Simmons retroactively to a petitioner on collateral review who, 

like petitioner in this case, was sentenced as an Armed Career 

Criminal where one of his underlying state drug convictions carried 

a 10-year statutory maximum, but his actual sentencing exposure 

given his criminal history and the nature of his state crime was 

only three years. The Fourth Circuit concluded that whether a 

state conviction qualifies as a "serious drug offense" under the 

ACCA must be determined by "the maximum penalty that [a defendant) 

6 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 6 of 11
potentially faced given his particular offense and his criminal 

history." U.S. v. Newbold, 791 F.3d 455, 462 (4th Cir. 2013). 

Consistent with Newbold, petitioner argues that where he was 

never actually in jeopardy of receiving a 10-year sentence, his 

prior marijuana trafficking convictions cannot constitute 

qualifying predicates justifying a 15-year mandatory minimum prison 

sentence under the ACCA. While the Newbold decision is wellreasoned, in United States v. Parry, 479 F.3d 722 (9th Cir. 2007), 

the Ninth Circuit not only reached the opposite conclusion, but did 

so in the context of the Oregon Sentencing Guidelines. In Parry, 

the defendant committed a drug offense that constituted a Class B 

felony which provided for a 10-year statutory maximum, but there 

was no possibility of such a sentence under the Guidelines given 

his criminal history and the nature of his offense. Defendant 

Parry specifically argued "that the sentence provided for by the 

Oregon Sentencing Guidelines must take precedence over the maximum 

sentence prescribed by state statute." Id at 724. The Ninth 

Circuit found this argument to be unavailing and made it clear that 

it is the maximum sentence prescribed by state law, not the term 

contemplated by Oregon's Sentencing Guidelines, that determines 

whether a prior crime arises to the level of a "serious drug 

offense" under the ACCA. Id at 724-26. Two years later, and again 

confronted with the same basic issue, the Ninth Circuit would find 

the same argument "foreclosed by [Parry]," noting that "Parry is 

7 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 7 of 11
controlling precedent in our circuit" and that "[e]ven if . 

Parry was wrongly decided, a three-judge panel may not overrule the 

decision of another panel in the absence of intervening Supreme 

Court case law that is 'clearly irreconcilable.'" United States v. 

Mayer, 463 F. 3d 948, 964 (9th Cir. 2009). 

Although petitioner urges this court not to follow Parry, 

Newbold is not controlling precedent in the Ninth Circuit, and 

neither Carachuri-Rosendo nor Moncrieffe are clearly irreconcilable 

with Parry. Thus, Parry remains good law and dictates that where 

petitioner's marijuana trafficking convictions in this case were at 

least Class B felonies which carried possible sentences of 10 years 

or more under Oregon law, 2 his ACCA enhancement was proper. 

Petitioner next argues that precedent does not address whether 

an offense can be treated as a "serious drug offense" where state 

and federal law are not in accord as to the seriousness of the 

crime committed. Petitioner cites to no controlling authority for 

the direct proposition that a state felony conviction punishable by 

a maximum of at least 10 years does not constitute a qualifying 

predicate offense under 18 U.S.C. § 924(e) (2) (A) (ii) simply because 

federal law would not necessarily punish the same conduct in the 

2 The Government characterizes petitioner's convictions as 

constituting Class A felonies carrying 20-year maximum sentences 

under Oregon law, whereas petitioner states that he was convicted 

of Class B felonies carrying 10-year statutory maximums. See 

Petition (#1), p. 9. Either way, the prior crimes constitute 

qualifying offenses for purposes of the ACCA. 

8 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 8 of 11
same manner. To the contrary, Congress expressly stated that the 

measure of the seriousness of a state drug conviction for ACCA 

purposes is to be the maximum sentencing exposure under governing 

state law. 18 U.S.C. § 924(e)(2)(A)(ii); see also Parry, 479 F.3d 

at 724-25. Where there is no dispute in this case that 

petitioner's felony trafficking convictions carried maximum 

possible sentences of at least 10 years under Oregon law, his ACCA 

sentence is not unlawful. 

Petitioner also believes that where Oregon punishes his 

marijuana offenses more harshly than the CSA would, such a 

sentencing scheme violates his right to equal protection because it 

imposes radically different sentences on similarly situated 

defendants. He asserts that his right to equal protection is 

violated in two different ways: (1) had petitioner been prosecuted 

in federal court for the same crime, he would not have garnered an 

ACCA predicate conviction because his crime involved less than 50 

kilograms of marijuana; and (2) individuals convicted of identical 

marijuana offenses in many state courts, such as those in 

Washington, New York, and Texas, would not have an ACCA predicate 

conviction due to the sentencing schemes they employ. 

"[A] 'wide disparity' between sentencing schemes of different 

jurisdictions does not violate equal protection, even where two 

persons who commit the same crime are subject to different 

sentences." U.S. v. Oaks, 11 F.3d 897, 899 (9th Cir. 1993) (quoting 

9 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 9 of 11
United States v. Kinsey, 843 F.2d 383, 393-94 (9th Cir. 1988)). 

Moreover, the Equal Protection Clause is not offended where the 

ACCA punishes similarly situated defendants differently based upon 

disparities in state sentencing laws that result in some defendants 

being subject to the ACCA's 15-year mandatory minimum sentence, 

while others are not. 3 U.S. v. Titley, 770 F.3d 1357, 1362 (10th 

Cir. 2014). Consequently, petitioner's equal protection claims 

lack merit. 

For all of these reasons, petitioner cannot establish his 

actual innocence to satisfy the escape hatch of 28 U.S.C. § 2255(e) 

and establish habeas corpus jurisdiction. 

CONCLUSION 

The Petition for Writ of Habeas Corpus (#1) is dismissed, with 

prejudice, for lack of jurisdiction. The court does, however, 

3 Petitioner has raised two Equal Protection arguments, but 

has neglected a third, compelling argument. Petitioner addressed 

Equal Protection arguments rooted in differences between federal 

and state sentences and in differences between two states. 

Neither argument is persuasive. However, Petitioner also raised, 

but did not fully address, a third Equal Protection argument that 

is based in differences between federal circuits. Equal 

Protection concerns may be implicated when courts in different 

circuits, as a result of different statutory interpretations of 

the ACCA, reach different outcomes for similarly situated 

defendants. By way of explanation, currently a defendant in the 

Fourth Circuit and a defendant in the Ninth Circuit, even if 

faced with identical state sentencing systems, would have 

different outcomes when prosecuted under the ACCA - a difference 

that rests solely on the different federal sentencing law 

methodologies reflected in the circuit split. Such an Equal 

Protection claim was noted, but not fully explored, by the Ninth 

Circuit in Habibi v. Holder. Habibi v. Holder, 673 F.3d 1082, 

1088 (9th Cir. 2011). 

10 - OPINION AND ORDER 

Case 3:15-cv-00342-MO Document 20 Filed 08/18/15 Page 10 of 11
grant a certificate of appealability on the issues of: (1) whether 

petitioner has made a showing of actual innocence so as to 

establish habeas corpus jurisdiction; and (2) if so, whether the 

imposition of petitioner's ACCA sentence violates his 

constitutional rights. 

IT IS SO ORDE~D. 

DATED this --l..l2- day of August, 2015. 

Judge 

11 - OPINION AND ORDER 

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