McKendry-Verhunce v. USA

Filing 2

ORDER denying Motion to Vacate (2255) as to Ryan Ross McKendry-Verhunce (1). Signed by Judge Howard D. McKibben on 1/4/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
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vs.
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RYAN ROSS McKENDRY-VERHUNCE,
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Defendant.
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_________________________________ )

3:11-cr-00013-HDM-VPC
ORDER

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The defendant has filed a motion to vacate, set aside, or
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correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 64 & ECF No.
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65).

The court has considered defendant’s motion and hereby DENIES

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the motion without further briefing.
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Defendant asserts that he is entitled to relief under Johnson
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v. United States, 135 S. Ct. 2551 (2015).

In Johnson, the Supreme

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Court held that the residual clause of the Armed Career Criminal
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Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague.
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Although defendant was not sentenced pursuant to the ACCA, he
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received a higher base offense level under the United States
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Sentencing Guidelines due to his having a prior “crime of
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violence,” the relevant definition of which contained a residual
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1

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similar to that of the ACCA.

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of the residual clause, his prior offense of robbery in violation

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of Nevada Revised Statutes § 200.380 no longer qualifies as a crime

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of violence and that he is therefore entitled to relief.

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Defendant asserts that in the absence

The Guideline provision applicable to defendant’s offense is

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U.S.S.G. § 2K2.1.

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given the meaning contained in § 4B1.2(a) and Application Note 1 of

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the Commentary to § 4B1.2.

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4B1.2(a) at the time defendant was sentenced, a crime of violence

For purposes of § 2K2.1, “crime of violence” is

U.S.S.G. § 2K2.1 app. n.1.

Under §

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was “any offense under federal or state law, punishable by

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imprisonment for a term exceeding one year, that (1) has as an

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element the use, attempted use, or threatened use of physical force

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against the person of another, or (2) is burglary of a dwelling,

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arson, or extortion, involves use of explosives, or otherwise

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involves conduct that presents a serious potential risk of physical

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injury to another.”

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italicized portion – was the residual clause.

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application notes, a “crime of violence” included robbery.

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4B1.2 app. n. 1.

The final part of the definition – the
Under the
Id. §

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Even assuming Johnson applies to the Guidelines, and that it

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does so retroactively on collateral review, defendant’s claim for

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relief under current Ninth Circuit case law fails.

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Circuit has held that robbery in violation of § 200.380 is

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categorically a crime of violence under § 4B1.2.

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Harris, 572 F.3d 1065, 1066 (9th Cir. 2009).

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earlier Ninth Circuit decision, United States v. Becerril-Lopez,

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541 F.3d 881, 892 (9th Cir. 2008), which held that robbery under

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California Penal Code § 211 categorically qualified as a crime of
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The Ninth

United States v.

Harris relied on an

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violence under U.S.S.G. § 2L1.2.

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defined in the application notes to include robbery and extortion.

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In both cases, the Ninth Circuit held that although robbery under

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the state law was broader than the generic definition of robbery,

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any conduct that did not satisfy the generic definition of robbery

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necessarily satisfied the generic definition of extortion, and both

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robbery and extortion were included in the definition of crime of

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violence.

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Ninth Circuit or the Supreme Court and in fact are continuing to be

“Crime of violence” in § 2L1.2 is

These opinions have not been overturned by either the

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applied in unpublished Ninth Circuit decisions.

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v. Alcaraz, 2016 WL 6471774, at *1 (9th Cir. Nov. 2, 2016) (Nev.

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Rev. Stat. § 200.380); United States v. Cordova-Gonzalez, 2016 WL

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5724298, at *1 (9th Cir. Oct. 3, 2016) (Nev. Rev. Stat. § 200.380);

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United States v. Tate, 2016 WL 4191909 (9th Cir. Aug. 9, 2016)

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(Cal. Penal Code § 211).

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this time, United States v. Harris, 572 F.3d 1065, 1066 (9th Cir.

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2009) controls, and defendant’s prior offense of robbery in

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violation of § 200.380 is still a crime of violence – with or

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without the residual clause. For that reason, defendant is not

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entitled to any relief, and his motion to vacate under 28 U.S.C. §

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2255 (ECF No. 64 and ECF No. 65) is DENIED.

See United States

Accordingly, the court concludes that, at

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IT IS SO ORDERED.

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DATED: This 4th day of January, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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