                      UNITED STATES COURT OF APPEALS                      FILED
                           FOR THE NINTH CIRCUIT                           APR 25 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


TONY CARZELL GREEN,                    )     No. 17-35281
                                       )
      Petitioner-Appellant,            )     D.C. No. 3:16-cv-00406-MC
                                       )
      v.                               )     ORDER AMENDING
                                       )     DISPOSITION AND DENYING
CALVIN JOHNSON,                        )     APPELLANT’S PETITION FOR
                                       )     REHEARING AND FOR
      Respondent-Appellee.             )     REHEARING EN BANC
                                       )


Before: FERNANDEZ and IKUTA, Circuit Judges, and SESSIONS,* District
Judge.

      The disposition filed herein on November 30, 2018, is amended as follows:

      (1) After the citation that follows penultimate sentence on page five of the

disposition we add:

            Moreover, Green’s Washington cocaine conspiracy

            conviction was properly treated as a felony for career

            offender purposes under the United States Sentencing

            Guidelines. See USSG §§4B1.1, 4B1.2 (1997). That is,



      *
        The Honorable William K. Sessions III, United States District Judge for the
District of Vermont, sitting by designation.
      it was legally proper to use the maximum authorized

      sentence for his crime of conviction under Washington

      law rather than the actual sentence that was imposed by

      Washington in 1995. See United States v. Rodriquez,

      553 U.S. 377, 390–92, 391 n.5, 128 S. Ct. 1783,

      1792–93, 1792 n.5, 170 L. Ed. 2d 719 (2008); United

      States v. Crawford, 520 F.3d 1072, 1080 (9th Cir. 2008);

      United States v. Murillo, 422 F.3d 1152, 1154 (9th Cir.

      2005). Furthermore, the later cases relied upon by

      Green8 do not affect our law regarding his federal

      sentence, even though they can affect federal career

      offender calculations that rely upon Washington

      convictions under Washington’s newer sentencing

      scheme.9

(2) At the bottom of page five, we add the following footnotes:
      8
       Moncrieffe v. Holder, 569 U.S. 184, 194–95, 198, 133
      S. Ct. 1678, 1686–87, 1689, 185 L. Ed. 2d 727 (2013);
      Carachuri-Rosendo v. Holder, 560 U.S. 563, 582, 130 S.
      Ct. 2577, 2589, 177 L. Ed. 2d 68 (2010); United States v.
      Valencia-Mendoza, 912 F.3d 1215, 1222–24 (9th Cir.
      2019).



                                  2
               9
                Compare Wash. Rev. Code § 9.94A.505(2)(b) (2007),
               and Wash Rev. Code. § 9.94A.535(2), (3) (2007), with
               Wash. Rev. Code § 9.94A.120(7) (1995), and Wash.
               Rev. Code § 9.94A.390(2) (1995).

      With the above amendments, the panel has voted unanimously to deny the

petition for rehearing. The petition for rehearing en banc was circulated to the

judges of the court, and no judge requested a vote for en banc consideration.

      The petition for rehearing and the petition for rehearing en banc are

DENIED.

      No subsequent petition for rehearing or rehearing en banc will be

entertained.




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