United States of America v. Mario Weicks

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO WEICKS,
Defendant-Appellant.
No. 15-16729
D.C. Nos. 2:13-cv-00539-KJD
2:05-cr-00040-KJD-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Federal prisoner Mario Weicks 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. We review de novo, see United States v. Reves, 774 F.3d
* 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). Appellant’s request for oral
argument is, therefore, denied.
FILED
AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-16729
562, 564 (9th Cir. 2014), and we vacate and remand in part, and affirm in part.
Weicks contends that his convictions under 18 U.S.C. § 2423 (a) and (b) do
not qualify as crimes of violence under the residual clause of 18 U.S.C. § 924(c).
The government concedes that Weicks is entitled to relief if the residual clause of
section 924(c) is invalid. In United States v. Davis, 139 S. Ct. 2319, 2336 (2019),
the Supreme Court held that the residual clause of section 924(c) is
unconstitutionally vague and therefore void. Accordingly, we vacate the district
court’s order denying Weicks’s section 2255 motion as it pertains to Weicks’s
challenge to his conviction under section 924(c) and remand for further
proceedings concerning that claim.
Weicks also asserts that trial counsel was ineffective by misadvising Weicks
about the government’s guilty plea offer. Contrary to Weicks’ contentions, the
record does not show that trial counsel misadvised Weicks. Accordingly, Weicks
has not demonstrated that trial counsel’s advice was objectively unreasonable. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). We further conclude that,
under the circumstances of this case, the district court did not abuse its discretion
in adjudicating this claim without conducting an evidentiary hearing. See Shah v.
United States, 878 F.2d 1156, 1158-59 (9th Cir. 1989).
VACATED and REMANDED in part; AFFIRMED in part.

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