UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

TONY CARZELL GREEN, ) No. 17-35281 ) Petitioner-Appellant, ) D.C. No. 3:16-cv-00406-MC ) v. ) ORDER AMENDING ) DISPOSITION AND DENYING CALVIN JOHNSON, ) APPELLANT’S PETITION FOR ) REHEARING AND FOR Respondent-Appellee. ) REHEARING EN BANC )

Before: FERNANDEZ and IKUTA, Circuit Judges, and SESSIONS,* District Judge.

The disposition filed herein on November 30, 2018, is amended as follows:

(1) After the citation that follows penultimate sentence on page five of the

disposition we add:

Moreover, Green’s Washington cocaine conspiracy

conviction was properly treated as a felony for career

offender purposes under the United States Sentencing

Guidelines. See USSG §§4B1.1, 4B1.2 (1997). That is,

* The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. it was legally proper to use the maximum authorized

sentence for his crime of conviction under Washington

law rather than the actual sentence that was imposed by

Washington in 1995. See United States v. Rodriquez,

553 U.S. 377, 390–92, 391 n.5, 128 S. Ct. 1783,

1792–93, 1792 n.5, 170 L. Ed. 2d 719 (2008); United

States v. Crawford, 520 F.3d 1072, 1080 (9th Cir. 2008);

United States v. Murillo, 422 F.3d 1152, 1154 (9th Cir.

2005). Furthermore, the later cases relied upon by

Green8 do not affect our law regarding his federal

sentence, even though they can affect federal career

offender calculations that rely upon Washington

convictions under Washington’s newer sentencing

scheme.9

(2) At the bottom of page five, we add the following footnotes: 8 Moncrieffe v. Holder, 569 U.S. 184, 194–95, 198, 133 S. Ct. 1678, 1686–87, 1689, 185 L. Ed. 2d 727 (2013); Carachuri-Rosendo v. Holder, 560 U.S. 563, 582, 130 S. Ct. 2577, 2589, 177 L. Ed. 2d 68 (2010); United States v. Valencia-Mendoza, 912 F.3d 1215, 1222–24 (9th Cir. 2019).

2 9 Compare Wash. Rev. Code § 9.94A.505(2)(b) (2007), and Wash Rev. Code. § 9.94A.535(2), (3) (2007), with Wash. Rev. Code § 9.94A.120(7) (1995), and Wash. Rev. Code § 9.94A.390(2) (1995).

With the above amendments, the panel has voted unanimously to deny the

petition for rehearing. The petition for rehearing en banc was circulated to the

judges of the court, and no judge requested a vote for en banc consideration.

The petition for rehearing and the petition for rehearing en banc are

DENIED.

No subsequent petition for rehearing or rehearing en banc will be

entertained.

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