                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              AUG 23 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10206

              Plaintiff-Appellant,               D.C. No.
                                                 4:16-cr-00356-PJH-1
 v.

HOWARD EUGENE NICKLES III,                       MEMORANDUM*

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Phyllis J. Hamilton, Chief Judge, Presiding

                      Argued and Submitted March 13, 2018
                           San Francisco, California

Before: WALLACE, BERZON, and CALLAHAN, Circuit Judges.

      The government appeals the sentence imposed on defendant Howard

Nickles, III, for being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1).

The government maintains that Nickles’s prior robbery conviction, under

California Penal Code § 211, categorically constituted a “crime of violence” under



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the United States Sentencing Guidelines, see U.S.S.G. §§ 4B1.2(a), 2K2.1(a)

(2016), and that the district court erred in concluding otherwise.

      We affirm. Under 2016 amendments to the Sentencing Guidelines’

definition of a “crime of violence,” see U.S.S.G., Supp. Appx. C, Amend. 798

(Aug. 1, 2016), “Guidelines-defined extortion does not criminalize extortion

committed by threats to property.” United States v. Bankston, No. 16-10124, at 8.

Because California robbery does criminalize such threats, “California robbery is

not a ‘crime of violence.’” Id. at 4.

      The government’s textual, contextual, and legislative history arguments to

the contrary—that the Guidelines’ amended “crime of violence” definition still

encompasses threat-to-property extortion—are now entirely foreclosed by United

States v. Edling, 2018 WL 3387366 (9th Cir. June 8, 2018). Edling definitively

“interpret[ed] the new definition of extortion as excluding injury and threats of

injury to property.” Id. at *4 (internal quotation marks omitted).

      AFFIRMED.




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