and Submitted March 13, 2018 San Francisco, California
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
Jean Chan (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; United States
Attorney's Office, San Francisco, California; for
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.
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.
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
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
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.
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.
BERZON, CIRCUIT JUDGE.
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.
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.
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.
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
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 ...