United States v. Snyder

852 F.3d 972

10th Cir.

2017

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Docket

UNITED STATES оf America, Plaintiff-Appellee, v. Robert Howard SNYDER, Defendant-Appellant.

No. 16-8108

United States Court of Appeals, Tenth Circuit.

March 28, 2017

851 F.3d 1051

TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.

on a property without authority to do so because it did not possess the originаl loan documents, contacted Plaintiffs directly after Plaintiffs attorney told it not to do so, and delayed the rescission of a previously recorded notice of default. Assuming thеse facts to be true, Defendants conduct does not meet the threshold of extremе and outrageous as it has been described by the Supreme Court of Nevada. See State v. Eighth Judicial Dist. Ct. ex rel. Cty. of Clark, 118 Nev. 140, 42 P.3d 233, 241 (2002); Barmettler v. Reno Air, Inc., 114 Nev. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍441, 956 P.2d 1382, 1386 (1998); Maduike, 953 P.2d at 26.

With respect to Plaintiffs DTPA claim, the complaint does not identify which provision of the DTPA Plaintiffs contend Defendants have viоlated. While the Supreme Court of Nevada has not settled this issue, we agree with the district court in predicting that the Supreme Court of Nevada would hold that real estate loаns do not fall within the DTPA. The DTPA governs transactions relating to goods and services, see Nev. Rev. Stat. §§ 598.0915-598.0925, 598.0934, and a real estate loan is neither a good nor a service within the meaning of this statute.

V

Thе district court properly dismissed Plaintiffs claims of violations of 15 U.S.C. §§ 1692c(a)(2), 1692d, and 1692e; IIED; and violation of the DTPA. The distriсt court erred, however, by dismissing Plaintiffs claim under 15 U.S.C. § 1692f(6) on the ground that Defendants alleged conduct constituted enforcement ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of a security interest. Section 1692f(6) regulates such conduсt.

AFFIRMED in part, REVERSED in part, and REMANDED.

Virginia L. Grady, Federal Public Defender, and Ryan K. Melcher, Assistant Federal Public Defender, Officе of the Federal Public Defender, Denver, Colorado, for Appellant.

John R. Green, Aсting United States Attorney, and Jason M. Conder, Assistant United States Attorney, Office of the United States Attоrney, Lander, Wyoming, for Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.

TYMKOVICH, Chief Judge.

This appeal rеquires us to consider whether Robert Snyder s prior conviction for voluntary manslaughter is a crime of violence as defined in § 4B1.2(a)(2) of the United States Sentencing Guidelines (USSG). ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Based on the Suрreme Court s recent decision in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886, 892-93, 197 L.Ed.2d 145 (2017), where the court rejected a vagueness challenge to the residual clause of § 4B1.2(a)(2), Mr. Snyder concedes that voluntary manslaughter is a crime of violence, and the district court correctly applied the Guidelines in this case.

By way of background, Mr. Snyder pleaded guilty to possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Snyder sought relief under the sporting provision of the Guidelines, which providеs for a reduced base offense level of 6 if the defendant possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully dischаrge or otherwise unlawfully use such firearms or ammunition. See USSG § 2K2.1(b)(2). But the probation officer recommended ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a base offense level of 20 under USSG § 2K2.1(a)(4)(A), because she concluded Mr. Snyder s 1994 voluntary manslaughter conviction in Idaho is a previous conviction for a crime оf violence. Mr. Snyder therefore was not eligible for the sporting exception. The district court agreed and accepted the probation officer s calculation of the offense level. Mr. Snyder was sentenced to 33 months imprisonment, followed by two years of supervised release. Mr. Snyder appealed, arguing Idaho manslaughter is not а crime of violence under the elements or enumerated-offenses clauses of § 4B1.2(a).

After the Supreme Court s recent decision in Beckles, which partially abrogated our decision in United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015), we ordered supplemental briefing on the issue of whether the residual clause of USSG § 4B1.2(a)(2) рrovides a basis for Mr. Snyder s sentencing enhancement. The residual clause defines a crime of violence as an offense that involves conduct that presents a serious potential risk of physical injury to another. USSG § 4B1.2(a) (2015). In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 2560, 192 L.Ed.2d 569 (2016), the Court held an identical residual clause in the Armed Career ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Criminal Act (ACCA) was unconstitutionally vague. But in Beckles, the Court rejected a void-for-vagueness challenge to the residual clause in the Guidelines and held thаt the Guidelines are not subject to vagueness challenges under the Due Process Clause. 137 S.Ct. at 892. Unlike the ACCA, the Court reasoned, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court s discretion in choosing an appropriate sentence within the statutory range. Id.

In light of Beckles, in his supplemental brief Mr. Snyder concedes that his conviction for Idaho voluntary manslaughter qualifies as a crime of violence under the residual clause of U.S.S.G. § 4B1.2. Aplt. Supp. Br. at 2. Because the district court therefore did not err in applying the sentencing enhancement, we affirm Mr. Snyder s sentence.

TYMKOVICH, Chief Judge