FILED
NOT FOR PUBLICATION
MAR 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30047
Plaintiff-Appellee, D.C. No. 3:98-cr-00398-MA
v.
MEMORANDUM*
ERNEST JOHNSON, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted March 10, 2017**
Portland, Oregon
Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ,*** District
Judge.
*
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).
***
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
Ernest Johnson, Jr., appeals from the district court’s judgment and order
denying his 18 U.S.C. § 3582(c)(2) motion for modification of sentence. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, United States v. Spears,
824 F.3d 908, 912 (9th Cir. 2016), and we affirm.
In 1999, judgment was entered against Johnson on charges of armed bank
robbery in violation of 18 U.S.C. § 2113(a) & (d) (Count 1); unlawful possession
of a firearm in connection with a crime of violence, in violation of 18 U.S.C. §
924(c) (Count 2); and felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (Count 3). Johnson was sentenced to 300 months on Counts 1 and 3, to
run concurrently. The district court imposed a mandatory 60-month consecutive
sentence on the section 924(c) conviction (Count 2), for a total imprisonment term
of 360 months.
Johnson contends that the district court erred by rejecting his argument that
the enhancement of his sentence, once for armed bank robbery, and again for
possession of a firearm in connection with a crime of violence, constituted
impermissible “double counting” in contravention of retroactive Guideline
Amendment 599 of the United States Sentencing Guidelines.
Johnson’s contention fails because the district court properly concluded that
Amendment 599 is inapplicable to the guideline under which Johnson was
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sentenced as an armed career criminal, U.S.S.G.§ 4B1.4. Johnson does not
challenge his qualification as an armed career criminal and a career offender.
Amendment 599 modified a separate guideline, U.S.S.G. § 2K2.4, and clarified the
circumstances under which a court may enhance a sentence when the defendant
also has a § 924(c) firearms offense. See U.S.S.G. Suppl. to App. C, Amend. 599,
69-70 (2000); see also United States v. Archdale, 229 F.3d 861, 869 (9th Cir.
2000) (noting that “the Sentencing Commission plainly understands the concept of
double counting and expressly forbids it where it is not intended” (internal
quotation marks and citation omitted)).
AFFIRMED.
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