Published on: Monday, August 27, 2018

On August 23, 2018, in United States v. Bankston, No. 16-10124, in a government appeal, the Ninth Circuit applied the categorical approach to determine whether a California robbery conviction qualified as a crime of violence. In doing so, the court addressed the definition of crime of violence under USSG §4B1.2, both pre-and post-Amendment 798 to the guidelines. Amendment 798 became effective August 1, 2016.

Under both versions of the guideline, crime of violence included robbery and extortion. Under both versions of the guideline, robbery did not extend to threats to property. Prior to Amendment 798, the guidelines did not define extortion. As such, the Ninth Circuit held that the generic definition of extortion under the guidelines included threats to property. However, Amendment 798 substantially amended the definition of crime of violence. For the first time, the commentary included a definition of extortion which did not include threats to property; extortion was defined as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical violence, or (C) threat of physical force.”

The definition of California robbery includes threat to property. Prior to Amendment 798, the Ninth Circuit held that California robbery was a categorical match for generic robbery and generic extortion, taken together. Under Amendment 798, guidelines-defined extortion does not criminalize extortion committed by threats to property; California robbery does. As such, the Ninth Circuit in Bankston held that California robbery is no longer a categorical match to a combination of guidelines-defined robbery and extortion.

Although the court held that California robbery no longer qualifies as a crime of violence under §4B1.2, that holding was not applicable to the defendant. The defendant was convicted six months before the effective date of Amendment 798. The Ninth Circuit held that Amendment 798 was not retroactive. Thus, the defendant could not directly benefit from the amended definition of extortion. However, the court remanded to the district court for resentencing, stating that the district court could exercise its discretion to impose the same sentence on remand – the district court had found that the defendant’s robbery conviction was not a crime of violence based on a vagueness challenge, which was summarily rejected by the Ninth Circuit.

As a side note, the court also held that the California robbery statute is not divisible; thus, the modified categorical approach could not be applied.

The Training Division provides resources on the categorical approach, crimes of violence, violent felonies, and other challenges to enhanced sentences based on predicate offenses, here.