FILED
NOT FOR PUBLICATION
AUG 23 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10206
Plaintiff-Appellant, D.C. No.
4:16-cr-00356-PJH-1
v.
HOWARD EUGENE NICKLES III, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted March 13, 2018
San Francisco, California
Before: WALLACE, BERZON, and CALLAHAN, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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, 2018 WL 3387366 (9th Cir. June 8, 2018). Edling definitively
“interpret[ed] the new definition of extortion as excluding injury and threats of
injury to property.” Id. at *4 (internal quotation marks omitted).
AFFIRMED.
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