Opinion
21-10116 21-15028
05-31-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRACEY L. BROWN, Defendant-Appellant.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the District of Nevada Nos. 2:18-cv-02146-APG, 2:11-cr-00334-APG-GWF-1 Andrew P. Gordon, District Judge, Presiding
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
MEMORANDUM
In these consolidated appeals, Tracey L. Brown appeals from the district court's orders denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, and his motion to amend his § 2255 motion. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, see United States v. Hill, 915 F.3d 669, 673 (9th Cir. 2019), and we affirm.
Brown contends that his conviction and sentence for brandishing a firearm under 18 U.S.C. § 924(c) must be vacated because Hobbs Act robbery is not a qualifying predicate offense. As Brown acknowledges, we recently reaffirmed that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A). See United States v. Dominguez, 954 F.3d 1251, 1261 (9th Cir. 2020). Contrary to Brown's contention, Dominguez controls because Brown has not shown that it is "clearly irreconcilable" with intervening higher authority. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Brown also challenges the district court's denial of his motion to amend his § 2255 motion to add a claim that, under Amendment 798 to the Guidelines, he is entitled to resentencing without the career offender enhancement. The district court treated this claim as a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and denied amendment as futile. We agree that Brown is not entitled to relief under § 3582(c)(2). Amendment 798 had no impact on the 2014 Guidelines under which Brown was sentenced. See United States v. Bankston, 901 F.3d 1100, 1103-04 (9th Cir. 2018). Brown's argument that the district court should have used a later version of the Guidelines is beyond the scope of a § 3582(c)(2) motion. See U.S.S.G. § 1B1.10(b)(1); Dillon v. United States, 560 U.S. 817, 825-26, 831 (2010) (district court considering a § 3582(c)(2) motion may not consider any guideline application question beyond the change made by the amendment).
We treat Brown's additional arguments as a motion to expand the certificate of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).