United States v. Tracey Brown

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 31, 2022
• Docket: 21-10116
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 31 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 21-10116 21-15028 Plaintiff-Appellee,

v. D.C. Nos. 2:18-cv-02146-APG TRACEY L. BROWN, 2:11-cr-00334-APG-GWF-1

Defendant-Appellant. MEMORANDUM*

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

In these consolidated appeals, Tracey L. Brown appeals from the district

court’s orders denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct

his sentence, and his motion to amend his § 2255 motion. We have jurisdiction

under 28 U.S.C. § 2253. We review de novo, see United States v. Hill, 915 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). 669, 673 (9th Cir. 2019), and we affirm.

Brown contends that his conviction and sentence for brandishing a firearm

under 18 U.S.C. § 924(c) must be vacated because Hobbs Act robbery is not a

qualifying predicate offense. As Brown acknowledges, we recently reaffirmed that

Hobbs Act robbery is a crime of violence under § 924(c)(3)(A). See United States

v. Dominguez, 954 F.3d 1251, 1261 (9th Cir. 2020). Contrary to Brown’s

contention, Dominguez controls because Brown has not shown that it is “clearly

irreconcilable” with intervening higher authority. See Miller v. Gammie, 335 F.3d

889, 900 (9th Cir. 2003) (en banc).

Brown also challenges the district court’s denial of his motion to amend his

§ 2255 motion to add a claim that, under Amendment 798 to the Guidelines, he is

entitled to resentencing without the career offender enhancement. The district

court treated this claim as a motion for a sentence reduction under 18 U.S.C.

§ 3582(c)(2) and denied amendment as futile. We agree that Brown is not entitled

to relief under § 3582(c)(2). Amendment 798 had no impact on the 2014

Guidelines under which Brown was sentenced. See United States v. Bankston, 901

F.3d 1100, 1103-04 (9th Cir. 2018). Brown’s argument that the district court

should have used a later version of the Guidelines is beyond the scope of a

§ 3582(c)(2) motion. See U.S.S.G. § 1B1.10(b)(1); Dillon v. United States, 560

U.S. 817, 825-26, 831 (2010) (district court considering a § 3582(c)(2) motion may

2 21-15028 & 21-10116 not consider any guideline application question beyond the change made by the

amendment).

We treat Brown’s additional arguments as a motion to expand the certificate

of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala

v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

AFFIRMED.

3 21-15028 & 21-10116