United States v. Bryan Hiser
532 F. App'x 648
9th Cir.2013Background
- Defendant Bryan Hiser pled guilty to two counts of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).
- The government sought a sentencing enhancement under U.S.S.G. § 2K2.1(a)(2) based on Hiser’s two prior Nevada burglary convictions (Nev. Rev. Stat. § 205.060).
- Nevada’s burglary statute does not require unlawful entry (consent is not a defense if entry was made with larcenous intent), making it broader than the generic common-law definition of burglary.
- Because Nevada’s statute is indivisible with respect to the entry element, the modified categorical approach is unavailable under the Supreme Court’s decision in Descamps v. United States.
- The district court concluded the prior Nevada burglary convictions were not crimes of violence for guideline enhancement; the government appealed.
- The Ninth Circuit affirmed, holding the convictions could not qualify as crimes of violence under the categorical approach and the modified categorical approach could not be used.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hiser’s prior Nevada burglary convictions qualify as "crimes of violence" under U.S.S.G. § 2K2.1(a)(2) for sentence enhancement | Hiser: Nevada burglary is broader than the generic burglary definition and therefore does not categorically qualify | Government: Nevada statute should be read with Nev. Rev. Stat. § 205.065 and treated as burglary for enhancement; modified categorical approach applies | Held: Nevada burglary is broader and indivisible; categorical and modified categorical approaches fail, so convictions are not crimes of violence (affirmed) |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (limits use of the modified categorical approach when state statute is indivisible)
- United States v. Alvarez-Hernandez, 478 F.3d 1060 (9th Cir. 2007) (standard of review for guideline interpretation)
- McNeeley v. State, 409 P.2d 135 (Nev. 1964) (Nevada eliminated common-law "breaking" element in burglary)
- Stephans v. State, 262 P.3d 727 (Nev. 2011) (upholding burglary conviction for shoplifting under Nevada statute)