Case: 16-17674   Date Filed: 07/07/2017   Page: 1 of 2


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-17674
                          Non-Argument Calendar
                        ________________________

     D.C. Docket Nos. 1:16-cv-02626-TWT; 1:06-cr-00299-TWT-LTW-1



NGUYEN VAN NGUYEN,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                                (July 7, 2017)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Nguyen Van Nguyen appeals the dismissal of his motion to vacate as
               Case: 16-17674      Date Filed: 07/07/2017   Page: 2 of 2


untimely. 28 U.S.C. § 2255(f). Nguyen argued that, in the wake of Johnson v.

United States, 

(2015), his three prior convictions for robbery did

not qualify as predicate offenses under the Armed Career Criminal Act. The

district court ruled that Nguyen “was sentenced under the ACCA ‘elements test’’’

and, because he did “not [make] a Johnson claim,” his motion was untimely as not

filed within one year after his conviction became final. See 28 U.S.C. 2255(f)(1).

We affirm that Nguyen’s motion was untimely, but for a reason different than that

relied on by the district court.

      The district court did not err by dismissing Nguyen’s motion as untimely.

Nguyen failed to file his motion within one year after the Supreme Court ruled in

Johnson that the residual clause of the Act is unconstitutionally vague, 18 U.S.C.

§ 924(e)(2)(B)(ii). Nguyen had until June 27, 2016, to move for relief based on

Johnson, see Fed. R. Civ. P. 6(a)(3)(A), but he waited until July 11, 2016, two

weeks after the one-year limitation period expired, to file his motion. Because the

parties briefed the issue of timeliness and Nguyen replied to the argument that he

missed the deadline, we may affirm on the ground advocated by the government.

See Wood v. Milyard, 

, 1834 (2012).

      We AFFIRM the dismissal of Nguyen’s motion to vacate.




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