900 F.3d 1044
9th Cir.2018Background
- Ricardo Guizar‑Rodriguez was convicted in Nevada (1998) of battery with the use of a deadly weapon (Nev. Rev. Stat. § 200.481(2)(e)(1)); INS treated that conviction as an aggravated felony and deported him. He later illegally reentered and was indicted for unlawful reentry under 8 U.S.C. § 1326.
- Guizar‑Rodriguez moved to dismiss the § 1326 indictment, arguing his initial removal was unlawful because the Nevada battery offense is not an "aggravated felony" (i.e., not a "crime of violence" under 18 U.S.C. § 16(a)).
- The district court rejected the argument; Guizar‑Rodriguez pled guilty reserving the right to appeal the denial of the motion to dismiss.
- On appeal the Ninth Circuit reviewed de novo whether Nevada battery with use of a deadly weapon is a categorical "crime of violence." The court applied the categorical/modified categorical framework and asked whether Nevada law requires violent force.
- Central statutory/interpretive issue: whether Nevada’s definition of "deadly weapon" in the battery statute requires actual use of a truly deadly instrument (inherently dangerous test) or could be applied broadly (including items listed in Nev. Rev. Stat. § 193.165(6)(c)).
- The Ninth Circuit held that Nevada battery with use of a deadly weapon is categorically a crime of violence because Nevada applies either the inherently dangerous test or the functional (used in a deadly manner) test when defining "deadly weapon" for § 200.481(2)(e).
Issues
| Issue | Plaintiff's Argument (Guizar‑Rodriguez) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| Whether Nevada battery with use of a deadly weapon is a categorical "crime of violence" under 18 U.S.C. § 16(a) | Nevada law permits overbroad definitions of "deadly weapon" (e.g., items in § 193.165(6)(c)), so the statute could criminalize non‑violent conduct | Nevada courts define "deadly weapon" under § 200.481(2)(e) by the inherently dangerous or functional tests, which require violent force | Held: It is a categorical crime of violence because Nevada requires use of a deadly weapon that is inherently dangerous or used in a deadly manner |
| Whether the statutory word "use" in § 200.481(2)(e)(1) can be satisfied by mere possession | "Use" can be read broadly to include possession during the battery | Nevada precedent and statutory distinctions show "use" means putting the weapon into action, not mere possession | Held: "Use" requires putting the weapon into action; mere possession is not sufficient |
| Whether § 193.165(6)(c) definitions control interpretation of "deadly weapon" in § 200.481(2)(e) | Legislature’s codification in § 193.165 shows a broad list that could apply elsewhere | Nevada Supreme Court (Rodriguez) instructs that § 193.165 definitions are not controlling where "deadly weapon" is an element; common‑law tests govern § 200.481(2)(e) | Held: § 193.165(6)(c) does not apply to § 200.481(2)(e); Nevada uses the inherently dangerous or functional tests |
| Whether Guizar‑Rodriguez demonstrated a realistic probability Nevada courts would apply an overbroad reading | Argues a realistic probability exists that § 200.481(2)(e) could be applied to non‑violent instruments (e.g., paint marker) | Nevada precedent (Rodriguez, Zgombic, Funderburk) and statutory text do not support that application; realistic probability not shown | Held: No realistic probability; overbreadth is not evident from text or Nevada case law |
Key Cases Cited
- United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009) (even the least touching with a deadly weapon is violent in nature)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing pain or injury)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (to show overbreadth, a realistic probability—not a mere theoretical possibility—is required)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical and modified categorical approaches framework)
- Rodriguez v. State, 407 P.3d 771 (Nev. 2017) (Nevada Supreme Court: "deadly weapon" in § 200.481(2)(e) is defined by inherently dangerous or functional tests)