Tuesday, August 27, 2019

US v. Fitzgerald, No. 18-10116 (8-26-19)(Per curiam w/Watford & Hurwitz; dissent by Fletcher). This case concerns whether Nevada’s attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. 200.481(2)(b) and 193.330 is a  “felony conviction” and a COV. The district found it was neither. The 9th disagrees, and vacates and remands the sentence.  The 9th finds the conviction is not a “wobbler”. Under US v. Johnson, 920 F.3d 628 (9th Cir. 2019), the court looks to the designation given by the state and how it is treated. The state treats this conviction as a felony. It is also a COV due to the requirement of substantial bodily harm. Dissenting, Fletcher argues that bodily harm is overbroad, as a mere touching of third degree burn, for example, may have prolonged pain.

Tough loss after a spirited defense by AFPD Amy Cleary of Nevada FPD (Las Vegas).

The decision is here:



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