United States v. Davion Fitzgerald

Citation: 935 F.3d 814Docket: 18-10116

Court: Court of Appeals for the Ninth Circuit; August 26, 2019; Federal Appellate Court

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The United States Court of Appeals for the Ninth Circuit vacated Davion Fitzgerald's sentence and remanded for resentencing, determining that his prior Nevada conviction for attempted battery with substantial bodily harm qualifies as a felony conviction for a crime of violence under the U.S. Sentencing Guidelines (U.S.S.G. 2K2.1). The court applied the precedent set in United States v. Johnson, finding that the state court had treated Fitzgerald’s conviction as a felony rather than a misdemeanor, thus rejecting Fitzgerald's argument that his conviction, classified as a "wobbler" under Nevada law, does not constitute a felony. It concluded that the conviction meets the elements clause of U.S.S.G. 4B1.2(a)(1), especially given Nevada’s definition of 'substantial bodily harm' as including 'prolonged physical pain.' The majority opinion noted that there is no realistic possibility of a conviction without the attempted use of violent force. In dissent, Judge W. Fletcher argued that the definition of 'substantial bodily harm' could include non-violent conduct, positing that the Nevada statute is indivisible and does not meet the criteria for a crime of violence. Fitzgerald had previously pleaded guilty to unlawful possession of a firearm, and the government sought a sentencing enhancement based on his prior conviction, which the district court had initially refused. The appellate court’s ruling thus contradicts the district court's findings on both the felony status of the conviction and its classification as a crime of violence.

Binding circuit precedent mandates that in cases involving "wobblers," the designation assigned by the state to the offense must be considered over the maximum statutory sentence. A state court’s classification of a wobbler is decisive, and in Fitzgerald's case, his conviction was treated as a felony. Fitzgerald contends that this precedent was overridden by Moncrieffe v. Holder, but this argument was recently rejected. Therefore, Fitzgerald's Nevada conviction qualifies as a "felony conviction" under U.S.S.G. 2K2.1.

Fitzgerald also argues that his conviction does not constitute a "crime of violence." The definition of "crime of violence" in the guidelines refers to offenses punishable by over one year of imprisonment that involve physical force against another person or specific enumerated offenses. The "categorical approach" is utilized to assess whether a state crime fits this definition. Fitzgerald's offense of attempted battery with substantial bodily harm meets the definition of a crime of violence, specifically under the "elements" clause, which necessitates an element of physical force.

The term "physical force" is interpreted as violent force capable of causing injury, as established in Johnson v. United States. In Nevada, simple battery can occur with just offensive touching, but attempted battery with substantial bodily harm requires intent to cause significant harm. Fitzgerald’s offense is defined by the intended bodily injury, rather than the force used. While the Supreme Court has not definitively ruled on whether causing bodily injury necessitates violent force, the circuit court has determined that Nevada’s definition of attempt aligns with federal standards, ensuring that Nevada’s law does not encompass broader definitions than those in the guidelines. In summary, producing bodily injury necessitates the use of violent, physical force, aligning with precedent that supports the classification of Fitzgerald's conviction as a crime of violence.

The validity of inferring that a state statute requires violent force hinges on the state's definition of "bodily injury," specifically "substantial bodily harm." Nevada defines "substantial bodily harm" as either serious injury that creates a substantial risk of death or causes serious, permanent disfigurement, or as "prolonged physical pain." The government does not dispute that a conviction under the first definition necessitates violent force. Therefore, the second definition is critical. The Nevada Supreme Court, in Collins v. State, interpreted "prolonged physical pain" as pain that lasts longer than the immediate pain from a wrongful act, indicating it encompasses a range of pain levels, from mild discomfort to severe agony. The court clarified that for a battery, liability for "prolonged physical pain" arises from lasting pain resulting from the act, not the act of touching itself. Fitzgerald contends that "substantial bodily harm" could be interpreted as mild discomfort lasting beyond the immediate pain, suggesting that such harm could be inflicted through a mere touch, which he argues does not constitute violent force under Johnson precedent. However, Supreme Court rulings require a demonstration of a realistic probability, rather than a theoretical possibility, that the statute applies to conduct outside the definition of a violent crime. Fitzgerald must provide instances where the statute has been applied in an overbroad manner, or the overbreadth must be evident from the statute's text or interpretations. The Collins decision does not support Fitzgerald's claim that mere touching can lead to a conviction for "prolonged physical pain," as it specifies that a batterer is liable only for lasting pain caused by the act, not the act itself. Thus, it remains unclear whether a conviction for attempted battery with substantial bodily harm could occur without the use of violent force.

Fitzgerald's ability to succeed in his case hinges on proving that a defendant could realistically be convicted of attempted battery with substantial bodily harm for merely touching a victim with the intent to cause lasting discomfort. This scenario is viewed as a stretch of legal reasoning, as it is unlikely that someone intending to inflict prolonged pain would resort to nonviolent force, which could fail to achieve their aim. Consequently, Nevada prosecutors would likely struggle to obtain convictions for attempted battery with substantial bodily harm based solely on nonviolent actions. Although Collins does not eliminate the theoretical possibility of such convictions, it does not establish a realistic probability of them occurring. Therefore, Fitzgerald's Nevada conviction for attempted battery with substantial bodily harm is deemed a felony conviction for a crime of violence under U.S.S.G. 2K2.1, leading to the decision to vacate Fitzgerald’s sentence and remand for resentencing. 

In dissent, Judge W. Fletcher argues that the majority's interpretation that attempted battery with substantial bodily harm qualifies as a crime of violence is flawed. He references Johnson v. United States, which stipulates that 'physical force' must be 'violent force' capable of causing physical pain or injury to be classified as a violent felony. Mere trivial pain or slight injury does not meet this standard. The dissent emphasizes that under the categorical approach, all violations of the Nevada statute must involve violent force, and according to previous rulings, simple battery does not qualify as a crime of violence since it can be committed with nonviolent force. Fitzgerald's conviction, however, pertains to attempted battery with intent to cause substantial bodily harm, which is defined under Nevada law as causing significant risk of death or prolonged physical pain, differing from the definition of simple battery.

The first definition of substantial bodily harm under Nevada law necessitates violent force as interpreted in Johnson; however, the Nevada Supreme Court clarifies that the force needed to cause 'prolonged physical pain' does not always meet this violent standard. In Collins v. State, the court defines 'prolonged physical pain' as pain lasting beyond immediate discomfort, indicating that pain can vary from mild to extreme and is fundamentally subjective. For instance, merely touching a person with third-degree burns can induce significant pain, while a forceful strike may not cause any discomfort at all. Therefore, a conviction for battery causing substantial bodily harm may occur through minimal physical contact, which could fall below the violent force threshold set by Johnson. As a result, the statute Nev. Rev. Stat. 200.481 is deemed overbroad, failing to meet the criteria for a 'crime of violence' under the elements clause, with attempted battery with substantial bodily harm also not qualifying. The panel majority's rejection of this interpretation as mere legal speculation is countered by the Nevada Supreme Court's clear articulation of state law. Consequently, it is established that a defendant could be convicted based on nonviolent conduct intending to cause discomfort. There is a separate consideration of whether Nev. Rev. Stat. 200.481 aligns with the federal definition of 'aggravated assault,' necessitating a comparison under the categorical approach to determine if it constitutes a categorical match, particularly regarding the need for an aggravating factor in the federal definition.

Intent to cause serious bodily injury and the use of a deadly weapon to attempt bodily injury are recognized as generic aggravating factors in legal assessments. Under Nevada law, attempted battery with substantial bodily harm does not necessitate the use of a deadly weapon. A critical issue is whether "substantial bodily harm" as defined by Nevada is broader than "serious bodily injury" in the context of generic aggravated assault. It is concluded that it is broader. The generic federal definition of "serious bodily injury" is formed by analyzing various sources, including state laws, the Model Penal Code, and federal statutes, with a majority of states (approximately 31) aligning closely with the Model Penal Code's definition, which excludes physical pain. 

Nevada's definition includes both a match with the Model Penal Code and an additional component concerning prolonged physical pain. However, only a minority of states incorporate physical pain into their definitions, indicating that the generic federal definition of "serious bodily injury" does not encompass "prolonged physical pain" as outlined in Nevada law. Consequently, Nevada's offense does not align categorically with the generic federal definition of aggravated assault and does not qualify as a "crime of violence" under U.S.S.G. 4B1.2(a)(2). Therefore, attempted battery with substantial bodily harm under Nevada law is not classified as a crime of violence under either the elements or enumerated offenses clauses, leading to a dissenting opinion that would affirm the district court's ruling.