United States of America v. Ray Martin Heffington

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAY MARTIN HEFFINGTON,
Defendant-Appellant.
No. 16-15906
D.C. Nos. 1:15-cv-01850-LJO
1:93-cr-05021-LJO-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted October 15, 2019**
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
Ray Martin Heffington appeals from the district court’s order denying his 28
U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction under 28
U.S.C. § 2253. Reviewing de novo, see United States v. Fultz, 923 F.3d 1192,
1194 (9th Cir. 2019), we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-15906
Heffington claims he should no longer be subject to a mandatory life
sentence under 21 U.S.C. § 841 because his prior state felony convictions, which
were used to enhance his federal sentence, have been reclassified as misdemeanors.
As Heffington concedes, that argument is foreclosed. See United States v. Diaz,
838 F.3d 968, 975 (9th Cir. 2016), cert. denied, 137 S. Ct. 839 (2017) (post-
conviction state actions do not disturb a prior federal sentencing enhancement
under 21 U.S.C. § 841). Heffington argues that Diaz was wrongly decided, but we
can only overrule a prior decision by a three-judge panel when there is clearly
irreconcilable intervening higher authority, which is absent in this case. See
Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 979 (9th Cir.
2012).
Heffington also seeks en banc review of Diaz, a petition he does not have
standing to submit. See 9th Cir. R. 35(b). Moreover, the Diaz panel already
denied petitions for panel rehearing and rehearing en banc, and ordered that no
subsequent petitions for rehearing en banc may be filed. See Diaz, 838 F.3d at
970.
Nothing in this disposition precludes Heffington from filing a petition for
rehearing en banc in this case pursuant to the applicable rules.
AFFIRMED.

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