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 2022-05

United States v. Tracey Brown ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       MAY 31 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       Nos. 21-10116
21-15028
Plaintiff-Appellee,
v.                                             D.C. Nos.
2:18-cv-02146-APG
TRACEY L. BROWN,                                2:11-cr-00334-APG-GWF-1
Defendant-Appellant.            MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted May 17, 2022**
Before:      CANBY, TASHIMA, and NGUYEN, Circuit Judges.
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
*
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).
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
2                        21-15028 & 21-10116
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.
3                          21-15028 & 21-10116