United States v. Nickles
249 F. Supp. 3d 1162
N.D. Cal.2017Background
- Defendant Howard Eugene Nickles, III challenged a PSR recommendation that raised his base offense level to 22 under U.S.S.G. § 2K2.1(a)(3) based on a prior California robbery conviction (Cal. Penal Code § 211) qualifying as a "crime of violence."
- The enhancement depends on whether § 211 qualifies as a categorical "crime of violence" under U.S.S.G. § 4B1.2's enumerated-offenses clause.
- The Sentencing Commission amended § 4B1.2 (effective Aug. 1, 2016) and its commentary to add a narrower definition of "extortion," limiting it to threats or fear of physical injury.
- The government relied on prior Ninth Circuit reasoning (and this court’s earlier extension of it) in United States v. Becerril-Lopez that § 211 could encompass generic extortion and thus qualify as a crime of violence under the prior guideline formulation.
- Because the amended Application Note to § 4B1.2 excludes non-physical-property threats from the definition of extortion, the court found no controlling Ninth Circuit authority that § 211 categorically remains a crime of violence under the amended definition.
- The court sustained Nickles’s objection, held § 211 is not a categorical crime of violence under the current § 4B1.2, and applied the lower base offense level of 20 under § 2K2.1(a)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior conviction under Cal. Penal Code § 211 categorically qualifies as a "crime of violence" under U.S.S.G. § 4B1.2 (as amended). | Govt: Becerril-Lopez and court precedent show § 211 can encompass generic extortion and thus counts as an enumerated crime of violence. | Nickles: The 2016 amendment narrowed "extortion" to threats/fear of physical injury, so § 211 (which can include threats to property) no longer categorically qualifies. | Court: Sustained defendant’s objection — § 211 is not a categorical crime of violence under the amended § 4B1.2. |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (addressed vagueness of the residual clause in the Armed Career Criminal Act and prompted challenges to similar sentencing enhancements)
- United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) (held Cal. Penal Code § 211 could encompass generic extortion and therefore qualify as a crime of violence under the then-applicable guideline interpretation)
- Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) (supreme court discussion of generic extortion definition)
- United States v. Nardello, 393 U.S. 286 (1969) (earlier Supreme Court articulation of extortion concept used by courts interpreting Hobbs Act and generic extortion)