United States v. Ricardo Guizar-Rodriguez , 900 F.3d 1044 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10507
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-00022-
MMD-VPC-1
RICARDO GUIZAR-RODRIGUEZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted February 15, 2018
San Francisco, California
Filed August 17, 2018
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
and David C. Nye,* District Judge.
Opinion by Judge N.R. Smith
*
The Honorable David C. Nye, United States District Judge for the
District of Idaho, sitting by designation.
2 UNITED STATES V. GUIZAR-RODRIGUEZ
SUMMARY**
Criminal Law
Affirming a conviction for illegal reentry into the United
States in violation of 8 U.S.C. § 1326, the panel held that
battery committed with the use of a deadly weapon under
Nevada Revised Statute § 200.481(2)(e)(1) is categorically a
crime of violence as defined in 18 U.S.C. § 16(a).
COUNSEL
Cristen C. Thayer (argued) and Amy B. Cleary, Assistant
Federal Public Defenders; Rene L. Valladares, Federal Public
Defender; Office of the Federal Public Defender, Reno,
Nevada; for Defendant-Appellant.
Elizabeth O. White (argued), Appellate Chief; United States
Attorney’s Office, Reno, Nevada; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GUIZAR-RODRIGUEZ 3
OPINION
N.R. SMITH, Circuit Judge:
As we have previously determined, “even the least
touching with a deadly weapon or instrument is violent in
nature.” United States v. Grajeda, 581 F.3d 1186, 1192 (9th
Cir. 2009). Thus, battery committed with the use of a deadly
weapon under Nevada Revised Statute § 200.481(2)(e)(1) is
a crime of violence as defined in 18 U.S.C. § 16(a).
I. FACTS AND PROCEDURAL HISTORY
In 1998, Ricardo Guizar-Rodriguez, a citizen of Mexico,
was convicted in Nevada of battery committed with the use
of a deadly weapon. See Nev. Rev. Stat. § 200.481(2)(e)(1).
The Immigration and Naturalization Service (“INS”)
determined that battery committed with the use of a deadly
weapon under Nevada law was an aggravated felony and
ordered Guizar-Rodriguez’s removal on that basis.1 Guizar-
Rodriguez was removed from this country.
1
In the context of this case, a “crime of violence” is an “aggravated
felony.” Title 8, Section 1227(a)(2)(A)(iii) of the U.S. Code grants the
Attorney General the power to deport “[a]ny alien who is convicted of an
aggravated felony at any time after admission.” Title 8, Section
1101(a)(43)(F) of the U.S. Code defines an aggravated felony to include
“a crime of violence (as defined in section 16 of Title 18, but not including
a purely political offense) for which the term of imprisonment [is] at least
one year.” Title 18, Section 16(a) of the U.S. Code defines a crime of
violence to include “an offense that has as an element the use, attempted
use, or threatened use of physical force against the person or property of
another.”
4 UNITED STATES V. GUIZAR-RODRIGUEZ
In 1999, Guizar-Rodriguez illegally reentered the United
States. In 2004, Guizar-Rodriguez was again removed, this
time based on his illegal reentry. After his second
deportation, Guizar-Rodriguez again reentered the United
States.
On April 20, 2016, a Nevada grand jury indicted Guizar-
Rodriguez with unlawful reentry. Guizar-Rodriguez moved
to dismiss the indictment on the ground that his initial
deportation was unlawful, because battery committed with the
use of a deadly weapon under Nevada law is not an
aggravated felony. The district court rejected this argument.
Consequently, Guizar-Rodriguez pleaded guilty but reserved
the right to challenge the district court’s ruling on appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review de novo the denial of a motion to dismiss an
indictment under 8 U.S.C. § 1326 [for illegal reentry] when
the motion is based on alleged due process defects in an
underlying deportation proceeding.” United States v. Vega-
Ortiz, 822 F.3d 1031, 1034 (9th Cir. 2016) (quoting United
States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir.
2014)). Similarly, we review de novo a district court’s
determination that a state crime is a crime of violence. United
States v. Rivera-Muniz, 854 F.3d 1047, 1048–49 (9th Cir.
2017).
UNITED STATES V. GUIZAR-RODRIGUEZ 5
III. DISCUSSION
A.
“A defendant charged with illegal reentry under 8 U.S.C.
§ 1326 has a Fifth Amendment right to collaterally attack his
removal order, because the removal order serves as a
predicate element of his conviction.” United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). Section
1326(d) allows a defendant collaterally to attack the
underlying deportation order if “(1) the alien exhausted any
administrative remedies that may have been available to seek
relief against the order; (2) the deportation proceedings at
which the order was issued improperly deprived the alien of
the opportunity for judicial review; and (3) the entry of the
order was fundamentally unfair.” In this appeal, we need
review only whether the entry of Guizar-Rodriguez’s initial
removal order was fundamentally unfair.2
“An underlying order is ‘fundamentally unfair’ if (1) a
defendant’s due process rights were violated by defects in his
underlying deportation proceeding, and (2) he suffered
prejudice as a result of the defects.” Id. “Where a prior
removal order is premised on the commission of an
aggravated felony, a defendant who shows that the crime of
which he was previously convicted was not, in fact, an
aggravated felony, has established both that his due process
rights were violated and that he suffered prejudice as a
result.” United States v. Martinez, 786 F.3d 1227, 1230 (9th
Cir. 2015). Thus, Guizar-Rodriguez is entitled to a dismissal
2
Before the district court, the parties disputed only whether the
removal order was fundamentally unfair.
6 UNITED STATES V. GUIZAR-RODRIGUEZ
if his conviction for battery with the use of a deadly weapon
was not a crime of violence.
To determine whether battery committed with the use of
a deadly weapon is a crime of violence, “we apply the
categorical and modified categorical approaches.” Mendoza
v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010) (quotation
marks omitted). This requires following a three-step process.
Descamps v. United States, 570 U.S. 254, 257 (2013). First,
“we compare the statute of conviction to the removal statute’s
definition of aggravated felony.” Carlos-Blaza v. Holder,
611 F.3d 583, 587 (9th Cir. 2010). “If every conviction under
the statute of conviction is also an aggravated felony, then
there is a ‘categorical match’ and the defendant’s conviction
perforce qualifies as an aggravated felony.” Id. Second, if
section 200.481(2)(e)(1) is “‘overbroad,’ meaning that it
criminalizes conduct that goes beyond the elements of the
federal offense,” we then must determine “whether the statute
is ‘divisible’ or ‘indivisible.’”3 Lopez-Valencia v. Lynch,
798 F.3d 863, 867–68 (9th Cir. 2015) (quoting Medina-Lara
v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014)). Third, if the
statute is divisible, “we may examine certain documents from
the defendant’s record of conviction to determine what
elements of the divisible statute he was convicted of
violating.” Id. at 868. As we explain below, we need not
determine whether the statute is divisible, because Nev. Rev.
Stat. § 200.481(2)(e)(1), battery committed with a deadly
weapon, is a categorical crime of violence.
3
A statute is divisible when it “lists multiple, alternative elements,
and so effectively creates several different crimes.” Descamps, 570 U.S.
at 264 (quotation marks and ellipsis omitted).
UNITED STATES V. GUIZAR-RODRIGUEZ 7
B.
A crime of violence is “an offense that has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another.”4 18 U.S.C. § 16(a);
8 U.S.C. § 1101(a)(43)(F) (defining an “aggravated felony”
as “a crime of violence (as defined in section 16 of Title 18,
but not including a purely political offense) for which the
term of imprisonment at least one year”). “‘[P]hysical force’
means violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United
States 559 U.S. 133, 140 (2010) (original emphasis omitted).
Guizar-Rodriguez must show that there is “a realistic
probability, not a theoretical possibility, that [Nevada] would
apply its statute to conduct that falls outside [this definition].”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
Ordinarily, “he must at least point to his own case or other
cases in which the state courts in fact did apply the statute in
the [overbroad] manner for which he argues.” Id. However,
“when a ‘state statute’s greater breadth is evident from its
text,’ a [defendant] need not point to an actual case applying
the statute of conviction in a[n overbroad] manner.” Chavez-
Solis v. Lynch, 803 F.3d 1004, 1010 (9th Cir. 2015) (quoting
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)). In
determining whether the statute’s overbreadth is “evident,”
we look both to the text of the statute and to state court
interpretations of the statute. United States v. Strickland,
4
Title 18, Section 16(b) of the U.S. Code also includes within the
definition of a crime of violence “any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing
the offense.” However, that subsection was held unconstitutionally vague
by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
8 UNITED STATES V. GUIZAR-RODRIGUEZ
860 F.3d 1224, 1226 (9th Cir. 2017). Here, Guizar-Rodriguez
contends that, based on Nevada Supreme Court precedent,
section 200.481(2)(e)(1) is not a crime of violence.
Section 200.481(2)(e)(1) prohibits “any willful and
unlawful use of force or violence upon the person of another
. . . committed with the use of a deadly weapon . . . [that
results in] [n]o substantial bodily harm to the victim.”
§ 200.481(1)(a), (2)(e). To commit simple battery in Nevada,
the “force need not be violent or severe and need not cause
bodily pain or bodily harm.” Hobbs v. State, 251 P.3d 177,
179 (Nev. 2011). As a result, simple battery in Nevada would
not ordinarily be a crime of violence under Johnson’s
definition of “physical force.” See Grajeda, 581 F.3d at 1192.
However, “even the least touching with a deadly weapon or
instrument is violent in nature,” because it “demonstrates at
a minimum the threatened use of actual force.”5 Id. Thus, the
outcome of this case depends on Nevada’s definition of “use
of a deadly weapon” in section 200.481(2)(e). If Nevada law
requires actual use of a truly “deadly” weapon, then it is a
crime of violence. Grajeda, 581 F.3d at 1192.
1.
Nevada courts have an extensive common law tradition of
defining the term “deadly weapon.” “As early as 1870, [the
Nevada Supreme C]ourt defined objects as ‘deadly weapons’
5
Grajeda predates the Supreme Court’s decision in Johnson v. United
States which clarified that “‘physical force’ means violent force—that is,
force capable of causing physical pain or injury to another person.”
559 U.S. at 140. However, the Grajeda court reasoned that “even the
‘least touching’ with a deadly weapon or instrument . . . is violent in
nature.” Grajeda, 581 F.3d at 1192. Thus, the Grajeda court’s reasoning
applies even after Johnson.
UNITED STATES V. GUIZAR-RODRIGUEZ 9
if they satisfied either the inherently dangerous or the
functional test.” Rodriguez v. State, 407 P.3d 771, 773 (Nev.
2017) (emphasis omitted). Under the inherently dangerous
test, a deadly weapon is any instrument that “if used in the
ordinary manner contemplated by its design and construction,
will, or is likely to, cause a life-threatening injury or death.”
Zgombic v. State, 798 P.2d 548, 551 (Nev. 1990) superseded
by statute as recognized in Rodriguez, 407 P.3d at 774. Under
the functional test, a deadly weapon is any instrumentality
that is “used in a deadly manner.” Id. at 550.
The Nevada Supreme Court recently addressed the
definition of “deadly weapon” in section 200.481(2)(e).
Rodriguez, 407 P.3d at 772. The Rodriguez Court held
conclusively that “the Legislature intended ‘deadly weapon’
within [section] 200.481(2)(e) to be interpreted broadly,
according to both the functional definition and the inherently
dangerous definition.” Id. at 774 (emphasis added). We take
the Nevada Supreme Court at its word.
The disjunctive definition of “deadly weapon” articulated
by the Nevada Supreme Court is nearly identical to the
definition of “deadly weapon” in California, see People v.
Aguilar, 945 P.2d 1204, 1207 (Cal. 1997), and we have
already determined that assault with a deadly weapon under
California law is a crime of violence, Grajeda, 581 F.3d at
1192. We similarly conclude that “even the least touching
with a deadly weapon or instrument is violent in nature”
when the weapon is designed to cause life-threatening injury
or death, i.e., when it satisfies the inherently dangerous test,
because it “demonstrates at a minimum the threatened use of
actual force.” See id. Moreover, a battery committed with the
use of an instrument that is used in a deadly manner, i.e., a
weapon that satisfies the functional test, would certainly
10 UNITED STATES V. GUIZAR-RODRIGUEZ
involve the use of violent force. See id. Thus, a conviction for
battery with the use of a deadly weapon under section
200.481(2)(e) is a crime of violence.
Guizar-Rodriguez urges us to look beyond the common
law definition of “deadly weapon” to the statutory definition
of “deadly weapon” in Nevada Revised Statute 193.165. That
statute provides for a sentencing enhancement when a deadly
weapon is used to commit any crime. Nev. Rev. Stat.
193.165. Section 193.165(6) defines a deadly weapon as:
(a) Any instrument which, if used in the
ordinary manner contemplated by its design
and construction, will or is likely to cause
substantial bodily harm or death;
(b) Any weapon, device, instrument, material
or substance which, under the circumstances
in which it is used, attempted to be used or
threatened to be used, is readily capable of
causing substantial bodily harm or death; or
(c) A dangerous or deadly weapon specifically
described in [Nevada Revised Statutes]
202.255, 202.265, 202.290, 202.320 or
202.350.
Subsection (a) appears to codify the inherently dangerous test
whereas subsection (b) appears to codify the functional test.
However, the Nevada legislature also included a third test in
subsection (c). The enumerated statutes in subsection (c) list
some items that are not truly “deadly.” See Nev. Rev. Stat.
§ 202.265(1)(g) (including “[a]ny device used to mark any
part of a person with paint or any other substance” in a list of
UNITED STATES V. GUIZAR-RODRIGUEZ 11
items prohibited on school property). A battery committed
with one of those items would not necessarily be “violent in
nature.” See Grajeda, 581 F.3d at 1191. Guizar-Rodriguez
argues that the overbroad definition of “deadly weapon” in
subsection (c) applies to section 200.481(2)(e); i.e., that a
person could be convicted of violating section 200.481(2)(e)
for the un-consented marking of another person with paint.
We are not convinced.
When the Nevada legislature initially adopted section
193.165, it did not define “deadly weapon.” Rodriguez,
407 P.3d at 773 n.1. In Zgombic, the Nevada Supreme Court
held that the definition of “deadly weapon” as it related to
section 193.165 was limited to inherently dangerous
instruments. Zgombic, 798 P.2d at 550. However, the court
explicitly left intact the functional test “where a deadly
weapon [is] an element of a crime, such as assault with a
deadly weapon.” Id. at 549–50 (emphasis added). Then, “five
years after Zgombic was decided, [the Nevada] Legislature
superseded [Zgombic’s] holding by amending [section]
193.165 to define ‘deadly weapon’ according to both the
inherently dangerous and the functional definitions.”
Rodriguez, 407 P.3d at 774 (emphasis omitted). Nothing in
this history suggests that the statutory definition of “deadly
weapon” in section 193.165(6)(c) applies to section
200.481(2)(e).
The Nevada Supreme Court has twice stated that the
definitions in section 193.165(6) are “instructive” in
interpreting the meaning of “deadly weapon” in other
statutes. Rodriguez, 407 P.3d at 774; Funderburk v. State,
212 P.3d 337, 337 (Nev. 2009). Nevertheless, the Nevada
Supreme Court has never wavered from the historical
approach of defining “deadly weapon” in section
12 UNITED STATES V. GUIZAR-RODRIGUEZ
200.481(2)(e) according to the inherently dangerous and
functional tests only. Indeed it has made clear that “[section]
193.165 . . . does not apply to crimes like [section]
200.481(2)(e) that contain ‘deadly weapon’ as a ‘necessary
element’ of the underlying crime.” Rodriguez, 407 P.3d at
773. Therefore, it is not “evident” from Nevada law and
precedent that the definition of “deadly weapon” in section
193.165(6)(c) applies to section 200.481(2)(e). See Chavez-
Solis v. Lynch, 803 F.3d at 1010; Strickland, 860 F.3d at
1226. Quite the opposite.
We disagree that Funderburk supplies the precedent
Guizar-Rodriguez needs to make his argument. In
Funderburk, the defendant had been convicted of burglary
while in possession of a firearm or deadly weapon. 212 P.3d
at 337–40. In instructing the jury, the district court used the
definition of “firearm” found in Nevada Revised Statute
§ 202.265(5)(b), one of the statutes listed in section
193.165(6)(c). Id. at 337.
In affirming the district court, the Nevada Supreme Court
addressed the interplay between the common law definition
of “deadly weapon” and the statutory definition in section
193.165(6). Id. at 338–40. The Funderburk court affirmed the
district court, but its reasoning was nuanced. Id. at 37–38.
The court noted that the Nevada Supreme Court had
previously determined that the enhancement in section
193.165 could not be applied to burglary, because section
193.165 requires “use” of a deadly weapon. Id. at at 339. In
response, the Nevada legislature had amended its burglary
statute to prescribe an enhancement when the burglar “has in
his or her possession or gains possession of any firearm or
deadly weapon at any time during the commission of the
crime.” Nev. Rev. Stat. § 205.060 (emphasis added). Because
UNITED STATES V. GUIZAR-RODRIGUEZ 13
the functional test applied at the time of the amendment, the
Funderburk court reasoned that the legislature “intended the
term [‘deadly weapon’] to have broad applicability.”
Funderburk, 212 P.3d at 340. Consequently, the court
concluded that “based on the Legislature’s intent, the
definitions set forth in [section] 193.165(6) are instructive to
determine what constitutes a ‘deadly weapon’ under [the
burglary statute].” Id. (emphasis added).
In other words, the definitions in section 193.165(6) were
instructive, because they helped illuminate the legislature’s
intent in other statutes where “deadly weapon” was not
defined. This conclusion flows from the Nevada legislature’s
rebuke of the Nevada Supreme Court’s decision in Zgombic.
The Funderburk court was apparently unwilling to walk
down that road again. So, it affirmed the district court’s
definition of “firearm” that was drawn from a statute
specifically listed in section 193.165(6)(c). However, the
Funderburk court never stated that the definitions in section
193.165(6) were controlling or in some way superseded the
common law functional or inherently dangerous tests.
What was implicit in Funderburk was later made explicit
in Rodriguez. In Rodriguez, the Nevada Supreme Court was
asked to define “deadly weapon” in Nevada’s battery with a
deadly weapon statute. Rodriguez, 407 P.3d at 772. In the
district court, the government and Rodriguez had submitted
dueling jury instructions regarding the definition of “deadly
weapon.” Id. The government proposed using the functional
test whereas Rodriguez proposed using the inherently
dangerous test. Id. The district court adopted the
government’s instruction. Id.
14 UNITED STATES V. GUIZAR-RODRIGUEZ
The Nevada Supreme Court held that the jury instruction
was proper and concluded that “the Legislature intended
‘deadly weapon’ within [section] 200.481(2)(e) to be
interpreted broadly, according to both the functional
definition and the inherently dangerous definition.” Id. at 774
(emphasis added). The court’s reasoning was two-fold. First
and primarily, “when a legislature adopts language that has a
particular meaning or history the legislature intended the
language to have meaning consistent with previous
interpretations of the language.” Id. at 773 (alterations and
quotation marks omitted). When it drafted section 200.481,
the legislature was aware that Nevada courts applied the
inherently dangerous and the functional tests to define
“deadly weapon.” Id. at 773. Thus, the Rodriguez court
determined that the legislature intended to define “deadly-
weapon” in section 200.481(2)(e) according to the inherently
dangerous and functional tests. Id.
Second, the court addressed Rodriguez’s argument that
section 193.165(6) precluded the court from using the
functional test to define “deadly weapon” in section
200.481(2)(e). Rodriguez based his argument on the limiting
language in section 193.165(6) which specifies that its
definition of “deadly weapon” applies only in “this section.”
Id. at 774 (quoting Nev. Rev. Stat. 193.165(6)). The court did
not overturn Funderburk but clarified that, “although
[section] 193.165(6)’s definitions do not necessarily extend
beyond [section] 193.165, nothing prevents them from
helping to define ‘deadly weapon’ within other statutes.” Id.
(emphasis in original). Importantly, the Rodriguez court
indicated what it meant by “helping to define ‘deadly
weapon’ within other statutes.” Id. The court determined that
“[t]he Legislature’s rejection of Zgombic indicates its
continued approval of the functional definition.” Id. at 774
 UNITED STATES V. GUIZAR-RODRIGUEZ 15
(emphasis added). Thus, the Rodriguez Court concluded that
(1) an instrument is a deadly weapon for purposes of section
200.481(2)(e) if the instrument meets either the inherently
dangerous or functional test, and (2) section 193.165(6)’s
definitions of “deadly weapon” are not controlling in section
200.481(2)(e) and do not affect the validity of the traditional
common law approach.
Nevertheless, Guizar-Rodriguez argues that there is a
realistic probability that Nevada courts would apply the
definition of “deadly weapon” in section 193.165(6)(c) to
section 200.481(2)(e). We disagree, because it would
contravene the Nevada Supreme Court’s statement in
Rodriguez that “when a legislature adopts language that has
a particular meaning or history the legislature intended the
language to have meaning consistent with previous
interpretations of the language.” Rodriguez, 407 P.3d at 773
(alterations and quotation marks omitted)). When the
legislature adopted section 200.481(2)(e), the inherently
dangerous and functional tests controlled. Id. A reading of the
statute that expands the definition of “deadly weapon”
beyond those tests, i.e., “[a]ny device used to mark any part
of a person with paint or any other substance,” Nev. Rev.
Stat. § 202.265(1)(g), would not be faithful to the Nevada
Supreme Court’s reasoning in Rodriguez.6
In sum, Guizar-Rodriguez must demonstrate “a realistic
probability, not a theoretical possibility, that [Nevada] would
apply its statute to conduct that falls outside [the definition of
6
Moreover, adopting a definition of “deadly weapon” that includes
instruments that are not actually “deadly” would contravene the Nevada
Supreme Court’s instruction to “construe the statute in a manner which
avoids unreasonable results.” Funderburk, 212 P.3d at 339.
16 UNITED STATES V. GUIZAR-RODRIGUEZ
a crime of violence].” Gonzales, 549 U.S. at 193. The
statute’s greater breadth must be “evident from its text”
Chavez-Solis, 803 F.3d at 1010 (quotation marks omitted), or
“evident” from state court precedents interpreting that text.
Here, the Nevada Supreme Court has indicated that the
inherently-dangerous and functional tests apply when
defining “deadly weapon” in section 200.481(2)(e), because
those tests constituted the common law definition of “deadly
weapon” at the time the statute was drafted. Nevada does not
apply an overbroad definition of “deadly weapon” to section
200.481(2)(e).
2.
Guizar-Rodriguez also contends that he could have been
convicted of violating section 200.481(2)(e)(1) even if he
merely possessed a deadly weapon during the battery.
Nothing in the text of the statute or Nevada precedent
suggests such an interpretation. In Moore v. State, the Nevada
Supreme Court interpreted the word “uses” with respect to a
section 193.165 “deadly weapon” sentencing enhancement.
27 P.3d 447, 449 (Nev. 2001). The court invoked the rule of
lenity and held that “[t]he verb ‘use’ connotes ‘to put into
action or service’ and ‘to carry out a purpose or action by
means of.’” Id. Thus, in order to receive the sentencing
enhancement in section 193.165, a criminal must “‘put’ a
deadly weapon ‘into action’ to commit the [underlying]
crime.” Id. Section 200.481(2)(e)(1) requires that the battery
be “committed with the use of a deadly weapon.” Guizar-
Rodriguez has not shown that “use” would be interpreted
differently in section 200.481. Furthermore, the Nevada
legislature has shown that it differentiates between “use” and
“possession” of a deadly weapon. As we have already
discussed, the Nevada Supreme Court determined that the
UNITED STATES V. GUIZAR-RODRIGUEZ 17
sentencing enhancement in section 193.165 could not apply
to burglary, because the enhancement requires “use” of a
deadly weapon. Carr v. Sheriff, Clark Cty., 601 P.2d 422, 424
(Nev. 1979). Subsequently, the Nevada legislature amended
its burglary statute to prescribe an enhancement when the
burglar “has in his or her possession or gains possession of
any firearm or deadly weapon at any time during the
commission of the crime.” Nev. Rev. Stat. § 205.060
(emphasis added); Funderburk, 212 P.3d at 339. In other
words, had the legislature meant to allow a conviction under
section 200.481(2)(e)(1) when a person merely possesses a
deadly weapon, it would have said so. Guizar-Rodriguez has
not shown a realistic probability that mere possession of a
deadly weapon would satisfy the requirements of section
200.481(2)(e)(1).
IV. CONCLUSION
Because a violation of section 200.481(2)(e)(1) requires
committing a battery “with the use of a deadly weapon,” it is
a categorical crime of violence. As we have previously
determined, “even the ‘least touching’ with a deadly weapon
or instrument . . . is violent in nature.” Grajeda, 581 F.3d at
1192. The Nevada Supreme Court cases cited by Guizar-
Rodriguez do not undermine this conclusion.
AFFIRMED.