1 2 3 4 5 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 | UNITED STATES OF AMERICA, 11 Plaintiff, Case No. 2:93-cr-0259-LDG 12 || v. ORDER 13 || GENE MICHAEL DIULIO, 14 Defendant. 15 16 The defendant, Gene Michael Diulio, moves pursuant to

to vacate 17 || set aside, or correct his sentence (ECF Nos. 131, 134). The Court sentenced the 18 || defendant as a career offender under the then-mandatory United Sentencing Guidelines 19 || §4B1.1. He argues this sentence must be vacated because, pursuant to the Supreme 20 || Court’s decision in Johnson v. United States,

(2015), he can no longer be 21 || classified as a career offender. The United States opposes the motion (ECF No. 138). 22 || The Court will deny the motion as premature, pursuant to United States v. Blackstone, 90 23 || F.3d 1020, 1022 (9th Cir. 2018), cert. denied,

,

(2019) 24 As relevant to the instant matter, a motion brought pursuant to §2255 may be □□□□ 25 || filed within one year of “the date on which the right asserted was initially recognized by th 26 || Supreme Court, if that right has been newly recognized by the Supreme Court and made

1 || retroactively applicable to cases on collateral review.” /d. § 2255(f)(3). Diulio filed the 2 || present motion within one year of the Supreme Court’s decision in Johnson. 3 Diulio’s motion would be timely if Johnson recognized a new right applicable to the mandatory sentencing guidelines. In Blackstone, however, the Ninth Circuit held that 5 || “Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines 6 || on collateral review.” Blackstone, 903 F.3d at 1028. As in the present matter, Blackstone 7 || concerned a §2255 motion brought by a defendant sentenced under the mandatory 8 || Sentencing Guidelines as a career offender pursuant to §4B1.2. Blackstone cannot be 9 || distinguished from this matter. 10 “If the Court extends Johnson to a sentence imposed at a time when the Sentencin 11 || Guidelines were mandatory, then [the defendant] may be able to bring a timely motion 12 || under § 2255. As of now, however, [the defendant’s] motion is untimely.” /d. Accordingly 13 || the Court must dismiss Diulio’s motion as premature." 14 Certificate of Appealability 15 To appeal this order, Diulio must receive a certificate of appealability.

| 2253(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th Cir. R. 22—1(a). To obtain that certificate, he 17 || “must make a substantial showing of the denial of a constitutional right, a demonstration that... includes showing that reasonable jurists could debate whether (or, for that matter, 19 || agree that) the petition should have been resolved in a different manner or that the issues 20 21 ' If Diulio’s motion was timely, the Court would deny the motion on its merits. Diulio’s underlying argument is that his convictions for federal armed bank robbery under 2211

(a) and (d) do not qualify as crimes of violence pursuant to the “force clause” found in §4B1.2(a)(1) because bank robbery can be committed by “intimidation.” 23 || The Ninth Circuit considered this same argument in United States v. Watson,

(9th Cir.), cert. denied,

,

(2018). The circuit cot 24 rejected the argument, holding that bank robbery is a crime of violence pursuant to the force clause defined at

(c). Given that the force clause in §4B1.2 is nearly 25 || identical in its language and structure to the force clause defined at

(c), the Court would find that Diulio’s federal convictions for armed bank robbery qualify as crimes 26 | of violence under the §4B1 .2(a)(1) force clause.

1 || presented were adequate to deserve encouragement to proceed further.” Slack v. 2 || McDaniel,

(2000) (quotation omitted). This standard is “lenient.” 3 || Hayward v. Marshall,

(9th Cir. 2010) (en banc). In the present matter, the Ninth Circuit’s decision in Blackstone precludes this Court from finding that reasonable 5 || jurists could debate whether (or, for that matter, agree that) Diulio’s motion was timely filec 6 || Accordingly, the Court will not grant a certificate of appealability. 7 Therefore, for good cause shown, 8 THE COURT ORDERS that Defendant Gene Michael Diulio’s Motion to Stay (ECF 9 || No. 149) is DENIED as moot. 10 THE COURT FURTHER ORDERS that Defendant Gene Michael Diulio’s Motion fo 11 || Leave to File Supplemental Authority (ECF No. 141) is GRANTED. 12 THE COURT FURTHER ORDERS that Defendant Gene Michael Diulio’s Motion 13 || Pursuant to

to Vacate, Set Aside, or Correct Sentence (ECF Nos. 131, 14 || 134) is DENIED. 15 THE COURT FURTHER ORDERS that it DENIES Defendant Gene Michael □□□□□□□ 16 || certificate of appealability. 17 THE COURT FURTHER ORDERS that the Clerk of Court is directed to enter a 18 || separate civil judgment denying Defendant Gene Michael Diulio’s § 2255 motion. The 19 || Clerk also shall file this order and the civil judgment in this case and in the related civil cas 20 || number 2:16-cv-1532-LDG. 21 2211 DATED this_5/ day of January, 2020. 23 Mandl) Wg □ 24 Lloyd D. George 95 United States District Judge 26