UNITED STATES v. SWANSON (2018)

MEMORANDUM **

Federal prisoner Robert Lee Swanson, Jr., 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.

Swanson’s section 2255 motion argued that Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), rendered the residual clause in U.S.S.G. § 4B1.2(a)(2) unconstitutionally vague, and therefore his bank robbery convictions under 18 U.S.C. § 2113(a) could no longer support his career offender sentence under U.S.S.G. § 4B1.1. This argument is foreclosed. See Beckles v. United States, ––– U.S. ––––, 137 S.Ct. 886, 895, 197 L.Ed.2d 145 (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) ).

Swanson further contends that he is actually innocent of being a career offender because his predicate bank robbery convictions no longer constitute a crime of violence under the elements clause of U.S.S.G. § 4B1.2. This argument is foreclosed. See United States v. Watson, 881 F.3d 782 (9th Cir.), cert. denied, ––– U.S. ––––, 139 S.Ct. 203, ––– L.Ed.2d –––– (2018). Compare 18 U.S.C. § 924(c)(3)(A) with U.S.S.G. § 4B1.2(a)(1).

AFFIRMED.