It is undisputed that §4B1.2(a)(2) (https://guidelines.ussc.gov/gl/%C2%A74B1.2) lists robbery as one of the possible predicated offenses, but the analysis does not end there. To determine whether a prior conviction qualifies as a crime of violence, the Court must use the categorical approach outlined in Taylor v. United States, 495 U.S. 575 (1990).
First, the Court needs to identify the elements of the statute of conviction and the federal definition of a “crime of violence.” Second, the Court needs to compare the two by asking if the statute of conviction “proscribes the same amount of or less conduct than that qualifying [under the applicable federal standard]; if so, the two offenses are a categorical match.” United States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017). If the statute of conviction sweeps more broadly than the generic crime and criminalizes more conduct than the federal standard covers, then a conviction under that law cannot categorically count as a qualifying predicate even if the defendant actually committed the offense in its generic form. United States v. Bankston, 901 F.3d 1100, 1102–03 (9th Cir. 2018) (citing United States v. Brown, 879 F.3d 1043 (9th Cir. 2018)).
California Penal Code § 211 defines robbery as “felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Fear is further defined as
- The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or,
- The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time f the robbery.
Cal. Penal Code § 212. (emphasis added).
This means that Section 211 encompasses mere threats to property, such as “‘Give me $10 or I’ll key your car’ or ‘Open the cash register or I’ll tag your windows.’” Bankston at 1103 (internal citation omitted). By contrast, generic federal robbery included in the definition of a crime of violence in U.S.S.G. §4B1.2(a)(2) did not extend to threats to property. Instead, it requires the use of “force or violence” at the level needed to overcome resistance, however slight. Stokeling v. United States, 139 S. Ct. 544, 551, 202 L. Ed. 2d 512 (2019). “California robbery is thus not a categorical match for generic federal robbery.” Bankston at 1103.
Full cases here:
Interpreting California Statute of Robbery PC 211: UNITED STATES V. BANKSTON, http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/23/16-10124.pdf
Interpreting Nevada Revised Statute of Robbery NRS 200.380: UNITED STATES V. EDLING, http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
Anton Vialtsin, Esq.
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