Case o' The Week: Ninth Nixes Extortion Contortions - Edling and "Crime of Violence" Under Guideline Definition

  Did Tony Soprano extort by threatening “physical injury” to his victim's iPad?

  (Yeah, the Ninth doesn’t think so, either.)

United States v. Edling, 2018 WL 2752208 (9th Cir. June 8, 2018), decision available here.

Players: Decision by Judge Watford, joined by C.J. Thomas and Judge Rawlinson. 

  Big win for AFPDs Cullen Macbeth, Amy Cleary, Cristen Thayer, the D. Nevada FPD, and the entire Ninth Circuit Johnson brain trust.  

Facts: Edling pleaded guilty to being a felon in possession of a gun. Id. at *1. Under USSG § 4B1.1(a), a “crime of violence” increased his guideline range. Id. 

  One prior at issue was robbery, under Nevada Revised Statutes § 200.380. Id. That statute prohibits taking personal property from the person of another, by – among other means – force, violence, or fear of injury against the person or property. Id. at *3. 

  The district court held that offense was a “crime of violence” as defined under the Guidelines. Id.

Issue(s): “[ ] Edline contends that [Nevada robbery does not constitute] a ‘crime of violence’ as that term is defined in the Guidelines.” Id. at *1.

Held: “[In] 2016 . . . the Sentencing Commission amended the enumerated offenses clause by adding for the first time a definition of ‘extortion.’ That definition provides: “‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” . . . . The question posed here is whether this new definition still encompasses threats of injury to property. We conclude that the Guidelines’ new definition of extortion narrows the offense by requiring that the wrongful use of force, fear, or threats be directed against the person of another, not property. That is the most natural reading of the text of the definition, particularly its reference to ‘physical injury’—a term that, when used on its own, is typically understood to mean physical injury to a person.” Id. at *3 (emphasis added).

  “Robbery under Nevada law is not a categorical match under either the elements clause or the enumerated offenses clause of § 4B1.2(a). The district court therefore erred in treating Edling’s robbery conviction as a crime of violence.” Id. at *4.

Of Note: Oregon AFPD Steve “Rule of Lenity” Sady is happy. You’ll recall that this venerable rule of statutory construction gives the tie to the defendant – “where the statute is ambiguous” courts should not interpret the statute to increase the penalty on the defendant. Id. at *4. 

  To the extent any ambiguity remained as to this Guideline, Judge Watford invokes the R.O.L. and joins the Tenth Circuit with the right result: the Guideline’s definition of extortion excludes injury and threats of injury to property. Id.

How to Use: Nice win for Edling – four offense levels off, ultimately (for this and another non-COV prior), and for all defendants with Nevada robbery priors. 

  Huge win for California, however, and for the far greater number of federal clients with Cal. Penal Code § 211 robbery priors. Edling should mean lower guidelines, and many years of custody avoided, for our many Cali federal clients with § 211 priors.

  Will Edling’s holding on Nevada robbery control the question for CPC § 211 priors, now up in the Ninth? Well, the government thinks so – it has proclaimed to the Ninth that “There is no substantive difference between California’s robbery statute and N.R.S. § 200.380.” See United States v. Harris, 08-10370, 2009 WL 3639779 (Feb. 17, 2009), Appellee’s Answering Brief.

   Fight tooth and nail against any AUSA or PO claim that CPC § 211 is a crime of violence under USSG § 4B1.2 -- particularly after Edling, it ain’t.

                                               

For Further Reading: Before the Ninth now is United States v. Howard Nickles, III, No. 17-10206 – Judges Wallace, Berzon, and Callahan will decide whether CPC § 211 is a “Crime of Violence.” 

  Last March, we flagged the remarkably frank oral argument on that issue, as this panel struggled to interpret the Commission’s “C.O.V.” intent in the amended Guideline. See “For Further Reading” here. 

  Do you have a CPC § 211 issue perking in your case? If so, read Edling, hit the Nickles III argument, and knock wood for another great Ninth decision soon. See Nickles III argument here.  

Image of “What is Extortion” from https://www.youtube.com/watch?v=4qGNAAephuk

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.prg