FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-55023 Plaintiff-Appellee, D.C. Nos. v. 2:16-cv-03872-CAS 2:99-cr-00257-CAS-4 ANTONIO DEAN BLACKSTONE, AKA Lil Sule, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Argued and Submitted April 11, 2018 Pasadena, California Filed September 12, 2018 Before: Mary M. Schroeder, Richard R. Clifton, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Clifton 2 UNITED STATES V. BLACKSTONE SUMMARY* 28 U.S.C. § 2255 The panel affirmed the district court’s denial of Antonio Dean Blackstone’s motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, which was imposed in 2000 under the then-mandatory Sentencing Guidelines, based in part on the court’s conclusion that he had previously been convicted of crimes of violence. Blackstone argued that his sentence must be vacated because, after Johnson v. United States, 135 S. Ct. 2551 (2015), the relevant Sentencing Guidelines provision, U.S.S.G. § 4B1.2, is unconstitutionally vague and, as a result, his prior California convictions are no longer treated as crimes of violence. The panel held that Blackstone’s § 2255 motion is untimely under 28 U.S.C. § 2255(f)(3), which authorizes filing within one year of “the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” The panel held that the Supreme Court has left open the question of Johnson’s application to the mandatory Guidelines, and thus has not yet recognized the right Blackstone asserts. The panel wrote that if the Supreme Court extends Johnson to a sentence imposed at a time when the Sentencing Guidelines were mandatory, then Blackstone may be able to bring a timely § 2255 motion, but as of now, his motion is untimely. * 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. BLACKSTONE 3 The panel applied the same reasoning to Blackstone’s uncertified argument that Hobbs Act robbery is not a “crime of violence” for purposes of 18 U.S.C. § 924(c), writing that the Supreme Court has not recognized that § 924(c)’s residual clause is void for vagueness. The panel did not reach the merits. Noting that the Seventh Circuit would conclude that a § 2255 motion based on Johnson would be timely – a conclusion with which the panel disagrees but does not consider unreasonable – the panel granted Blackstone’s request to expand the certificate of appealability to include the § 924(c) issue, but denied the challenge as untimely. COUNSEL Alyssa Bell (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant- Appellant. L. Ashley Aull (argued); Bryan Y. Yang, Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, United States Attorney; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee. 4 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals