USA V. ROBERT SOLOMON, III, No. 17-10042 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION OCT 27 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 17-10042 D.C. No. 2:16-cr-00112-KJM v. MEMORANDUM* ROBERT R. SOLOMON III, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding Submitted October 23, 2017** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. Robert R. Solomon III appeals from the district court’s judgment and challenges the 37-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, 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). Solomon contends that the district court improperly determined that his prior assault conviction under California Penal Code § 245(a)(4) was a “crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A) and, therefore, improperly determined his base offense level. He acknowledges that this claim is foreclosed by our holding in United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (violation of section 245 “is categorically a crime of violence” under the elements clause). However, he argues that this holding has been undermined by Johnson v. United States, 135 S. Ct. 2551 (2015). We disagree. Johnson held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, and did not address the elements clause. See Johnson, 135 S. Ct. at 2563. Moreover, Johnson’s holding had no effect on the advisory Guidelines. See Beckles v. United States, 137 S. Ct. 886, 895 (2017). Finally, contrary to Solomon’s contention, our decision in Grajeda is not “clearly irreconcilable” with Descamps v. United States, 133 S. Ct. 2276 (2013), or Mathis v. United States, 136 S. Ct. 2243 (2016). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). AFFIRMED. 2 17-10042

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