The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors under the United States federal courts system. The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offense; and (2) the defendant’s criminal history. I spend a considerable amount of time on each of my federal cases strategizing how to arrive at the most favorable sentence for my clients under the Guidelines. The Guidelines involve a complex series of rules, and it is important for defense lawyers to stay on top of how federal courts interpret controversial areas of these rules.
Thankfully, the Ninth Circuit provided helpful guidance for the defense this past week on cases involving prior felony convictions for robbery. Under the Guidelines, the base offense level for offences can vary depending on whether the defendant has one or more prior felony convictions for a “crime of violence.” The Guidelines define the term “crime of violence” as any offense under federal or state law, punishable for a term exceeding one year, that either: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) falls within certain enumerated violent offences.
In Edling, the Ninth Circuit found that the district court erred in treating the appellant’s previous robbery and coercion convictions under Nevada law as a crimes of violence. Accordingly, it vacated a sentence for being a felon in possession of a firearm and remanded for resentencing.
In essence, the Ninth Circuit ruled that robbery, under Nevada law, is not a crime of violence because it can be accomplished by instilling fear or injury to property alone. The panel found that Nevada’s robbery statute sweeps more broadly than the Guidelines’ definition of a crime of violence, which requires physical force against a person. The panel further found that the robbery under Nevada law is unlike generic robbery, listed as an enumerated offence clause for crimes of violence, because generic robbery requires danger to the person, not merely danger to property. Similarly, the panel concluded that the new Guideline definition of extortion, also listed as an enumerated offence in the crimes of violence clause, does not include a threat to property.
I view the Edling decision as an exciting win for California, especially for federal clients with prior felony convictions for robbery under California statute. The Edling holding on robbery under Nevada law will likely control the question for robbery prior convictions under California law. The Ninth Circuit has previously ruled in a few cases that Nevada’s robbery statute is materially indistinguishable from California’s robbery statute. Accordingly, the Ninth Circuit should rule in future cases that robbery, under California law, is not a crime of violence. Going forward, defense lawyers should fight against any prosecutor’s claim that robbery in California is a crime of violence.