NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 11 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMADOR SANCHEZ MENDOZA, No. 19-36030

Petitioner-Appellant, D.C. No. 3:19-cv-00627-SI

v.

MEMORANDUM*

J. SALAZAR,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted August 9, 2021** Seattle, Washington

Before: BEA, BRESS, and VANDYKE, Circuit Judges.

Amador Mendoza pleaded guilty in federal court to two counts of possession

with intent to distribute 50 grams or more of actual methamphetamine. He was

designated as a “career offender” under U.S.S.G. § 4B1.1, but nonetheless received

a below-Guidelines-range sentence of 180 months. He now seeks review of the

* 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). district court’s dismissal of his habeas petition under 28 U.S.C. § 2241. We review

the dismissal of a § 2241 petition de novo. Marrero v. Ives, 682 F.3d 1190, 1192

(9th Cir. 2021). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Mendoza claims that he is “actually innocent” of his sentence because his

prior state criminal convictions were not predicate crimes for his designation as a

“career offender” under § 4B1.1 of the Sentencing Guidelines, which increased the

advisory sentencing range. But under our recent decision in Shepherd v. Unknown

Party, — F.4th —, No. 19-15834, 2021 WL 3085784 (9th Cir. July 22, 2021) (per

curiam), this is not a cognizable “actual innocence” claim under § 2241. See id. at

*2 (explaining that our prior decision in Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020),

in which we held that the petitioner could claim “actual innocence” of a career

offender enhancement, “is limited to petitioners who received a mandatory sentence

under a mandatory sentencing scheme”) (internal quotation marks and citation

omitted).1

Even if Mendoza’s § 2241 theory were viable, we agree with the district court

that Mendoza also fails to show he is entitled to relief on “the specific facts of this

case.” Shepherd, 2021 WL 3085784, at *3 (quoting Gibbs v. United States, 655 F.3d

1 Mendoza also contends, in his reply brief, that the case should be remanded because his state drug convictions were invalidated by Washington v. Blake, 481 P.3d 521 (Wash. 2021). But Blake concerns state offenses that lack mens rea requirements. Id. at 533–34. Mendoza has not shown that Blake applies to this case.

2 473, 479 (6th Cir. 2011)). In Shepherd, the petitioner’s 190-month sentence was

below the advisory range both with the career-offender enhancement (248–295

months’ imprisonment) and without it (228–270 months’ imprisonment). Id. We

explained in Shepherd that this provided another reason why the petitioner was not

entitled to § 2241 relief. Id.

Mendoza’s case presents analogous circumstances. His sentence was below

the career offender Guideline range and the non-career offender Guideline range at

the time of sentencing. Mendoza’s sentence also fell within the agreed-upon

sentencing range in his plea agreement and the sentencing range provided by the

2014 drug quantity table amendments, which allowed for discretionary re-

sentencing. Mendoza has provided no plausible basis as to why the district court

would have given him a lower sentence absent his career offender designation.

AFFIRMED.

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