UNITED STATES v. NICKLES III (2018)

MEMORANDUM *

The government appeals the sentence imposed on defendant Howard Nickles, III, for being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The government maintains that Nickles’s prior robbery conviction, under California Penal Code § 211, categorically constituted a “crime of violence” under the United States Sentencing Guidelines, see U.S.S.G. §§ 4B1.2(a), 2K2.1(a) (2016), and that the district court erred in concluding otherwise.

We affirm. Under 2016 amendments to the Sentencing Guidelines’ definition of a “crime of violence,” see U.S.S.G., Supp. Appx. C, Amend. 798 (Aug. 1, 2016), “Guidelines-defined extortion does not criminalize extortion committed by threats to property.” United States v. Bankston, No. 16-10124, at 8. Because California robbery does criminalize such threats, “California robbery is not a ‘crime of violence.’ ” Id. at 4.

The government’s textual, contextual, and legislative history arguments to the contrary—that the Guidelines’ amended “crime of violence” definition still encompasses threat-to-property extortion—are now entirely foreclosed by United States v. Edling, 895 F.3d 1153 (9th Cir. 2018). Edling definitively “interpret[ed] the new definition of extortion as excluding injury and threats of injury to property.” Id. at 1157–58 (internal quotation marks omitted).

AFFIRMED.