and Submitted January 10, 2018 San Francisco, California
from the United States District Court for the District of
Nevada Kent J. Dawson, District Judge, Presiding D.C. No.
O. Macbeth (argued), Amy B. Cleary, and Cristen C. Thayer,
Assistant Federal Public Defenders; Rene L. Valladares,
Federal Public Defender; Office of the Federal Public
Defender, Las Vegas, Nevada; for Defendant-Appellant.
Elizabeth White (argued), Appellate Chief; William R. Reed,
Assistant United States Attorney; Dayle Elieson, United
States Attorney; United States Attorney's Office, Reno,
Nevada; for Plaintiff-Appellee.
Before: Sidney R. Thomas, Chief Judge, and Johnnie B.
Rawlinson and Paul J. Watford, Circuit Judges.
panel vacated a sentence for being a felon in possession of a
firearm, and remanded for resentencing, in a case in which
the district court determined under U.S.S.G. § 2K2.1(a)
that the defendant had three prior felony convictions for a
"crime of violence."
panel held that assault with a deadly weapon under Nevada
Revised Statutes § 200.471 categorically qualifies as a
crime of violence under the elements clause of U.S.S.G.
§ 4B1.2(a) because the statute requires proof that the
defendant placed the victim in fear of bodily harm and thus
necessarily entails the use or threatened use of violent
physical force against the person of another.
panel held that robbery under Nevada Revised Statutes §
200.380 is not a categorical crime of violence under the
elements clause, nor a categorical match for "generic
robbery" under the enumerated offenses clause, because
the offense can be accomplished by instilling fear of injury
to property alone. The panel held that § 200.380 robbery
likewise does not qualify as "extortion" under the
enumerated offenses clause, whose August 1, 2016, amendment
narrowed the definition by requiring that the wrongful use of
force, fear, or threats be directed against the person of
another, not property. The panel wrote that to the extent any
ambiguity remains as to whether the new definition of
extortion includes threats of injury to property, the
ambiguity must be resolved in the defendant's favor under
the rule of lenity. The panel explained that Beckles v.
United States, 137 S.Ct. 886 (2017), did not undermine
this court's holding that the rule of lenity applies to
the Sentencing Guidelines.
panel held that coercion under Nevada Revised Statutes §
207.190 does not qualify as a crime of violence because it is
not one of the offenses listed in the enumerated offenses
clause; and because the felony version of the offense is not
a categorical match under the elements clause, since it does
not have as an element the use, attempted use, or threatened
use of violent physical force against the person of another.
WATFORD, Circuit Judge:
Edling pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Under
the United States Sentencing Guidelines, the base offense
level for that offense varies depending on whether the
defendant has one or more prior felony convictions for a
"crime of violence." U.S.S.G. § 2K2.1(a). The
district court determined that Edling had three such
convictions under Nevada law for the following crimes: (1)
assault with a deadly weapon, (2) robbery, and (3) coercion.
On appeal, Edling contends that none of these offenses
constitutes a "crime of violence" as that term is
defined in the Guidelines.
the so-called "categorical" approach to decide
whether each of the Nevada offenses qualifies as a
"crime of violence." United States v.
Simmons, 782 F.3d 510, 513 (9th Cir. 2015). Under the
categorical approach, we compare the elements of each offense
with the federal definition of "crime of violence"
to determine whether the Nevada offense criminalizes a
broader range of conduct than the federal definition
captures. Id. The Sentencing Guidelines define the
term "crime of violence" as follows:
The term "crime of violence" means any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the ...