ORDER SUSTAINING DEFENSE OBJECTION TO RECOMMENDED OFFENSE LEVEL
Defendant Howard Eugene Nickles, III, objects to applying an increased offense
In support of the increased base offense level for a prior crime of violence conviction, the government cites the court’s earlier denial of § 2255 claims under Johnson v. United States, — U.S. —,
Under the crime of violence definition that applies to defendant Nickles here, § 4B1.2 has been amended to clarify that the enumerated, offenses include both robbery and extortion: “murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm ... or explosive material [as defined by statute].” U.S.S.G. § 4B1.2(a)(2) (emphasis added). As defense counsel aptly points out, "the commentary to § 4B1.2 has also been amended to include a definition of “extortion” that is more restrictive than the generic definition of extortion, which was applied by the court in Becerril-Lopez:
The Supreme Court has defined generic extortion as “obtaining'something of value from another with his consent induced by the wrongful use of force, fear, or threats.” Scheidler v. Nat’l Org. for Women, Inc.,537 U.S. 393 , 409,123 S.Ct. 1057 ,154 L.Ed.2d 991 (2003) (internal quotation marks omitted). Unlike robbery, the threats that can constitute extortion under the modern statutes include threats to harm property and to cause other unlawful injuries. See 3 [W. LaFave, Substantive Criminal Law § 20.4(a)(4) & n.16 (2d ed. 2003) ] (citing statutes). Becerril cites no authority,*1164 and we find none, to suggest that the fear of “unlawful injury” punished by Cal. Penal Code § 211 is incompatible with generic extortion.
Becerril-Lopez,
“Extortion” is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.
U.S.S.G. § 4B1.2, cmt. n.l. The Sentencing Commission articulated the reason for narrowing the definition of extortion as applied to a crime of violence determination under the career offender guidelines:
“Extortion” is defined as “obtaining something of value from another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.” Under case law existing at the time of this amendment, courts generally defined extortion as “obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats” based on the Supreme Court’s holding in United States v. Nardello,393 U.S. 286 , 290,89 S.Ct. 534 ,21 L.Ed.2d 487 (1969) (defining “extortion” for purposes of the Hobbs Act). Consistent with the Commission’s goal of focusing the career offender and related enhancements on the most dangerous offenders, the amendment narrows the generic definition of extortion by limiting the offense to those having an element of force or an element of fear or threats “of physical injury,” as opposed to non-violent threats such as injury to reputation.
Def. Obj. and Sent. Mem., Ex. C (U.S.S.G., Suppl. to Appx. C, Amendment 798 (Nov. 1, 2016)). In the absence of published Ninth Circuit authority on the issue whether a prior robbery conviction under § 211 categorically qualifies as a crime of violence under the amended career offender guidelines, the court declines to extend the holding of Becerrilr-Lopez to the current definition of crime of violence under § 4B1.2, which no longer includes generic extortion among the enumerated offenses.
Accordingly, the court determines that defendant’s prior conviction for robbery under § 211 does not qualify as a crime of violence and SUSTAINS defendant’s. objection to applying the increased base offense level of 22 under § 2K2.1(a)(3). As the court ordered at the sentencing hearing, the applicable base offense level is 20 pursuant to § 2K2.1(a)(4).
IT IS SO ORDERED.