                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-16957

                Plaintiff-Appellee,             D.C. Nos.    4:16-cv-01643-PJH
                                                             4:04-cr-40022-PJH
 v.

JAMES BRANCH,                                   MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Phyllis J. Hamilton, Chief Judge, Presiding

                          Submitted November 15, 2017**

Before:      CANBY, TROTT, and GRABER, Circuit Judges.

      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.



      *
             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).
      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.




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