United States v. Bankston, 16-10124

• Decision Date: 23 August 2018
• Docket Number: No. 16-10124,16-10124
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Deljuan BANKSTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

901 F.3d 1100

UNITED STATES of America, Plaintiff-Appellant,

v.Deljuan BANKSTON, Defendant-Appellee.

No. 16-10124

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 2018—San Francisco, California

Filed August 23, 2018

Merry Jean Chan (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; United States Attorney’s Office, San Francisco, California; for Plaintiff-Appellant.

Grace R. DiLaura (argued) and Todd M. Borden, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellee.

Before: J. Clifford Wallace, Marsha S. Berzon, and Consuelo M. Callahan, Circuit Judges.

BERZON, Circuit Judge:

In this case, we reevaluate whether California robbery constitutes a "crime of violence" under the United States Sentencing Guidelines. We hold that, under Amendment 798 to the Sentencing Guidelines, California robbery is not a "crime of violence." But that holding does not help defendant Deljuan Bankston. Bankston was sentenced six months before the effective date of Amendment 798—and, as we now hold, the portion of that amendment applicable here is not retroactive. Bankston’s efforts to avoid the consequences of that lack of retroactivity are valiant but unpersuasive.

I.

In 2015, Deljuan Bankston pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Bankston had two prior convictions for California robbery under California Penal Code § 211. The presentence report suggested that both robbery convictions constituted "crimes of violence" under the 2015 United States Sentencing Guidelines. See U.S.S.G. §§ 4B1.2, 2K2.1 (2015). Bankston objected, arguing that the Guidelines’ "crime of violence" section was void for vagueness.

The district court, agreeing with Bankston, held that the section was unconstitutionally vague. In February 2016, the district court sentenced Bankston to 33 months’ imprisonment, the high end of the range she had calculated under the 2015 Guidelines, followed by three years of supervised release. The government timely appealed.

II.

We first consider Bankston’s argument that amendments to the Sentencing Guidelines, made after Bankston was sentenced, render unnecessary a review of the district court’s reasoning.

A.

The United States Sentencing Guidelines increase the recommended sentence for a defendant convicted of certain crimes, including the crime of being a felon in possession of a firearm, if that defendant has previously been convicted of a "crime of violence." U.S.S.G. §§ 2K2.1(a)(1)–(a)(4), 4B1.2 (2016).¹

"To determine whether a prior conviction qualifies as a crime of violence, we use the categorical approach set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)." United States v. Acevedo-De la Cruz , 844 F.3d 1147, 1149–50 (9th Cir. 2017). In applying the categorical approach to the "crime of violence" Guideline enhancement, we first identify the elements of the statute of conviction and the federal definition of a "crime of violence." Id. at 1150. We then compare the two by asking if the statute of conviction "proscribes the same amount of or less conduct than that qualifying [under the applicable federal standard]"; if so, "the two offenses are a categorical match." United States v. Martinez-Lopez , 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc) (internal quotation marks omitted). "But if the statute of conviction sweeps more broadly than the generic crime,"—i.e., if the statute criminalizes more conduct than the federal standard covers—"a conviction under that law cannot categorically count as a qualifying predicate even if the defendant actually committed the offense in its generic form." United States v. Brown , 879 F.3d 1043, 1047 (9th Cir. 2018) (internal quotation marks and brackets omitted).²

Here, Bankston’s state statute of conviction was California’s robbery statute, California Penal Code § 211. Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code § 211. "[F]ear ... may be either:" (1) "[t]he fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family;" or (2) "[t]he fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." Cal. Penal Code § 212. So, among other things, "[s]ection 211 ... encompasses mere threats to property, such as ‘Give me $10 or I’ll key your car’ or ‘Open the cash register or I’ll tag your windows.’ " United States v. Becerril-Lopez , 541 F.3d 881, 891 (9th Cir. 2008).

By contrast, generic federal robbery, included in the definition of a "crime of violence," U.S.S.G. § 4B1.2(a)(2) (2016) ; accord U.S.S.G. § 4B1.2 cmt. n.1 (2015), does not extend to threats to property, Becerril-Lopez , 541 F.3d at 891. California robbery is thus not a categorical match for generic federal robbery.

But that’s not the end of the story. Under the Sentencing Guidelines, "crimes of violence" can be robbery or extortion (among other crimes not here relevant). U.S.S.G. § 4B1.2(a)(2) (2016) ; see also U.S.S.G. § 4B1.2 cmt. n.1 (2015). In Becerril-Lopez , we adopted a generic definition of extortion. We noted that, "[u]nlike robbery, the threats that can constitute extortion under the modern statutes include threats to harm property and to cause other unlawful injuries." Becerril-Lopez , 541 F.3d at 891, 892. Given this property-threat-inclusive definition of generic extortion, Becerril-Lopez reasoned, California robbery was a categorical match for generic robbery and generic extortion, taken together. Id. at 891–93.

But the Guidelines have changed. As we explained in United States v. Edling , 895 F.3d 1153 (9th Cir. 2018), Becerril-Lopez ’s definition of generic extortion—which includes the threats to property—is no longer controlling as to "crimes of violence." Id. at 1157. Here’s why: The United States Sentencing Commission substantially amended the Guidelines’ "crime of violence" section effective August 1, 2016, in Amendment 798. U.S.S.G., Supp. Appx. C, Amend. 798 (Aug. 1, 2016). The comments to the amended version provided for the first time a specific definition of extortion. See id. at 131. Under Amendment 798, " ‘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 (2016); U.S.S.G. Supp. Appx. C, Amend. 798 (Aug. 1, 2016).

We recently considered whether Amendment 798’s extortion definition affects the reach of the "crime of violence" Guideline as applied to a state robbery statute and concluded that it can. In light of its text, context, and the rule of lenity, Edling held, "the Guidelines’ new definition of extortion narrows the offense by requiring that the wrongful use of force, fear, or threats be directed against the person of another, not property." Edling , 895 F.3d at 1157. Therefore, Nevada robbery, which can "rest on fear of injury to property alone," does not any longer categorically match a combination of Guidelines-defined extortion and generic federal robbery. Id.

So here. Under Amendment 798, Guidelines-defined extortion does not criminalize extortion committed by threats to property; California robbery does. California robbery is thus no longer a categorical match to a combination of Guidelines-described robbery and extortion, and Becerril-Lopez ’s holding to the contrary no longer controls.

B.

But that conclusion does not mean that Bankston prevails. Bankston’s sentence was imposed about six months before Amendment 798’s effective date. Our question, then, is whether the Amendment applies retroactively. It does not.

"When an amendment to the Guidelines clarifies, rather than alters, existing law, we use the amendment to interpret the Guidelines provision retroactively." United States v. Catalan , 701 F.3d 331, 333 (9th Cir. 2012) ; see U.S.S.G. § 1B1.11(b)(2). As other courts have explained, "A clarifying amendment changes nothing concerning the legal effect of the guidelines, but merely clarifies what the Commission deems the guidelines to have already meant." United States v. Goines , 357 F.3d 469, 474 (4th Cir. 2004) (internal quotation marks and citation omitted); accord United States v. Smaw , 22 F.3d 330, 333 (D.C. Cir. 1994).

"[I]t may not always be easy to determine whether an amendment clarifies or changes a guideline." United States v. Morgan , 376 F.3d 1002, 1011 (9th Cir. 2004) (internal quotation marks and citation omitted). "Among the factors that guide our inquiry, three figure most prominently: (1) whether the amendment is included on the list of retroactive amendments found in U.S.S.G. § 1B1.10(c) ; (2) whether the Commission itself characterized the amendment as a clarification; and (3) whether the amendment resolves a circuit conflict." Id. at 1010–11. "[T]he second and third factors examine whether the Commission meant to clarify existing law , not whether ... the Commission made a substantive change in order to create a new law that is now clearer on its face and in application." United States v. Adkins , 883 F.3d 1207, 1212 (9th Cir. 2018).

As both parties agree, the first and third factors are not here met. We have already observed that the Commission did not include Amendment 798 on its list of retroactive amendments. Id. And, as in Adkins , the Commission did not here explain its change to the "crime of violence" extortion definition as one "resolving a circuit split," id. ; there was no split to resolve.

As to the remaining factor—whether the Commission characterized the extortion amendment as a clarification—the Commission did not use such language. Instead, the Commission noted, "While...