United States v. Tavares Chandler , 743 F.3d 648 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10331
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00482-
GMN-PAL-1
TAVARES CHANDLER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted
June 13, 2013—San Francisco, California
Filed February 20, 2014
Before: A. Wallace Tashima and Jay S. Bybee, Circuit
Judges, and Kimba M. Wood, Senior District Judge.*
Per Curiam Opinion;
Concurrence by Judge Bybee
*
The Honorable Kimba M. Wood, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
2 UNITED STATES V. CHANDLER
SUMMARY**
Criminal Law
The panel affirmed the district court’s conclusion that the
defendant had previously been convicted of three “violent
felonies,” which subjected him to an increased penalty under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
The panel held that a Nevada conviction for robbery is a
violent felony because it creates a serious risk of harm that is
comparable to the risk posed by burglary; and that because
after United States v. Mendez, 992 F.2d 1488 (9th Cir. 1992),
“the § 924(e) analysis of a prior conspiracy conviction is
governed by the substantive offense that was the object of the
conspiracy,” conspiracy to commit robbery, pursuant to Nev.
Rev. Stat. §§ 199.480, 200.380, is also a “violent felony”
under the ACCA’s residual clause.
The panel also held that second degree kidnapping in
Nevada, Nev. Rev. Stat. §§ 200.310, 200.330, categorically
involves a serious risk that physical force may be used in the
course of committing the offense; that this risk is roughly
similar to the risk involved in burglary; and that second
degree kidnapping under Nevada law is, accordingly,
categorically a “violent felony” under the residual clause of
the ACCA.
Concurring, Judge Bybee, joined by Judges Tashima and
District Judge Wood, agreed that Mendez requires the per
**
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. CHANDLER 3
curiam holding that conspiracy to commit robbery is a
“violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii), but wrote
separately to question the reasoning and continued validity of
Mendez.
COUNSEL
James A. Oronoz (argued) and Lucas J. Gaffney, Oronoz &
Ericsson, L.L.C., Las Vegas, Nevada, for Defendant-
Appellant.
Phillip N. Smith, Jr. (argued), Assistant United States
Attorney, Daniel G. Bogden, United States Attorney, Robert
L. Ellman, Appellate Chief, United States Attorney’s Office
for the District of Nevada, Las Vegas, Nevada, for Plaintiff-
Appellee.
OPINION
PER CURIAM:
Tavares Chandler pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
At sentencing, the district court concluded that Chandler had
been convicted of three “violent felonies,” as defined by the
Armed Career Criminal Act (ACCA), and sentenced
Chandler to a term of 235 months’ imprisonment. Chandler
does not contest his extensive criminal history, but he
contends that the district court erred in concluding that he had
been convicted of three violent felonies. Because we
conclude that all three prior convictions are violent felonies
under the ACCA, we affirm.
4 UNITED STATES V. CHANDLER
I. FACTS AND PROCEDURAL HISTORY
Chandler was indicted in 2010 for being a felon in
possession of a firearm, a violation of 18 U.S.C. § 922(g)(1).
Chandler pleaded guilty to the indictment without the benefit
of a plea agreement. Chandler had previously been convicted
in Nevada state court of the offenses of (1) second degree
kidnapping, Nev. Rev. Stat. §§ 200.310, 200.330;
(2) coercion, Nev. Rev. Stat. § 207.190; and (3) conspiracy to
commit robbery, Nev. Rev. Stat. §§ 199.480, 200.380. The
government sought an increased penalty under the ACCA,
arguing that Chandler’s Nevada state convictions qualified as
violent felonies. See 18 U.S.C. § 924(e)(1). Chandler
objected, arguing that neither his conspiracy conviction nor
his kidnapping conviction was a violent felony as defined by
the ACCA. He did not dispute that his conviction for
coercion qualified as a violent felony. Over Chandler’s
objection, the district court determined that Chandler’s three
Nevada state convictions were all violent felonies under the
ACCA and sentenced Chandler to 235-months’
imprisonment. Chandler timely appealed.
“We review de novo whether a prior conviction is a
predicate felony under the ACCA.” United States v. Grisel,
488 F.3d 844, 846 (9th Cir. 2007) (en banc).
II. DISCUSSION
Under 18 U.S.C. § 924(e)(1), any “person who violates
section 922(g) of this title and has three previous convictions
. . . for a violent felony or a serious drug offense, or both, . . .
shall be . . . imprisoned not less than fifteen years.” For
purposes of this subsection of the ACCA, a violent felony is
“any crime punishable by imprisonment for a term exceeding
UNITED STATES V. CHANDLER 5
one year . . . [that] is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(B)(ii).
Notably, a violent felony as defined in the ACCA is
nearly identical to a “crime of violence” as defined in the
Sentencing Guidelines’ Career Offender enhancement.1
Compare 18 U.S.C. § 924(e)(B)(ii) with U.S. Sentencing
Guidelines Manual § 4B1.2(a) (providing that a crime of
violence is (1) “any offense . . . punishable by imprisonment
for a term exceeding one year, that . . . is burglary of a
dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”). Because there is no
meaningful distinction between the definitions, we have used
our analysis of the definition of crime of violence in the
Sentencing Guidelines to guide our interpretation of violent
felony in the ACCA. See United States v. Spencer, 724 F.3d
1133, 1138 (9th Cir. 2013); United States v. Crews, 621 F.3d
849, 852 n.4 (9th Cir. 2010); United States v. Melton,
344 F.3d 1021, 1027 (9th Cir. 2003).
In United States v. Park, 649 F.3d 1175 (9th Cir. 2011),
we established a framework for analyzing whether a
conviction under state law is a conviction for a crime of
violence. “First, the ‘conduct encompassed by the elements
1
Similarly, we have observed that the definition of “crime of violence”
in 18 U.S.C. § 924(c) “is very similar to that of ‘violent felony’ in section
924(e)(2)(B).” United States v. Sherbondy, 865 F.2d 996, 1008 n.15 (9th
Cir. 1988). Although the definitions are not always interchangeable,
similar statutory language suggests that the definitions may be similarly
interpreted. United States v. Coronado, 603 F.3d 706, 709 (9th Cir. 2010).
6 UNITED STATES V. CHANDLER
of the offense, in the ordinary case,’ must ‘present[ ] a serious
potential risk of physical injury to another.’” Id. at 1177–78
(alteration in original) (quoting James v. United States,
550 U.S. 192, 208 (2007)). “Second, the state offense must
be ‘roughly similar, in kind as well as in degree of risk posed’
to those offenses enumerated at the beginning of the residual
clause—burglary of a dwelling, arson, extortion, and crimes
involving explosives.” Id. at 1178 (quoting Begay v. United
States, 553 U.S. 137, 143 (2008)). As we recently observed:
The inquiry under Park’s first prong is
straightforward. But the second requirement—
whether the state offense is “‘roughly similar, in
kind as well as in degree of risk posed’ to those
offenses enumerated at the beginning of the
residual clause”—is more complicated, and must
be addressed in light of the Supreme Court’s
quartet of ACCA cases.
Spencer, 724 F.3d at 1138 (internal citation omitted) (quoting
Park, 649 F.3d at 1178).
In James, the Supreme Court held that the second
requirement should focus on whether the risk posed by the
state offense “is comparable to that posed by its closest
analog among the enumerated offenses.” James, 550 U.S. at
203. In Begay, however, the Court concluded that a state
conviction for driving under the influence was not
categorically a violent felony under the ACCA because it did
not “involve purposeful, violent, and aggressive conduct.”
Begay, 553 U.S. at 144–45 (internal quotation marks
omitted); see also Chambers v. United States, 555 U.S. 122,
128 (2009) (applying Begay’s “purposeful, violent, and
aggressive conduct” formula). In its most recent ACCA
UNITED STATES V. CHANDLER 7
opinion, the Court once again focused on the level of risk
posed by the state offense at issue compared with the level of
risk posed by the enumerated offenses. See Sykes v. United
States, 131 S. Ct. 2267, 2275 (2011) (“In general, levels of
risk divide crimes that qualify from those that do not.”).
We concluded in Spencer that Sykes meant that Begay’s
“‘purposeful, violent, and aggressive formulation’ is only
dispositive in cases involving a strict liability, negligence, or
recklessness offense”—such as driving under the
influence—and does not apply to intentional crimes.
Spencer, 724 F.3d at 1139; see also Sykes, 131 S. Ct. at 2276(“Begay involved a crime akin to strict liability, negligence,
and recklessness crimes; and the purposeful, violent, and
aggressive formulation was used in that case to explain the
result. The felony at issue here is not a strict liability,
negligence, or recklessness crime.”). Many of our sister
circuits have interpreted Sykes similarly. See, e.g.,
Harrington v. United States, 689 F.3d 124, 135 (2d Cir. 2012)
(“In Sykes, the Court clarified that in cases involving
intentional criminal conduct, the focus of judicial inquiry
should remain on the risk assessment specified in the
ACCA’s text, i.e., whether the proscribed conduct presents ‘a
serious potential risk of physical injury to another’
comparable to that posed by the enumerated offenses.”
(quoting 18 U.S.C. § 924(e)(2)(B)(ii))); United States v.
Chitwood, 676 F.3d 971, 979 (11th Cir. 2012) (“Sykes makes
clear that Begay’s ‘purposeful, violent, and aggressive’
analysis does not apply to offenses that are not strict liability,
negligence, or recklessness crimes.”); United States v. Bartel,
698 F.3d 658, 662 (8th Cir. 2012); United States v. Meeks,
664 F.3d 1067, 1070 (6th Cir. 2012); United States v. Smith,
652 F.3d 1244, 1248 (10th Cir. 2011); United States v.
Rodriguez, 659 F.3d 117, 119 (1st Cir. 2011).
8 UNITED STATES V. CHANDLER
Here, neither conspiracy to commit robbery nor second
degree kidnapping is a strict liability crime or offense that
punishes reckless or negligent behavior. See Doyle v. State,
921 P.2d 901, 911 (Nev. 1996) (overruled on other grounds
by Kaczmarek v. State, 91 P.3d 16 (Nev. 2004)) (“A person
who knowingly does any act to further the object of a
conspiracy, or otherwise participates therein, is criminally
liable as a conspirator; however, ‘[m]ere knowledge or
approval of, or acquiescence in, the object and purpose of a
conspiracy without an agreement to cooperate in achieving
such object or purpose does not make one a party to
conspiracy.’” (alteration in original) (emphasis added)
(quoting State v. Arredondo, 746 P.2d 484, 487 (Ariz.
1987))); Nev. Rev. Stat. § 200.310(2) (“A person who
willfully and without authority of law seizes, inveigles, takes,
carries away, or kidnaps another person with the intent to
keep the person secretly imprisoned . . . is guilty of
kidnapping in the second degree.” (emphasis added)). As a
result, we apply the “closest analog test” set forth in James.
See Spencer, 724 F.3d at 1140.
With this framework in mind, we turn to Chandler’s prior
convictions.
A. Conspiracy to Commit Robbery
We have not previously considered whether conspiracy to
commit robbery is a violent felony.2 We have, however,
2
We recently held that a Nevada conviction for conspiracy to commit
burglary is not an aggravated felony under the immigration and
Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(U). United States v.
Garcia-Santana, ___ F.3d ___, No. 12-10471 (9th Cir. Feb. 20, 2014).
Garcia-Santana does not govern this case because the INA’s aggravated
UNITED STATES V. CHANDLER 9
determined that conspiracy to interfere with interstate
commerce by robbery is a crime of violence for purposes of
the firearm sentencing enhancement in 18 U.S.C.
§ 924(c)(1).3 See United States v. Mendez, 992 F.2d 1488,
1489 (9th Cir. 1993). In Mendez, we explained that a
conspiracy “‘increases the chances that the planned crime will
be committed”’ because a conspiracy “‘provides a focal point
for collective criminal action.’” Id. at 1491 (quoting United
States v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985)).
Due to this heightened risk of harm, a “conspiracy to commit
a crime of violence is a ‘crime of violence’ under the
substantial risk definition of § 924(c)(3)(B) or its
equivalent.”4 Id. at 1492. In other words, “conspiracy to rob
felony definition substantially differs from the ACCA’s definition of a
“violent felony.” See Nijhawan v. Holder, 129 S. Ct. 2294, 2300–01
(2009). Unlike the ACCA, the INA defines “aggravated felony” to
specifically include a “conspiracy to commit” one of its listed offenses,
among which is “burglary.” 8 U.S.C. § 1101(a)(43)(U). In Garcia-
Santana, therefore, the question presented was whether “conspiracy”—as
used in the INA—requires proof of an overt act; we held that it does. See
Garcia-Santana, slip op. at 3. Here, by contrast, we must decide whether
a Nevada conviction for conspiracy to commit robbery, even though it
does not require an overt act, nonetheless “involves conduct that presents
a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(B)(ii).
3
The firearm sentencing enhancement provision provides that “any
person who, during and in relation to any crime of violence . . . uses or
carries a firearm, shall, in addition to the punishment provided for such
crime of violence . . .be sentenced to a term of imprisonment of not less
than 5 years.” 18 U.S.C. § 924(c)(1).
4
The provision referenced in Mendez—18 U.S.C. § 924(c)(3)(B)—
defines crime of violence for the purposes of the firearm sentencing
enhancement provision that was at issue in that case. It states that “the
term ‘crime of violence’ means an offense that is a felony and . . . by its
10 UNITED STATES V. CHANDLER
in violation of [the Hobbs Act] ‘by its nature, involves a
substantial risk that physical force . . . may be used in the
course of committing the offense,’” and is thus a crime of
violence. Mendez, 992 F.2d at 1491 (quoting 18 U.S.C.
§ 924(c)(3)(B)). Cognizant of this binding precedent,5 we
consider whether conspiracy to commit robbery under
Nevada law is a “violent felony” as that term is defined in
§ 924(e)(2)(B)(ii).
1. Serious potential risk of injury
The first question under Park is whether the conduct
encompassed by the elements of conspiracy to commit
robbery under Nevada law ordinarily “present[] a serious
potential risk of physical injury to another.” Park, 649 F.3d
at 1177–78 (quoting James, 550 U.S. at 208) (brackets in the
original). Because Mendez established that conspiracy to
commit robbery “categorically creates a substantial risk that
physical force may be used,” Mendez, 992 F.2d at 1492, we
must answer in the affirmative.
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.”
18 U.S.C. § 924(c)(3)(B).
5
As Judge Bybee points out, the circuits are split over whether
conspiracy to commit a violent felony is itself a violent felony. See
Concurrence at 28–29 (Bybee, J., concurring). Given that split, we
recognize that Mendez may not survive the Supreme Court’s quartet of
ACCA cases. But, at the least, Mendez is not “clearly irreconcilable” with
the Supreme Court’s precedent, so we are bound to apply Mendez until it
is expressly overruled by an en banc panel of this court. See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
UNITED STATES V. CHANDLER 11
Admittedly, Mendez differs from this case in two respects.
First, Mendez involved conspiracy to commit robbery in
violation of the Hobbs Act, 18 U.S.C. § 1951, whereas here,
Chandler was convicted of conspiracy to commit robbery in
violation of Nev. Rev. Stat. §§ 199.480, 200.380. The Hobbs
Act penalizes “[w]hoever in any way or degree obstructs,
delays or affects commerce . . . by robbery . . . or conspires so
to do.” 18 U.S.C. § 1951(a). The Act then defines robbery
as “the unlawful taking or obtaining of personal property
from the person or in the presence of another, against his will,
by means of actual or threatened force, or violence.”
18 U.S.C. § 1951(b)(1). And conspiracy under federal law
occurs “[i]f two or more persons conspire [ ] to commit any
offense against the United States.” 18 U.S.C. § 371; see also
United States v. Feola, 420 U.S. 671, 692 (1975) (“[T]he
essence of conspiracy is agreement.”).
Nevada also defines conspiracy as “an agreement between
two or more persons for an unlawful purpose.” Nunnery v.
Eighth Judicial Dist. Court ex rel. Cnty. of Clark, 186 P.3d
886, 888 (Nev. 2008) (per curiam) (internal quotation marks
omitted); see also Nev. Rev. Stat. § 199.480(1). And, under
Nevada law, robbery is “the unlawful taking of personal
property from the person of another, or in the person’s
presence, against his or her will, by means of force or
violence or fear of injury.” Nev. Rev. Stat. § 200.380(1).
Thus, federal law and Nevada law both effectively define
conspiracy to commit robbery as an agreement between two
or more persons to unlawfully take property from another
person against his or her will. Because federal law is
substantially similar to Nevada law, the first distinction
between Mendez and this case is insignificant.
12 UNITED STATES V. CHANDLER
Second, Mendez differs from this case because it involved
18 U.S.C. § 924(c)(1), which subjects individuals who use a
firearm in the course of a “crime of violence” to an additional
five years’ imprisonment. The statute defines a crime of
violence as any offense “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.” 18 U.S.C. § 924(c)(3)(B). By contrast,
Chandler appeals a sentencing enhancement under 18 U.S.C.
§ 924(e)(2)(B)(ii), which subjects individuals who have three
previous convictions for “violent felonies” to a minimum of
fifteen-years imprisonment. A violent felony is an offense
that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” Id.Both statutes are similar because they apply to crimes that
involve a serious or substantial risk that physical force will
occur during the course of the offense. The major difference
between these two statutes is that the ACCA only applies to
seriously dangerous crimes that are similar to the enumerated
offenses, whereas 18 U.S.C. § 924(c)(1) applies to all
substantially dangerous offenses. In light of this difference,
Mendez is not helpful when analyzing the second prong of the
Park framework. Nevertheless, because Mendez uses the
substantial risk of injury test, which is similar to the serious
risk of injury test that we consider here, it still applies to our
analysis of the first prong.6
6
Indeed, “substantial” is defined as important, essential, “not seeming
or imaginary.” Webster’s Third New International Dictionary of the
English Language Unabridged (2002). Similarly, “serious” is defined as
“[g]rave in disposition, appearance, or manner: not light.” Id.UNITED STATES V. CHANDLER 13
Accordingly, despite the differences between Mendez and
this case, we are bound by Mendez to conclude that
“conspiracy to rob . . . ‘by its nature, involves a substantial
risk that physical force . . . may be used in the course of
committing the offense.’” Mendez, 992 F.2d at 1491 (quoting
18 U.S.C. § 924(c)(3)(B)); see also United States v. Gore,
636 F.3d 728, 738 (5th Cir. 2011) (“An agreement to commit
aggravated robbery presents a serious potential risk of
injury.”); United States v. Turner, 501 F.3d 59, 67 (1st Cir.
2007).
2. Risk of injury roughly similar to the enumerated
offenses in the ACCA
Because we previously determined that robbery in
Nevada involves a serious risk of physical force, we must
now answer the more difficult question: whether conspiracy
to commit robbery in Nevada is “‘roughly similar, in kind as
well as in degree of risk posed’ to those offenses enumerated
at the beginning of the residual clause.” Spencer, 724 F.3d at
1140 (quoting Park, 649 F.3d at 1178). Under Mendez, a
conspiracy to commit a violent crime creates the same risk of
harm as the violent crime itself. 992 F.2d at 1492. So, if
robbery in Nevada is “roughly similar, in kind as well as in
degree of risk posed” to burglary, arson, or extortion,
18 U.S.C. § 924(e)(2)(B)(ii), then conspiracy to commit
robbery is also comparable to the enumerated offenses. Here,
robbery as defined by Nevada is most similar to extortion and
burglary.
14 UNITED STATES V. CHANDLER
The Supreme Court has defined extortion as “obtaining
something of value from another with his consent[7] induced
by the wrongful use of force, fear, or threats.” Scheidler v.
Nat’l Org. for Women, Inc., 537 U.S. 393, 409 (2003)
(internal quotation marks omitted). We previously
determined that a Nevada state conviction for robbery is a
crime of violence under the U.S. Sentencing Guidelines
because “Nev. Rev. Stat. § 200.380 . . . satisf[ies] the generic
definition of extortion.” See United States v. Harris,
572 F.3d 1065, 1065–66 (9th Cir. 2009) (per curiam).
Burglary is “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to
commit a crime.” Taylor v. United States, 495 U.S. 575, 598
(1990). The real danger of burglary, like robbery, is “the
possibility of a face-to-face confrontation” with the victim or
an intervener. James, 550 U.S. at 203. Indeed, robbery, like
burglary, “is dangerous because it can end in confrontation
leading to violence.” Sykes, 131 S. Ct. at 2273. In fact, the
risk posed by robbery may actually be greater than the risk
posed by burglary because robbery requires a taking from a
person, against his or her will, by means of force or violence
or fear of injury, whereas burglary may be completed without
any human interaction. See United States v. Davis, 487 F.3d
282, 286 (5th Cir. 2007) (“To commit robbery, an individual
must interact with the victim in order to cause bodily injury
or place the victim in fear of it.”).
7
Nevada’s definition of robbery differs from extortion because the
taking of property there must be “against the will” of the victim. But as
Professor LaFave has explained, this difference is not significant because
“both crimes equally require that the defendant’s threats induce the victim
to give up his property, something which he would not otherwise have
done.” 3 W. LaFave, Substantive Criminal Law § 20.4(b) (2d ed. 2003).
UNITED STATES V. CHANDLER 15
Accordingly, we conclude that robbery poses risks similar
to extortion and burglary. As such, conspiracy to commit
robbery in Nevada is also similar, in kind and degree of risk
posed, to extortion and burglary. See Gore, 636 F.3d at 741(“We are satisfied that conspiracy to commit aggravated
robbery, in the ordinary case, presents a serious risk of injury
similar in kind and degree to the enumerated offenses.”).
3. Conclusion
A Nevada conviction for robbery is a violent felony
because it creates a serious risk of harm that is comparable to
the risk posed by burglary. And because after Mendez, “the
§ 924(e) analysis of a prior conspiracy conviction is governed
by the substantive offense that was the object of the
conspiracy,” United States v. Boaz, 558 F.3d 800 (8th Cir.
2009), conspiracy to commit robbery, pursuant to Nev. Rev.
Stat. §§ 199.480, 200.380, is also a “violent felony” under
the ACCA’s residual clause. See also United States v. White,
571 F.3d 365, 370, 372 (4th Cir. 2009) (“[T]he essential
conduct underlying the Conspiracy Offense is categorically
violent . . . [and] [t]he Conspiracy Offense cannot be divorced
from its violent objective—robbery with a deadly weapon.”).
B. Second degree kidnapping
Under Nevada law:
A person who willfully and without authority
of law seizes, inveigles, takes, carries away or
kidnaps another person with the intent to keep
the person secretly imprisoned within the
State, or for the purpose of conveying the
person out of the State without authority of
16 UNITED STATES V. CHANDLER
law, or in any manner held to service or
detained against the person’s will, is guilty of
kidnapping in the second degree.
Nev. Rev. Stat. § 200.310(2).
We have not previously had the opportunity to consider
whether second degree kidnapping under Nevada law is a
violent felony. But, in United States v. Williams, 110 F.3d 50(9th Cir. 1997), we determined that second degree kidnapping
under Oregon law, Ore. Rev. Stat. § 163.225(1)(a), is a crime
of violence as the term is defined in § 4B1.2(a)(2) of the
Sentencing Guidelines. Id. at 51–53. And in United States v.
Sherbondy, 865 F.2d 996 (9th Cir. 1988), we observed that
kidnapping as defined by the Model Penal Code “entails a
‘serious potential risk of physical injury’ to the victim,
making the offense a ‘violent felony’ under subsection (ii).”
Id. at 1009 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Although
neither of these cases involved statutes exactly like Nevada’s,
we keep these persuasive authorities in mind as we review
Chandler’s second degree kidnapping conviction. Once
again, we apply the framework that we established in Park,
649 F.3d 1175.
1. Serious risk of harm
Chandler argues that second degree kidnapping as defined
by Nevada law can occur in ways that are both violent and
nonviolent, particularly because “inveigling” does not require
force or restraint. See Bridges v. State, 6 P.3d 1000, 1009
(Nev. 2000); Black’s Law Dictionary 843 (8th Ed. 2004)
(inveigle means “to lure or entice through deceit or
insincerity”). Accordingly, he contends that we must use the
UNITED STATES V. CHANDLER 17
modified categorical approach to determine whether his
conviction involved violent conduct. We disagree.
We have determined that kidnapping presents a risk of
serious force, even where the kidnapping statute at issue has
no force requirement. See Delgado-Hernandez v. Holder,
697 F.3d 1125, 1133 (9th Cir. 2012) (considering whether
attempted kidnapping is an aggravated felony). In Delgado-
Hernandez, we referenced the federal kidnapping statute,
18 U.S.C. § 1201(a), which punishes anyone who
“‘unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or
otherwise any person.’” Id. at 1130 (quoting 18 U.S.C.
§ 1201(a)). We adopted the Sixth Circuit’s reasoning in
explaining that:
[T]he essence of kidnapping is requiring
another to do something against his or her
will; and because physical force or restraint is
usually the best way to overbear the will of
another, physical force or threat of force is a
latent, but more often actual, companion of
the coercive element. That deception may be
used to effect the kidnapping does not erase
the ever-present possibility that the victim
may figure out what’s really going on and
decide to resist, in turn requiring the
perpetrator to resort to actual physical
restraint if he is to carry out the criminal plan.
Id. at 1130–31 (quoting United States v. Kaplansky, 42 F.3d
320, 324 (6th Cir. 1994)). Additionally, we observed in
Delgado-Hernandez that “the Supreme Court has seen fit to
assume, admittedly without deciding, that [kidnapping]
18 UNITED STATES V. CHANDLER
constitutes a crime that presents a substantial risk of force.”
Delgado-Hernandez, 697 F.3d at 1130 (citing United States
v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999)). And while
the Supreme Court’s statement in this regard was dictum, it
is nevertheless highly persuasive. See United States v.
Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000)
(“Supreme Court dicta have a weight that is greater than
ordinary judicial dicta as prophecy of what the Court might
hold; accordingly, we do not blandly shrug them off because
they were not a holding.”).8
Of particular importance here, Nevada’s second degree
kidnapping statute is very similar to the federal kidnapping
statute that we reviewed in Delgado-Hernandez. Compare
Nev. Rev. Stat. § 200.310(2) (a person is guilty of kidnapping
if he unlawfully “seizes, inveigles, takes, carries away, or
kidnaps” another person), with 18 U.S.C. § 1201(a) (a person
commits kidnapping if he unlawfully “seizes, confines,
inveigles, decoys, kidnaps, abducts, or carries away” another
person). Kidnapping could potentially be committed in both
jurisdictions without the use of force. Because of the
similarities between the Nevada second degree kidnapping
statute and the federal kidnapping statute, our reasoning in
Delgado-Hernandez is highly persuasive here.
8
In Delgado-Hernandez we also noted that “legislative bodies,
including Congress, have consistently treated kidnapping as a crime of
violence.” Delgado-Hernandez, 697 F.3d at 1131–33. After surveying
the evidence, we concluded: “In sum, numerous courts have held that
kidnapping generally presents a risk of substantial force. Congress, the
Sentencing Commission, and forty jurisdictions have concluded,
consistent with historical practice, that kidnapping is a violent crime.” Id.
at 1133.
UNITED STATES V. CHANDLER 19
Thus, even though force is not required, second degree
kidnapping as defined by Nevada law still presents a serious
potential risk of physical injury to another.9 See also United
States v. Sherbondy, 865 F.2d at 1009 (“kidnapping entails a
‘serious potential risk of physical injury’ to the victim”);
Kaplansky, 42 F.3d at 324 (“kidnapping is the ‘type’ of
offense where the risk of physical injury to the victim is
invariably present”).
2. Risk of injury roughly similar to the enumerated
offenses in the ACCA
The only question remaining, then, is whether second
degree kidnapping under Nevada law is a crime that is
“roughly similar, in kind as well as in degree of risk posed”
to burglary, arson, extortion, or crimes involving the use of
explosives. Begay, 553 U.S. at 143. Like conspiracy to
commit robbery, second degree kidnapping is similar to the
enumerated crime of burglary.
As we discussed above, “[b]urglary is dangerous because
it can end in confrontation leading to violence.” Sykes, 131 S.
Ct. at 2273. By comparison, kidnapping is riskier than
burglary because “a face-to-face confrontation,” James,
550 U.S. at 203, with the victim is very likely when a
kidnapping occurs. Accordingly, the second prong of the
9
If anything, it would seem that Nevada second degree kidnapping
categorically presents a greater risk of force than the federal kidnapping
statute. Compare Nev. Rev. Stat.§ 200.310(2) (requiring that the action
be done “with the intent to keep the person secretly imprisoned within the
State,” “for the purpose of conveying the person out of the State without
authority of law,” or “ in any manner held to service or detained against
the person’s will”), with 18 U.S.C. § 1201(a) (lacking the heightened mens
rea requirements of the Nevada statute).
20 UNITED STATES V. CHANDLER
Park framework is satisfied. See, e.g., Delgado-Hernandez,
697 F.3d at 1128–30 (describing the substantial risks
kidnapping poses); Sherbondy, 865 F.2d at 1009 (reasoning
that kidnapping, as defined in the Model Penal Code, is a
violent felony).
3. Conclusion
We conclude that second degree kidnapping in Nevada
categorically involves a serious risk that physical force may
be used in the course of committing the offense and that this
risk is roughly similar to the risk involved in burglary.
Accordingly, we hold that second degree kidnapping under
Nevada law is categorically a “violent felony” under the
residual clause of the ACCA.
III. CONCLUSION
For the foregoing reasons, conspiracy to commit robbery
and second degree kidnapping are “violent felonies” under
18 U.S.C. § 924(e)(2)(B)(ii). Accordingly, Chandler is
subject to the fifteen-year sentencing enhancement under
§ 924(e)(1) for having previously been convicted of three
violent felonies.
The judgment of the district court is AFFIRMED.
BYBEE, Circuit Judge, with whom TASHIMA, Circuit
Judge, and WOOD, Senior District Judge, join, concurring:
I agree that United States v. Mendez, 992 F.2d 1488 (9th
Cir. 1993), requires our per curiam holding that conspiracy to
UNITED STATES V. CHANDLER 21
commit robbery is a “violent felony” under 18 U.S.C.
§ 924(e)(2)(B)(ii). I write separately to question the
reasoning and continued validity of Mendez.
I
Not all felonies are “violent felonies.” As indicated by its
title, the Armed Career Criminal Act’s (“ACCA”) fifteen-
year mandatory prison term is intended for career criminals,
those offenders whose prior crimes “reveal a degree of
callousness toward risk” and “show an increased likelihood
that the offender is the kind of person who might deliberately
point [a] gun and pull the trigger.” Begay v. United States,
553 U.S. 137, 146 (2008); see also Sykes v. United States,
131 S. Ct. 2267, 2275 (2011). By contrast, the ACCA’s
fifteen-year mandatory minimum sentence was not intended
for “reckless polluters” or those who “recklessly tamper with
consumer products.” Begay, 553 U.S. at 146–47.
When determining whether a felony is a “violent felony”
courts must “employ the ‘categorical approach’” to determine
whether an offense “‘involves conduct that presents a serious
potential risk of physical injury to another.’” James v. United
States, 550 U.S. 192, 201–02 (2007) (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii)). Under the categorical approach, the
relevant inquiry is whether the statutory elements of the
offense “are of the type that would justify its inclusion within
the residual provision.” Id. at 202.
Mendez does not satisfy this standard for two reasons.
First, Mendez treats the elements of conspiracy to commit a
crime as identical to the elements of the underlying crime.
Second, proceeding from that faulty premise, Mendez holds
that conspiracy to commit robbery is a crime of violence even
22 UNITED STATES V. CHANDLER
though conspiracy rarely, if ever, presents a serious potential
risk of injury to another.
II
In Mendez, we used the categorical approach—as we
understood it in 1993—to determine “whether conspiracy to
rob is . . . by definition [ ] a ‘crime of violence’” under
18 U.S.C. § 924(c)(1). 992 F.2d at 1490–91. This was a
good start, but we then broadly declared, intuitively, but
without any analysis of the elements of robbery as defined in
the Hobbs Act, that “[r]obbery indisputably qualifies as a
crime of violence.” Id. at 1491. Then, without any analysis
of the elements of conspiracy, we decided that conspiracy to
commit robbery presents the same serious potential risk of
physical injury as completed robbery because the existence of
a criminal conspiracy increases the chances the planned crime
will be committed. Id. at 1492.
In addition to being illogical, Mendez’s conclusion is
questionable in light of recent Supreme Court precedent. In
James, the Court considered whether attempted burglary was
a violent felony under the ACCA’s residual clause, even
though burglary is one of the violent felonies enumerated in
the ACCA’s residual clause. 550 U.S. at 195. A prolonged
analysis would have been wholly unnecessary if the inchoate
offense, attempted burglary, was the same as the actual
felony, burglary. But, as the Court determined, inchoate
offenses may pose different risks than the underlying offense.
Id. at 204. For example, “the risk posed by an attempted
burglary . . . may be even greater than that posed by a typical
completed burglary” because attempted burglaries are often
thwarted by an intervenor. Id. Thus, James demonstrates
that every inchoate offense must be considered individually,
UNITED STATES V. CHANDLER 23
regardless of whether the underlying offense is categorically
a violent felony, because different offenses pose different
risks.
James is consistent with the well-established rule that
inchoate offenses are separate from completed offenses.
Iannelli v. United States, 420 U.S. 770, 778 (1975) (“This
Court repeatedly has recognized that a conspiracy poses
distinct dangers quite apart from those of the substantive
offense.”); Braverman v. United States, 317 U.S. 49, 54
(1942) (“A conspiracy is not the commission of the crime
which it contemplates, and neither violates nor ‘arises under’
the statute whose violation is its object.”); see also United
States v. Iribe, 564 F.3d 1155, 1160 (9th Cir. 2009) (quoting
United States v. Macias-Valencia, 510 F.3d 1012, 1014 (9th
Cir. 2007) (“‘Conspiracy and attempt are inchoate crimes that
do not require completion of the criminal objective.’”)).
This case presents a prime example of the significant
differences between an inchoate offense (conspiracy to
commit robbery) and a completed offense (robbery). In
Nevada, robbery is defined as:
the unlawful taking of personal property from
the person of another, or in the person’s
presence, against his or her will, by means of
force or violence or fear of injury, immediate
or future, to his or her person or property, or
the person or property of a member of his or
her family, or of anyone in his or her company
at the time of the robbery.
Nev. Rev. Stat. § 200.380(1). “More briefly stated, robbery
has as its elements the taking of the property of another from
24 UNITED STATES V. CHANDLER
his person or presence through the application of force or
fear.” State v. Feinzilber, 350 P.2d 399, 401 (Nev. 1960)
(discussing Nev. Rev. Stat. § 200.380(1)).
By comparison, Nevada’s conspiracy statute, Nev. Rev.
Stat.§ 199.480, simply states that conspiracy occurs
“whenever two or more persons conspire to commit murder,
robbery, sexual assault, [or other enumerated offenses].”
Unlike some states, Nevada does not require an overt act in
pursuance of the crime, Nev. Rev. Stat. § 199.490, so “[t]he
gist of the crime of conspiracy is the unlawful agreement or
confederation.” Lane v. Torvinen, 624 P.2d 1385, 1386 (Nev.
1981).
The Supreme Court of Nevada addressed the difference
between conspiracy to commit robbery and robbery in
Nunnery v. Eighth Judicial Dist. Court ex rel. County of
Clark, 186 P.3d 886 (Nev. 2008) (per curiam), in order to
decide whether “conspiracy to commit robbery is [ ] a felony
involving the use or threat of violence.” Id. at 887. The court
began by analyzing an earlier case where it decided that
solicitation to commit murder is not a violent crime because
“in the crime of solicitation, the harm is the asking—nothing
more need be proven.” Hidalgo v. Eighth Judicial Dist.
Court, 184 P.3d 369, 373 (Nev. 2008) (en banc) (per curiam)
(citations and internal quotation marks omitted).1 The
1
Hidalgo also included observations that are equally applicable to
conspiracy. For example, conspiracy, much like “[s]olicitation is
criminalized . . . because it carries the risk or possibility that it could lead
to a consummated crime,” but under Nevada law “a risk or potential of
harm to others ‘does not constitute a “threat.”’” Id. (quoting Redeker v.
Eighth Judicial Dist. Court ex rel. County of Clark, 127 P.3d. 520, 527
(Nev. 2006)). “Obviously, the nature of the crime Hidalgo allegedly
UNITED STATES V. CHANDLER 25
Supreme Court of Nevada then explained that Hidalgo
“applie[d] with equal force here” because “conspiracy is
committed upon reaching the unlawful agreement.” Nunnery,
186 P.3d at 888. And because conspiracy does not require an
overt act—let alone a violent one—the Supreme Court of
Nevada concluded, “although conspiracy to commit robbery
involves conspiring to commit a violent act, it is not itself a
felony involving the use or threat of violence.” Id. at 889.
I see no reason why this court should diverge from the
Supreme Court of Nevada’s sound reasoning and the well-
established law that conspiracy to commit a crime is not the
same as committing a crime. But until we are willing to re-
evaluate Mendez, offenders like Chandler will be categorized
as “career offenders” based on robberies which they
discussed but did not actually commit.
III
Furthermore, because of its illogical holding that
conspiracy to do x = x, Mendez did not evaluate whether the
elements of conspiracy to commit robbery “involve[ ]
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). I submit
that this omission significantly undermines Mendez’s
continued validity because conspiracy to commit robbery
does not “show an increased likelihood that the offender is
the kind of person who might deliberately point [a] gun and
pull the trigger.” Begay, 553 U.S. at 146.
solicited is itself violent. But this does not transform soliciting murder
into threatening murder.” Id. at 374.
26 UNITED STATES V. CHANDLER
There is little doubt that robbery poses a “serious
potential risk of physical injury to another” at the time it is
committed. See United States v. Harris, 572 F.3d 1065, 1066
(9th Cir. 2009) (per curiam) (determining that “a conviction
under Nev. Rev. Stat. § 200.380 [for robbery] categorically
qualifies as a crime of violence for purposes of the career
offender sentencing enhancement” under the Sentencing
Guidelines).
Conspiracy to commit robbery, however, poses a risk that
a robbery will be committed only in the future. See
Chambers v. United States, 555 U.S. 122, 128 (2009)
(rejecting the government’s argument that an offense is a
violent felony because it posed a risk of violence in the
future); Lane, 624 P.2d at 1386 (“The gist of the crime of
conspiracy is the unlawful agreement or confederation.”).
And as the Supreme Court of Nevada has aptly explained, “a
risk or potential of harm to others does not constitute a
threat.” Hidalgo, 184 P.3d at 373 (citations and internal
quotation marks omitted); see also Nunnery, 186 P.3d at
888–89 (holding that conspiracy to commit robbery is not a
violent crime because “the elements of conspiracy to commit
robbery do not include the use or threat of violence to the
person of another”).
Mendez incidentally acknowledges the difference between
imminent and future harm. 992 F.2d at 1491–92 (“[W]here
conspirators agree to use ‘actual or threatened force, or
violence’ to obtain personal property from another . . . the
risk that physical force may be used . . . is substantial.”
(emphasis added) (citations and internal quotation marks
omitted))). But Mendez does not recognize that although a
person conspiring to commit robbery is “doing something at
the relevant time, there is no reason to believe that the
UNITED STATES V. CHANDLER 27
something poses a serious potential risk of physical injury.”
Chambers, 555 U.S. at 128. “To the contrary, an individual
who [conspires to commit robbery] would seem unlikely, not
likely, to call attention to his whereabouts by simultaneously
engaging in additional violent and unlawful conduct.” Id. at
127; see also Grunewald v. United States, 353 U.S. 391, 402
(1957) (“For every conspiracy is by its very nature secret; a
case can hardly be supposed where men concert together for
crime and advertise their purpose to the world.”).
It is only when overt acts directed toward the commission
of the crime are committed that a crime begins to pose a
“serious potential risk of physical injury to another.”
18 U.S.C. § 924(3)(2)(B)(ii). But, in Nevada, once there has
been an overt act, the offense is no longer a mere conspiracy.2
Nunnery, 186 P.3d at 888–89. Instead, the offense becomes
either attempted or completed robbery—offenses which
ordinarily pose a more serious potential risk of harm to
others.
In other words, conspiracy is at least one “step away from
any physical dimension.” United States v. Raupp, 677 F.3d
756, 763 (7th Cir. 2012) (Wood, J., dissenting). And because
the “step” between discussing or even agreeing on
possibilities and physical action is a significant one, I
maintain that conspiracy to commit robbery is simply not an
offense “of the type that would justify its inclusion within the
2
The Supreme Court of Nevada aptly explained this difference:
“Between preparation for the attempt and the attempt itself, there is a wide
difference. The preparation consists in devising or arranging the means
or measures necessary for the commission of the offense; the attempt is
the direct movement toward the commission after the preparations are
made.” State v. Verganadis, 248 P. 900, 901 (Nev. 1926) (citation and
internal quotation marks omitted).
28 UNITED STATES V. CHANDLER
residual provision.” James, 550 U.S. at 202. At the very
least, the risk of serious physical harm posed by conspiracy
to commit robbery—Mendez notwithstanding—is
substantially different from the risk of serious harm posed by
robbery.
IV
Despite these concerns, I, like the majority, cannot say
that the Supreme Court’s ACCA decisions “undercut the
theory or reasoning” of Mendez “in such a way that the cases
are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc) (emphasis added). Indeed,
interpretation of the ACCA is challenging, and the circuits are
split over whether conspiracy is a violent felony.
At least five circuits have held that conspiracy may
qualify as a violent felony. See United States v. Gore,
636 F.3d 728, 738 (5th Cir. 2011) (“An agreement to commit
aggravated robbery presents a serious potential risk of injury
. . . . This is particularly true when an overt act in furtherance
of the agreement is performed. We need not consider whether
an agreement without such an overt act would suffice for
purposes of the ACCA.”); United States v. White, 571 F.3d
365, 372 (4th Cir. 2009) (“[T]he essential conduct underlying
the Conspiracy Offense is categorically violent. The
Conspiracy Offense cannot be divorced from its violent
objective—robbery with a deadly weapon.”); United States v.
Boaz, 558 F.3d 800, 807 (8th Cir. 2009) (“The § 924(e)
analysis of a prior conspiracy conviction is governed by the
substantive offense that was the object of the conspiracy
. . . .”); United States v. Hawkins, 139 F.3d 29, 34 (1st Cir.
1998) (holding that conspiracy to commit armed robbery is a
violent felony under the ACCA because “[w]e have also
UNITED STATES V. CHANDLER 29
unequivocally held that conspiracy to commit a crime of
violence . . . it itself a crime of violence”); United States v.
Preston, 910 F.2d 81, 87 (3d Cir. 1990) (“Since [the
defendant] was convicted of conspiracy to commit a violent
felony, the use or threat of physical force was a part of his
prior conviction for this crime.”).
By contrast, at least two circuits have held that conspiracy
does not qualify as a violent felony. See United States v.
Whitson, 597 F.3d 1218, 1222 (11th Cir. 2010) (per curiam)
(“Conspiring to commit a crime is a purposeful act . . . . But
in South Carolina, the ‘gravamen of conspiracy is an
agreement or combination. An overt act in furtherance of the
conspiracy is not necessary to prove the crime.’” (internal
citation omitted) (reaffirmed and applied in United States v.
Lee, 631 F.3d 1343, 1349 (11th Cir. 2011)); United States v.
Fell, 511 F.3d 1035, 1039–41 (10th Cir. 2007) (holding that
a Colorado conviction for conspiracy to commit second-
degree burglary was not a violent felony because “[a]lthough
there is an overt act element, the act need not be directed
toward the entry of a building or structure . . . . [M]any overt
acts sufficient to sustain a Colorado conspiracy conviction
create no risk of a violent confrontation between the
defendant and an individual interacting with the conspirator
while the overt act is being committed.”); United States v.
King, 979 F.2d 801, 804 (10th Cir. 1992) (explaining that the
Tenth Circuit “look[s] only to the elements of the conspiracy
crime” and holding that conspiracy to commit robbery does
“not necessarily present circumstances which created the high
risk of violent confrontation inherent in a completed [armed
robbery]” (alteration in original) (quotation marks and
citation omitted)).
30 UNITED STATES V. CHANDLER
The circuit split shows that there are valid reasons to
believe the Supreme Court’s ACCA cases did not “clearly”
overrule Mendez’s holding that conspiracy to commit robbery
categorically is a crime of violence (and thus a violent
felony). But in light of the questionable reasoning in Mendez
and intervening Supreme Court precedent, I submit that
whether conspiracy can qualify as a violent felony is a
difficult issue that warrants our en banc consideration.