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United States v. Young

United States District Court, D. Nevada

February 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH DARYL YOUNG, Defendant.

          GLORIA M. NAVARRO, UNITED STATES DISTRICT JUDGE

         On February 2, 2017, the Court sentenced Defendant Joseph Daryl Young (“Defendant”) as to Count 1 of the Indictment. (ECF No. 57). As indicated at sentencing, the Court now provides a written order regarding Defendant's prior convictions as crimes of violence.

         In Defendant's Objection to the Presentence Investigation Report, (ECF No. 43), he argues that his Nevada conviction for Voluntary Manslaughter with Use of a Deadly Weapon under Nevada Revised Statute (“N.R.S.”) 193.165 and 200.080 and his Nevada conviction for Sexually Motivated Coercion under N.R.S. 207.190 and 207.193 do not qualify as “crimes of violence” under the United States Sentencing Guidelines Manual (“U.S.S.G.”). The Government filed a Response, (ECF No. 47), and Defendant filed a Supplement to the Objection, (ECF No. 51). Upon request for additional briefing from the Court, the Defendant filed a second Supplement to the Objection, (ECF No. 53), and the Government filed a Response, (ECF No. 55).

         Consistent with its determination at sentencing, the Court finds that both prior convictions qualify as crimes of violence pursuant to U.S.S.G § 2K2.1.

         I. LEGAL STANDARD

         To determine whether a prior conviction constitutes a crime of violence, courts generally apply the formal categorical approach. See Taylor v. United States, 495 U.S. 575, 600 (1990). “Under the categorical approach, [courts] do not look to the facts of the underlying conviction, but rather to the state statute defining the conviction.” United States v. Melchor-Meceno, 620 F.3d 1180, 1183 (9th Cir. 2010) (brackets and internal quotation marks omitted). “That is, [courts] consider whether the elements of the offense are of the type that would justify its inclusion within the sentence-enhancing category, without inquiring into the specific conduct of this particular offender.” United States v. Spencer, 724 F.3d 1133, 1137 (9th Cir. 2013). A prior conviction constitutes a crime of violence under this approach if the statute of conviction satisfies either the elements clause or the enumerated offenses clause of U.S.S.G. § 4B1.2. See United States v. Espinoza-Morales, 621 F.3d 1141, 1145 (9th Cir. 2010).

         In applying the enumerated offenses clause, “sentencing courts compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.” United States v. Quintero-Junco, 754 F.3d 746, 751 (9th Cir. 2014) (internal quotation marks omitted). The “generic federal definition of a crime is “the offense as commonly understood.” Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). Elements are the “constituent parts of a crime's legal definition - the things the prosecution must prove to sustain a conviction.” Id. at 2248.

         II. DISCUSSION

         As a preliminary matter, the Court must determine whether to apply the 2015 or amended 2016 version of the Sentencing Guidelines. “Although a district court usually applies the version of the Sentencing Guidelines in effect on the date of a defendant's sentencing, the Ex Post Facto Clause of the United States Constitution requires that if the Guidelines have undergone substantive changes that would disadvantage the defendant, then the defendant is to be sentenced under the Guidelines in effect at the time of the offense, rather than [sic] at sentencing.” United States v. Gallegos-Galindo, 704 F.3d 1269, 1273 (9th Cir. 2013) (citation omitted).

         Here, the notable difference between the two versions is the relative location of “voluntary manslaughter” and “forcible sex offense” in the text of U.S.S.G. § 4B1.2(a)(2).[1]Specifically, the 2015 version lists these offenses as crimes of violence in the commentary of § 4B1.2, whereas the 2016 version lists the offenses in the actual text. Defendant argues that, to the extent the Court finds either offense qualifies as a crime of violence under the enumerated offenses clause, the Court must apply the 2015 Sentencing Guidelines. (See Def.'s Suppl. Resp. 8:16-17, ECF No. 53). As the basis of this argument, Defendant asserts that the commentary should be given less effect than the actual text of § 4B1.2 or else not apply at all post Johnson. (See Id. 14:17-15:20); see also Johnson v. United States, 135 S.Ct. 2251 (2015). While the Court does not agree with this conclusion, it recognizes that some ambiguity exists as to this question. Accordingly, and to avoid Ex Post Facto concerns, the Court applies the older version of the Guidelines.

         A. Enumerated Offenses in the Commentary

         The Supreme Court has recognized that “commentary may ‘interpret [a] guideline or explain how it is to be applied, ' ‘suggest circumstances which . . . may warrant departure from the guidelines, ' ‘or provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline.'” See Stinson v. United States, 508 U.S. 36, 41 (1996) (quoting U.S.S.G. § 1B1.7). In Stinson, the Supreme Court held that commentary “which functions to interpret a guideline or explain how it is to be applied” is binding. Id. at 42-43 (internal quotation marks and citations omitted). However, the Supreme Court noted that where “commentary and the guideline it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform itself commands compliance with the guideline.” Id. at 43.

         The Ninth Circuit has previously held that the offenses enumerated in Application Note 1 of the commentary are per se crimes of violence under the Guidelines. See United States v. Rodriguez-Guzman, 506 F.3d 738, 741 (9th Cir. 2007). However, relying on a recent decision in the First Circuit, Defendant argues that these offenses can no longer constitute per se crimes of violence after Johnson. (See Def.'s Objection 15:9-11, ECF No. 43); see also United States v. Soto-Rivera, 811 F.3d 53, 60 (1st Cir. 2016). According to Defendant, such offenses do not “fall into either of the two categories of crimes the guideline still validly recognizes: (1) those that ‘ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another' and (2) those that are ‘burglary of a dwelling, arson, or extortion, [or] involve[] use of explosives.'” (Id. 15:15-19). Absent the residual clause, Defendant contests there is nothing within § 4B1.2's text to serve as an anchor for Application Note 1's enumerated offenses. (Id. 16:4-6).

         Notwithstanding the foregoing, courts in this circuit have continued to find that enumerated offenses listed in the commentary constitute per se crimes of violence post-Johnson. See e.g., Alvarado v. United States, 2016 WL 6302517, *4 (C.D. Cal. Oct. 14, 2016); United States v. Kinman, 2016 WL 6124456, *5 (S.D. Cal. Oct. 20, 2016) (stating that “all enumerated offenses of the Career Offender guidelines qualified as crimes of violence, whether those offenses were listed in the text or Application Note 1.”); United States v. Bacon, 2016 WL 6069980, *4 (E.D. Wash. Oct 14, 2016) (“Kidnapping and forcible sex offense are enumerated in Application Note 1 to 4B1.2 and are ‘per se' crimes of violence.”). While the Ninth Circuit has not directly addressed the issue, it has implied that the enumerated offenses in the commentary still have authority. See United States v. Tate, 2016 WL 4191909, at *7 (9th Cir. 2016) (finding second-degree robbery as a crime of violence under “§§ 4B1.2(a)(2) and 4B1.2's Application Note 1.”); see also United States v. George Garibay, 2017 WL 344315, at *1 (9th Cir. Jan. 24, 2017) (rejecting the argument that attempted murder is not a “crime of violence” when the commentary to § 4B1.2 lists attempted murder among the enumerated offenses).

         Additionally, as the Government points out, the structure of Application Note 1 itself indicates that the enumerated offenses in the commentary do not rely on the residual clause. (See Gov.'s Resp. 8:3-16). Notably, the commentary's enumerated offenses are listed separately from any residual clause language, closely mirroring the separation of the two clauses in the actual text of ยง 4B1.2. Furthermore, the commentary's enumerated offenses include crimes already set forth in the actual text (e.g. arson and extortion), indicating an intention to expand upon the list of enumerated offenses rather than create a separate list under the residual clause. To interpret otherwise would create ...


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