                    PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 16-10124
            Plaintiff-Appellant,
                                           D.C. No.
               v.                     3:15-cr-00381-SI-1

DELJUAN BANKSTON,
           Defendant-Appellee.            OPINION


     Appeal from the United States District Court
        for the Northern District of California
     Susan Illston, Senior District Judge, Presiding

        Argued and Submitted March 13, 2018
              San Francisco, California

                 Filed August 23, 2018

    Before: J. Clifford Wallace, Marsha S. Berzon,
      and Consuelo M. Callahan, Circuit Judges.

               Opinion by Judge Berzon
2                 UNITED STATES V. BANKSTON

                            SUMMARY*


                           Criminal Law

    On a government appeal in which the panel reevaluated
whether California robbery constitutes a “crime of violence”
under the Sentencing Guidelines, the panel vacated a sentence
for being a felon in possession of a firearm, and remanded for
resentencing.

   The panel held that under Sentencing Guidelines
Amendment 798 (effective August 1, 2016), robbery under
California Penal Code § 211 is not a “crime of violence”
because it is no longer a categorical match to a combination
of Guidelines-described robbery and extortion, and the
holding to the contrary in United States v. Becceril-Lopez,
541 F.3d 881 (9th Cir. 2008), no longer controls.

    The panel held that Amendment 798’s alteration of the
definition of extortion in the Guidelines’ “crime of violence”
section is not retroactive. The panel wrote that because the
defendant was sentenced before the amendment’s effective
date, the pre-amendment generic extortion definition applies,
and the fact that California robbery is no longer a “crime of
violence” is not here applicable.

    The panel rejected the defendant’s contention that even
under the pre-amendment Sentencing Guidelines, his
sentencing was improper because those Guidelines were
inappropriately—even if not unconstitutionally—vague. The

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. BANKSTON                    3

panel explained that absent vagueness rising to the level of a
constitutional violation, there is no rule of law that would
allow this court to strike down a Guidelines section because
it is ambiguous. The panel concluded that the defendant’s
prior California robbery convictions should have been
considered “crimes of violence” under the Guidelines, and
that the district court erred in holding to the contrary.

    The panel rejected the defendant’s argument that, on
remand, the district court would be required to apply the not-
retroactive, narrower definition of extortion adopted in
Amendment 798. The panel could not say with certainty that
the district court’s sentencing error was harmless, and
remanded for resentencing under the 2015 Guidelines in
effect on the date the defendant was previously sentenced.


                        COUNSEL

Merry Jean Chan (argued), Assistant United States Attorney;
J. Douglas Wilson, Chief, Appellate Division; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellant.

Grace R. DiLaura (argued) and Todd M. Borden, Assistant
Federal Public Defenders; Steven G. Kalar, Federal Public
Defender; Office of the Federal Public Defender, San
Francisco, California; for Defendant-Appellee.
4              UNITED STATES V. BANKSTON

                        OPINION

BERZON, Circuit Judge:

    In this case, we reevaluate whether California robbery
constitutes a “crime of violence” under the United States
Sentencing Guidelines. We hold that, under Amendment 798
to the Sentencing Guidelines, California robbery is not a
“crime of violence.” But that holding does not help
defendant Deljuan Bankston. Bankston was sentenced six
months before the effective date of Amendment 798—and, as
we now hold, the portion of that amendment applicable here
is not retroactive.     Bankston’s efforts to avoid the
consequences of that lack of retroactivity are valiant but
unpersuasive.

                             I.

    In 2015, Deljuan Bankston pleaded guilty to being a felon
in possession of a firearm. See 18 U.S.C. § 922(g)(1).
Bankston had two prior convictions for California robbery
under California Penal Code § 211. The presentence report
suggested that both robbery convictions constituted “crimes
of violence” under the 2015 United States Sentencing
Guidelines. See U.S.S.G. §§ 4B1.2, 2K2.1 (2015). Bankston
objected, arguing that the Guidelines’ “crime of violence”
section was void for vagueness.

    The district court, agreeing with Bankston, held that the
section was unconstitutionally vague. In February 2016, the
district court sentenced Bankston to 33 months’
imprisonment, the high end of the range she had calculated
under the 2015 Guidelines, followed by three years of
supervised release. The government timely appealed.
                   UNITED STATES V. BANKSTON                               5

                                    II.

    We first consider Bankston’s argument that amendments
to the Sentencing Guidelines, made after Bankston was
sentenced, render unnecessary a review of the district court’s
reasoning.

                                    A.

     The United States Sentencing Guidelines increase the
recommended sentence for a defendant convicted of certain
crimes, including the crime of being a felon in possession of
a firearm, if that defendant has previously been convicted of
a “crime of violence.” U.S.S.G. §§ 2K2.1(a)(1)–(a)(4), 4B1.2
(2016).1

    “To determine whether a prior conviction qualifies as a
crime of violence, we use the categorical approach set forth
in Taylor v. United States, 495 U.S. 575 (1990).” United
States v. Acevedo-de la Cruz, 844 F.3d 1147, 1149–50 (9th
Cir. 2017). In applying the categorical approach to the
“crime of violence” Guideline enhancement, we first identify
the elements of the statute of conviction and the federal
definition of a “crime of violence.” Id. at 1150. We then
compare the two by asking if the statute of conviction
“proscribes the same amount of or less conduct than that

    1
       The current version of the Guidelines states: “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 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 . . . or explosive material . . . .”
U.S.S.G. § 4B1.2(a) (2016).
6                  UNITED STATES V. BANKSTON

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) (en
banc) (internal quotation marks omitted). “But if the statute
of conviction sweeps more broadly than the generic
crime,”—i.e., if the statute criminalizes more conduct than
the federal standard covers—“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. Brown, 879 F.3d 1043, 1047 (9th Cir.
2018) (internal quotation marks and brackets omitted).2

    Here, Bankston’s state statute of conviction was
California’s robbery statute, California Penal Code § 211.
Section 211 defines robbery as “the 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.” Cal. Penal Code
§ 211. “[F]ear . . . may be either:” (1) “[t]he 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

    2
       If the statute of conviction is not categorically a “crime of violence,”
we ask a follow-up question: Is the statute divisible, i.e., does it “set[] out
one or more elements of the offense in the alternative”? Martinez-Lopez,
864 F.3d at 1038 (quoting Descamps v. United States, 570 U.S. 254, 257
(2013)). “If ‘a defendant was convicted of violating a divisible statute,’
a court may employ the modified categorical approach, for which it must
‘identify, from among several alternatives, the crime of conviction so that
the court may compare it to the generic offense.’” Brown, 879 F.3d at
1047 n.1 (quoting Descamps, 570 U.S. at 263–64). We need not pursue
this line of inquiry as to a California robbery conviction under California
Penal Code § 211. Because “[t]he disjunctively worded phrases in the
statute and [its] jury instructions are alternative means, not alternative
elements,” section 211 “is not divisible.” United States v. Dixon, 805 F.3d
1193, 1198 (9th Cir. 2015).
               UNITED STATES V. BANKSTON                     7

(2) “[t]he fear of an immediate and unlawful injury to the
person or property of anyone in the company of the person
robbed at the time of the robbery.” Cal. Penal Code § 212.
So, among other things, “[s]ection 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.’” United
States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008).

    By contrast, generic federal robbery, included in the
definition of a “crime of violence,” U.S.S.G. § 4B1.2(a)(2)
(2016); accord U.S.S.G. § 4B1.2 cmt. n.1 (2015), does not
extend to threats to property, Becerril-Lopez, 541 F.3d at 891.
California robbery is thus not a categorical match for generic
federal robbery.

    But that’s not the end of the story. Under the Sentencing
Guidelines, “crimes of violence” can be robbery or extortion
(among other crimes not here relevant).              U.S.S.G.
§ 4B1.2(a)(2) (2016); see also U.S.S.G. § 4B1.2 cmt. n.1
(2015). In Becerril-Lopez, we adopted a generic definition of
extortion. We noted that, “[u]nlike robbery, the threats that
can constitute extortion under the modern statutes include
threats to harm property and to cause other unlawful injuries.”
Becerril-Lopez, 541 F.3d at 891, 892. Given this property-
threat-inclusive definition of generic extortion, Becerril-
Lopez reasoned, California robbery was a categorical match
for generic robbery and generic extortion, taken together. Id.
at 891–93.

    But the Guidelines have changed. As we explained in
United States v. Edling, 895 F.3d 1153 (9th Cir. 2018),
Becerril-Lopez’s definition of generic extortion—which
includes the threats to property—is no longer controlling as
to “crimes of violence.” Id. at 1157. Here’s why: The United
8               UNITED STATES V. BANKSTON

States Sentencing Commission substantially amended the
Guidelines’ “crime of violence” section effective August 1,
2016, in Amendment 798. U.S.S.G., Supp. Appx. C, Amend.
798 (Aug. 1, 2016). The comments to the amended version
provided for the first time a specific definition of extortion.
See id. at 131. Under Amendment 798, “‘Extortion’ is
obtaining something of value from another by the wrongful
use of (A) force, (B) fear of physical injury, or (C) threat of
physical injury.” U.S.S.G. § 4B1.2 cmt. n.1 (2016); U.S.S.G.
Supp. Appx. C, Amend. 798 (Aug. 1, 2016).

    We recently considered whether Amendment 798’s
extortion definition affects the reach of the “crime of
violence” Guideline as applied to a state robbery statute and
concluded that it can. In light of its text, context, and the rule
of lenity, Edling held, “the Guidelines’ new definition of
extortion narrows the offense by requiring that the wrongful
use of force, fear, or threats be directed against the person of
another, not property.” Edling, 895 F.3d at 1157. Therefore,
Nevada robbery, which can “rest on fear of injury to property
alone,” does not any longer categorically match a
combination of Guidelines-defined extortion and generic
federal robbery. Id.

    So here. Under Amendment 798, Guidelines-defined
extortion does not criminalize extortion committed by threats
to property; California robbery does. California robbery is
thus no longer a categorical match to a combination of
Guidelines-described robbery and extortion, and Becerril-
Lopez’s holding to the contrary no longer controls.
               UNITED STATES V. BANKSTON                   9

                             B.

   But that conclusion does not mean that Bankston prevails.
Bankston’s sentence was imposed about six months before
Amendment 798’s effective date. Our question, then, is
whether the Amendment applies retroactively. It does not.

    “When an amendment to the Guidelines clarifies, rather
than alters, existing law, we use the amendment to interpret
the Guidelines provision retroactively.” United States v.
Catalan, 701 F.3d 331, 333 (9th Cir. 2012); see U.S.S.G.
§ 1B1.11(b)(2). As other courts have explained, “A
clarifying amendment changes nothing concerning the legal
effect of the guidelines, but merely clarifies what the
Commission deems the guidelines to have already meant.”
United States v. Goines, 357 F.3d 469, 474 (4th Cir. 2004)
(internal quotation marks and citation omitted); accord
United States v. Smaw, 22 F.3d 330, 333 (D.C. Cir. 1994).

    “[I]t may not always be easy to determine whether an
amendment clarifies or changes a guideline.” United States
v. Morgan, 376 F.3d 1002, 1011 (9th Cir. 2004) (internal
quotation marks and citation omitted). “Among the factors
that guide our inquiry, three figure most prominently:
(1) whether the amendment is included on the list of
retroactive amendments found in U.S.S.G. § 1B1.10(c);
(2) whether the Commission itself characterized the
amendment as a clarification; and (3) whether the amendment
resolves a circuit conflict.” Id. at 1010–11. “[T]he second
and third factors examine whether the Commission meant to
clarify existing law, not whether . . . the Commission made a
substantive change in order to create a new law that is now
clearer on its face and in application.” United States v.
Adkins, 883 F.3d 1207, 1212 (9th Cir. 2018).
10             UNITED STATES V. BANKSTON

    As both parties agree, the first and third factors are not
here met. We have already observed that the Commission did
not include Amendment 798 on its list of retroactive
amendments. Id. And, as in Adkins, the Commission did not
here explain its change to the “crime of violence” extortion
definition as one “resolving a circuit split,” id.; there was no
split to resolve.

     As to the remaining factor—whether the Commission
characterized the extortion amendment as a clarification—the
Commission did not use such language. Instead, the
Commission noted, “While most offenses on the enumerated
list under § 4B1.2(a)(2) remain the same, the amendment
does revise the list in a number of ways to focus on the most
dangerous repeat offenders.” U.S.S.G., Supp. Appx. C,
Amend. 798, at 129 (Aug. 1, 2016) (emphasis added). This
language is best interpreted to mean that the addition of a
definition of extortion in the commentary was one such
“revis[ion],” id., rather than a clarification.

    Our interpretation finds additional support in the
Commission’s specific comments as to the new extortion
definition. The Commission explained that it intended to
“narrow[] the generic definition of extortion,” as established
in “case law existing at the time of this amendment,” “by
limiting the offense.” Id. at 131. There is no indication that
the Commission believed the “case law existing at the time of
th[e] amendment” had strayed from the original intent of the
Guidelines. Id. Rather, the definition represented a new
“narrow[ing]” and “limiting” of the definition of a “crime of
violence,” which neither the Commission nor the courts had
previously adopted. Id. The Commission’s language thus
reflects a substantive change to the extortion definition, not
a clarifying one.
               UNITED STATES V. BANKSTON                   11

    The amendment was, to be sure, to the Guidelines’
commentary rather than to the text itself. We have not before
considered the location of an amendment within the
Guidelines’ structure when determining its retroactivity.
Several other courts have, holding an amendment’s location
in the commentary to be “some indication” an amendment is
clarifying, United States v. Huff, 370 F.3d 454, 466 (5th Cir.
2004), particularly when the amendment “merely
supplement[s] commentary carried over from an earlier
version of the Guidelines,” rather than “contradict[ing] or
alter[ing] preexisting commentary,” United States v.
Jerchower, 631 F.3d 1181, 1185 (11th Cir. 2011).

    But no court has found the location of an amendment an
independently determinative reason to categorize an
amendment as clarifying. For example, in the Fourth Circuit,
“whether the amendment changes a guideline’s commentary
or its actual text is relevant though not conclusive;
amendments to the commentary on a guideline may be
substantive, and amendments to the text of a guideline may
be merely clarifying.” United States v. Butner, 277 F.3d 481,
489 (4th Cir. 2002) (citation omitted).

    We agree that, at most, the inclusion of new language in
Guidelines commentary rather than in the text of a Guideline
can be some indication that clarification rather than
substantive change was intended. But whether it is such an
indication still depends principally on the language, impact,
and history of the change. Here, there is no indication other
than the location in commentary that suggests that
Amendment 798’s change to the definition of extortion is
clarifying, and there are several reasons to believe it was
substantive. Under these circumstances, the extortion
12                UNITED STATES V. BANKSTON

definition’s location in the commentary is an insufficient
basis to conclude that the change is clarifying.

    We hold that Amendment 798’s alteration of the
definition of extortion in the Guidelines’ “crime of violence”
section is not retroactive.3 Because Bankston was sentenced
before August 1, 2016, the pre-amendment generic extortion
definition applies, and the fact that California robbery is no
longer a “crime of violence” is not here applicable.

                                  III.

    Bankston maintains that, even under the pre-amendment
Sentencing Guidelines, his sentencing was improper because
those Guidelines were inappropriately—even if not
unconstitutionally—vague. We do not agree.

     In 2015, the Guidelines provided that:

         (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,4 or



     3
     As in Adkins, we do not consider the retroactivity of other portions
of Amendment 798. See Adkins, 883 F.3d at 1212–13.
    4
      This clause is known as the “force clause” (or, alternatively, the
“elements clause”).
                 UNITED STATES V. BANKSTON                           13

         (2) is burglary of a dwelling, arson, or
         extortion, involves use of explosives,5 or
         otherwise involves conduct that presents a
         serious potential risk of physical injury to
         another.6

U.S.S.G. § 4B1.2 (2015). The commentary to that section
explained that the term “‘Crime of violence’ includes . . .
robbery [and] . . . extortion,” among other crimes. U.S.S.G.
§ 4B1.2 cmt. n.1 (2015).

    As we have already noted, under this pre-August 2016
version of the definition of a “crime of violence,” we
repeatedly held that “a conviction under California Penal
Code § 211—which necessarily involves either generic
robbery or generic extortion—was categorically a ‘crime of
violence’ for purposes of the career offender provision.”
United States v. Barragan, 871 F.3d 689, 714 (9th Cir. 2017);
accord United States v. Chavez-Cuevas, 862 F.3d 729,
736–40 (9th Cir. 2017); United States v. Flores-Mejia,
687 F.3d 1213, 1214–16 (9th Cir. 2012); Becerril-Lopez,
541 F.3d at 891–93.

    The district court here acknowledged this line of cases.
But it reasoned that the three clauses in the “crime of
violence” definition could no longer reach California robbery,
because: (1) California robbery was not a categorical match
for the force clause, see Dixon, 805 F.3d at 1197–98; (2) the


    5
     This clause, the first half of section 4B1.2(a)(2), is known as the
“enumeration clause.”
   6
     This clause, the second half of section of section 4B1.2(a)(2), is
known as the “residual clause.”
14              UNITED STATES V. BANKSTON

enumeration clause did not list robbery; and (3) no crime,
California robbery included, could categorically match the
residual clause, as that clause was as unconstitutionally vague
as the identical language in the Armed Career Criminal Act
struck down in Johnson v. United States, 135 S. Ct. 2551
(2015). Because the Guidelines “crime of violence” language
itself could not reach California robbery, the district court
reasoned, the commentary interpreting that Guideline as
specifically reaching extortion and robbery could not be used
to do so.

    But the Supreme Court thereafter broke a link in the
district court’s logical chain. After the district court issued its
decision, the Supreme Court held that the Sentencing
Guidelines “are not subject to vagueness challenges under the
Due Process clause.” Beckles v. United States, 137 S. Ct.
886, 890 (2017). Because the Guidelines’ residual clause
“was still in place at the time the district court sentenced
[Bankston] and survived constitutional challenge in Beckles,”
Adkins, 883 F.3d at 1213, California robbery could still be
properly considered a “crime of violence” under the residual
clause and the commentary interpreting it.

   Bankston acknowledges that the district court’s logic is no
longer valid. But he maintains that, even though the
Guidelines’ “crime of violence” section may not be
challenged on constitutional vagueness grounds, “it is still so
unclear that it cannot be accurately interpreted.”

    The problem with the position is apparent: Absent
vagueness rising to the level of a constitutional violation,
there is no rule of law that would allow us to strike down a
Guidelines section because it is ambiguous.
                 UNITED STATES V. BANKSTON                           15

    Moreover, the commentary to the applicable “crime of
violence” section clearly identified both generic robbery and
generic extortion as “crimes of violence” under the residual
clause. See U.S.S.G. § 4B1.2 cmt. n.1 (2015). We heretofore
have had no problem “accurately interpret[ing]” the
relationship of those two generic crimes and California
robbery.7

    We therefore hold that Bankston’s prior California
robbery convictions should have been considered “crimes of
violence” under the Guidelines, and that the district court
erred in holding to the contrary.

                                 IV.

    “A mistake in calculating the recommended Guidelines
sentencing range is a significant procedural error that requires
us to remand for resentencing.” United States v. Maria-
Acosta, 780 F.3d 1244, 1256 (9th Cir. 2015) (quoting United
States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir.
2011) (per curiam)). With that general principle in mind, we
consider Bankston’s two independent arguments that the
district court’s Guidelines calculation error was harmless.

    First, Bankston suggests that, on remand, the district court
would be required to apply the not-retroactive, narrower
definition of extortion adopted in Amendment 798. He is
incorrect.


    7
      In fact, we have already rejected a similarly “misplaced” argument
“focus[ed] on the inscrutability of § 4B1.2(a)(2),” when holding an
attempted first degree murder conviction under Washington law a “crime
of violence.” United States v. Studhorse, 883 F.3d 1198, 1207 (9th Cir.
2018).
16              UNITED STATES V. BANKSTON

    Under 18 U.S.C. § 3742(g), “A district court to which a
case is remanded . . . shall resentence a defendant” by
“apply[ing] the guidelines issued by the Sentencing
Commission . . . that were in effect on the date of the
previous sentencing of the defendant prior to the appeal.”
Prior to Bankston’s appeal, he was sentenced under the
Guidelines then in effect—the 2015 Guidelines—so, on
remand, he will be resentenced under those same 2015
Guidelines. The Guidelines’ initial sentencing mandate, that
“[t]he court shall use the Guidelines Manual in effect on the
date that the defendant is sentenced,” is not inconsistent with
the separate statutory mandate as to defendants who are
resentenced. U.S.S.G. § 1B.11 (2015).

     Second, Bankston maintains that “the sentencing record
in this case makes it clear that the district court would impose
the same sentence upon any remand.” “[W]e do not agree
that it is so certain that the district court would have imposed
the same sentence.” Brown, 879 F.3d at 1051.

    It is entirely possible that the district court could exercise
its discretion to impose the same sentence on remand—
particularly in light of Bankston’s ability to argue for the
same sentence based on the later-enacted, more narrow
definition of extortion, as well as the fact that Bankston has
already been released from prison and is on supervised
release. And the district court already found that the sentence
imposed was “the appropriate sentence for this defendant
under these circumstances,” including the circumstances of
Bankston’s lack of relationship with his parents, who were
addicted to drugs; his exposure to violence in his
neighborhood at a young age; the effect his grandmother’s
death had on him after he cared for her as a teenager; and the
lack of programming he had received after he “went right off
               UNITED STATES V. BANKSTON                    17

the rails” after his grandmother died; all compared against the
“hugely dangerous” gun crime he committed.

     Yet “[n]othing in the sentencing colloquy suggests that
the sentencing judge stated that [s]he would impose the same
sentence regardless of the Guidelines calculation because of
the mitigation factors.” United States v. Leal-Vega, 680 F.3d
1160, 1170 (9th Cir. 2012). In fact, the sentencing judge in
Bankston’s case was less definitive as to Bankston’s sentence
than in other cases in which we have found a lack of
harmlessness. For example, Munoz-Camarena held that the
“district court’s mere statement that it would impose the same
above-Guidelines sentence no matter . . . the correct
calculation cannot, without more, insulate the sentence from
remand, because the court’s analysis did not flow from an
initial determination of the correct Guidelines range,” and
because “the extent of a variance” from the Guidelines could
have affected the court’s analysis. 631 F.3d at 1031; accord
United States v. Gardenhire, 784 F.3d 1277, 1283–84 (9th
Cir. 2015); United States v. Hymas, 780 F.3d 1285, 1292 (9th
Cir. 2015); United States v. Gomez, 757 F.3d 885, 909 (9th
Cir. 2014).

    “[A] one-size-fits-all explanation ordinarily does not
suffice” in light of a Guidelines calculation error—and it does
not suffice here. Munoz-Camarena, 631 F.3d at 1031. As we
cannot say with certainty that the district court’s sentencing
error was harmless, we must remand for resentencing.

                              V.

    We VACATE Bankston’s sentence and REMAND for
resentencing consistent with this opinion.
