                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-30047

              Plaintiff-Appellee,                D.C. No. 3:98-cr-00398-MA

 v.
                                                 MEMORANDUM*
ERNEST JOHNSON, Jr.,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Malcolm F. Marsh, District Judge, Presiding

                            Submitted March 10, 2017**
                                Portland, Oregon

Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ,*** District
        Judge.




      *
             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).
      ***
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
      Ernest Johnson, Jr., appeals from the district court’s judgment and order

denying his 18 U.S.C. § 3582(c)(2) motion for modification of sentence. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, United States v. Spears,

824 F.3d 908, 912 (9th Cir. 2016), and we affirm.

      In 1999, judgment was entered against Johnson on charges of armed bank

robbery in violation of 18 U.S.C. § 2113(a) & (d) (Count 1); unlawful possession

of a firearm in connection with a crime of violence, in violation of 18 U.S.C. §

924(c) (Count 2); and felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1) (Count 3). Johnson was sentenced to 300 months on Counts 1 and 3, to

run concurrently. The district court imposed a mandatory 60-month consecutive

sentence on the section 924(c) conviction (Count 2), for a total imprisonment term

of 360 months.

      Johnson contends that the district court erred by rejecting his argument that

the enhancement of his sentence, once for armed bank robbery, and again for

possession of a firearm in connection with a crime of violence, constituted

impermissible “double counting” in contravention of retroactive Guideline

Amendment 599 of the United States Sentencing Guidelines.

      Johnson’s contention fails because the district court properly concluded that

Amendment 599 is inapplicable to the guideline under which Johnson was


                                          2                                   16-30047
sentenced as an armed career criminal, U.S.S.G.§ 4B1.4. Johnson does not

challenge his qualification as an armed career criminal and a career offender.

Amendment 599 modified a separate guideline, U.S.S.G. § 2K2.4, and clarified the

circumstances under which a court may enhance a sentence when the defendant

also has a § 924(c) firearms offense. See U.S.S.G. Suppl. to App. C, Amend. 599,

69-70 (2000); see also United States v. Archdale, 229 F.3d 861, 869 (9th Cir.

2000) (noting that “the Sentencing Commission plainly understands the concept of

double counting and expressly forbids it where it is not intended” (internal

quotation marks and citation omitted)).

      AFFIRMED.




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