                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-56766

                Plaintiff-Appellee,             D.C. Nos.    3:16-cv-01509-BTM
                                                             3:97-cr-02903-BTM-1
 v.

MICHAEL TYRONE SIMPSON,                         MEMORANDUM*

                Defendant-Appellant.

                   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).
      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.

                                         2                                    17-56766
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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