United States v. Robert Bates

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2018 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-16171

Plaintiff-Appellee, D.C. Nos. 2:17-cv-00534-JAD 2:99-cr-00008-JAD

v.

ROBERT ARTHUR BATES, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted August 15, 2018** Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Federal prisoner Robert Arthur Bates 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. Reves, 774 F.3d 562, 564 (9th Cir. 2014), 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).

In his section 2255 motion, Bates argued that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), his conviction for carjacking in violation of 18 U.S.C. § 2119, is no longer a crime of violence for purposes of 18 U.S.C. § 924(c). In United States v. Gutierrez, this Court held that the federal offense of carjacking is “categorically a crime of violence under § 924(c)” because it “necessarily entails the threatened use of violent physical force.” 876 F.3d 1254, 1257 (9th Cir. 2017), cert. denied, 138 S. Ct. 1602 (2018). As Bates concedes in his reply brief, this decision forecloses his argument.

AFFIRMED.

2 17-16171