and Submitted January 10, 2018 San Francisco, California
from the United States District Court for the District of
Nevada, No. 2:15-cr-00300-KJD-NJK-1 Kent J. Dawson, District
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.
government's motion to amend opinion, filed June 22,
2018, is GRANTED.
opinion filed on June 8, 2018, is amended as follows:
13 of the slip opinion, delete the paragraph beginning with
the sentence <The Nevada courts have not definitively
answered this question.> and ending with the phrase <as
not requiring the kind of violent physical force necessary to
satisfy the Johnson standard.>.
13 of the slip opinion, delete the sentence: <In addition,
the Nevada Supreme Court has upheld convictions for felony
coercion that involved the use or threatened use of physical
force against an object (such as a telephone), rather than
against a person.>. In its place, insert: <We think the
answer is no. The Nevada Supreme Court has upheld convictions
for felony coercion that involved the use or threatened use
of physical force against an object (such as a telephone),
rather than against a person.>.
amended version has been filed concurrently with this order.