                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 17-35979

                Plaintiff-Appellee,             D.C. Nos.    3:16-cv-01234-HZ
                                                             3:01-cr-00168-HZ-1
 v.

DAVID ERNEST GILDERSLEEVE,                      MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                          Submitted December 11, 2019**

Before:      WALLACE, CANBY, and TASHIMA, Circuit Judges.

      Federal prisoner David Ernest Gildersleeve appeals from the district court’s

judgment 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).
      Gildersleeve contends that the district court erred by denying his section

2255 motion as untimely. He asserts that his section 2255 motion is timely

because he filed it within one year of the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015), and the right recognized in Johnson applies

to the mandatory career offender guideline 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 Gildersleeve’s contention, 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 that

Gildersleeve’s motion is untimely. See 28 U.S.C. § 2255(f)(1).

      AFFIRMED.




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