United States v. Dustin McCaskill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10135
Plaintiff-Appellee, D.C. No.
2:15-cr-00030-GMN-CWH-1
v.
DUSTIN MCCASKILL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Argued and Submitted November 16, 2018
San Francisco, California
Before: SCHROEDER and WATFORD, Circuit Judges, and KORMAN,** District
Judge.
Dustin McCaskill appeals from his sentence imposed upon revocation of
supervised release. One of the violations supporting revocation was a
determination by the district court that McCaskill had committed an assault under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Page 2 of 3
Nevada Revised Statutes § 200.471, which requires “[i]ntentionally placing
another person in reasonable apprehension of immediate bodily harm.” Nev. Rev.
Stat. § 200.471(1)(a)(2). This finding increased McCaskill’s Sentencing
Guidelines range from 3–9 months to 4–10 months, and the district court imposed
a custodial sentence of 10 months, with no supervised release to follow.
The government did not submit evidence from which the “essential
elements” of Nevada assault could be found by a preponderance of the evidence.
United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010). The text of the statute
requires a showing that the victim reasonably apprehended “immediate bodily
harm.” Nev. Rev. Stat. § 200.471(1)(a)(2) (emphasis added). Nevada cases
confirm that “[m]ere menace is not enough.” Anstedt v. State, 509 P.2d 968, 969
(Nev. 1973); see, e.g., Rose v. State, 255 P.3d 291, 298 (Nev. 2011). Viewed in
the light most favorable to the government, the evidence in this case proves no
more than that McCaskill made harassing and threatening comments to his
probation officer over the phone and through email. On this record, it cannot be
said that the officer feared immediate bodily harm. In fact, the officer admitted he
did not face immediate bodily harm when he testified at the revocation hearing.
Because the government introduced insufficient evidence to support a
finding that McCaskill committed assault as defined in Nevada Revised Statutes
§ 200.471, the district court should have sentenced him under a Sentencing
Page 3 of 3
Guidelines range of 3–9 months. We vacate McCaskill’s sentence and remand for
resentencing under the correct Guidelines range. See United States v. Munoz-
Camarena, 631 F.3d 1028, 1030 & n.5 (9th Cir. 2011).
SENTENCE VACATED; REMANDED FOR RESENTENCING.
The mandate shall issue forthwith.