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                           NOT FOR PUBLICATION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


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-16571

              Plaintiff-Appellee,                D.C. Nos.    3:16-cv-02550-CRB
                                                              3:14-cr-00552-CRB
 v.

CHARLES CHESTER CHATMAN III,                     MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                             Submitted June 12, 2018**

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

      Federal prisoner Charles Chester Chatman, III, 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).
      In his section 2255 motion, Chatman argued that, in light of Johnson v.

United States, 135 S. Ct. 2551 (2015), his California conviction for inflicting

corporal injury on a spouse or cohabitant is no longer a crime of violence for

purposes of U.S.S.G. § 2K2.1(a)(3). The district court denied this claim citing

Beckles v. United States, 137 S. Ct. 886 (2017), which, as Chatman concedes,

forecloses this argument. On appeal, Chatman contends that the government’s pre-

Beckles concession that Johnson’s holding applies to the Guidelines steered him

away from raising the additional argument that he is actually innocent of the

sentencing enhancement. He further argues that the district court’s allegedly

premature dismissal of his section 2255 motion prevented him from developing

that alternative argument.

      To the extent the government conceded that Johnson’s holding applies to the

Guidelines, neither the district court nor this court is bound by that concession.

See United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc) (“We are

not bound by a party’s concession as to the meaning of the law[.]”). We disagree

with Chatman that his challenge to the district court’s processing of his section

2255 motion is encompassed within the certificate of appealability and treat his

briefing of this issue as a motion to expand the certificate of appealability. So




                                           2                                 17-16571
treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d

1098, 1104-05 (9th Cir. 1999).

      Chatman’s claim that the district court misapprehended that the state court

would impose a concurrent sentence lacks merit. The mere hope that the state

court would consider the length of Chatman’s federal sentence is not a basis for

relief because section 2255 does not extend to “claims based not on any objectively

ascertainable error but on the frustration of the subjective intent of the sentencing

judge.” United States v. Addonizio, 442 U.S. 178, 187 (1979).

      AFFIRMED.




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