United States of America v. Michael Tyrone Simpson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL TYRONE SIMPSON,
Defendant-Appellant.
No. 17-56766
D.C. Nos. 3:16-cv-01509-BTM
3:97-cr-02903-BTM-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Federal prisoner Michael Tyrone Simpson 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. 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
AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Simpson asserts that his prior conviction under Cal. Penal Code § 211 does
not constitute a crime of violence under the enumerated offense clause of the
career offender Sentencing Guidelines, and thus his sentence must be vacated
because the residual clause of the mandatory career offender Guidelines is
unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551 (2015). The
government contends that Simpson’s section 2255 motion is untimely because he
is asserting a right that the Supreme Court has not yet recognized. We agree.1
Contrary to Simpson’s assertion, “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, No. 18-
9368, 2019 WL 2211790 (June 24, 2019). Therefore, Simpson’s section 2255
motion is untimely. See 28 U.S.C. § 2255(f)(3); see also White v. Klitzkie, 281
F.3d 920, 922 (9th Cir. 2002) (“[W]e can affirm the district court on any ground
supported by the record.”).
Simpson also contends that his conviction for armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d), is not a crime of violence for purposes of
18 U.S.C. § 924(c). This argument is foreclosed. See United States v. Watson, 881
F.3d 782, 784, 786 (9th Cir.), cert. denied, 139 S. Ct. 203 (2018) (federal armed
1 We conclude that the government’s footnote regarding timeliness in its
opposition to Simpson’s section 2255 motion preserved this argument.

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bank robbery by force and violence, or by intimidation, is categorically a crime of
violence under the force clause of section 924(c)(3)(A)).
AFFIRMED.

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