Opinion
No. 17-10042
10-27-2017
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT R. SOLOMON III, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 2:16-cr-00112-KJM MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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.
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.