United States of America v. Robert R. Solomon Iii

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT R. SOLOMON III,
Defendant-Appellant.
No. 17-10042
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
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
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.
* 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
OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 17-10042
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.

-- 2 of 2 --