United States v. Bankston, No. 16-10124 (9th Cir. 2018)
Annotate this CaseUnder Amendment 798 to the Sentencing Guidelines, California robbery is not a "crime of violence." The Ninth Circuit vacated defendant's sentence for being a felon in possession of a firearm. In this case, defendant was sentenced six months before the effective date of Amendment 798 and the pre-amendment generic extortion definition applied. The panel held that the portion of the amendment that altered the definition of extortion in the Guidelines' "crime of violence" section was not retroactive and the fact that California robbery was no longer a "crime of violence" was not applicable to defendant. The panel rejected defendant's arguments to the contrary and remanded for resentencing.
Court Description: Criminal Law. On a government appeal in which the panel reevaluated whether California robbery constitutes a “crime of violence” under the Sentencing Guidelines, the panel vacated a sentence for being a felon in possession of a firearm, and remanded for resentencing. The panel held that under Sentencing Guidelines Amendment 798 (effective August 1, 2016), robbery under California Penal Code § 211 is not a “crime of violence” because it is no longer a categorical match to a combination of Guidelines-described robbery and extortion, and the holding to the contrary in United States v. Becceril-Lopez, 541 F.3d 881 (9th Cir. 2008), no longer controls. The panel held that Amendment 798’s alteration of the definition of extortion in the Guidelines’ “crime of violence” section is not retroactive. The panel wrote that because the defendant was sentenced before the amendment’s effective date, the pre-amendment generic extortion definition applies, and the fact that California robbery is no longer a “crime of violence” is not here applicable. The panel rejected the defendant’s contention that even under the pre-amendment Sentencing Guidelines, his sentencing was improper because those Guidelines were inappropriately—even if not unconstitutionally—vague. The UNITED STATES V. BANKSTON 3 panel explained that absent vagueness rising to the level of a constitutional violation, there is no rule of law that would allow this court to strike down a Guidelines section because it is ambiguous. The panel concluded that the defendant’s prior California robbery convictions should have been considered “crimes of violence” under the Guidelines, and that the district court erred in holding to the contrary. The panel rejected the defendant’s argument that, on remand, the district court would be required to apply the not- retroactive, narrower definition of extortion adopted in Amendment 798. The panel could not say with certainty that the district court’s sentencing error was harmless, and remanded for resentencing under the 2015 Guidelines in effect on the date the defendant was previously sentenced.
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