                           NOT FOR PUBLICATION                           FILED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.




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