Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Fitzgerald

United States Court of Appeals, Ninth Circuit

August 26, 2019

United States of America, Plaintiff-Appellant,
v.
Davion Fitzgerald, Defendant-Appellee.

          Argued and Submitted March 12, 2019

          Appeal from the United States District Court for the District of Nevada No. 2:17-cr-00295-JCM-NJK-1 James C. Mahan, District Judge, Presiding

          Elizabeth O. White (argued), Appellate Chief; Dayle Elieson, United States Attorney; United States Attorney's Office, Reno, Nevada; for Plaintiff-Appellant.

          Amy B. 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.

         SUMMARY[*]

         Criminal Law

         Vacating 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.

         Applying 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.

         The 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.

         Dissenting, 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.

          OPINION

          PER CURIAM

         Davion 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.

         I

         Fitzgerald 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.

         Fitzgerald 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.

         II

         Fitzgerald next contends that his Nevada conviction does not qualify as a "crime of violence." The commentary to § 2K2.1 defines "crime of violence" by ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.