NOT FOR PUBLICATION FILED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