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vacating and remanding in light of Edling when the district court had found that Bell's conviction for robbery with a deadly weapon in violation of Nev. Rev. Stat. §§ 193.165 and 200.380 qualified as a "crime of violence" under the Guidelines
Summary of this case from United States v. WhiteOpinion
No. 16-10416
06-29-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES RAY BELL, Jr., Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 2:14-cr-00138-JAD-VCF-1 MEMORANDUM Appeal from the United States District Court for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding Argued and Submitted March 16, 2018
Withdrawn March 30, 2018
Resubmitted June 25, 2018 San Francisco, California Before: McKEOWN, FUENTES, and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Julio M. Fuentes, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. --------
Charles Bell, Jr. ("Bell") appeals his conviction and sentence after a two-day jury trial for one count of being a felon-in-possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Because the parties are familiar with the facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291. We affirm the conviction, but remand for resentencing in light of our decision in United States v. Edling, No. 16-10457, 2018 WL 2752208 (9th Cir. June 8, 2018).
Regarding Bell's vouching claims, the government's comments at trial, although troubling, were not so prejudicial as to materially affect the jury verdict. See United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013); United States v. McChristian, 47 F.3d 1499, 1507-08 (9th Cir. 1995); United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993). At trial, Bell objected to only some of the statements he challenges here, but even under the more lenient standard of review for statements challenged at trial, any error was harmless. United States v. Alcantara-Castillo, 788 F.3d 1186, 1190 (9th Cir. 2015) ("Where the defendant has objected to alleged prosecutorial misconduct at trial, we review for harmless error[,] . . . [w]here the defendant has not objected . . . we review for plain error.").
Further, considering the substantial evidence adduced during the two-day jury trial, the statements that Bell challenges, though ill-advised, did not "seriously affect[] the fairness, integrity, or public reputation of [the] proceedings," and were not so prejudicial as to warrant reversal of Bell's conviction. See United States v. Combs, 379 F.3d 564, 568 (9th Cir. 2004) (internal quotation marks omitted).
We review de novo whether a defendant's prior conviction constitutes a "crime of violence." United States v. Rocha-Alvarado, 843 F.3d 802, 805-06 (9th Cir. 2016).
We vacate Bell's sentence and remand for resentencing in light of our recent decision in United States v. Edling, which held that robbery under Nevada Revised Statutes § 200.380 is not a "crime of violence" as that phrase is defined in the United States Sentencing Guidelines. See United States v. Edling, No. 16-10457, 2018 WL 2752208, at *3 (9th Cir. June 8, 2018); see also U.S.S.G. §§ 2K2.1(a), 4B1.2(a); N.R.S. § 200.380.
AFFIRMED in part, VACATED in part, and REMANDED.