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United States v. Bankston

United States Court of Appeals, Ninth Circuit

August 23, 2018

United States of America, Plaintiff-Appellant,
v.
Deljuan Bankston, Defendant-Appellee.

          Argued and Submitted March 13, 2018 San Francisco, California

          Appeal from the United States District Court for the Northern District of California Susan Illston, Senior District Judge, Presiding D.C. No. 3:15-cr-00381-SI-1

          Merry Jean Chan (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellant.

          Grace R. DiLaura (argued) and Todd M. Borden, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellee.

          Before: J. Clifford Wallace, Marsha S. Berzon, and Consuelo M. Callahan, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         On a government appeal in which the panel reevaluated whether California robbery constitutes a "crime of violence" under the Sentencing Guidelines, the panel vacated a sentence for being a felon in possession of a firearm, and remanded for resentencing.

         The panel held that under Sentencing Guidelines Amendment 798 (effective August 1, 2016), robbery under California Penal Code § 211 is not a "crime of violence" because it is no longer a categorical match to a combination of Guidelines-described robbery and extortion, and the holding to the contrary in United States v. Becceril-Lopez, 541 F.3d 881 (9th Cir. 2008), no longer controls.

         The panel held that Amendment 798's alteration of the definition of extortion in the Guidelines' "crime of violence" section is not retroactive. The panel wrote that because the defendant was sentenced before the amendment's effective date, the pre-amendment generic extortion definition applies, and the fact that California robbery is no longer a "crime of violence" is not here applicable.

         The panel rejected the defendant's contention that even under the pre-amendment Sentencing Guidelines, his sentencing was improper because those Guidelines were inappropriately-even if not unconstitutionally-vague. The panel explained that absent vagueness rising to the level of a constitutional violation, there is no rule of law that would allow this court to strike down a Guidelines section because it is ambiguous. The panel concluded that the defendant's prior California robbery convictions should have been considered "crimes of violence" under the Guidelines, and that the district court erred in holding to the contrary.

         The panel rejected the defendant's argument that, on remand, the district court would be required to apply the not-retroactive, narrower definition of extortion adopted in Amendment 798. The panel could not say with certainty that the district court's sentencing error was harmless, and remanded for resentencing under the 2015 Guidelines in effect on the date the defendant was previously sentenced.

          OPINION

          BERZON, CIRCUIT JUDGE.

         In this case, we reevaluate whether California robbery constitutes a "crime of violence" under the United States Sentencing Guidelines. We hold that, under Amendment 798 to the Sentencing Guidelines, California robbery is not a "crime of violence." But that holding does not help defendant Deljuan Bankston. Bankston was sentenced six months before the effective date of Amendment 798-and, as we now hold, the portion of that amendment applicable here is not retroactive. Bankston's efforts to avoid the consequences of that lack of retroactivity are valiant but unpersuasive.

         I.

         In 2015, Deljuan Bankston pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Bankston had two prior convictions for California robbery under California Penal Code § 211. The presentence report suggested that both robbery convictions constituted "crimes of violence" under the 2015 United States Sentencing Guidelines. See U.S.S.G. §§ 4B1.2, 2K2.1 (2015). Bankston objected, arguing that the Guidelines' "crime of violence" section was void for vagueness.

         The district court, agreeing with Bankston, held that the section was unconstitutionally vague. In February 2016, the district court sentenced Bankston to 33 months' imprisonment, the high end of the range she had calculated under the 2015 Guidelines, followed by three years of supervised release. The government timely appealed.

          II.

         We first consider Bankston's argument that amendments to the Sentencing Guidelines, made after Bankston was sentenced, render unnecessary a review of the district court's reasoning.

         A.

         The United States Sentencing Guidelines increase the recommended sentence for a defendant convicted of certain crimes, including the crime of being a felon in possession of a firearm, if that defendant has previously been convicted of a "crime of ...


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