United States of America v. James Branch

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES BRANCH,
Defendant-Appellant.
No. 16-16957
D.C. Nos. 4:16-cv-01643-PJH
4:04-cr-40022-PJH
MEMORANDUM*
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).
FILED
NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-16957
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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