United States v. Fitzgerald, No. 18-10116 (9th Cir. 2019)
Annotate this CaseThe Ninth Circuit vacated defendant's sentence imposed after he pleaded guilty to unlawful possession of a firearm. The panel held that defendant's prior Nevada conviction for attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. 200.481(2)(b) and 193.330 qualifies as a felony conviction for a crime of violence under USSG 2K2.1. In this case, it was clear that the state treated defendant's conviction as a felony. The panel held that it was not evident that there was a realistic probability that a defendant could be convicted of Nevada attempted battery with substantial bodily harm without the attempted use of violent force.
Court Description: Criminal Law Vacating a sentence and remanding for resentencing, the panel held that the defendant’s prior Nevada conviction for attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. §§ 200.481(2)(b) and 193.330 qualifies as a felony conviction for a crime of violence under U.S.S.G. § 2K2.1. Applying United States v. Johnson, 920 F.3d 628 (9th Cir. 2019), and observing that the state court treated the defendant’s conviction as a felony rather than a misdemeanor, the panel rejected the defendant’s contention that the conviction is not a felony conviction because it is a wobbler. The panel held that the defendant’s Nevada conviction qualifies as a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1). In so holding, the panel addressed Nevada’s definition of “substantial bodily harm,” which includes “prolonged physical pain,” and concluded that it is not evident that there’s a realistic probability that a defendant could be convicted of Nevada attempted battery with substantial bodily harm without the attempted use of violent force. Dissenting, Judge W. Fletcher wrote that because “prolonged physical pain,” as the Nevada Supreme Court UNITED STATES V. FITZGERALD 3 has explained, may be caused by simple touching, and because the definition of “substantial bodily harm” is indivisible, attempted battery with substantial bodily harm under §§ 193.330 and 200.481 does not qualify as a crime of violence under the elements clause.
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