USA V. QUINTON BIRDINGROUND, JR., No. 18-35722 (9th Cir. 2022)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 21 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 18-35722 D.C. Nos. 1:16-cv-00102-SPW 1:03-cr-00017-SPW-1 v. QUINTON BIRDINGROUND Jr., MEMORANDUM* Defendant-Appellee. Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Submitted November 15, 2022** Before: CANBY, CALLAHAN, and BADE, Circuit Judges. The United States appeals from the district court’s order granting Quinton Birdinground Jr.’s 28 U.S.C. § 2255 motion to vacate his conviction and sentence for discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). We have jurisdiction under 28 U.S.C. § 2253. We review de novo the * 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). district court’s decision to grant a § 2255 motion, see United States v. Navarro, 160 F.3d 1254, 1255 (9th Cir. 1998), and we vacate and remand. During the pendency of this appeal, this court decided United States v. Begay, 33 F.4th 1081 (9th Cir.) (en banc), cert. denied, 2022 WL 6573327 (U.S. Oct. 11, 2022). We agree with the government that Begay requires that we vacate the district court’s order dated July 3, 2018, and the amended judgment entered on August 23, 2018, and remand for further proceedings consistent with Begay. See id. at 1096 (holding that second-degree murder under 18 U.S.C. § 1111(a) constitutes a “crime of violence” for purposes of § 924(c)(3)). Birdinground’s motion for summary affirmance is denied. VACATED and REMANDED. 2 18-35722

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