NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 18 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-15906

Plaintiff-Appellee, D.C. Nos. 1:15-cv-01850-LJO

1:93-cr-05021-LJO-1 v. RAY MARTIN HEFFINGTON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Submitted October 15, 2019** Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Ray Martin Heffington appeals from the district court’s order denying his 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Fultz, 923 F.3d 1192, 1194 (9th Cir. 2019), we affirm.

*

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).

Heffington claims he should no longer be subject to a mandatory life sentence under 21 U.S.C. § 841 because his prior state felony convictions, which were used to enhance his federal sentence, have been reclassified as misdemeanors. As Heffington concedes, that argument is foreclosed. See United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), cert. denied, 137 S. Ct. 839 (2017) (post- conviction state actions do not disturb a prior federal sentencing enhancement under 21 U.S.C. § 841). Heffington argues that Diaz was wrongly decided, but we can only overrule a prior decision by a three-judge panel when there is clearly irreconcilable intervening higher authority, which is absent in this case. See Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 979 (9th Cir. 2012).

Heffington also seeks en banc review of Diaz, a petition he does not have standing to submit. See 9th Cir. R. 35(b). Moreover, the Diaz panel already denied petitions for panel rehearing and rehearing en banc, and ordered that no subsequent petitions for rehearing en banc may be filed. See Diaz, 838 F.3d at 970.

Nothing in this disposition precludes Heffington from filing a petition for rehearing en banc in this case pursuant to the applicable rules.

AFFIRMED.

2 16-15906