USA V. DAVID GILDERSLEEVE, No. 17-35979 (9th Cir. 2019)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 17-35979 D.C. Nos. 3:16-cv-01234-HZ 3:01-cr-00168-HZ-1 v. DAVID ERNEST GILDERSLEEVE, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding Submitted December 11, 2019** Before: WALLACE, CANBY, and TASHIMA, Circuit Judges. Federal prisoner David Ernest Gildersleeve appeals from the district court’s judgment 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). Gildersleeve contends that the district court erred by denying his section 2255 motion as untimely. He asserts that his section 2255 motion is timely because he filed it within one year of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), and the right recognized in Johnson applies to the mandatory career offender guideline under which he was sentenced. This argument is foreclosed because “Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review.” United States v. Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018), cert. denied, 139 S. Ct. 2762 (2019). Contrary to Gildersleeve’s contention, our decision in Blackstone is not “clearly irreconcilable” with United States v. Davis, 139 S. Ct. 2319 (2019). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Accordingly, the district court properly concluded that section 2255(f)(3) does not apply and that Gildersleeve’s motion is untimely. See 28 U.S.C. § 2255(f)(1). AFFIRMED. 2 17-35979
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