and Submitted March 12, 2019
from the United States District Court for the District of
Nevada No. 2:17-cr-00295-JCM-NJK-1 James C. Mahan, District
Elizabeth O. White (argued), Appellate Chief; Dayle Elieson,
United States Attorney; United States Attorney's Office,
Reno, Nevada; for Plaintiff-Appellant.
Cleary (argued), Assistant Federal Public Defender; Rene L.
Valladares, Federal Public Defender; Office of the Federal
Public Defender, Las Vegas, Nevada; for Defendant-Appellee.
Before: William A. Fletcher, Paul J. Watford, and Andrew D.
Hurwitz, Circuit Judges.
a sentence and remanding for resentencing, the panel held
that the defendant's prior Nevada conviction for
attempted battery with substantial bodily harm in violation
of Nev. Rev. Stat. §§ 200.481(2)(b) and 193.330
qualifies as a felony conviction for a crime of violence
under U.S.S.G. § 2K2.1.
United States v. Johnson, 920 F.3d 628 (9th Cir.
2019), and observing that the state court treated the
defendant's conviction as a felony rather than a
misdemeanor, the panel rejected the defendant's
contention that the conviction is not a felony conviction
because it is a wobbler.
panel held that the defendant's Nevada conviction
qualifies as a crime of violence under the elements clause of
U.S.S.G. § 4B1.2(a)(1). In so holding, the panel
addressed Nevada's definition of "substantial bodily
harm," which includes "prolonged physical
pain," and concluded that it is not evident that
there's a realistic probability that a defendant could be
convicted of Nevada attempted battery with substantial bodily
harm without the attempted use of violent force.
Judge W. Fletcher wrote that because "prolonged physical
pain," as the Nevada Supreme Court has explained, may be
caused by simple touching, and because the definition of
"substantial bodily harm" is indivisible, attempted
battery with substantial bodily harm under §§
193.330 and 200.481 does not qualify as a crime of violence
under the elements clause.
Fitzgerald pleaded guilty to unlawful possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). At sentencing, the government requested an
enhancement under § 2K2.1(a)(4)(A) of the 2016
Sentencing Guidelines, which provides for an increase to a
base offense level of 20 if the defendant has a prior
"felony conviction of . . . a crime of violence."
The government based its request on Fitzgerald's prior
Nevada conviction for attempted battery with substantial
bodily harm in violation of Nev. Rev. Stat. §§
200.481(2)(b) and 193.330. The district court declined to
apply the enhancement, concluding that Fitzgerald's
Nevada conviction qualified neither as a "felony
conviction" nor a "crime of violence." The
government has appealed from the sentence imposed. We
disagree with the district court on both counts, and
therefore vacate Fitzgerald's sentence.
first argues that his Nevada conviction is not a "felony
conviction" because it is a "wobbler." That
is, under state law, it may be treated as either a felony or
a misdemeanor. See Nev. Rev. Stat. §
193.330(1)(a)(4); United States v. Bridgeforth, 441
F.3d 864, 870 (9th Cir. 2006). The Sentencing Guidelines
define a "felony conviction" as "a prior adult
federal or state conviction for an offense punishable by
death or imprisonment for a term exceeding one year,
regardless of whether such offense is specifically designated
as a felony and regardless of the actual sentence
imposed." U.S.S.G. § 2K2.1 cmt. n.1. "Despite
this clear admonition, our binding circuit precedent requires
us, where wobblers are concerned, to ignore the maximum
sentence allowed by statute and instead adopt the designation
that [the State] gives to the offense." United
States v. Johnson, 920 F.3d 628, 634 n.3 (9th Cir.
2019). Because "a state court's subsequent treatment
of a wobbler is controlling," Bridgeforth, 441
F.3d at 872, we must examine how Fitzgerald was actually
punished. Here, it is clear that the state court treated his
conviction as a felony.
argues that our precedents on this point did not survive
Moncrieffe v. Holder, 569 U.S. 184 (2013), but we
recently rejected that very argument. See Johnson,
920 F.3d at 637-38. Fitzgerald's Nevada conviction
therefore qualifies as a "felony conviction" for
purposes of U.S.S.G. § 2K2.1.
next contends that his Nevada conviction does not qualify as
a "crime of violence." The commentary to §
2K2.1 defines "crime of violence" by