NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10147
Plaintiff-Appellee, D.C. No. 3:16-cr-00024-LRH
v.
MEMORANDUM*
STEVEN ROBERT WESLEY, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Steven Robert Wesley, Jr., appeals from the district court’s judgment and
challenges the 130-month sentence imposed following his guilty-plea conviction
for bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction under
28 U.S.C. § 1291, and we vacate and remand for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Wesley contends that the district court erred by sentencing him as a career
offender because neither the instant offense of bank robbery, nor his prior
convictions for California robbery in violation of California Penal Code § 211, are
crimes of violence under U.S.S.G. §§ 4B1.1 and 4B1.2 (2016). We review these
claims de novo. See United States v. Simmons, 782 F.3d 510, 513 (9th Cir. 2015).
Wesley’s contention that bank robbery is not a crime of violence is
foreclosed. See United States v. Watson, 881 F.3d 782, 786 (9th Cir.), cert. denied,
139 S. Ct. 203 (2018). Wesley is correct, however, that under Amendment 798 to
the Sentencing Guidelines, which became effective before Wesley was sentenced,
California robbery is not a crime of violence. See United States v. Bankston, 901
F.3d 1100, 1104 (9th Cir. 2018) (California robbery is not a categorical match to a
combination of robbery and extortion because the amended definition of extortion
“does not criminalize extortion committed by threats to property; California
robbery does.”). We, therefore, vacate and remand for resentencing. On remand,
the district court shall only assess three criminal history points for Wesley’s 2015
California robberies because they no longer qualify as crimes of violence. See
U.S.S.G. § 4A1.1(e). In addition, unless the government is able to show that
Wesley has two other prior convictions for crimes of violence,1 the district court
1
Because the issue is not before us, we express no opinion as to whether any of
Wesley’s prior convictions for offenses other than California robbery are crimes of
violence under the Guidelines.
2 17-10147
shall not apply the career offender enhancement to Wesley’s base offense level or
criminal history category.
VACATED AND REMANDED for resentencing.
3 17-10147