623 F. App'x 347
9th Cir.
2015

Brian Darnell Berkley, Sr. v. UNITED STATES OF AMERICA

No. 14-55536

United States Court of Appeals, Ninth Circuit

Filed Nov. 23, 2015.

624 Fed. Appx. 347

Submitted Nov. 18, 2015.

Erica Leigh Seger, Assistant U.S., Office of the U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.

Brian Darnell Berkley, Sr., Adelanto, CA, pro se.

Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

MEMORANDUM **

Federal prisoner Brian Darnell Berkley, Sr., appeals pro se from the district court‘s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the district court‘s decision to deny a section 2255 motion, see United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir.2010), and we affirm.

Berkley contends that the district court erred by sentencing him as a career offender under U.S.S.G. § 4B1.1. He also argues that counsel was ineffective for misadvising him that if he went to trial, he would be subject to the career offender enhancement and a mandatory life sentence for his violation of 18 U.S.C. § 2113.

The government responds that Berkley‘s motion is untimely. We agree. Berkley filed his motion more than a year after his conviction became final, and he fails to allege the violation of a right that has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2255(f); Ezell v. United States, 778 F.3d 762, 766 (9th Cir.), cert. denied, — U.S. —, 136 S.Ct. 256, — L.Ed.2d — (2015) (the Supreme Court did not announce a new rule in Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)). Because habeas claims that are not raised before the district court are not cognizable on appeal, see Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994), we do not consider Berkley‘s claim that he is “actually innocent” of the predicate offenses underlying the U.S.S.G. § 4B1.1 enhancement.

AFFIRMED.

UNITED STATES of America v. Edwin Oswaldo HERRERA-RAMIREZ, a.k.a. Edwin Oswaldo Herrera, a.k.a. Edwin Herrera-Ramirez

No. 14-10481

United States Court of Appeals, Ninth Circuit

Filed Nov. 23, 2015.

624 Fed. Appx. 348

Submitted Nov. 18, 2015.

Erica Leigh Seger, Assistant U.S., Office of the U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.

Aedwin Oswaldo Herrera-Ramirez, Adelanto, CA, pro se.

Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

MEMORANDUM **

Edwin Oswaldo Herrera-Ramirez appeals from the district court‘s judgment and challenges the 60-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Herrera-Ramirez challenges the district court‘s imposition of the 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because Herrera-Ramirez did not object below, we review for plain error. See United States v. Gonzalez-Aparicio, 663 F.3d 419, 426-28 (9th Cir.2011).

The district court did not plainly err by concluding that Herrera-Ramirez‘s conviction for assault with a deadly weapon, in violation of Nevada Revised Statutes § 200.471, constituted a categorical “crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See Camacho-Cruz v. Holder, 621 F.3d 941, 943 (9th Cir.2010) (section 200.471 constitutes a crime of violence under 18 U.S.C. § 16(a)); United States v. Grajeda, 581 F.3d 1186, 1190-91 (9th Cir.2009) (reasoning of cases addressing the “crime of violence” definition under 18 U.S.C. § 16(a) applies to cases involving U.S.S.G. § 2L1.2). As such, no modified categorical analysis was required. See Grajeda, 581 F.3d at 1189. Further, the district court did not err by failing to consider the length of Herrera-Ramirez‘s prior term of imprisonment; the Guideline does not define “crime of violence” by reference to the length of the defendant‘s sentence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt. n. 1(B)(iii).

AFFIRMED.

Notes

*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.