United States v. Blackstone, No. 17-55023 (9th Cir. 2018)Annotate this Case
The Ninth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence. In this case, defendant's sentence was imposed in 2000 under the then-mandatory Sentencing Guidelines, based in part on the district court's conclusion that he had previously been convicted of crimes of violence.
The panel held that the motion was untimely under 28 U.S.C. 2255(f)(3), which authorizes filing within one year of "the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Although defendant argued that the Supreme Court recognized a new right in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court has not yet recognized such a right. Because the Supreme has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge, defendant's motion was not timely under the statute. The panel also denied a similar challenge by defendant to a conviction and sentence for use of a firearm during a crime of violence because the Supreme Court has not recognized that right.