United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
James Frank Martin pled guilty to count one of the indictment
charging him with Felon in Possession of a Firearm. (ECF No.
24.) Defendant reserved the right to argue that his prior
conviction under Nevada law-extortionate collection of a debt
under NRS § 205.322 (“Nevada Extortion”)-is
not a crime of violence within the meaning of the United
States Sentencing Guidelines § 4B1.2(a). Defendant
asserts this argument in his Sentencing Memorandum. (ECF No.
31.) The Court has reviewed the government's response
(ECF No. 32) and Defendant's reply (ECF No. 34). For the
reasons discussed below, the Court finds that Defendant was
convicted of a crime of violence within the meaning of §
was arrested during a traffic stop on September 29, 2016,
when detectives discovered two handguns in his car as well as
methamphetamine and a large quantity of cash in his pocket.
(ECF No. 24 at 4-5.) Defendant was then indicted on three
counts on October 19, 2016: two counts of Felon in Possession
of a Firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) and one count of Possession with the
Intent to Distribute a Controlled Substance -
Methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C). (ECF No. 1 at 1-2.)
pled guilty to the first count (Felon in Possession of a
Firearm) on August 15, 2017. (ECF No. 23.) Pursuant to a
written plea agreement and Fed. R. Crim. P. 11(c)(1)(A), the
government agreed to dismiss the remaining counts after
sentencing. (ECF No. 24 at 3.)
§ 2K2.1 governs the base offense level for a violation
of 18 U.S.C. § 922(g)(1). The guideline states that the
base offense level is 20 if “the defendant committed
any part of the instant offense subsequent to sustaining one
felony conviction of . . . a crime of violence.” USSG
was previously convicted of Nevada Extortion (a felony), on
or about December 20, 2010, in the Second Judicial District
Court of the State of Nevada. (ECF No. 32-1 at 19.) The
parties dispute whether Nevada Extortion is a crime of
determine whether Nevada Extortion is a crime of violence,
this Court must apply the three-step process set forth in
Descamps v. United States, 133 S.Ct. 2276 (2013),
and further explained in Mathis v. United States,
136 S.Ct. 2243 (2016). First, under the categorical approach,
this Court compares the elements of the statute of conviction
(here, Nevada Extortion) with the generic federal definition.
United States v. Sahagun-Gallegos, 782 F.3d 1094,
1098 (9th Cir. 2015). If the elements of the statute of
conviction are the same or narrower than the elements of the
generic federal offense, then the state offense is “a
categorical match” and deemed a crime of violence.
See Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th
Cir. 2015). “When a statute . . . criminalizes conduct
that goes beyond the elements of the federal offense,
[courts] turn to step two: determining whether the statute is
‘divisible' or ‘indivisible.'”
Id. at 867-68 (citing Medina-Lara v.
Holder, 771 F.3d 1106, 1112 (9th Cir. 2014)). As the
court explained in Mathis, a statute is indivisible
when it “sets out a single (or ‘indivisible')
set of elements to define a single crime.”
Mathis, 136 S.Ct. at 2248. When a single statute
lists “elements in the alternative, and thereby
define[s] multiple crimes, ” the statute is divisible.
Id. at 2249. If it is divisible, then the court
turns to step three - the modified categorical approach-where
the sentencing court determines which of the alternative
elements listed under the statute was integral to
defendant's conviction. Id.
term ‘crime of violence' means any [felony], that
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or (2)
is . . . extortion . . . .” USSG § 4B1.2; see
also USSG § 2K2.1(a)(4)(A) (incorporating by
reference this definition). Extortion under the Sentencing
Guidelines (“Guidelines Extortion”) means
“obtaining something of value from another by the
wrongful use of (A) force, (B) fear of physical injury, or
(C) threat of physical injury.” USSG § 4B1.2,
Application Note 1. The government ...