Date: 06-19-2018

Case Style:

Case Number: 16-10457

Judge: Paul J. Watford

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Nevada (Clark County)

Plaintiff's Attorney: Elizabeth White

Defendant's Attorney: Cullen O. Macbeth (argued), Amy B. Cleary, and Cristen C.
Thayer - FPD

Description: 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
UNITED STATES V. EDLING 5
(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,
136 S. Ct. 2243, 2249 (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
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“[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 (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). 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).
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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
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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 requiring that the wrongful
use of force, fear, or threats be directed against the person of
another, not property. That is the most natural reading of the
UNITED STATES V. EDLING 9
text of the definition, particularly its reference to “physical
injury”—a term that, when used on its own, is typically
understood to mean physical injury to a person. See, e.g.,
Black’s Law Dictionary 906, 1331 (10th ed. 2014) (defining
“physical injury” as “bodily injury,” which in turn means
“[p]hysical damage to a person’s body”); Jackson v. Carey,
353 F.3d 750, 757–58 (9th Cir. 2003); Moe v. United States,
326 F.3d 1065, 1068–69 (9th Cir. 2003).
The Guidelines’ use of the term “physical injury” in other
provisions confirms this understanding. Throughout the
Guidelines, “physical injury” is used to refer to injury to a
person, whereas other terms, like “damage” or “destruction,”
are used to refer to injury to property. Take, for example, the
policy statements contained in §§ 5K2.2 and 5K2.5. Section
5K2.2 applies to “physical injury,” and it makes clear by
referring to injury or disability suffered by “the victim” that
it covers injury to a person, not injury to property. U.S.S.G.
§ 5K2.2. Section 5K2.5, by contrast, covers injury to
property, which it labels “Property Damage or Loss.”
U.S.S.G. § 5K2.5. Other provisions draw the same
distinction between physical injury to a person and damage
to property. See, e.g., §§ 2C1.1(c)(3) (“physical injury or
property destruction”), 2J1.2(b)(1)(B) (“physical injury to a
person, or property damage”), 5K2.12 (“physical injury,
substantial damage to property or similar injury”). Provisions
that refer to “physical injury” standing alone use the term, as
does Black’s Law Dictionary, as synonymous with bodily
injury to a person. See, e.g., §§ 2B1.1 cmt. (background),
2B3.1 cmt. (background), 5K2.0 cmt. n.3(B)(ii). We have no
reason to believe that the drafters of the August 2016
amendment intended to depart from the consistent usage of
“physical injury” elsewhere in the Guidelines when they used
the same term in § 4B1.2’s definition of extortion.
UNITED 10 STATES V. EDLING
To the extent any ambiguity remains as to whether the
new definition of extortion includes threats of injury to
property, we think that ambiguity must be resolved in
Edling’s favor under the rule of lenity. The rule of lenity
“instructs that, where a statute is ambiguous, courts should
not interpret the statute so as to increase the penalty that it
places on the defendant.” United States v. Hertler, 776 F.3d
680, 685–86 (9th Cir. 2015) (internal quotation marks
omitted). In the face of considerable doubt about whether the
Sentencing Commission intended the definition of extortion
to capture offenses involving threats of injury to property, the
provision should not be read to increase the sentences of
defendants in Edling’s position. We therefore join the Tenth
Circuit in interpreting the new definition of extortion “as
excluding injury and threats of injury to property.” United
States v. O’Connor, 874 F.3d 1147, 1158 (10th Cir. 2017).
The government contends that, in the wake of Beckles v.
United States, 137 S. Ct. 886 (2017), we can no longer rely
on the rule of lenity to resolve ambiguities in provisions of
the Guidelines. Before Beckles, our court sitting en banc held
that the rule of lenity does apply to the Guidelines, United
States v. Leal-Felix, 665 F.3d 1037, 1040 (9th Cir. 2011) (en
banc), and we have adhered to that holding post-Beckles,
albeit without discussing the impact of Beckles directly.
United States v. D.M., 869 F.3d 1133, 1144 (9th Cir. 2017).
We do not view the reasoning of Beckles as “clearly
irreconcilable” with our prior circuit authority, and we
therefore remain bound by that authority. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
The Court’s holding in Beckles did not address the rule of
lenity. It instead addressed whether Guidelines provisions are
subject to vagueness challenges under the Due Process
UNITED STATES V. EDLING 11
Clause. The Court held that they are not, because the
Guidelines do not define criminal offenses or fix the
permissible range of sentences. 137 S. Ct. at 892. The
Guidelines thus “do not implicate the twin concerns
underlying vagueness doctrine—providing notice and
preventing arbitrary enforcement.” Id. at 894. Although the
rule of lenity serves the same purposes, it is also grounded in
separation-of-powers concerns. In particular, the rule of
lenity is predicated on the view that courts should be hesitant
to impose criminal penalties unless it is clear that the
legislature intended such punishment to be available. United
States v. LeCoe, 936 F.2d 398, 402 (9th Cir. 1991). The
Supreme Court’s decision in Beckles did not undermine the
validity of that reason for holding the rule of lenity applicable
to the Sentencing Guidelines. See United States v. Gordon,
852 F.3d 126, 135–36 n.11 (1st Cir. 2017) (Barron, J.,
concurring in the judgment).
Robbery under Nevada law is not a categorical match
under either the elements clause or the enumerated offenses
clause of § 4B1.2(a). The district court therefore erred in
treating Edling’s robbery conviction as a crime of violence.
III. Coercion
Finally, we address Edling’s conviction for coercion
under Nevada Revised Statutes § 207.190. We conclude that
this conviction does not qualify as a crime of violence either.
Coercion under Nevada law is divisible into at least two
separate offenses, punishable by different penalties. The core
offense is defined as follows:
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1. It is unlawful for a person, with the
intent to compel another to do or abstain from
doing an act which the other person has a
right to do or abstain from doing, to:
(a) Use violence or inflict injury upon the
other person or any of the other person’s
family, or upon the other person’s property, or
threaten such violence or injury;
(b) Deprive the person of any tool,
implement or clothing, or hinder the person in
the use thereof; or
(c) Attempt to intimidate the person by
threats or force.
Nev. Rev. Stat. § 207.190(1). This offense, without more, is
punishable only as a misdemeanor. § 207.190(2)(b).
However, the statute also creates a felony version of the
offense, which arises when the defendant uses “physical force
or the immediate threat of physical force” to commit the
offense. § 207.190(2)(a). We know from Edling’s charging
document and plea agreement that he was convicted of the
felony version of the offense.
Coercion is not one of the offenses listed in the
enumerated offenses clause of § 4B1.2(a), so coercion can
qualify as a crime of violence only if it is covered by the
elements clause. As discussed above, an offense is covered
by the elements clause only if it has as an element the use,
attempted use, or threatened use of violent physical force
against the person of another, meaning “force capable of
causing physical pain or injury to another person.” Johnson,
UNITED STATES V. EDLING 13
559 U.S. at 140. The question for us is whether the “physical
force” required to be used or threatened under the felony
version of coercion is the kind of violent physical force that
satisfies the Johnson standard.
The Nevada courts have not definitively answered this
question. The closest guidance we have found comes from
the Nevada Supreme Court’s interpretation of the battery
statute, Nevada Revised Statutes § 200.481, which proscribes
“any willful and unlawful use of force or violence upon the
person of another.” Nev. Rev. Stat. § 200.481(1)(a). The
Nevada Supreme Court has held that the “force” required to
violate that statute “need not be violent or severe and need
not cause bodily pain or bodily harm.” Hobbs v. State,
251 P.3d 177, 179 (Nev. 2011). Nevada courts follow the
rule that “when the same word is used in different statutes
that are similar with respect to purpose and content, the word
will be used in the same sense, unless the statutes’ context
indicates otherwise.” Savage v. Pierson, 157 P.3d 697, 702
(Nev. 2007) (en banc). We think it likely that Nevada courts
would interpret the “physical force” necessary to commit
Nevada’s felony coercion offense in the same manner as the
“force” necessary to commit battery—in other words, as not
requiring the kind of violent physical force necessary to
satisfy the Johnson standard.
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. See Gramm v. State,
2018 WL 679548, at *2 (Nev. Feb. 1, 2018) (unpublished);
Attwal v. State, 2016 WL 6902177, at *3 (Nev. Nov. 22,
2016) (unpublished); Middleton v. State, 2016 WL 562804,
at *1 (Nev. Feb. 10, 2016) (unpublished). These decisions
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establish a “realistic probability” that a defendant could be
convicted of felony coercion without using or threatening to
use violent physical force against the person of another, as
§ 4B1.2(a)’s elements clause requires. See Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007).
Subsection (1) of the coercion statute specifies three
different ways the core offense may be committed. Since
none of those alternatives requires the use or threatened use
of violent physical force against the person of another, we
need not decide whether the coercion statute is further
divisible into separate offenses beyond the misdemeanor and
felony versions we have already described. It is enough for
us to hold that 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.
Edling’s felony coercion conviction does not constitute a
crime of violence under § 4B1.2(a). The district court erred
by concluding otherwise.
* * *
We vacate Edling’s sentence and remand for
resentencing. On remand, Edling’s base offense level should
be 20 rather than 24, as he has only one prior conviction for
a crime of violence. U.S.S.G. § 2K2.1(a)(4)(A). In addition,
because we have held that his conviction for coercion does
not qualify as a crime of violence, he should not be assessed
an additional criminal history point under § 4A1.1(e). Our
disposition renders it unnecessary for us to reach Edling’s
remaining challenge to his sentence.
UNITED STATES V. EDLING 15
Edling’s motions to take judicial notice and supplement
the record are DENIED.

Outcome: SENTENCE VACATED; REMANDED FOR RESENTENCING.

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