United States v. Johnson

MEMORANDUM ** Joshua Gunner Johnson appeals from the district court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm. Johnson contends that his two prior Oregon convictions for delivery of marijuana are not predicate serious drug offenses, as defined by the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924 (e)(2)(A). He asserts that, following Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), the district court should have relied on Oregon’s sentencing guidelines, rather than state criminal statutes, to determine the maximum term of imprisonment prescribed for the disputed convictions. These contentions, however, are foreclosed by United States v. Murillo, 422 F.3d 1152, 1155 (9th Cir.2005), and United States v. Parry, 479 F.3d 722, 725-26 (9th Cir.), cert. denied, — U.S.-, 128 S.Ct. 249 , 169 L.Ed.2d 183 (2007). Moreover, to the extent that Johnson’s contentions rely on a retroactive application of Blakely , they also fail because his conviction was *680 final before that decision was announced. See Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir.2005) (holding that Blakely does not apply retroactively). Because we affirm on other grounds, we do not reach the parties’ remaining contentions. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.