UNITED STATES of America, Plaintiff-Appellant, v. Davion FITZGERALD, Defendant-Appellee., 935 F.3d 814

PER CURIAM: Davion Fitzgerald pleaded guilty to unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the government requested an enhancement under § 2K2.1(a)(4)(

A) of the 2016 Sentencing Guidelines, which provides for an increase to a base offense level of 20 if the defendant has a prior "felony conviction of ... a crime of violence." The government based its request on Fitzgerald's prior Nevada conviction for attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. §§ 200.481(2)(

b) and 193.330. The district court declined to apply the enhancement, concluding that Fitzgerald's Nevada conviction qualified neither as a "felony conviction" nor a "crime of violence." The government has appealed from the sentence imposed. We disagree with the district court on both counts, and therefore vacate Fitzgerald's sentence. I Fitzgerald first argues that his Nevada conviction is not a "felony conviction" because it is a "wobbler." That is, under state law, it may be treated as either a felony or a misdemeanor. See Nev. Rev. Stat. § 193.330(1)(a)(4) ; United States v.

Bridgeforth , 441 F.3d 864, 870 (9th Cir. 2006). The Sentencing Guidelines define a "felony conviction" as "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. § 2K2.1 cmt. n.1.

"Despite this clear admonition, our binding circuit precedent requires us, where wobblers are concerned, to ignore the maximum sentence allowed by statute and instead adopt the designation that [the State] gives to the offense." United States v. Johnson , 920 F.3d 628, 634 n.3 (9th Cir. 2019). Because "a state court's subsequent treatment of a wobbler is controlling," Bridgeforth , 441 F.3d at 872, we must examine how Fitzgerald was actually punished. Here, it is clear that the state court treated his conviction as a felony. Fitzgerald argues that our precedents on this point did not survive Moncrieffe v.

Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), but we recently rejected that very argument. See Johnson , 920 F.3d at 637-38. Fitzgerald's Nevada conviction therefore qualifies as a "felony conviction" for purposes of U.S.S.G. § 2K2.1. II Fitzgerald next contends that his Nevada conviction does not qualify as a "crime of violence." The commentary to § 2K2.1 defines "crime of violence" by cross-reference to § 4B1.2, which reads: (

a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that- (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(

a) or explosive material as defined in 18 U.S.C. § 841(c). U.S.S.G. § 4B1.2(a). The first of the numbered clauses is known as the "elements" clause, the second as the "enumerated offenses" clause. "We use the categorical approach to determine whether a state crime qualifies as a crime of violence for Guidelines purposes." United States v. Molinar , 881 F.3d 1064, 1067 (9th Cir. 2017). Because we conclude that Fitzgerald's conviction qualifies as a crime of violence under the elements clause, we do not address the enumerated offenses clause.

Under the elements clause, we ask whether the Nevada crime of attempted battery with substantial bodily harm "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). Because this language is identical to that interpreted by the Supreme Court in Johnson v. United States , 559 U.S. 133, 136, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), we apply Johnson 's definition of "physical force": "violent force-that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265 ; see Molinar , 881 F.3d at 1068 & n.3.

That threshold requires, at the very least, more than "a mere unwanted touching." Johnson , 559 U.S. at 142, 130 S.Ct. 1265. In Nevada, a person can commit simple battery with nothing more than an offensive touching. Nev. Rev. Stat. § 200.481(1)(a) ; Hobbs v. State , 127 Nev. 234, 251 P.3d 177, 179 (2011). But battery with substantial bodily harm, as the name suggests, requires that the battery result in "substantial bodily harm to the victim." Nev. Rev. Stat. § 200.481(2)(b).

And attempted battery with substantial bodily harm-Fitzgerald's crime of conviction-requires that the defendant act with the specific intent both to commit battery and to bring about substantial bodily harm. See Nev. Rev. Stat. § 193.330(1) ; Tanksley v. State , 113 Nev. 844, 944 P.2d 240, 243 (1997). Fitzgerald's offense, therefore, is defined by the bodily injury the defendant intends to produce, not by the actual level of force used. In United States v.

Castleman , 572 U.S. 157, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), the Supreme Court explicitly declined to decide "[w]hether or not the causation of bodily injury necessarily entails violent force." Id. at 167, 134 S.Ct. 1405. But our court has held that, in general, "in the context of assault statutes, bodily injury entails the use of violent, physical force." United States v. Calvillo-Palacios , 860 F.3d 1285, 1291 (9th Cir. 2017). Our rule is premised on a straightforward inference that it takes Johnson -level force to produce bodily injury. See id. at 1290.

However, as we acknowledged in Calvillo-Palacios , the validity of that inference depends on how a state defines "bodily injury" or, in this case, "substantial bodily harm." See id. at 1291-92. To take an extreme example, a state statute that defined bodily injury as merely "an offensive touching" would not require violent force under Johnson . 559 U.S. at 142, 130 S.Ct. 1265. Fitzgerald argues that we are dealing with such a statute in this case.

Nevada defines "substantial bodily harm" as either "(1) [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or (2) [p]rolonged physical pain." Nev. Rev. Stat. § 0.060. The government does not argue that the statute is divisible, and Fitzgerald does not contest that a conviction under the first definition would necessarily require the use of violent force. So only the second definition-"prolonged physical pain"-matters for our purposes. In Collins v.

State , 125 Nev. 60, 203 P.3d 90 (2009), the Supreme Court of Nevada considered the meaning of the phrase "prolonged physical pain." In sustaining the statute against a vagueness challenge, the court held that "[t]he term 'pain' has multiple meanings, ranging from mild discomfort or dull distress to acute often unbearable agony ... and cannot be defined further." Id. at 92 (internal quotation marks omitted). For pain to be "prolonged," the court stated, there must be "at least some physical suffering that lasts longer than the pain immediately resulting from the wrongful act." Id. at 93.

"In a battery," the court further explained, "the wrongdoer would not be liable for 'prolonged physical pain' for the touching itself," but "would be liable for any lasting physical pain resulting from the touching." Id. at 93 n.3. Fitzgerald argues that, because "substantial bodily harm" can mean only "mild discomfort" lasting "longer than the pain immediately resulting from the wrongful act," the inference that violent force is required to inflict such harm is not warranted. He points out that the Collins court used "touching the skin of a person who has suffered third degree burns" as an example of

an act that would cause "exquisite pain." Id. at 92 (citation omitted). Therefore, he argues, Nevada battery with substantial bodily harm can be committed with only a mere touch (and attempted with only an attempted touch), which Johnson teaches cannot count as violent force. 559 U.S. at 142, 130 S.Ct. 1265. Supreme Court precedent, however, "requires more than the application of legal imagination to a state statute's language." Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

Fitzgerald "must demonstrate a realistic probability, not a theoretical possibility, that Nevada would apply its statute to conduct that falls outside the definition of a crime of violence." United States v. Guizar-Rodriguez , 900 F.3d 1044, 1052 (9th Cir. 2018) (internal quotation marks omitted). Ordinarily, a defendant "must at least point to his own case or other cases in which the state courts in fact did apply the statute in the overbroad manner for which he argues." Id. at 1048 (internal quotation marks omitted).

Otherwise, the overbreadth of the state statute must be "evident from its text" or "evident from state court precedents interpreting that text." Id. at 1052 (internal quotation marks omitted). We do not think that Collins makes it "evident" that the statute sweeps as broadly as Fitzgerald contends. The decision neither holds nor states that substantial bodily harm can be caused by a mere touch (or by anything less than "violent force"). Although Collins uses a touch as an example of

an act that may cause pain, 203 P.3d at 92, it never says that the pain would count as "prolonged." Indeed, it clarifies that a batterer is not "liable for 'prolonged physical pain' for the touching itself," but only "for any lasting physical pain resulting from the touching." Id. at 93 n.3. These statements make the answer to the question we confront here-whether a defendant could realistically be convicted of attempted battery with substantial bodily harm without the attempted use of violent force-far from evident.

For Fitzgerald to prevail, he would have to show that a defendant could realistically be convicted of attempted battery with substantial bodily harm for trying, with the intent to cause lasting discomfort, merely to touch his victim (or use other nonviolent force). That odd hypothetical strikes us as an exercise of "legal imagination." Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815. When someone intends to inflict prolonged pain, even relatively minor pain, it is highly improbable that they would choose to do so through the use of nonviolent force, which could easily fail to accomplish their goal.

And for the same reason, it is equally improbable that Nevada prosecutors would be able to secure convictions for attempted battery with substantial bodily harm in cases in which the defendant tried to use only a touch or other nonviolent force.

Even if the possibility of such a conviction is not theoretically foreclosed by Collins , that decision does not make evident that such a conviction is a "realistic probability." Fitzgerald's argument therefore falls short. * * * We conclude that Fitzgerald's Nevada conviction for attempted battery with substantial bodily harm qualifies as a felony conviction for a crime of violence under U.S.S.G. § 2K2.1. We therefore vacate Fitzgerald's sentence and remand for resentencing consistent with this opinion. VACATED AND REMANDED.

Because "Nevada's definition of attempt is coextensive with the federal definition," United States v. Sarbia , 367 F.3d 1079, 1086 (9th Cir. 2004), there is no possibility that Nevada attempt sweeps more broadly than § 4B1.2's reference to "attempted use ... of physical force."