                                                                            FILED
                               NOT FOR PUBLICATION                           SEP 07 2017
                                                                         MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                )      No. 15-50463
                                         )
      Plaintiff-Appellee,                )      D.C. No. 2:10-cr-00397-DMG-1
                                         )
      v.                                 )      MEMORANDUM*
                                         )
TONY BIDDLES,                            )
                                         )
      Defendant-Appellant.               )
                                         )

                      Appeal from the United States District Court
                         for the Central District of California
                        Dolly M. Gee, District Judge, Presiding

                           Argued and Submitted July 13, 2017
                                  Pasadena, California

Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.

      Tony Biddles appeals his sentence for violating his terms of supervised

release by committing kidnapping1 and robbery2 in the State of California. We

affirm in part and vacate and remand in part.

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1
          Cal. Penal Code § 207(a).
      2
          Id. § 211 (hereafter § 211).
      (1)    The district court determined that Biddles’ § 211 conviction was a

crime of violence and was therefore a Grade A violation under the United States

Sentencing Commission’s policy statement for supervised release violations,1 and

the Commentary thereto.2 We agree.

      Biddles first asserts that § 211 is not a crime of violence because a violation

of that section is not categorically a crime of violence as defined in USSG

§4B1.2(a) and its Commentary. However, we have already specifically determined

that a violation of § 211 is categorically3 a crime of violence because any

conviction under that section is either generic robbery or generic extortion.4

      Biddles attempts to avoid the force of our existing case law in a number of

ways, none of which is persuasive: (a) he first suggests that we should now ignore




      1
        USSG §7B1.1(a)(1)(A)(i), p.s. Unless otherwise indicated, all references
are to the November 1, 2014, version of the Guidelines.
      2
      Id. at comment. (n.2). That application note refers to USSG §4B1.2(a) and
the Commentary thereto. Id.
      3
       See Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160, 109
L. Ed. 2d 607 (1990); see also Descamps v. United States, __ U.S. __, __, 133 S.
Ct. 2276, 2283–85, 186 L. Ed. 2d 438 (2013).
      4
       See United States v. Becerril-Lopez, 541 F.3d 881, 890–93 (9th Cir. 2008);
see also United States v. Chavez-Cuevas, 862 F. 3d 729, 740 (9th Cir. 2017);
United States v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009) (per curiam).

                                          2
the Commentary,5 but there is no inconsistency between the Commentary and the

Guideline itself;6 (b) he then argues that § 211 is not categorically a crime of

robbery7 or categorically a crime of extortion,8 but that matters not because it does

not speak to the underlying basis of our decisions, which declared that it was

categorically one or the other;9 (c) he goes on to argue that our case law misapplied

the modified categorical test approach,10 but it did no such thing because it applied

the categorical test only;11 and (d) as a final argument he asserts that a later

amendment to the Guideline,12 which narrowed the definition of extortion, should



      5
          USSG §4B1.2, comment. (n.1).
      6
       See Stinson v. United States, 508 U.S. 36, 38, 45, 113 S. Ct. 1913, 1915,
1919, 123 L. Ed. 2d 598 (1993); United States v. Bernardo, 818 F.3d 983, 985 (9th
Cir. 2016). We note also that the Guideline and its Commentary are not subject to
vagueness challenges under the Due Process Clause. See Beckles v. United States,
__ U.S. __, __, 137 S. Ct. 886, 890, 197 L. Ed. 2d 145 (2017).
      7
          See Becerril-Lopez, 541 F.3d at 891.
      8
          See United States v. Dixon, 805 F.3d 1193, 1196–97 (9th Cir. 2015).
      9
       We have decided that it necessarily was either robbery or extortion, and
Dixon, id. at 1196–97, does not speak to that point.
      10
           See Descamps, __ U.S. at __, 133 S. Ct. at 2283–85.
      11
           See Becerril-Lopez, 541 F.3d at 893 n.10.
      12
       See USSG Supp. App. C, amend. 798, at 131 (Nov. 1, 2016); USSG
§4B1.2, comment. (n.1) (2016).

                                            3
be applied retroactively because it was merely clarifying,13 but the amendment was

substantive in character. The Guideline Commission did not dub it retroactive, did

not say it was a clarification, and did not resolve a circuit conflict,14 but simply

chose to focus on a subset of extortioners by narrowing the long-standing

definition of extortion15 for Guideline purposes.

      (2)      Biddles next argues that the district court procedurally erred16 because

it did not sufficiently explain17 its decision to depart downward from the

sentencing range for Grade A level violations—twenty-four to thirty months18—to

a fifteen-month sentence. If his crime were not a crime of violence, he would have

been in the Grade B category and his sentencing range would have been four to ten




      13
           See United States v. Johns, 5 F.3d 1267, 1269–70 (9th Cir. 1993).
      14
           See United States v. Morgan, 376 F.3d 1002, 1010–11 (9th Cir. 2004).
      15
        See Becerril-Lopez, 541 F.3d at 891–92; see also Scheidler v. Nat’l Org.
for Women, Inc., 537 U.S. 393, 409–10, 123 S. Ct. 1057, 1068, 154 L. Ed. 2d 991
(2003); United States v. Nardello, 393 U.S. 286, 295–96, 89 S. Ct. 534, 539, 21 L.
Ed. 2d 487 (1969).
      16
        See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc);
see also United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir.
2010).
      17
           See Carty, 520 F.3d at 993.
      18
           USSG §7B1.4(a), p.s. (Grade A(2)).

                                            4
months.19 Despite the fact that the district court did vary downward, Biddles

asserts that it should have explained why it did not vary still further downward, a

kind of substantive reasonableness argument. See United States v. Lloyd, 807 F.3d

1128, 1145–46 (9th Cir. 2015). We disagree. The district court carefully

explained its reason for the sentence it imposed. The district court’s explanation

was sufficient “to permit meaningful appellate review.” Carty, 520 F.3d at 992.

The court stated that Biddles’ characteristics, including his disrespect of the law,

his inability to adhere to the terms of his supervised release, the need to deter him

from further criminal conduct, and the need to protect the public from further

depredations were the reasons that the fifteen-month sentence was necessary. The

district court did not err.

       (3)      Biddles finally objects to the drug testing and treatment conditions in

the new supervised release sentence which is to follow his term of imprisonment.

But drug testing is an essentially mandatory term of supervised release. See 18

U.S.C. § 3583(d); see also United States v. Carter, 159 F.3d 397, 399 (9th Cir.

1998). Of course, the district court had the discretion to suspend the condition, if it




       19
            Id. (Grade B).

                                             5
saw “a low risk of future substance abuse,”20 but given Biddles’ past history and

his relatively rapid relapse into criminal activity, we see no error in the district

court’s declining to do so here.

         However, while there is some basis for ordering Biddles’ participation in a

drug treatment program,21 there is no evidence that he had actually been using

drugs during the past seventeen or eighteen years,22 and the government has

waived that issue by failing to address it in its briefing before us.23 We, therefore,

vacate that condition of supervised release and remand with instructions that the

condition be stricken from the judgment.

         AFFIRMED in part, and VACATED and REMANDED in part.




         20
       18 U.S.C. §§ 3563(a)(5), 3583(d); see also United States v. Jeremiah, 493
F.3d 1042, 1047 (9th Cir. 2007).
         21
              Cf. Carter, 159 F.3d at 401.
         22
              Cf. United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003).
         23
              See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en
banc).

                                               6
                                                                              FILED
United States v. Biddles, No. 15-50463
                                                                                SEP 07 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


REINHARDT, Circuit Judge, dubitante in part and concurring in part:

      I have serious doubts as to the validity of the Commission’s inclusion of

robbery in the definition of crime of violence by means of the Commentary when

the only possible basis for its doing so appears to have been its reliance on a clause

in the Guideline that it itself has now removed, apparently because it cannot

properly serve as the basis for such an interpretation.

      This case asks us to decide, for the first time, whether the inclusion of

robbery in the Commentary is binding.1 Commentary is binding only if it interprets

or explains the text of the relevant Guideline. United States v. Stinson, 508 U.S. 36

(1993). I believe a strong argument can be made that under Johnson v. United

States, 135 S. Ct. 2551 (2015), the Commentary cannot be treated as an

interpretation of the residual clause in the Guideline, an argument that does not

depend on the Due Process Clause and is therefore unaffected by Beckles v. United

States, 137 S. Ct. 886 (2017). Since there is no other language in the text of the

Guideline that the Commentary could be interpreting, this would mean that Cal.



      1
        We have previously treated it as though it was binding, see United States v.
Harris, 572 F.3d 1065 (9th Cir. 2009) (per curiam), but the question has never
actually been presented to us.
Penal Code § 211 is overbroad and not a crime of violence under the Guideline.

      Accordingly, while I concur in all other respects in the memorandum

disposition, I am in doubt as to the correctness of Section (1).




                                           2
