United States v. Roy Green

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2019
• Docket: 17-16448
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-16448

Plaintiff-Appellee, D.C. Nos. 1:16-cv-00905-LJO 1:00-cr-05339-LJO-1 v.

ROY ALLEN GREEN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Roy Allen Green appeals from the district court’s order denying his 28

U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. § 2253. We review

de novo the district court’s denial of a section 2255 motion, see United States v.

Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012), and 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). Green, who was sentenced under the mandatory Sentencing Guidelines,

challenges his career offender designation. This court issued a certificate of

appealability (“COA”) regarding the applicability of Johnson v. United States, 135

S. Ct. 2551 (2015), to the mandatory Guidelines, and whether Johnson presents a

newly recognized right for purposes of 28 U.S.C. § 2255(f)(3). We decline to

consider these issues because Green is a career offender regardless of Johnson’s

impact on the mandatory Guidelines or the timeliness of his section 2255 motion.

See White v. Klitzkie, 281 F.3d 920, 922 (9th Cir. 2002) (this court can affirm on

any ground supported by the record even if the issue is not included in the COA).

Green’s offense of conviction is a controlled substance offense and does not

implicate the Guideline’s residual clause. See U.S.S.G. § 4B1.2(b) (1998). His

two prior qualifying convictions, moreover, remain crimes of violence under

U.S.S.G. § 4B1.2(a) (1998) without regard to that section’s residual clause. See

United States v. Bankston, 901 F.3d 1100, 1104-05 (9th Cir. 2018) (violation of

California Penal Code § 211 is categorically a crime of violence under the pre-

2016 Guidelines); United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th

Cir. 2018) (violation of California Penal Code § 245(a)(1) is categorically a crime

of violence under 18 U.S.C. § 16(a)); see also United States v. Garcia-Lopez, 903

F.3d 887, 893 n.3 (9th Cir. 2018) (section 16(a) and U.S.S.G. § 4B1.2(a)(1) are

identical). Accordingly, Green is not entitled to section 2255 relief.

2 17-16448 Counsel’s motion to withdraw is granted. Counsel’s motion for appointment

of substitute counsel is denied.

AFFIRMED.

3 17-16448