United States v. Antonio Forbes ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30121
Plaintiff-Appellee, D.C. No. 2:16-cr-00288-JCC-1
v.
MEMORANDUM*
ANTONIO LARICO FORBES,
Defendant-Appellant.
Appeal from the United States District Court
Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted June 15, 2018**
Seattle, Washington
Before: M. SMITH and WATFORD, Circuit Judges, and RAYES,*** District
Judge.
Antonio Forbes appeals from the district court’s judgment and challenges
the 36 months’ imprisonment imposed following his guilty-plea conviction for
*
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).
***
The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
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being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We
have jurisdiction under 28 U.S.C. § 1291, and we reverse.
Forbes contends that the district court erred in finding a base offense level of
20 under sections 2K2.1(a)(4) and 4B1.2(a) of the United States Sentencing
Guidelines (“Guidelines”), due to Forbes’ prior conviction for attempted first-
degree robbery under Washington law. We review de novo a district court’s
interpretation of the Sentencing Guidelines. United States v. Robinson, 869 F.3d
933, 936 (9th Cir. 2017).
When a defendant possesses a firearm after a prior felony conviction for a
“crime of violence,” the Guidelines provide that the base offense level is 20. U.S.
Sentencing Comm’n, Guidelines Manual, § 2K2.1(a)(4)(A) (Nov. 2015). A
conviction can qualify as a crime of violence if it is one or more of the enumerated
offenses listed in subsection 4B1.2(a)(2), or if it “has as an element the use,
attempted use, or threatened use of physical force against the person of another,”
id. § 4B1.2(a)(1). Here, the government contends that Washington’s attempted
first-degree robbery constitutes an enumerated offense under § 4B1.2(a)(2).1
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Though Forbes argued in his opening brief that neither § 4B1.2(a)(1) nor
§ 4B1.2(a)(2) applies to his attempted first-degree robbery conviction, the
government has not responded to his § 4B1.2(a)(1) argument and therefore has
waived reliance on the force clause. See, e.g., United States v. Castillo-Marin, 684
F.3d 914, 919 (9th Cir. 2012).
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In determining whether Forbes’ conviction constitutes an enumerated
offense, we apply the categorical approach, which compares the elements of the
crime of conviction—here, Washington attempted first-degree robbery—with the
elements of any potentially applicable § 4B1.2(a)(2) enumerated offenses—here,
robbery and extortion—to see if they match. If the scope of conduct covered by
the elements of the Washington statute is broader than what the enumerated
offense definition would cover, the crime of violence sentencing enhancement is
not valid, regardless of whether the conduct that led to Forbes’ prior conviction
was in fact violent. See Taylor v. United States, 495 U.S. 575, 600 (1990).
The commentary to the Guidelines defines some, but not all, of the
enumerated offenses. If the commentary does not supply a definition for an
enumerated offense, as is the case here with robbery, we must determine the
offense’s generic definition. Generic robbery is defined as “aggravated larceny,
containing at least the elements of misappropriation of property under
circumstances involving immediate danger to the person.” United States v.
Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) (quoting United States v.
Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006)).
In contrast, under Washington law, a person commits robbery when he
“unlawfully takes personal property from the person of another . . . by the use or
threatened use of immediate force, violence, or fear of injury to that person or his
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or her property . . . .” Wash. Rev. Code § 9A.56.190 (emphasis added). Because
Washington robbery encompasses threats to property and generic robbery excludes
threats that are limited to property, the minimum conduct necessary to constitute
Washington robbery does not fall categorically within generic robbery. See United
States v. Edling, No. 16-10457, 2018 WL 2752208, at *3 (9th Cir. June 8, 2018)
(finding similar Nevada robbery statute not a categorical match for generic
robbery).
Likewise, Washington robbery is broader than Guidelines extortion, which
also excludes threats that are limited to property. In 2016, the Sentencing
Commission added a specific definition of “extortion” to § 4B1.2’s commentary,
which provides: “‘Extortion’ is obtaining something of value from another by the
wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical
injury.” U.S.S.G. § 4B1.1, comment. (n.1); see U.S.S.G. Supp. to App. C, Amend.
798 at 131 (2016). “[T]he Guidelines’ new definition of extortion narrows the
offense by requiring that the wrongful use of force, fear, or threats be directed
against the person of another, not property.” Edling, 2018 WL 2752208, at *3.
Because Forbes’ underlying crime of conviction can be achieved through threats to
property and Guidelines extortion excludes threats that are limited to property,
Washington robbery exceeds Guidelines extortion. “To the extent any ambiguity
remains as to whether the new definition of extortion includes threats of injury to
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property . . . that ambiguity must be resolved in [Forbes’] favor under the rule of
lenity.” Id. at *4.
REVERSED.
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