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United States v. Edling

United States Court of Appeals, Ninth Circuit

July 12, 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, No. 2:15-cr-00300-KJD-NJK-1 Kent J. Dawson, District Judge, Presiding

          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.

         ORDER

         The government's motion to amend opinion, filed June 22, 2018, is GRANTED.

         The opinion filed on June 8, 2018, is amended as follows:

         On page 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.>.

         On page 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.>.

         The amended version has been filed concurrently with this order. No ...


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