United States District Court, D. Nevada
For USA, Plaintiff: Michael A Humphreys, Phillip N. Smith, Jr., United States Attorneys Office, Las Vegas, NV.
Order Denying Government's Motion for Reconsideration
ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.
I pronounced sentence on defendant Jontue Mack on February 4, 2015. During my sentencing, I ruled that Mack's two prior Nevada convictions under NRS 205.067 (for home invasion) did not qualify as " crimes of violence" under the United States Sentencing Guidelines. I reasoned that NRS 205.067 criminalizes negligent or reckless behavior, and that I could not say convictions under this statute are typically the sort of " purposeful, violent, and aggressive" crimes that trigger the " crime of violence" definition under the sentencing guidelines.
The government asks me to reconsider whether Mack's convictions under NRS 205.067 qualify as crimes of violence. The government raises two arguments: (1) NRS 205.067 has an implicit intent requirement and (2) there is insufficient evidence that NRS 205.067 " ordinarily" reaches non-intentional conduct.
Neither of these arguments is availing. The sparse Nevada case law interpreting this statute confirms that NRS 205.067 punishes non-purposeful conduct. The government's approach would require me to assume a conviction under NRS 205.067 punishes intentional conduct despite the
absence of any Nevada decision requiring a defendant to have acted intentionally. Under the case law of the United States Supreme Court and this Circuit, I find that a conviction under NRS 205.067 does not qualify as a crime of violence for purposes of the sentencing guidelines. And to the extent there is any ambiguity as to whether the crime of violence definition applies to NRS 205.067, the rule of lenity further supports my interpretation.
The government has not established any " clear error" warranting that I revisit my sentencing decision. I therefore deny the motion.
I. LEGAL STANDARD: SENTENCING RECONSIDERATION
A district court " generally 'may not modify a term of imprisonment once it has been imposed.'"  Rule 35 permits me to modify a sentence only " in very limited instances and not merely to 'reconsider' sentencing issues."  I may " correct obvious sentencing errors" but I may not " reconsider," " change [my] mind," or " reopen issues previously resolved under the guidelines."  That said, I may reconsider a sentence where clear error has been made.
The government's sole objection is that I was wrong in finding that Mack's home invasion conviction did not qualify as a " crime of violence" under the sentencing guidelines. A " ...