United States of America v. Brian Vidrine

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN VIDRINE,
Defendant-Appellant.
No. 17-17066
D.C. Nos.
2:16-cv-03066-KJM-AC
2:95-cr-00482-KJM-AC-2
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Federal prisoner Brian Vidrine 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
DEC 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Vidrine contends that his convictions for armed bank robbery, in violation of
18 U.S.C. § 2113(a) and (d), are not crimes 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 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)). Vidrine asserts that
Watson was wrongly decided, but as a three-judge panel, we are bound by the
decision. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
(three-judge panel is bound by circuit precedent unless that precedent is “clearly
irreconcilable” with intervening higher authority).
Vidrine also contends that his sentence must be vacated because the residual
clause of the career offender provision, U.S.S.G. § 4B1.2, of the mandatory
Guidelines under which he was sentenced is unconstitutional in light of Johnson v.
United States, 135 S. Ct. 2551 (2015). Contrary to Vidrine’s assertions, “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). Further, our decision in Blackstone is
not “clearly irreconcilable” with United States v. Davis, 139 S. Ct. 2319 (2019).
See Miller, 335 F.3d at 900. Accordingly, the district court properly concluded

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that Vidrine’s challenge to his career offender designation was untimely. See 28
U.S.C. § 2255(f)(1), (3).
Finally, we decline to consider Vidrine’s argument that he is entitled to
equitable tolling. This argument was not raised before the district court or in his
opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n
appellate court will not consider issues not properly raised before the district court.
Furthermore, on appeal, arguments not raised by a party in its opening brief are
deemed waived.”).
AFFIRMED.

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