United States v. Steven Wesley, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2019
• Docket: 17-10147
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10147

Plaintiff-Appellee, D.C. No. 3:16-cr-00024-LRH

v. MEMORANDUM* STEVEN ROBERT WESLEY, Jr.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Steven Robert Wesley, Jr., appeals from the district court’s judgment and

challenges the 130-month sentence imposed following his guilty-plea conviction

for bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction under

28 U.S.C. § 1291, and we vacate and remand for resentencing.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Wesley contends that the district court erred by sentencing him as a career

offender because neither the instant offense of bank robbery, nor his prior

convictions for California robbery in violation of California Penal Code § 211, are

crimes of violence under U.S.S.G. §§ 4B1.1 and 4B1.2 (2016). We review these

claims de novo. See United States v. Simmons, 782 F.3d 510, 513 (9th Cir. 2015).

Wesley’s contention that bank robbery is not a crime of violence is

foreclosed. See United States v. Watson, 881 F.3d 782, 786 (9th Cir.), cert. denied,

139 S. Ct. 203 (2018). Wesley is correct, however, that under Amendment 798 to

the Sentencing Guidelines, which became effective before Wesley was sentenced,

California robbery is not a crime of violence. See United States v. Bankston, 901

F.3d 1100, 1104 (9th Cir. 2018) (California robbery is not a categorical match to a

combination of robbery and extortion because the amended definition of extortion

“does not criminalize extortion committed by threats to property; California

robbery does.”). We, therefore, vacate and remand for resentencing. On remand,

the district court shall only assess three criminal history points for Wesley’s 2015

California robberies because they no longer qualify as crimes of violence. See

U.S.S.G. § 4A1.1(e). In addition, unless the government is able to show that

Wesley has two other prior convictions for crimes of violence,1 the district court

1 Because the issue is not before us, we express no opinion as to whether any of Wesley’s prior convictions for offenses other than California robbery are crimes of violence under the Guidelines.

2 17-10147 shall not apply the career offender enhancement to Wesley’s base offense level or

criminal history category.

VACATED AND REMANDED for resentencing.

3 17-10147