NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 17-35779

                Plaintiff-Appellee,             D.C. Nos.    6:16-cv-01235-MC
                                                             6:96-cr-60132-MC-1
 v.

JAMES CHRIS COLASANTI,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                          Submitted December 11, 2019**

Before:      WALLACE, CANBY, and TASHIMA, Circuit Judges.

      Federal prisoner James Chris Colasanti 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.

Reves, 

, 564 (9th Cir. 2014), 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).
      Colasanti contends that the district court abused its discretion by considering

the timeliness of his section 2255 motion. We conclude that the government did

not deliberately waive a statute of limitations defense and the district court did not

abuse its discretion by considering the timeliness of the motion. See Day v.

McDonough, 

, 202, 207-10 (2006) (district court may consider the

timeliness of a habeas petition sua sponte if parties are given fair notice and an

opportunity to present their positions).

      Colasanti next asserts that his section 2255 motion is timely because he filed

it within one year of the Supreme Court’s decision in Johnson v. United States, 

(2015), and the right recognized in Johnson applies to the mandatory

career offender guideline under which he was sentenced. Colasanti’s reliance on

Johnson is foreclosed because “Johnson did not recognize a new right applicable

to the mandatory Sentencing Guidelines on collateral review.” United States v.

Blackstone, 

, 1028 (9th Cir. 2018), cert. denied, 

(2019). Contrary to Colasanti’s argument, our decision in Blackstone is not

“clearly irreconcilable” with United States v. Davis, 

(2019). See

Miller v. Gammie, 

, 900 (9th Cir. 2003) (en banc). Accordingly, the

district court properly concluded that section 2255(f)(3) does not apply and

Colasanti’s motion is untimely. See 28 U.S.C. § 2255(f)(1).

      In light of this disposition, we do not reach the parties’ remaining


                                           2                                    17-35779
arguments.

     The government’s motion for summary affirmance is denied as moot.

     AFFIRMED.




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