United States v. Robert Swanson, Jr.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2018 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-15290

Plaintiff-Appellee, D.C. Nos. 3:16-cv-02743-SI 3:09-cr-00475-SI

v.

ROBERT LEE SWANSON, Jr., MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Submitted November 27, 2018** Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

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.

*

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).

Swanson’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 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, 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)).

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, 139 S. Ct. 203 (2018). Compare 18 U.S.C. § 924(c)(3)(A) with U.S.S.G. § 4B1.2(a)(1).

AFFIRMED.

2 17-15290