Robbery conviction categorically qualifies as crime of violence for purposes of career offender sentencing enhancement.
Cite as
2009 DJDAR 10951Published
Jul. 27, 2009Filing Date
Jul. 24, 2009Summary
David Harris was convicted of attempted bank robbery and bank robbery in Nevada under Nev. Rev. Stat. Section 200.380. The district court determined that the conviction under Section 200.380 categorically qualified as a crime of violence for the purpose of imposing a career offender sentencing enhancement under U.S.S.G. Section 4B1.1. Harris appealed his sentence.
Affirmed. To impose a career offender sentencing enhancement, a conviction must first qualify as a crime of violence under Section 4B1.2. Thus, Harris' career offender enhancement is proper if this court finds that the conviction under Section 200.380 constituted a crime of violence. Here, Harris argued that his conduct under Section 200.380 did not satisfy the generic definition of robbery and as such, a conviction for a crime of violence did not occur. However, in United States v. Becerril-Lopez, this court held that conduct under a similar California statute that did not satisfy the generic definition of robbery would nonetheless satisfy the definition of extortion, which is a crime of violence. Further, Section 200.380's statement that "the degree of force used is immaterial" did not distinguish it from the analysis applicable to the statute in Becerril-Lopez. Thus, Harris' conviction under Section 200.30 categorically qualified as a crime of violence and the career offender sentencing enhancement was proper.
Per Curiam Opinion.
— Seena Nikravan
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID L. HARRIS,
Defendant-Appellant.
No. 08-10370
D.C. No. 2:07-cr-00295-KJD- GWF
United States Court of Appeals
Ninth Circuit
Filed July 24, 2009
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted July 13, 2009*
San Francisco, California
Before: Barry G. Silverman,
Richard R. Clifton, and
Milan D. Smith, Jr.,
Circuit Judges.
Per Curiam Opinion
COUNSEL
Jason F. Carr, Federal Public Defender?s Office, Las Vegas, Nevada, for the defendant-appellant.
Peter S. Levitt, United States Attorney?s Office, Las Vegas, Nevada, for the plaintiffs-appellees.
OPINION
PER CURIAM:
David L. Harris appeals his sentence following his conviction for bank robbery in violation of 18 U.S.C. § 2113(a). We review de novo the district court?s determination that Harris qualified as a career offender under U.S.S.G. § 4B1.1. United States v. Crawford, 520 F.3d 1072, 1077 (9th Cir. 2008). We affirm.
Harris?s Nevada convictions for robbery and attempted robbery categorically qualify as crimes of violence under U.S.S.G. § 4B1.2. Like the California statute we analyzed in United States v. Becerril-Lopez, 541 F.3d 881, 892 (9th Cir. 2008), any conduct under Nev. Rev. Stat. § 200.380 that did not satisfy the generic definition of robbery, such as threats to property, would satisfy the generic definition of extortion. Harris?s attempts to distinguish Becerril-Lopez based on Nevada?s interpretation of the ?fear of injury? requirement are inapposite: the California statute addressed in Becerril-Lopez also permitted a conviction based on ?fear of an unlawful injury.? 541 F.3d at 890-91. The Nevada statute?s statement that ?[t]he degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property? also does not distinguish it from the California statute analyzed in Becerril-Lopez. See, e.g., People v. Garcia, 45 Cal. App. 4th 1242, 1246 (Ct. App. 1996) (?[F]or purposes of the crime of robbery, the degree of force is immaterial?), overruled on other grounds by People v. Mosby, 92 P.3d 841, 847 n.2 (Cal. 2004). Thus, like the California robbery statute analyzed in Becerril-Lopez, a conviction under Nev. Rev. Stat. § 200.380 categorically qualifies as a crime of violence for purposes of the career offender sentencing enhancement.
AFFIRMED.
* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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