Arlanders Gibson v. United States

Opinion

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 23 2021

MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 17-16663

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01428-LRH v. 2:03-cr-00350-LRH-PAL-12

ANTONIO GIVENS, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

The stay of proceedings, entered on October 4, 2018, is lifted. Antonio Givens appeals from the district court’s order denying his 28 U.S.C. § 2255 motion to vacate. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Fultz, 923 F.3d 1192, 1194 (9th Cir.

* 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). 2019), we affirm. Givens asserts that his career offender sentence must be vacated because

Johnson v. United States, 576 U.S. 591 (2015), applies to the mandatory Sentencing Guidelines and renders the residual clause of U.S.S.G. § 4B1.1 unconstitutionally vague. This contention is foreclosed. See United States v.

Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018) (“Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review.”). Givens next argues that his conviction under 18 U.S.C. § 924(c) must be

vacated because § 924(c)’s residual clause is unconstitutionally vague and Hobbs Act robbery does not satisfy the § 924(c)(3)(A) force clause. This contention is also foreclosed. See United States v. Dominguez, 954 F.3d 1251, 1260-61 (9th Cir.

2020) (reaffirming that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A)). AFFIRMED.