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United States v. Blackstone

United States Court of Appeals, Ninth Circuit

September 12, 2018

United States of America, Plaintiff-Appellee,
v.
Antonio Dean Blackstone, AKA Lil Sule, Defendant-Appellant.

          Argued and Submitted April 11, 2018 Pasadena, California

          Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding D.C. Nos. 2:16-cv-03872-CAS, 2:99-cr-00257-CAS-4

          Alyssa Bell (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

          L. Ashley Aull (argued); Bryan Y. Yang, Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

          Before: Mary M. Schroeder, Richard R. Clifton, and Milan D. Smith, Jr., Circuit Judges.

         SUMMARY [*]

         28 U.S.C. § 2255

         The panel affirmed the district court's denial of Antonio Dean Blackstone's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, which was imposed in 2000 under the then-mandatory Sentencing Guidelines, based in part on the court's conclusion that he had previously been convicted of crimes of violence.

         Blackstone argued that his sentence must be vacated because, after Johnson v. United States, 135 S.Ct. 2551 (2015), the relevant Sentencing Guidelines provision, U.S.S.G. § 4B1.2, is unconstitutionally vague and, as a result, his prior California convictions are no longer treated as crimes of violence.

         The panel held that Blackstone's § 2255 motion is 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." The panel held that the Supreme Court has left open the question of Johnson's application to the mandatory Guidelines, and thus has not yet recognized the right Blackstone asserts. The panel wrote that if the Supreme Court extends Johnson to a sentence imposed at a time when the Sentencing Guidelines were mandatory, then Blackstone may be able to bring a timely § 2255 motion, but as of now, his motion is untimely.

         The panel applied the same reasoning to Blackstone's uncertified argument that Hobbs Act robbery is not a "crime of violence" for purposes of 18 U.S.C. § 924(c), writing that the Supreme Court has not recognized that § 924(c)'s residual clause is void for vagueness. The panel did not reach the merits. Noting that the Seventh Circuit would conclude that a § 2255 motion based on Johnson would be timely - a conclusion with which the panel disagrees but does not consider unreasonable - the panel granted Blackstone's request to expand the certificate of appealability to include the § 924(c) issue, but denied the challenge as untimely.

          OPINION

          CLIFTON, CIRCUIT JUDGE:

         Antonio Dean Blackstone appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, the version of habeas corpus review that applies to federal sentences. In May 2000, Blackstone was sentenced to 290 months of incarceration under the then-mandatory Sentencing Guidelines, based in part on the court's conclusion that he had previously been convicted of crimes of violence. Blackstone argues that his sentence must be vacated because, after Johnson v. United States, 135 S.Ct. 2551 (2015), the relevant Sentencing Guideline provision, U.S.S.G. § 4B1.2, is unconstitutionally vague and, as a result, his prior California convictions are no longer treated as crimes of violence under the federal sentencing laws.

         Normally, a § 2255 motion must be filed within a year of the date the conviction became final, a period that expired years ago for Blackstone. See 28 U.S.C. § 2255(f)(1). The statute also authorizes filing within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. § 2255(f)(3). Blackstone argues that the Supreme Court recognized a new right in Johnson, a right that was made retroactively applicable in Welch v. United States, 136 S.Ct. 1257 (2016). We conclude, however, that the Supreme Court has not yet recognized the right asserted by Blackstone. The Supreme Court has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge. As a result, Blackstone's current motion is not timely under the statute. In reaching that conclusion, we agree with similar rulings by three other circuit courts that have considered this issue. We deny a similar challenge by Blackstone to a conviction and sentence under 18 U.S.C. § 924(c) for use of a firearm during a crime of violence because the Supreme Court has not recognized that right, either. We affirm the denial of Blackstone's motion.

         I. Background

         On August 19, 1999, a jury found Antonio Dean Blackstone guilty of multiple offenses: conspiring to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951; committing Hobbs Act robbery; and using and carrying a firearm during a "crime of violence," in violation of 18 U.S.C. § 924(c). On May 8, 2000, the district court sentenced Blackstone to a total of 290 months of incarceration. That total consisted of two parts: 230 months for the two Hobbs Act convictions (specifically, two sentences each of 230 months to be served concurrently), and sixty months for the 18 U.S.C. § 924(c) conviction, to be served consecutively to the Hobbs Act sentences. When Blackstone was sentenced, the Sentencing Guidelines were mandatory, not advisory. See United States v. Booker, 543 U.S. 220, 245 (2005) (holding that prior mandatory application of the Sentencing Guidelines had violated the Sixth Amendment and that the Guidelines were "effectively advisory" going forward).

         In calculating the sentence, the district court concluded that Blackstone qualified as a career offender under U.S.S.G. § 4B1.1, also known as the career offender Guideline, because he had previously been convicted of two prior felony crimes of violence: second-degree robbery, in violation of California Penal Code § 211; and voluntary manslaughter, in violation of California Penal Code § 192(a). As a result, Blackstone's Guideline range for the two Hobbs Act convictions increased from 70 to 87 months to 210 to 240 months. The district court imposed a sentence of 230 months for those counts. The firearms conviction carried a mandatory consecutive sentence of 60 months, 18 U.S.C. § 924(c)(1), bringing the total to 290 months.

         Blackstone appealed his sentence, but this court affirmed. United States v. Gaines, 8 Fed.Appx. 635 (9th Cir. 2001). Blackstone's petition for a writ of certiorari was denied. Blackstone v. United States, 534 U.S. 910 (2001). Thereafter, Blackstone filed a 28 U.S.C. § 2255 motion and a 28 U.S.C. § 2241 petition, both of which were denied and neither of which raised the issues presented in this appeal.

         Within one year after the Supreme Court issued its opinion in Johnson, Blackstone filed an application with this court for authorization to file a second or successive motion to vacate under ยง 2255. That application was granted, ...


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