United States of America v. Scott Michael Patrick

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SCOTT MICHAEL PATRICK,
Defendant-Appellant.
No. 17-35867
D.C. Nos. 6:16-cv-01218-MC
6:98-cr-60099-MC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Federal prisoner Scott Michael Patrick appeals from the district court’s order
denying his 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction
under 28 U.S.C. § 2253. We review de novo, see United States v. Reves, 774 F.3d
562, 564 (9th Cir. 2014), 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
NOV 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-35867
Patrick contends that the district court improperly denied his section 2255
motion as untimely. He asserts that his section 2255 motion is timely because he
filed it within one year of Johnson v. United States, 135 S. Ct. 2551 (2015), a
decision which he contends applies to the mandatory career offender Sentencing
Guidelines provision, U.S.S.G. § 4B1.2, 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 Patrick’s argument, 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 Patrick’s
motion is untimely. See 28 U.S.C. § 2255(f)(1).
In light of this disposition, we do not reach the parties’ remaining
arguments.
The government’s motion for summary affirmance is denied as moot.
AFFIRMED.

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