Arlanders Gibson et al v. USA

Filing 3

MEMORANDUM/OPINION of USCA as to Antonio Givens re ECF No. 1911 Notice of Appeal (filed in case 2:03-cr-350). USDC AFFIRMED. USCA Case 17-16663. (Copies have been distributed pursuant to the NEF - DRM)

Case 2:16-cv-01428-LRH Document 3 Filed 08/23/21 Page 1 of 2

NOT FOR PUBLICATION

FILED
AUG 23 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO GIVENS,

No.

U.S. COURT OF APPEALS

17-16663

D.C. Nos.
2:16-cv-01428-LRH
2:03-cr-00350-LRH-PAL-12
MEMORANDUM*

Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted August 17, 2021**
Before:

SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

The stay of proceedings, entered on October 4, 2018, is lifted.
Antonio Givens appeals from the district court’s order denying his 28 U.S.C.
§ 2255 motion to vacate. We have jurisdiction under 28 U.S.C. § 2253.
Reviewing de novo, see United States v. Fultz, 923 F.3d 1192, 1194 (9th Cir.

*

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).

Case 2:16-cv-01428-LRH Document 3 Filed 08/23/21 Page 2 of 2

2019), we affirm.
Givens asserts that his career offender sentence must be vacated because
Johnson v. United States, 576 U.S. 591 (2015), applies to the mandatory
Sentencing Guidelines and renders the residual clause of U.S.S.G. § 4B1.1
unconstitutionally vague. This contention is foreclosed. See United States v.
Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018) (“Johnson did not recognize a
new right applicable to the mandatory Sentencing Guidelines on collateral
review.”).
Givens next argues that his conviction under 18 U.S.C. § 924(c) must be
vacated because § 924(c)’s residual clause is unconstitutionally vague and Hobbs
Act robbery does not satisfy the § 924(c)(3)(A) force clause. This contention is
also foreclosed. See United States v. Dominguez, 954 F.3d 1251, 1260-61 (9th Cir.
2020) (reaffirming that Hobbs Act robbery is a crime of violence under
§ 924(c)(3)(A)).
AFFIRMED.

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17-16663