United States v. Dennis Eugene Gardner

29 F.3d 635 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Dennis Eugene GARDNER, Defendant-Appellant. No. 93-56143. United States Court of Appeals, Ninth Circuit. Submitted May 24, 1994.* Decided June 16, 1994. Before: HUG, D.W. NELSON, and FERNADEZ, Circuit Judges. — 1 — MEMORANDUM** — 2 — Dennis E. Gardner, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2255 motion to vacate his sentence. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990), and we affirm. — 3 — In October 1989, Gardner pleaded guilty to one count of bank robbery in violation of 18 U.S.C. Sec. 2113(a). In January 1990, the district court sentenced Gardner to a fourteen-year term of imprisonment. In his section 2255 motion, Gardner argued that his sentence was illegal because it exceeded the twelve-year statutory maximum for Class C felonies set forth in 18 U.S.C. Sec. 3581. — 4 — This court previously has rejected this argument. See United States v. Schiffbauer, 956 F.2d 201, 202-03 (9th Cir.) (holding that 18 U.S.C. Sec. 3581 is inapplicable to bank robbery conviction under 18 U.S.C. Sec. 2113(a), and that the maximum sentence for such a conviction is 20 years), cert. denied, 113 S.Ct. 274 (1992). — 5 — Gardner's argument that his case is distinguishable from Schiffbauer is not persuasive. Cf. United States v. Avery, 15 F.3d 816, 819 (9th Cir.1994) ("[r]ead together, 28 U.S.C. Sec. 994(h), 18 U.S.C. Sec. 3559 in its entirety, 18 U.S.C. Sec. 3581(b), and 18 U.S.C. Sec. 2113(a) establish that the maximum term for bank robbery is 20 years"). Nor could this panel overrule Schiffbauer. — 6 — Accordingly, the district court did not err by denying Gardner's section 2255 motion. — 7 — AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Gardner's request for oral argument is denied [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3