United States of America v. David Ernest Gildersleeve

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID ERNEST GILDERSLEEVE,
Defendant-Appellant.
No. 17-35979
D.C. Nos. 3:16-cv-01234-HZ
3:01-cr-00168-HZ-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Federal prisoner David Ernest Gildersleeve appeals from the district court’s
judgment denying his 28 U.S.C. § 2255 motion to vacate his sentence. We have
jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v.
Reves, 774 F.3d 562, 564 (9th Cir. 2014), we affirm.
* 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).
FILED
DEC 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-35979
Gildersleeve contends that the district court erred by denying his section
2255 motion as untimely. He asserts that his section 2255 motion is timely
because he filed it within one year of the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015), and the right recognized in Johnson applies
to the mandatory career offender guideline under which he was sentenced. This
argument is foreclosed because “Johnson did not recognize a new right applicable
to the mandatory Sentencing Guidelines on collateral review.” United States v.
Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018), cert. denied, 139 S. Ct. 2762
(2019). Contrary to Gildersleeve’s contention, our decision in Blackstone is not
“clearly irreconcilable” with United States v. Davis, 139 S. Ct. 2319 (2019). See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Accordingly, the
district court properly concluded that section 2255(f)(3) does not apply and that
Gildersleeve’s motion is untimely. See 28 U.S.C. § 2255(f)(1).
AFFIRMED.

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