                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-35683

                Plaintiff-Appellee,             D.C. Nos.    2:16-cv-00179-LRS
                                                             2:11-cr-00132-LRS
 v.

JEFFERY SCOTT FINNEY,                           MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Lonny R. Suko, District Judge, Presiding

                             Submitted June 12, 2018**

Before:      RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

      Jeffery Scott Finney 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. Manzo, 675 F.3d 1204,

1209 (9th Cir. 2012), 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).
      Finney contends that, when imposing the 137-month sentence, the district

court considered the fact that he avoided an enhancement under the Armed Career

Criminal Act (“ACCA”) by entering into a plea agreement. According to Finney,

Johnson v. United States, 135 S. Ct. 2551 (2015) renders that fact erroneous and

therefore his sentence violates his due process rights. He further argues that the

calculation of his Guidelines range was flawed, and this error shows that he was

prejudiced by consideration of his ACCA eligibility.

      As an initial matter, the Guidelines calculation was not marred by Johnson

error. See Beckles v. United States, 137 S. Ct. 886, 890 (2017) (holding that “the

advisory Guidelines are not subject to vagueness challenges under the Due Process

Clause”). Nor are any of the other cases Finney cites applicable in these

proceedings to invalidate the use of his prior convictions as sentencing

enhancements. See 28 U.S.C. § 2255(f)(3); Arazola-Galea v. United States, 876

F.3d 1257, 1259-60 (9th Cir. 2017) (holding that Mathis v. United States, 136 S.

Ct. 2243 (2016), did not announce a new rule of constitutional law); Ezell v. United

States, 778 F.3d 762, 766-67 (9th Cir. 2015) (holding that Descamps v. United

States, 133 S. Ct. 2276 (2013), did not announce a new rule of constitutional law).

      The record demonstrates that the district court based the sentence on the

                                          2                                   17-35683
applicable, correctly calculated Guidelines range, and the 18 U.S.C. § 3553(a)

sentencing factors, including Finney’s criminal history. We conclude, therefore,

that Finney is not entitled to relief because the record does not show that his

ACCA eligibility was “demonstrably made the basis for the sentence.” United

States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009) (internal quotation

marks omitted).

      AFFIRMED.




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