United States v. Wesley

• Decision Date: 20 March 2017
• Docket Number: 3:16–cr–00024–LRH–VPC
• Citation: 241 F.Supp.3d 1140
• Parties: UNITED STATES of America, Plaintiff, v. Steven Robert WESLEY, Jr., Defendant.
• Court: U.S. District Court — District of Nevada

241 F.Supp.3d 1140

UNITED STATES of America, Plaintiff,

v.Steven Robert WESLEY, Jr., Defendant.

3:16–cr–00024–LRH–VPC

United States District Court, D. Nevada.

Signed March 20, 2017

Carla B. Higginbotham, U.S. Attorney's Office, Reno, NV, for Plaintiff.

ORDER

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

Before the court is defendant Steven Robert Wesley Jr.'s sentencing memorandum and supplemental memorandum, which object to the presentence investigation report's ("PSR") recommended application of the career-offender enhancement. ECF Nos. 29, 33. The United States has not responded. The court finds that Wesley's instant offense of federal bank robbery and prior convictions for California robbery are crimes of violence and that he therefore qualifies as a career offender under the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines").

I. Background

Wesley is charged by indictment with one count of bank robbery and one count of attempted bank robbery under 18 U.S.C. § 2113(a) based on events that occurred on April 18, 2016. ECF No. 3. Pursuant to a plea agreement between himself and the United States (ECF No. 23), Wesley pled guilty to bank robbery on July 25, 2016 (ECF No. 22).

Subsequently, the PSR revealed that Wesley has sustained two prior¹ convictions for four total counts of state-law robbery under California Penal Code § 211. The PSR classified Wesley's instant offense, as well as his two prior robbery convictions, as crimes of violence under U.S.S.G. § 4B1.2 and therefore found that the career-offender enhancement under § 4B1.1 applies.

II. Analysis

The career-offender sentencing enhancement applies if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2016) (emphasis added). The Guidelines further define a "crime of violence" as

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).

Id. § 4B1.2(a) (emphasis added). The first clause in this definition is often referred to as the "force" or "physical force" clause, while the latter clause is often referred to as the "enumerated-offense" clause.

Wesley argues that his instant offense of federal bank robbery and prior convictions for California robbery are not crimes of violence. The court will address each crime in turn.

A. The 2016 Sentencing Guidelines apply to this sentencing

As an initial matter, the court finds that the 2016 edition of the Guidelines, which became effective November 1, 2016, applies to this sentencing. The Guidelines themselves direct district courts to "use the Guidelines Manual in effect on the date that the defendant is sentenced [,]" unless the court determines that doing so "would violate the ex post facto clause of the United States Constitution ...." Id. § 1B1.11.

Wesley originally argued that applying the 2016 Guidelines would result in such a constitutional violation and that the court should therefore apply the pre-amended version of the 2015 Guidelines that was in effect before August 1, 2016.² ECF No. 29 at 3. However, shortly after filing his sentencing memorandum, the U.S. Supreme Court issued its decision in Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), holding that the Guidelines are not subject to vagueness challenges. Based on this holding, Wesley now concedes that being sentenced under the pre-amended 2015 Guidelines will "no longer produce a less severe result" than being sentenced under the current Guidelines and that there is therefore no ex post facto violation. ECF No. 33 at 2. In turn, the court will apply the 2016 Guidelines, which include the above-quoted definition of a crime of violence.

B. Federal bank robbery is a crime of violence

A person commits federal bank robbery when he, "by force and violence, or by intimidation , takes ... any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association." 18 U.S.C. § 2113(a) (emphasis added).

Wesley argues that this crime, the instant offense for which he is currently being sentenced, is not categorically³ a crime of violence and therefore cannot trigger the career-offender enhancement.

ECF No. 29 at 10. Because federal bank robbery is not an enumerated offense,⁴ he contends that the crime can only be compared to the force clause in section 4B1.2(a) ; however, Wesley argues that federal bank robbery is broader than the force clause and thus not a categorical match because it can be accomplished through the use of "intimidation."

Many courts within this district and throughout this circuit have held that this precise argument is foreclosed by the Ninth Circuit's decision in United States v. Selfa , 918 F.2d 749 (9th Cir. 1990). E.g., United States v. McDuffy , 194 F.Supp.3d 1054, 1060 (D. Nev. 2016) ; United States v. Newman , No. 2:06–cr–00099–JCM–RJJ, 2017 WL 736871, at *3 (D. Nev. Feb. 24, 2017) ; United States v. Spell , No. 2:14–cr–00071–APG–CWH, 2016 WL 5867411, at *1 (D. Nev. Oct. 6, 2016). In Selfa , the court "held that the ... federal bank robbery statute, which may be violated by ‘force and violence, or by intimidation ,’ qualifies as a crime of violence under U.S.S.G. § 4B1.2...." United States v. Howard , 650 Fed.Appx. 466, 468 (9th Cir. 2016) (citing Selfa , 918 F.2d at 751 ) (internal citation and footnote omitted). The court explained "that ‘intimidation’ means willfully ‘to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm ,’ which satisfies the requirement of a ‘threatened use of physical force’ [i.e., the force clause] under § 4B1.2." Id. (emphasis in original) (quoting Selfa , 918 F.2d at 751 ).

Nonetheless, Wesley implicitly⁵ argues that more recent Supreme Court and Ninth Circuit case law has effectively overruled Selfa by specifying that the force clause can only be satisfied through the use of force that is both "violent" and "intentional." See Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc) ("[W]here the reasoning or theory of ... prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority ... [the court] should reject the prior circuit opinion as having been effectively overruled."). Wesley thus contends that a defendant may commit bank robbery by intimidation without satisfying either requirement. These arguments, however, are unavailing and have been rejected by several courts. See, e.g., United States v. Inoshita , No. 15-00159-JMS, 2016 WL 2977237 (D. Haw. May 20, 2016) (rejecting similar arguments and citing cases).

In regards to the degree of force used, the Supreme Court did narrow the definition of "physical force" several years ago to mean "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) (emphasis in original). Wesley thus argues that "[t]he act of placing another in fear of bodily harm does not necessarily require the use or threatened use of ‘violent force’ against another." ECF No. 29 at 11. He contends that "a defendant can place another [individual] in fear of bodily harm by threatening to poison that person, to release hazardous chemicals on that person, or to lock that person up in a room without food or water." Id.

Wesley's interpretation of the Supreme Court's holding in Johnson is too narrow.

There, the Court was distinguishing between the degree of physical force required to satisfy the force clause and state statutes that can be violated through a defendant's use of "the merest touch" (i.e., "any intentional physical contact, no matter how slight."). See United States v. Avery , No. 3:02–cr–113–LRH–VPC, 2017 WL 29667, at *9–10 (D. Nev. Jan. 3, 2017) (discussing the Supreme Court's analysis in Johnson ). The Court thus concluded that, "while physical force ‘might consist ... of only that degree of force necessary to inflict pain—a slap in the face, for example’—it did not consist of the ‘nominal contact’ allowed for under" the state statute at issue. Id. at *10 (quoting Johnson , 559 U.S. at 143, 130 S.Ct. 1265 ). This court thus concludes that intimidation, which is achieved by placing an individual in fear of bodily harm , comports with the threatened use of violent force under the force clause and that Wesley's examples of intimidation would satisfy the clause.

Moreover, the fact that the Ninth Circuit has continued to apply Selfa in unpublished decisions after Johnson bolsters the court's conclusion. See United States v. Steppes , 651 Fed.Appx. 697, 698 (9th Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 529, 196 L.Ed.2d 429 (2016) (citing Selfa in finding that "[t]he district court did not err in applying a career offender enhancement" for the defendant's federal-bank-robbery convictions); Howard , 650 Fed.Appx. at 468 (applying Selfa to the "analogous" crime of Hobbs Act robbery, which "may also be accomplished by putting someone in ‘fear of injury,’ " and finding that it is a crime of violence under the force clause⁶ ).

Finally, Wesley argues that intimidation "does not require an intentional threat of...