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
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.
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 
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.
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 
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.”
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 CalvilloPalacios, 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 
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).
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.” DuenasAlvarez, 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.

* * *
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 
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. 
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 
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 
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. GomezHernandez, 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. GarciaJimenez, 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, 
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 
16 UNITED STATES V. FITZGERALD

elements clause or the enumerated offenses clause. I 

respectfully dissent and would affirm the district court.