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United States v. Edling

United States Court of Appeals, Ninth Circuit

June 8, 2018

United States of America, Plaintiff-Appellee,
v.
Hans Vincent Edling, Defendant-Appellant.

          Argued and Submitted January 10, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding D.C. No. 2:15-cr-00300-KJD-NJK-1

          Cullen 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.

         SUMMARY [*]

         Criminal Law

         The 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."

         The 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.

         The 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.

         The 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.

          OPINION

          WATFORD, Circuit Judge:

         Hans 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.

         We use 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 ...

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