United States of America v. Davion Fitzgerald

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DAVION FITZGERALD,
Defendant-Appellee.
No. 18-10116
D.C. No.
2:17-cr-00295-
JCM-NJK-1
OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 12, 2019
San Francisco, California
Filed August 26, 2019
Before: William A. Fletcher, Paul J. Watford,
and Andrew D. Hurwitz, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge W. Fletcher

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2 UNITED STATES V. FITZGERALD
SUMMARY*
Criminal Law
Vacating a sentence and remanding for resentencing, the
panel held that the defendant’s prior Nevada conviction for
attempted battery with substantial bodily harm in violation
of Nev. Rev. Stat. §§ 200.481(2)(b) and 193.330 qualifies as
a felony conviction for a crime of violence under U.S.S.G.
§ 2K2.1.
Applying United States v. Johnson, 920 F.3d 628 (9th
Cir. 2019), and observing that the state court treated the
defendant’s conviction as a felony rather than a
misdemeanor, the panel rejected the defendant’s contention
that the conviction is not a felony conviction because it is a
wobbler.
The panel held that the defendant’s Nevada conviction
qualifies as a crime of violence under the elements clause of
U.S.S.G. § 4B1.2(a)(1). In so holding, the panel addressed
Nevada’s definition of “substantial bodily harm,” which
includes “prolonged physical pain,” and concluded that it is
not evident that there’s a realistic probability that a
defendant could be convicted of Nevada attempted battery
with substantial bodily harm without the attempted use of
violent force.
Dissenting, Judge W. Fletcher wrote that because
“prolonged physical pain,” as the Nevada Supreme Court
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. FITZGERALD 3
has explained, may be caused by simple touching, and
because the definition of “substantial bodily harm” is
indivisible, attempted battery with substantial bodily harm
under §§ 193.330 and 200.481 does not qualify as a crime of
violence under the elements clause.
COUNSEL
Elizabeth O. White (argued), Appellate Chief; Dayle
Elieson, United States Attorney; United States Attorney’s
Office, Reno, Nevada; for Plaintiff-Appellant.
Amy B. Cleary (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada; for
Defendant-Appellee.
OPINION
PER CURIAM:
Davion Fitzgerald pleaded guilty to unlawful possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). At sentencing, the government requested an
enhancement under § 2K2.1(a)(4)(A) of the 2016
Sentencing Guidelines, which provides for an increase to a
base offense level of 20 if the defendant has a prior “felony
conviction of . . . a crime of violence.” The government
based its request on Fitzgerald’s prior Nevada conviction for
attempted battery with substantial bodily harm in violation
of Nev. Rev. Stat. §§ 200.481(2)(b) and 193.330. The
district court declined to apply the enhancement, concluding
that Fitzgerald’s Nevada conviction qualified neither as a

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4 UNITED STATES V. FITZGERALD
“felony conviction” nor a “crime of violence.” The
government has appealed from the sentence imposed. We
disagree with the district court on both counts, and therefore
vacate Fitzgerald’s sentence.
I
Fitzgerald first argues that his Nevada conviction is not
a “felony conviction” because it is a “wobbler.” That is,
under state law, it may be treated as either a felony or a
misdemeanor. See Nev. Rev. Stat. § 193.330(1)(a)(4);
United States v. Bridgeforth, 441 F.3d 864, 870 (9th Cir.
2006). The Sentencing Guidelines define a “felony
conviction” as “a prior adult federal or state conviction for
an offense punishable by death or imprisonment for a term
exceeding one year, regardless of whether such offense is
specifically designated as a felony and regardless of the
actual sentence imposed.” U.S.S.G. § 2K2.1 cmt. n.1.
“Despite this clear admonition, our binding circuit precedent
requires us, where wobblers are concerned, to ignore the
maximum sentence allowed by statute and instead adopt the
designation that [the State] gives to the offense.” United
States v. Johnson, 920 F.3d 628, 634 n.3 (9th Cir. 2019).
Because “a state court’s subsequent treatment of a wobbler
is controlling,” Bridgeforth, 441 F.3d at 872, we must
examine how Fitzgerald was actually punished. Here, it is
clear that the state court treated his conviction as a felony.
Fitzgerald argues that our precedents on this point did
not survive Moncrieffe v. Holder, 569 U.S. 184 (2013), but
we recently rejected that very argument. See Johnson,
920 F.3d at 637–38. Fitzgerald’s Nevada conviction
therefore qualifies as a “felony conviction” for purposes of
U.S.S.G. § 2K2.1.

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UNITED STATES V. FITZGERALD 5
II
Fitzgerald next contends that his Nevada conviction does
not qualify as a “crime of violence.” The commentary to
§ 2K2.1 defines “crime of violence” by cross-reference to
§ 4B1.2, which reads:
(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, 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 described
in 26 U.S.C. § 5845(a) or explosive material
as defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a). The first of the numbered clauses is
known as the “elements” clause, the second as the
“enumerated offenses” clause. “We use the categorical
approach to determine whether a state crime qualifies as a
crime of violence for Guidelines purposes.” United States v.
Molinar, 881 F.3d 1064, 1067 (9th Cir. 2017). Because we
conclude that Fitzgerald’s conviction qualifies as a crime of
violence under the elements clause, we do not address the
enumerated offenses clause.
Under the elements clause, we ask whether the Nevada
crime of attempted battery with substantial bodily harm “has
as an element the use, attempted use, or threatened use of

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6 UNITED STATES V. FITZGERALD
physical force against the person of another.” U.S.S.G.
§ 4B1.2(a)(1). Because this language is identical to that
interpreted by the Supreme Court in Johnson v. United
States, 559 U.S. 133, 136 (2010), we apply Johnson’s
definition of “physical force”: “violent force—that is, force
capable of causing physical pain or injury to another
person.” Id. at 140; see Molinar, 881 F.3d at 1068 & n.3.
That threshold requires, at the very least, more than “a mere
unwanted touching.” Johnson, 559 U.S. at 142.
In Nevada, a person can commit simple battery with
nothing more than an offensive touching. Nev. Rev. Stat.
§ 200.481(1)(a); Hobbs v. State, 251 P.3d 177, 179 (Nev.
2011). But battery with substantial bodily harm, as the name
suggests, requires that the battery result in “substantial
bodily harm to the victim.” Nev. Rev. Stat. § 200.481(2)(b).
And attempted battery with substantial bodily harm—
Fitzgerald’s crime of conviction—requires that the
defendant act with the specific intent both to commit battery
and to bring about substantial bodily harm. See Nev. Rev.
Stat. § 193.330(1); Tanksley v. State, 944 P.2d 240, 243
(Nev. 1997).1
Fitzgerald’s offense, therefore, is defined by the bodily
injury the defendant intends to produce, not by the actual
level of force used. In United States v. Castleman, 572 U.S.
157 (2014), the Supreme Court explicitly declined to decide
“[w]hether or not the causation of bodily injury necessarily
entails violent force.” Id. at 167. But our court has held that,
1 Because “Nevada’s definition of attempt is coextensive with the
federal definition,” United States v. Sarbia, 367 F.3d 1079, 1086 (9th
Cir. 2004), there is no possibility that Nevada attempt sweeps more
broadly than § 4B1.2’s reference to “attempted use . . . of physical
force.”

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UNITED STATES V. FITZGERALD 7
in general, “in the context of assault statutes, bodily injury
entails the use of violent, physical force.” United States v.
Calvillo-Palacios, 860 F.3d 1285, 1291 (9th Cir. 2017).
Our rule is premised on a straightforward inference that
it takes Johnson-level force to produce bodily injury. See id.
at 1290. However, as we acknowledged in Calvillo-
Palacios, the validity of that inference depends on how a
state defines “bodily injury” or, in this case, “substantial
bodily harm.” See id. at 1291–92. To take an extreme
example, a state statute that defined bodily injury as merely
“an offensive touching” would not require violent force
under Johnson. 559 U.S. at 142.
Fitzgerald argues that we are dealing with such a statute
in this case. Nevada defines “substantial bodily harm” as
either “(1) [b]odily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement or
protracted loss or impairment of the function of any bodily
member or organ; or (2) [p]rolonged physical pain.” Nev.
Rev. Stat. § 0.060. The government does not argue that the
statute is divisible, and Fitzgerald does not contest that a
conviction under the first definition would necessarily
require the use of violent force. So only the second
definition—“prolonged physical pain”—matters for our
purposes.
In Collins v. State, 203 P.3d 90 (Nev. 2009), the Supreme
Court of Nevada considered the meaning of the phrase
“prolonged physical pain.” In sustaining the statute against
a vagueness challenge, the court held that “[t]he term ‘pain’
has multiple meanings, ranging from mild discomfort or dull
distress to acute often unbearable agony . . . and cannot be
defined further.” Id. at 92 (internal quotation marks
omitted). For pain to be “prolonged,” the court stated, there
must be “at least some physical suffering that lasts longer

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8 UNITED STATES V. FITZGERALD
than the pain immediately resulting from the wrongful act.”
Id. at 93. “In a battery,” the court further explained, “the
wrongdoer would not be liable for ‘prolonged physical pain’
for the touching itself,” but “would be liable for any lasting
physical pain resulting from the touching.” Id. at 93 n.3.
Fitzgerald argues that, because “substantial bodily harm”
can mean only “mild discomfort” lasting “longer than the
pain immediately resulting from the wrongful act,” the
inference that violent force is required to inflict such harm is
not warranted. He points out that the Collins court used
“touching the skin of a person who has suffered third degree
burns” as an example of an act that would cause “exquisite
pain.” Id. at 92 (citation omitted). Therefore, he argues,
Nevada battery with substantial bodily harm can be
committed with only a mere touch (and attempted with only
an attempted touch), which Johnson teaches cannot count as
violent force. 559 U.S. at 142.
Supreme Court precedent, however, “requires more than
the application of legal imagination to a state statute’s
language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). Fitzgerald “must demonstrate a realistic probability,
not a theoretical possibility, that Nevada would apply its
statute to conduct that falls outside the definition of a crime
of violence.” United States v. Guizar-Rodriguez, 900 F.3d
1044, 1052 (9th Cir. 2018) (internal quotation marks
omitted). Ordinarily, a defendant “must at least point to his
own case or other cases in which the state courts in fact did
apply the statute in the overbroad manner for which he
argues.” Id. at 1048 (internal quotation marks omitted).
Otherwise, the overbreadth of the state statute must be
“evident from its text” or “evident from state court
precedents interpreting that text.” Id. at 1052 (internal
quotation marks omitted).

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UNITED STATES V. FITZGERALD 9
We do not think that Collins makes it “evident” that the
statute sweeps as broadly as Fitzgerald contends. The
decision neither holds nor states that substantial bodily harm
can be caused by a mere touch (or by anything less than
“violent force”). Although Collins uses a touch as an
example of an act that may cause pain, 203 P.3d at 92, it
never says that the pain would count as “prolonged.” Indeed,
it clarifies that a batterer is not “liable for ‘prolonged
physical pain’ for the touching itself,” but only “for any
lasting physical pain resulting from the touching.” Id. at 93
n.3. These statements make the answer to the question we
confront here—whether a defendant could realistically be
convicted of attempted battery with substantial bodily harm
without the attempted use of violent force—far from evident.
For Fitzgerald to prevail, he would have to show that a
defendant could realistically be convicted of attempted
battery with substantial bodily harm for trying, with the
intent to cause lasting discomfort, merely to touch his victim
(or use other nonviolent force). That odd hypothetical
strikes us as an exercise of “legal imagination.” Duenas-
Alvarez, 549 U.S. at 193. When someone intends to inflict
prolonged pain, even relatively minor pain, it is highly
improbable that they would choose to do so through the use
of nonviolent force, which could easily fail to accomplish
their goal. And for the same reason, it is equally improbable
that Nevada prosecutors would be able to secure convictions
for attempted battery with substantial bodily harm in cases
in which the defendant tried to use only a touch or other
nonviolent force. Even if the possibility of such a conviction
is not theoretically foreclosed by Collins, that decision does
not make evident that such a conviction is a “realistic
probability.” Fitzgerald’s argument therefore falls short.
* * *

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10 UNITED STATES V. FITZGERALD
We conclude that Fitzgerald’s Nevada conviction for
attempted battery with substantial bodily harm qualifies as a
felony conviction for a crime of violence under U.S.S.G.
§ 2K2.1. We therefore vacate Fitzgerald’s sentence and
remand for resentencing consistent with this opinion.
VACATED AND REMANDED.
W. FLETCHER. Circuit Judge, dissenting:
I respectfully dissent.
The majority holds that attempted battery with
substantial bodily harm qualifies as a “crime of violence”
under the “elements clause” of U.S.S.G. § 4B1.2(a)(1)
because Nev. Rev. Stat. § 200.481 “has as an element the
use, attempted use, or threatened use of physical force.”
Maj. Op. at 10. I disagree.
1. Elements Clause
In Johnson v. United States, 559 U.S. 133, 140 (2010),
the Supreme Court held that for a conviction under a state
statute to qualify as a “violent felony” under the Armed
Career Criminal Act (“ACCA”), the “physical force”
required under the statute must be “violent force” or “force
capable of causing physical pain or injury to another
person.” “The mere potential for some trivial pain or slight
injury will not suffice. Rather, ‘violent’ force must be
‘substantial’ and ‘strong.’” United States v. Walton,
881 F.3d 768, 773 (9th Cir. 2018) (citing Johnson, 559 U.S.
at 140). Although Johnson construed the term “violent
felony” under the ACCA, we have applied Johnson’s
definition of “physical force” to the elements clause of the

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UNITED STATES V. FITZGERALD 11
phrase “crime of violence” in the Guidelines. See United
States v. Molinar, 881 F.3d 1064, 1068 (9th Cir. 2017).
Under the categorical approach, we must consider
“whether every violation of the [Nevada] statute necessarily
involves violent force.” Solorio-Ruiz v. Sessions, 881 F.3d
733, 737 (9th Cir. 2018) (emphasis in original). We look to
the text of the statute and state court decisions interpreting
the statute’s terms, treating “state cases examining ‘the outer
contours of the conduct criminalized by the state statute’ as
‘particularly important.’” Id. (quoting United States v.
Strickland, 860 F.3d 1224, 1226–27 (9th Cir. 2017)).
Under Nevada law, simple battery is not a “crime of
violence” under Johnson’s definition of “physical force.”
See United States v. Guizar-Rodriguez, 900 F.3d 1044, 1049
(9th Cir. 2018). As the Nevada Supreme Court has held, the
amount of force required for simple battery in Nevada is “the
intentional and unwanted exertion of force upon another,
however slight.” Hobbs v. State, 251 P.3d 177, 180 (2011)
(holding that the act of spitting on another is a battery).
“[N]onharmful and nonviolent force suffices . . . [the] force
need not be violent or severe and need not cause bodily pain
or bodily harm.” Id. at 179.
However, Fitzgerald was not convicted of simple
battery. He was convicted of attempted battery with intent
to cause substantial bodily harm. See Nev. Rev. Stat.
§§ 193.330, 200.481. Under Nevada law, “substantial
bodily harm” means (1) “Bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the
function of any bodily member or organ;” or (2) “Prolonged
physical pain.” Nev. Rev. Stat. § 0.060. The parties agree
that the first definition of substantial bodily harm under
Nevada law requires violent force as understood in Johnson.

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12 UNITED STATES V. FITZGERALD
Therefore, the only question is whether the amount of force
required to cause “prolonged physical pain” always involves
the violent physical force that Johnson requires.
The Nevada Supreme Court has answered this question.
The Court has told us that the amount of force required to
cause “prolonged physical pain” does not always involve the
violent physical force Johnson requires. In Collins v. State,
203 P.3d 90, 92–93 (Nev. 2009), the Nevada Supreme Court
defined “prolonged physical pain” as “some physical
suffering or injury that lasts longer than the pain
immediately resulting from the wrongful act.” The court
wrote that “physical pain” ranges from “mild discomfort or
dull distress to acute often unbearable agony. . . . the term
‘pain’ is necessarily subjective and cannot be defined
further.” Id. at 92 (internal quotations and citations omitted).
For example, “touching the skin of a person who has
suffered third-degree burns will cause exquisite pain, while
the forceful striking of a gymnast in the solar plexus may
cause him no discomfort at all.” Id. (citing Matter of Philip
A., 49 N.Y.2d 198 (Ct. App. 1980)).
Because “prolonged physical pain” may be caused by
simple touching—as in the Nevada Supreme Court’s
example, by touching a person suffering from third-degree
burns—a conviction for battery causing substantial bodily
harm can be sustained through “the merest touching.” See
Johnson, 559 U.S. at 139–43. Battery causing substantial
bodily harm may therefore be effectuated under Nevada law
by using—or attempting to use—a level of physical force
that is insufficient under Johnson. Because the Nevada
Supreme Court has told us that every violation of Nev. Rev.
Stat. § 200.481 does not necessarily involve violent physical
force, I would hold that the statute is overbroad and does not
categorically qualify as a “crime of violence” under the

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UNITED STATES V. FITZGERALD 13
elements clause. And because the definition of “substantial
bodily harm” is indivisible, attempted battery with
substantial bodily harm under Nev. Rev. Stat. §§ 193.330
and 200.481 does not qualify as a crime of violence under
the elements clause.
The majority rejects this straightforward reading of state
law as “the application of legal imagination to [the] state
statute’s language.” Maj. Op. at 8 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)). But the crime
I just described was not imagined or abstracted from the bare
text of the statute. Instead, it comes directly from the Nevada
Supreme Court’s discussion of its own law. This is precisely
the kind of “state case[] examin[ing] the outer contours of
the conduct criminalized by the state statute” we are
supposed to treat as “particularly important” in deciding
whether a state crime involves the use of violent force.
Walton, 881 F.3d at 771–72 (quoting United States v.
Strickland, 860 F.3d 1224, 1226–27 (9th Cir. 2017)).
Fitzgerald has thus shown “that a defendant could
realistically be convicted of attempted battery with
substantial bodily harm for trying, with the intent to cause
lasting discomfort, merely to touch his victim (or use other
nonviolent force).” Maj. Op. at 9. I would conclude that his
conviction does not qualify as a crime of violence under the
elements clause.
2. Enumerated Offenses Clause
Because the panel majority holds that attempted battery
with substantial bodily harm under Nev. Rev. Stat.
§ 200.481 qualifies as a “crime of violence” under the
“elements clause” of U.S.S.G. § 4B1.2(a)(1), it did not need
to reach the question whether § 200.481 qualifies as a “crime
of violence” under the “enumerated offenses clause” of

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14 UNITED STATES V. FITZGERALD
U.S.S.G. § 4B1.2(a)(2). Because I disagree with the panel
majority on the “elements clause” question, I need to reach
the “enumerated offenses” question. The question is
whether a conviction under § 200.481 is a conviction for
aggravated assault.
Under the categorical approach, we compare the
elements of Nev. Rev. Stat. § 200.481 with the generic
federal definition of “aggravated assault” to determine if
they are a categorical match. The generic federal definition
of aggravated assault requires “proof of an aggravating
factor.” United States v. Dominguez-Maroyoqui, 748 F.3d
918, 920 (9th Cir. 2014). We have held that “(1) intent to
cause serious bodily injury, and (2) use of a deadly weapon
to attempt to cause bodily injury (serious or not), are both
generic aggravating factors.” United States v. Gomez-
Hernandez, 680 F.3d 1171, 1178 (9th Cir. 2012). It is
beyond dispute that attempted battery with substantial bodily
harm under Nevada law does not require use of a deadly
weapon. The only serious question is whether “substantial
bodily harm” under Nevada law is broader than “serious
bodily injury” under generic aggravated assault. I conclude
that it is.
We determine the generic federal definition of “serious
bodily injury” by “survey[ing] a number of sources—
including state statutes, the Model Penal Code, federal law,
and criminal law treatises.” United States v. Garcia-
Jimenez, 807 F.3d 1079, 1084 (9th Cir. 2015). “Most often,
‘[t]he generic definition of an offense roughly corresponds
to the definitions of the offense in a majority of the States’
criminal codes.’” Id. (citation omitted).
The Model Penal Code defines “serious bodily injury”
for purposes of aggravated assault as “bodily injury which
creates a substantial risk of death or which causes serious,

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UNITED STATES V. FITZGERALD 15
permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” Model
Penal Code § 210.0. A majority of states (approximately 31)
use almost precisely this same definition.
Only seven states (including Nevada) incorporate any
form of physical pain into their definitions of “substantial
bodily harm” or “serious bodily injury.” As noted above,
Nevada defines “substantial bodily harm” as:
1. Bodily injury which creates a substantial
risk of death or which causes serious,
permanent disfigurement or protracted
loss or impairment of the function of any
bodily member or organ; or
2. Prolonged physical pain.
Nev. Rev. Stat. § 0.060. Nevada’s first definition is a
categorical match for the Model Penal Code’s definition and
the definition used in at least 31 other states. But the second
definition is not. A review of state statutes indicates that
only Nevada, North Carolina, North Dakota, Ohio,
Tennessee, Utah, and Wyoming incorporate any form of
physical pain into their definitions. I therefore conclude that
the generic federal definition of “serious bodily injury” does
not include “prolonged physical pain” as that term is defined
in Nevada law. As a result, Nevada’s offense is not a
categorical match for the generic federal definition of
aggravated assault and is not a “crime of violence” under the
enumerated offense clause of U.S.S.G. § 4B1.2(a)(2).
***
Attempted battery with substantial bodily harm under
Nevada law is not a crime of violence under either the

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16 UNITED STATES V. FITZGERALD
elements clause or the enumerated offenses clause. I
respectfully dissent and would affirm the district court.

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