United States v. James Branch

703 F. App'x 464

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2017
• Docket: 16-16957
• Status: Unpublished

Opinion

MEMORANDUM **

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, — 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 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, — 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)).

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 á 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.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.