                                                                FILED
                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS        Tenth Circuit

                            FOR THE TENTH CIRCUIT                          March 23, 2020
                        _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-6061
                                                     (D.C. No. 5:18-CR-00172-D-1)
 RANDY PLATT,                                                (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Randy Platt appeals his 77-month prison sentence, arguing that the district court

erred in classifying his prior Utah robbery conviction as a “crime of violence” under

§ 4B1.1 of the United States Sentencing Guidelines (U.S.S.G. or Guidelines). We have

jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
       I.     BACKGROUND

       Mr. Platt pled guilty to assault with serious bodily injury in violation of 18 U.S.C.

§ 113(a)(6), a felony offense. The Presentence Investigation Report identified a prior

federal conviction for bank robbery and a prior Utah state conviction for robbery, both of

which were classified as crimes of violence, and determined that Mr. Platt was a career

offender. A defendant is a career offender if, among other things, he “has at least two

prior felony convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1(a); see id. § 4B1.2(a) (defining “crime of violence” as used in § 4B1.1).

As a career offender, his sentencing guidelines range was increased from 57-71 months to

77-96 months. Mr. Platt objected to classifying his Utah robbery conviction as a crime of

violence; if it is not a crime of violence, he is not a career offender.

       The district court sentenced Mr. Platt to 77 months in prison pursuant to the

career-offender enhancement of § 4B1.1. Mr. Platt challenges the district court’s

determination that his prior Utah conviction for robbery was a crime of violence.

       II.    DISCUSSION

       A district court’s failure to properly calculate the advisory Guidelines range is a

“significant procedural error.” Gall v. United States, 552 U.S. 38, 51 (2007). We review

de novo Mr. Platt’s claim that his prior Utah conviction does not qualify as a crime of

violence under § 4B1.2. See United States v. Wray, 776 F.3d 1182, 1184 (10th Cir. 2015)

(“Our review of whether a defendant’s prior conviction constitutes a crime of violence

under U.S.S.G. § 4B1.2 is de novo.”); see also United States v. Abeyta, 877 F.3d 935, 939



                                               2
(10th Cir. 2017) (“We review the district court’s interpretation and application of the

Sentencing Guidelines de novo.” (internal quotation marks omitted)).

       Mr. Platt was convicted of violating the Utah statute for robbery, which provides:

      (1) A person commits robbery if:

       (a) the person unlawfully and intentionally takes or attempts to take
           personal property in the possession of another from his person, or
           immediate presence, against his will, by means of force or fear, and with
           a purpose or intent to deprive the person permanently or temporarily of
           the personal property; or
       (b) the person intentionally or knowingly uses force or fear of immediate
           force against another in the course of committing a theft or wrongful
           appropriation.
      (2) An act is considered to be “in the course of committing a theft or
          wrongful appropriation” if it occurs:
          (a) in the course of an attempt to commit theft or wrongful
              appropriation;
          (b) in the commission of theft or wrongful appropriation; or
          (c) in the immediate flight after the attempt or commission.
Utah Code Ann. § 76-6-301.

       The federal career offender guideline defines a “crime of violence” as an offense

punishable by imprisonment in excess of one year that:

       (1) has as an element the use, attempted use, or threatened use of physical
           force against the person of another, [the “elements clause”] 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 . . . [the “enumerated-offenses clause”].
U.S.S.G. § 4B1.2(a) (emphasis added).




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       We hold that a robbery conviction under § 76-6-301 is a “crime of violence” under

the enumerated-offenses clause in § 4B1.2(a)(2). 1 When evaluating whether a state’s

criminal statute qualifies as a “crime of violence” under the enumerated-offenses clause

of the Guidelines, “we look not to how a state has labeled its statute, but rather consider

whether the statute corresponds with the ‘uniform generic definition’ of a crime, using

the analytical framework set out in Taylor v. United States, 495 U.S. 575 . . . (1990).”

United States v. Garcia-Caraveo, 586 F.3d 1230, 1233 (10th Cir. 2009); see also id. at

1233 n.1 (acknowledging that Taylor interpreted the “violent felony” provision of the

Armed Career Criminal Act and stating that “[t]his circuit applies Taylor’s analytical

framework to questions of the scope of the term ‘crime of violence’ in [the Guidelines] as

well”). “To do so, we examine whether the state’s statute roughly corresponds to the

definitions of the crime in a majority of the States’ criminal codes, as well as prominent

secondary sources, such as criminal law treatises and the Model Penal Code.” Id.

(citation, brackets, and internal quotation marks omitted).

       If some conduct described in the Utah robbery statute “would not be a ‘crime of

violence’ under § 4B1.2(a), then any conviction under that statute will not qualify as a

‘crime of violence’ for a sentence enhancement under the Guidelines, regardless of


       1
          Mr. Platt also argues that Utah robbery does not qualify under the elements
clause of U.S.S.G. § 4B1.2(a)(1). Because we conclude that Mr. Platt’s conviction
qualifies as a crime of violence under the enumerated-offenses clause, we do not address
the elements clause. Cf. United States v. Fitzgerald, 935 F.3d 814, 816 (9th Cir. 2019)
(deeming it unnecessary to address the enumerated-offenses clause after concluding that
the defendant’s conviction was a crime of violence under the elements clause), petition
for cert. docketed, (U.S. Feb. 19, 2020) (No. 19-7646).

                                              4
whether the conduct that led to a defendant’s prior conviction was in fact violent.”

United States v. O’Connor, 874 F.3d 1147, 1151 (10th Cir. 2017). 2 In other words, “if

the statute sweeps more broadly than the generic crime, a conviction under that law

cannot count as [a ‘crime of violence’], even if the defendant actually committed the

offense in its generic form.” Descamps v. United States, 570 U.S. 254, 261 (2013).

       Mr. Platt concedes that subsection (1)(a) of the Utah robbery statute falls within

the definition of generic robbery. But he contends that subsection (1)(b) falls outside the

generic definition because it includes “the immediate flight after the attempt or

commission [of the theft or wrongful appropriation],” § 76-6-301(2)(c). 3 He maintains

that the generic definition of robbery does not include conduct occurring after the taking

of the property.

       It is true that “[a]t common law . . . robbery occurred only when the perpetrator

used force or intimidation before or during the taking itself; force used to retain the

property or to escape did not suffice to transform larceny into robbery.”

Garcia-Caraveo, 586 F.3d at 1233. But even though “the old common law required that

the force or violence used in a robbery occur before or during the taking of property, a


       2
         O’Connor held that “because Hobbs Act robbery includes threats to property,
it is broader than . . . generic robbery.” 874 F.3d at 1153. Mr. Platt does not argue
that the Utah robbery statute includes threats to property. Rather, he maintains that
O’Connor “did not provide a specific definition of generic robbery.” Aplt. Opening
Br. at 14. As discussed herein, we do not rely on O’Connor to conclude that Utah
robbery meets the uniform generic definition of robbery.
       3
       Subsection (2)(c) explains the phrase “in the course of committing a theft or
wrongful appropriation” as used in subsection (1)(b).

                                              5
different result is often possible today as a result of legislative or judicial adoption of a

continuing offense theory of the crime.” Id. at 1235 (internal quotation marks omitted).

“Under this theory, a robbery has occurred not only if the perpetrator uses force or

intimidation to take possession of the property, but also if force or intimidation is used to

retain possession immediately after the taking, or to carry away the property, or to

facilitate escape, because a taking is not complete until the perpetrator has neutralized

any immediate interference with his or her possession.” Id. (ellipsis and internal

quotation marks omitted).

       Utah has adopted a continuing-offense, or transactional, view of robbery. See

State ex. rel D.B. v. State, 925 P.2d 178, 180-81 (Utah App. 1996). Under § 76-6-301,

“force need only be exerted at some time during the entire course of the transaction.” Id.

at 180; see id. at 181 n.2 (noting that the relevant version of § 76-6-301(b)(2) included

“the immediate flight after the attempt or commission” of the theft). Moreover, in

Garcia-Caraveo this court surveyed the robbery statutes of 48 states and consulted

“distinguished secondary sources” to conclude “that the uniform generic definition of

robbery incorporates the continuing-offense theory.” 586 F.3d at 1236; see id. at 1235-36

(listing states surveyed and noting that Utah is one of the states that have adopted the

continuing-offense theory).

       Therefore, we hold that, with respect to when the use or threat of force must occur,

Utah Code Ann. § 76-6-301 falls within the uniform generic definition of robbery, and

thus is a “crime of violence” under § 4B1.2(a)(2). Mr. Platt’s conviction for robbery in



                                               6
Utah was for a “crime of violence,” and the district court’s classification of him as a

career offender was not error.

       III.   CONCLUSION

       We affirm the district court’s ruling that Mr. Platt’s Utah robbery constitutes a

crime of violence under § 4B1.2. He therefore was properly sentenced as a career

offender under § 4B1.1. Mr. Platt’s 77-month sentence is affirmed.


                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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