United States v. Edling

• Decision Date: 08 June 2018
• Docket Number: No. 16-10457,16-10457
• Citation: 895 F.3d 1153
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hans Vincent EDLING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

895 F.3d 1153

UNITED STATES of America, Plaintiff-Appellee,

v.Hans Vincent EDLING, Defendant-Appellant.

No. 16-10457

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2018, San Francisco, California

Filed June 8, 2018

Amended July 12, 2018

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.

ORDER AND AMENDED OPINION

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 Nevada courts have not definitively answered this question.> and ending with the phrase the Johnson standard.>.

On page 13 of the slip opinion, delete the sentence: 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 future petitions shall be entertained.

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 person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). (We quote the amended version of § 4B1.2, effective August 1, 2016, because Edling's sentencing occurred after that date.) The first clause of this definition is known as the "elements clause," the second as the "enumerated offenses" clause. An offense qualifies as a "crime of violence" if it is covered by either clause.

As explained below, we conclude that assault with a deadly weapon constitutes a "crime of violence," but that neither robbery nor coercion are covered by the Guidelines' definition of that term. We therefore vacate Edling's sentence and remand for resentencing.

I. Assault With a Deadly Weapon

Edling was convicted of assault with a deadly weapon under Nevada Revised Statutes § 200.471, Nevada's general assault statute. The statute is divisible into multiple versions of the offense as defined in subsection (2). Under the modified categorical approach, we may consult a limited set of documents to determine which version of the offense Edling was convicted of committing. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). Edling's charging document and plea agreement make clear that he was convicted of an offense defined in subsection (2)(c) of the statute. That offense requires proof, as relevant for our purposes, that the defendant: (1) committed an assault (defined as "[i]ntentionally placing another person in reasonable apprehension of immediate bodily harm"); (2) upon an officer or other designated individual; (3) "with the use of a deadly weapon, or the present ability to use a deadly weapon." Nev. Rev. Stat. § 200.471(1)(a), (2)(c).

Edling's offense of conviction qualifies as a crime of violence under the elements clause of § 4B1.2(a). The offense requires that the defendant place a person in reasonable fear of immediate bodily harm. It therefore has as an element the use or threatened use of physical force against the person of another, with "physical force" understood to mean in this context "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). As we have held, "[a] defendant cannot put a reasonable person in fear of bodily harm without threatening to use 'force capable of causing physical pain or injury.' " United States v. Gutierrez , 876 F.3d 1254, 1257 (9th Cir. 2017) (per curiam) (quoting Johnson , 559 U.S. at 140, 130 S.Ct. 1265 ). When the defendant puts the victim in fear of bodily harm through the use or threatened use of a deadly weapon, the violent nature of the force employed is even more apparent. See United States v. Perez-Silvan , 861 F.3d 935, 943 (9th Cir. 2017) ; Camacho-Cruz v. Holder , 621 F.3d 941, 943 (9th Cir. 2010). Because the Nevada assault-with-a-deadly-weapon offense requires proof that the defendant placed the victim in fear of bodily harm through the use of (or present ability to use) a deadly weapon, it necessarily entails the use or threatened use of violent physical force against the person of another. It is therefore a categorical match for a crime of violence under the elements clause of § 4B1.2(a).

II. Robbery

Edling was convicted of robbery under Nevada Revised Statutes § 200.380, which renders unlawful the "taking of personal property from the person of another, or in the person's presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property , or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery." Nev. Rev. Stat. § 200.380(1) (emphasis added). We have italicized the language that is key to our analysis—the fact that robbery under Nevada law may be accomplished by creating fear of injury to property alone. That language is key because under the categorical approach we must determine whether "the least of th[e] acts criminalized" by a state statute is covered by the Guidelines' definition of "crime of violence." United States v. Molinar , 881 F.3d 1064, 1067 (9th Cir. 2018) (internal quotation marks omitted). Here, the least of the acts criminalized by Nevada's robbery statute is the taking of someone's personal property by instilling fear of injury to property.

Turning first to the elements clause of § 4B1.2(a), it is readily apparent that Nevada's robbery statute sweeps more broadly than that clause's definition of a crime of violence. The elements clause requires the use, attempted use, or threatened use of "physical force against the person of another." U.S.S.G. § 4B1.2(a)(1) (emphasis added). Force directed against property is not covered, so Nevada's robbery offense is not a categorical match under the elements clause.

Nor is it a categorical match under the enumerated offenses clause. That clause lists "robbery" among the offenses that constitute a crime of violence, but the version of robbery referred to there is "generic" robbery. Generic robbery requires danger to the person, not merely danger to property. United States v. Becerril-Lopez , 541 F.3d 881, 891 (9th Cir. 2008). So again, by allowing a conviction to rest on fear of injury to property alone, Nevada's robbery statute is not a categorical match for generic robbery.

The enumerated offenses clause also lists "extortion" among the offenses that constitute a crime of violence, and in 2009 we held that the least of the acts criminalized by Nevada's robbery statute would be covered under the generic definition of extortion. United States v. Harris , 572 F.3d 1065, 1066 (9th Cir. 2009) (per curiam). But we based that holding on the fact that, at the time, § 4B1.2(a) did not provide a definition of "extortion," which meant it was referring to generic extortion. That offense does encompass threats of injury to property, so we held that any conduct criminalized under Nevada's robbery statute not covered by generic robbery would nonetheless be covered by generic extortion. Id.

On August 1, 2016, however, the Sentencing Commission amended the enumerated offenses clause by adding for the first time a definition of "extortion." That definition provides: " 'Extortion' is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury." U.S.S.G. § 4B1.2 cmt. n.1. The question posed here is whether this new definition still encompasses threats of injury to property.

We conclude that the Guidelines' new definition of extortion narrows the offense by...