Opinion
No. 17-10206
08-23-2018
UNITED STATES OF AMERICA, Plaintiff-Appellant, v. HOWARD EUGENE NICKLES III, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 4:16-cr-00356-PJH-1 MEMORANDUM Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding Argued and Submitted March 13, 2018 San Francisco, California Before: WALLACE, BERZON, and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. --------
The government appeals the sentence imposed on defendant Howard Nickles, III, for being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The government maintains that Nickles's prior robbery conviction, under California Penal Code § 211, categorically constituted a "crime of violence" under the United States Sentencing Guidelines, see U.S.S.G. §§ 4B1.2(a), 2K2.1(a) (2016), and that the district court erred in concluding otherwise.
We affirm. Under 2016 amendments to the Sentencing Guidelines' definition of a "crime of violence," see U.S.S.G., Supp. Appx. C, Amend. 798 (Aug. 1, 2016), "Guidelines-defined extortion does not criminalize extortion committed by threats to property." United States v. Bankston, No. 16-10124, at 8. Because California robbery does criminalize such threats, "California robbery is not a 'crime of violence.'" Id. at 4.
The government's textual, contextual, and legislative history arguments to the contrary—that the Guidelines' amended "crime of violence" definition still encompasses threat-to-property extortion—are now entirely foreclosed by United States v. Edling, 2018 WL 3387366 (9th Cir. June 8, 2018). Edling definitively "interpret[ed] the new definition of extortion as excluding injury and threats of injury to property." Id. at *4 (internal quotation marks omitted).
AFFIRMED.