Opinion
No. 16-16957
11-20-2017
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES BRANCH, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. Nos. 4:16-cv-01643-PJH 4:04-cr-40022-PJH MEMORANDUM Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding Before: CANBY, TROTT, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Federal prisoner James Branch appeals from the district court's denial of his 28 U.S.C. § 2255 motion to vacate. We have jurisdiction under 28 U.S.C. § 2253. We review the district court's denial of a section 2255 motion de novo, see United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014), and we affirm.
Branch's section 2255 motion argued that Johnson v. United States, 135 S. Ct. 2551 (2015), rendered the residual clause in U.S.S.G. § 4B1.2(a)(2) unconstitutionally vague, and therefore his prior California robbery conviction could no longer support his career offender sentence under U.S.S.G. § 4B1.1. This argument is foreclosed by Beckles v. United States, 137 S. Ct. 886, 895 (2017). The government's concession in the district court that the residual clause in § 4B1.2(a)(2) was void does not bind this court. See United States v. Perez-Silvan, 861 F.3d 935, 938 n.2 (9th Cir. 2017) (courts "are not bound by a party's concession as to the meaning of the law" (internal quotations omitted)).
Branch contends, for the first time in his reply brief, that he is actually innocent of being a career offender because his predicate California robbery conviction no longer constitutes a crime of violence under the 2016 version of U.S.S.G. § 4B1.2(a)(2). Even if this argument were properly before this court, see Padgett v. Wright, 587 F.3d 983, 985-86 n.2 (9th Cir. 2009), it would be foreclosed. See United States v. Chavez-Cuevas, 862 F.3d 729, 740 (9th Cir. 2017) (reaffirming United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), which held that California robbery categorically qualifies as a crime of violence).
AFFIRMED.