US v. Edling, No. 16-10457 (6-8-18)(Watford w/Thomas and Rawlinson).

The 9th vacates and remands a Guidelines sentence for being a felon in possession under 2K2.1. The district court found three prior offenses of “crimes of violence.” This raised the defendant’s offense level using a categorical approach.

On appeal, the 9th determines that: (1) assault with a deadly weapon under Nevada assault statute was a COV given the element of use or threatened use of violence; however, neither (2) robbery nor (3) coercion were COVs. The former —robbery — was not a categorical match as it involved violence against property as well as person.  It swept too broadly. Coercion was not a COV because state courts have defined “force” in other statutes as not necessarily requiring violence or causing bodily pain or harm.

Winning two out of three ain’t bad.  Thus, with only one COV, the sentence is vacated and remanded and the offense level is reduced from 24 to 20.

Congrats to AFPD Cullen Macbeth with AFPDs Amy Cleary and Christen Thayer of the FPD Nev Office (Las Vegas).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf