FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TAVARES CHANDLER,

Defendant-Appellant.

No. 12-10331

D.C. No.

2:10-cr-00482-

GMN-PAL-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Argued and Submitted

June 13, 2013—San Francisco, California

Filed February 20, 2014

Before: A. Wallace Tashima and Jay S. Bybee, Circuit

Judges, and Kimba M. Wood, Senior District Judge.*

Per Curiam Opinion;

Concurrence by Judge Bybee

* The Honorable Kimba M. Wood, Senior District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.
2 UNITED STATES V. CHANDLER

SUMMARY**

Criminal Law

The panel affirmed the district court’s conclusion that the

defendant had previously been convicted of three “violent

felonies,” which subjected him to an increased penalty under

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

The panel held that a Nevada conviction for robbery is a

violent felony because it creates a serious risk of harm that is

comparable to the risk posed by burglary; and that because

after United States v. Mendez, 992 F.2d 1488 (9th Cir. 1992),

“the § 924(e) analysis of a prior conspiracy conviction is

governed by the substantive offense that was the object of the

conspiracy,” conspiracy to commit robbery, pursuant to Nev.

Rev. Stat. §§ 199.480, 200.380, is also a “violent felony”

under the ACCA’s residual clause.

The panel also held that second degree kidnapping in

Nevada, Nev. Rev. Stat. §§ 200.310, 200.330, categorically

involves a serious risk that physical force may be used in the

course of committing the offense; that this risk is roughly

similar to the risk involved in burglary; and that second

degree kidnapping under Nevada law is, accordingly,

categorically a “violent felony” under the residual clause of

the ACCA.

Concurring, Judge Bybee, joined by Judges Tashima and

District Judge Wood, agreed that Mendez requires the per

** 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. CHANDLER 3

curiam holding that conspiracy to commit robbery is a

“violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii), but wrote

separately to question the reasoning and continued validity of

Mendez.

COUNSEL

James A. Oronoz (argued) and Lucas J. Gaffney, Oronoz &

Ericsson, L.L.C., Las Vegas, Nevada, for DefendantAppellant.

Phillip N. Smith, Jr. (argued), Assistant United States

Attorney, Daniel G. Bogden, United States Attorney, Robert

L. Ellman, Appellate Chief, United States Attorney’s Office

for the District of Nevada, Las Vegas, Nevada, for PlaintiffAppellee.

OPINION

PER CURIAM:

Tavares Chandler pleaded guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 

At sentencing, the district court concluded that Chandler had

been convicted of three “violent felonies,” as defined by the

Armed Career Criminal Act (ACCA), and sentenced

Chandler to a term of 235 months’ imprisonment. Chandler

does not contest his extensive criminal history, but he

contends that the district court erred in concluding that he had

been convicted of three violent felonies. Because we

conclude that all three prior convictions are violent felonies

under the ACCA, we affirm.
4 UNITED STATES V. CHANDLER

I. FACTS AND PROCEDURAL HISTORY

Chandler was indicted in 2010 for being a felon in

possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). 

Chandler pleaded guilty to the indictment without the benefit

of a plea agreement. Chandler had previously been convicted

in Nevada state court of the offenses of (1) second degree

kidnapping, Nev. Rev. Stat. §§ 200.310, 200.330;

(2) coercion, Nev. Rev. Stat. § 207.190; and (3) conspiracy to

commit robbery, Nev. Rev. Stat. §§ 199.480, 200.380. The

government sought an increased penalty under the ACCA,

arguing that Chandler’s Nevada state convictions qualified as

violent felonies. See 18 U.S.C. § 924(e)(1). Chandler

objected, arguing that neither his conspiracy conviction nor

his kidnapping conviction was a violent felony as defined by

the ACCA. He did not dispute that his conviction for

coercion qualified as a violent felony. Over Chandler’s

objection, the district court determined that Chandler’s three

Nevada state convictions were all violent felonies under the

ACCA and sentenced Chandler to 235-months’

imprisonment. Chandler timely appealed.

“We review de novo whether a prior conviction is a

predicate felony under the ACCA.” United States v. Grisel,

488 F.3d 844, 846 (9th Cir. 2007) (en banc).

II. DISCUSSION

Under 18 U.S.C. § 924(e)(1), any “person who violates

section 922(g) of this title and has three previous convictions

. . . for a violent felony or a serious drug offense, or both, . . .

shall be . . . imprisoned not less than fifteen years.” For

purposes of this subsection of the ACCA, a violent felony is

“any crime punishable by imprisonment for a term exceeding
UNITED STATES V. CHANDLER 5

one year . . . [that] is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another.” 

18 U.S.C. § 924(e)(B)(ii).

Notably, a violent felony as defined in the ACCA is

nearly identical to a “crime of violence” as defined in the

Sentencing Guidelines’ Career Offender enhancement.1

Compare 18 U.S.C. § 924(e)(B)(ii) with U.S. Sentencing

Guidelines Manual § 4B1.2(a) (providing that a crime of

violence is (1) “any offense . . . punishable by imprisonment

for a term exceeding one year, that . . . is burglary of a

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

otherwise involves conduct that presents a serious potential

risk of physical injury to another”). Because there is no

meaningful distinction between the definitions, we have used

our analysis of the definition of crime of violence in the

Sentencing Guidelines to guide our interpretation of violent

felony in the ACCA. See United States v. Spencer, 724 F.3d

1133, 1138 (9th Cir. 2013); United States v. Crews, 621 F.3d

849, 852 n.4 (9th Cir. 2010); United States v. Melton,

344 F.3d 1021, 1027 (9th Cir. 2003).

In United States v. Park, 649 F.3d 1175 (9th Cir. 2011),

we established a framework for analyzing whether a

conviction under state law is a conviction for a crime of

violence. “First, the ‘conduct encompassed by the elements

1 Similarly, we have observed that the definition of “crime of violence”

in 18 U.S.C. § 924(c) “is very similar to that of ‘violent felony’ in section

924(e)(2)(B).” United States v. Sherbondy, 865 F.2d 996, 1008 n.15 (9th

Cir. 1988). Although the definitions are not always interchangeable,

similar statutory language suggests that the definitions may be similarly

interpreted. United States v. Coronado, 603 F.3d 706, 709 (9thCir. 2010).
6 UNITED STATES V. CHANDLER

of the offense, in the ordinary case,’ must ‘present[ ] a serious

potential risk of physical injury to another.’” Id. at 1177–78

(alteration in original) (quoting James v. United States,

550 U.S. 192, 208 (2007)). “Second, the state offense must

be ‘roughly similar, in kind as well as in degree of risk posed’

to those offenses enumerated at the beginning of the residual

clause—burglary of a dwelling, arson, extortion, and crimes

involving explosives.” Id. at 1178 (quoting Begay v. United

States, 553 U.S. 137, 143 (2008)). As we recently observed:

The inquiry under Park’s first prong is

straightforward. But the second requirement—

whether the state offense is “‘roughly similar, in

kind as well as in degree of risk posed’ to those

offenses enumerated at the beginning of the

residual clause”—is more complicated, and must

be addressed in light of the Supreme Court’s

quartet of ACCA cases.

Spencer, 724 F.3d at 1138 (internal citation omitted) (quoting

Park, 649 F.3d at 1178).

In James, the Supreme Court held that the second

requirement should focus on whether the risk posed by the

state offense “is comparable to that posed by its closest

analog among the enumerated offenses.” James, 550 U.S. at

203. In Begay, however, the Court concluded that a state

conviction for driving under the influence was not

categorically a violent felony under the ACCA because it did

not “involve purposeful, violent, and aggressive conduct.” 

Begay, 553 U.S. at 144–45 (internal quotation marks

omitted); see also Chambers v. United States, 555 U.S. 122,

128 (2009) (applying Begay’s “purposeful, violent, and

aggressive conduct” formula). In its most recent ACCA
UNITED STATES V. CHANDLER 7

opinion, the Court once again focused on the level of risk

posed by the state offense at issue compared with the level of

risk posed by the enumerated offenses. See Sykes v. United

States, 131 S. Ct. 2267, 2275 (2011) (“In general, levels of

risk divide crimes that qualify from those that do not.”).

We concluded in Spencer that Sykes meant that Begay’s

“‘purposeful, violent, and aggressive formulation’ is only

dispositive in cases involving a strict liability, negligence, or

recklessness offense”—such as driving under the

influence—and does not apply to intentional crimes. 

Spencer, 724 F.3d at 1139; see also Sykes, 131 S. Ct. at 2276

(“Begay involved a crime akin to strict liability, negligence,

and recklessness crimes; and the purposeful, violent, and

aggressive formulation was used in that case to explain the

result. The felony at issue here is not a strict liability,

negligence, or recklessness crime.”). Many of our sister

circuits have interpreted Sykes similarly. See, e.g.,

Harrington v. United States, 689 F.3d 124, 135 (2d Cir. 2012)

(“In Sykes, the Court clarified that in cases involving

intentional criminal conduct, the focus of judicial inquiry

should remain on the risk assessment specified in the

ACCA’s text, i.e., whether the proscribed conduct presents ‘a

serious potential risk of physical injury to another’

comparable to that posed by the enumerated offenses.”

(quoting 18 U.S.C. § 924(e)(2)(B)(ii))); United States v.

Chitwood, 676 F.3d 971, 979 (11th Cir. 2012) (“Sykes makes

clear that Begay’s ‘purposeful, violent, and aggressive’

analysis does not apply to offenses that are not strict liability,

negligence, or recklessness crimes.”); United States v. Bartel,

698 F.3d 658, 662 (8th Cir. 2012); United States v. Meeks,

664 F.3d 1067, 1070 (6th Cir. 2012); United States v. Smith,

652 F.3d 1244, 1248 (10th Cir. 2011); United States v.

Rodriguez, 659 F.3d 117, 119 (1st Cir. 2011).
8 UNITED STATES V. CHANDLER

Here, neither conspiracy to commit robbery nor second

degree kidnapping is a strict liability crime or offense that

punishes reckless or negligent behavior. See Doyle v. State,

921 P.2d 901, 911 (Nev. 1996) (overruled on other grounds

by Kaczmarek v. State, 91 P.3d 16 (Nev. 2004)) (“A person

who knowingly does any act to further the object of a

conspiracy, or otherwise participates therein, is criminally

liable as a conspirator; however, ‘[m]ere knowledge or

approval of, or acquiescence in, the object and purpose of a

conspiracy without an agreement to cooperate in achieving

such object or purpose does not make one a party to

conspiracy.’” (alteration in original) (emphasis added)

(quoting State v. Arredondo, 746 P.2d 484, 487 (Ariz.

1987))); Nev. Rev. Stat. § 200.310(2) (“A person who

willfully and without authority of law seizes, inveigles, takes,

carries away, or kidnaps another person with the intent to

keep the person secretly imprisoned . . . is guilty of

kidnapping in the second degree.” (emphasis added)). As a

result, we apply the “closest analog test” set forth in James. 

See Spencer, 724 F.3d at 1140.

With this framework in mind, we turn to Chandler’s prior

convictions.

A. Conspiracy to Commit Robbery

We have not previously considered whether conspiracyto

commit robbery is a violent felony.

2 We have, however,

2 We recently held that a Nevada conviction for conspiracy to commit

burglary is not an aggravated felony under the immigration and

Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(U). United States v.

Garcia-Santana, ___ F.3d ___, No. 12-10471 (9th Cir. Feb. 20, 2014). 

Garcia-Santana does not govern this case because the INA’s aggravated
UNITED STATES V. CHANDLER 9

determined that conspiracy to interfere with interstate

commerce by robbery is a crime of violence for purposes of

the firearm sentencing enhancement in 18 U.S.C.

§ 924(c)(1).3See United States v. Mendez, 992 F.2d 1488,

1489 (9th Cir. 1993). In Mendez, we explained that a

conspiracy“‘increases the chances that the planned crime will

be committed”’ because a conspiracy “‘provides a focal point

for collective criminal action.’” Id. at 1491 (quoting United

States v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985)). 

Due to this heightened risk of harm, a “conspiracy to commit

a crime of violence is a ‘crime of violence’ under the

substantial risk definition of § 924(c)(3)(B) or its

equivalent.”4

Id. at 1492. In other words, “conspiracy to rob

felony definition substantially differs from the ACCA’s definition of a

“violent felony.” See Nijhawan v. Holder, 129 S. Ct. 2294, 2300–01

(2009). Unlike the ACCA, the INA defines “aggravated felony” to

specifically include a “conspiracy to commit” one of its listed offenses,

among which is “burglary.” 8 U.S.C. § 1101(a)(43)(U). In GarciaSantana, therefore, the question presented was whether “conspiracy”—as

used in the INA—requires proof of an overt act; we held that it does. See

Garcia-Santana, slip op. at 3. Here, by contrast, we must decide whether

a Nevada conviction for conspiracy to commit robbery, even though it

does not require an overt act, nonetheless “involves conduct that presents

a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(B)(ii).

3 The firearm sentencing enhancement provision provides that “any

person who, during and in relation to any crime of violence . . . uses or

carries a firearm, shall, in addition to the punishment provided for such

crime of violence . . .be sentenced to a term of imprisonment of not less

than 5 years.” 18 U.S.C. § 924(c)(1).

4 The provision referenced in Mendez—18 U.S.C. § 924(c)(3)(B)—

defines crime of violence for the purposes of the firearm sentencing

enhancement provision that was at issue in that case. It states that “the

term ‘crime of violence’ means an offense that is a felony and . . . by its
10 UNITED STATES V. CHANDLER

in violation of [the Hobbs Act] ‘by its nature, involves a

substantial risk that physical force . . . may be used in the

course of committing the offense,’” and is thus a crime of

violence. Mendez, 992 F.2d at 1491 (quoting 18 U.S.C.

§ 924(c)(3)(B)). Cognizant of this binding precedent,5 we

consider whether conspiracy to commit robbery under

Nevada law is a “violent felony” as that term is defined in

§ 924(e)(2)(B)(ii).

1. Serious potential risk of injury

The first question under Park is whether the conduct

encompassed by the elements of conspiracy to commit

robbery under Nevada law ordinarily “present[] a serious

potential risk of physical injury to another.” Park, 649 F.3d

at 1177–78 (quoting James, 550 U.S. at 208) (brackets in the

original). Because Mendez established that conspiracy to

commit robbery “categorically creates a substantial risk that

physical force may be used,” Mendez, 992 F.2d at 1492, we

must answer in the affirmative.

nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” 

18 U.S.C. § 924(c)(3)(B).

5 As Judge Bybee points out, the circuits are split over whether

conspiracy to commit a violent felony is itself a violent felony. See

Concurrence at 28–29 (Bybee, J., concurring). Given that split, we

recognize that Mendez may not survive the Supreme Court’s quartet of

ACCA cases. But, at the least, Mendez is not “clearly irreconcilable” with

the Supreme Court’s precedent, so we are bound to apply Mendez until it

is expressly overruled by an en banc panel of this court. See Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
UNITED STATES V. CHANDLER 11

Admittedly, Mendez differs from this case in two respects. 

First, Mendez involved conspiracy to commit robbery in

violation of the Hobbs Act, 18 U.S.C. § 1951, whereas here,

Chandler was convicted of conspiracy to commit robbery in

violation of Nev. Rev. Stat. §§ 199.480, 200.380. The Hobbs

Act penalizes “[w]hoever in any way or degree obstructs,

delays or affects commerce . . . by robbery . . . or conspires so

to do.” 18 U.S.C. § 1951(a). The Act then defines robbery

as “the unlawful taking or obtaining of personal property

from the person or in the presence of another, against his will,

by means of actual or threatened force, or violence.” 

18 U.S.C. § 1951(b)(1). And conspiracy under federal law

occurs “[i]f two or more persons conspire [ ] to commit any

offense against the United States.” 18 U.S.C. § 371; see also

United States v. Feola, 420 U.S. 671, 692 (1975) (“[T]he

essence of conspiracy is agreement.”).

Nevada also defines conspiracyas “an agreement between

two or more persons for an unlawful purpose.” Nunnery v.

Eighth Judicial Dist. Court ex rel. Cnty. of Clark, 186 P.3d

886, 888 (Nev. 2008) (per curiam) (internal quotation marks

omitted); see also Nev. Rev. Stat. § 199.480(1). And, under

Nevada law, robbery is “the unlawful taking of personal

property from the person of another, or in the person’s

presence, against his or her will, by means of force or

violence or fear of injury.” Nev. Rev. Stat. § 200.380(1).

Thus, federal law and Nevada law both effectively define

conspiracy to commit robbery as an agreement between two

or more persons to unlawfully take property from another

person against his or her will. Because federal law is

substantially similar to Nevada law, the first distinction

between Mendez and this case is insignificant.
12 UNITED STATES V. CHANDLER

Second, Mendez differs from this case because it involved

18 U.S.C. § 924(c)(1), which subjects individuals who use a

firearm in the course of a “crime of violence” to an additional

five years’ imprisonment. The statute defines a crime of

violence as any offense “that by its nature, involves a

substantial risk that physical force against the person or

property of another may be used in the course of committing

the offense.” 18 U.S.C. § 924(c)(3)(B). By contrast,

Chandler appeals a sentencing enhancement under 18 U.S.C.

§ 924(e)(2)(B)(ii), which subjects individuals who have three

previous convictions for “violent felonies” to a minimum of

fifteen-years imprisonment. A violent felony is an offense

that “is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” Id.

Both statutes are similar because they apply to crimes that

involve a serious or substantial risk that physical force will

occur during the course of the offense. The major difference

between these two statutes is that the ACCA only applies to

seriously dangerous crimes that are similar to the enumerated

offenses, whereas 18 U.S.C. § 924(c)(1) applies to all

substantially dangerous offenses. In light of this difference,

Mendez is not helpful when analyzing the second prong of the

Park framework. Nevertheless, because Mendez uses the

substantial risk of injury test, which is similar to the serious

risk of injury test that we consider here, it still applies to our

analysis of the first prong.

6

6

Indeed, “substantial” is defined as important, essential, “not seeming

or imaginary.” Webster’s Third New International Dictionary of the

English Language Unabridged (2002). Similarly, “serious” is defined as

“[g]rave in disposition, appearance, or manner: not light.” Id.
UNITED STATES V. CHANDLER 13

Accordingly, despite the differences between Mendez and

this case, we are bound by Mendez to conclude that

“conspiracy to rob . . . ‘by its nature, involves a substantial

risk that physical force . . . may be used in the course of

committing the offense.’” Mendez, 992 F.2d at 1491 (quoting

18 U.S.C. § 924(c)(3)(B)); see also United States v. Gore,

636 F.3d 728, 738 (5th Cir. 2011) (“An agreement to commit

aggravated robbery presents a serious potential risk of

injury.”); United States v. Turner, 501 F.3d 59, 67 (1st Cir.

2007).

2. Risk of injury roughly similar to the enumerated

offenses in the ACCA

Because we previously determined that robbery in

Nevada involves a serious risk of physical force, we must

now answer the more difficult question: whether conspiracy

to commit robbery in Nevada is “‘roughly similar, in kind as

well as in degree of risk posed’ to those offenses enumerated

at the beginning of the residual clause.” Spencer, 724 F.3d at

1140 (quoting Park, 649 F.3d at 1178). Under Mendez, a

conspiracy to commit a violent crime creates the same risk of

harm as the violent crime itself. 992 F.2d at 1492. So, if

robbery in Nevada is “roughly similar, in kind as well as in

degree of risk posed” to burglary, arson, or extortion,

18 U.S.C. § 924(e)(2)(B)(ii), then conspiracy to commit

robbery is also comparable to the enumerated offenses. Here,

robbery as defined by Nevada is most similar to extortion and

burglary.
14 UNITED STATES V. CHANDLER

The Supreme Court has defined extortion as “obtaining

something of value from another with his consent[7] induced

by the wrongful use of force, fear, or threats.” Scheidler v.

Nat’l Org. for Women, Inc., 537 U.S. 393, 409 (2003)

(internal quotation marks omitted). We previously

determined that a Nevada state conviction for robbery is a

crime of violence under the U.S. Sentencing Guidelines

because “Nev. Rev. Stat. § 200.380 . . . satisf[ies] the generic

definition of extortion.” See United States v. Harris,

572 F.3d 1065, 1065–66 (9th Cir. 2009) (per curiam).

Burglary is “an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to

commit a crime.” Taylor v. United States, 495 U.S. 575, 598

(1990). The real danger of burglary, like robbery, is “the

possibility of a face-to-face confrontation” with the victim or

an intervener. James, 550 U.S. at 203. Indeed, robbery, like

burglary, “is dangerous because it can end in confrontation

leading to violence.” Sykes, 131 S. Ct. at 2273. In fact, the

risk posed by robbery may actually be greater than the risk

posed by burglary because robbery requires a taking from a

person, against his or her will, by means of force or violence

or fear of injury, whereas burglarymay be completed without

any human interaction. See United States v. Davis, 487 F.3d

282, 286 (5th Cir. 2007) (“To commit robbery, an individual

must interact with the victim in order to cause bodily injury

or place the victim in fear of it.”).

7 Nevada’s definition of robbery differs from extortion because the

taking of property there must be “against the will” of the victim. But as

Professor LaFave has explained, this difference is not significant because

“both crimes equally require that the defendant’s threats induce the victim

to give up his property, something which he would not otherwise have

done.” 3 W. LaFave, Substantive Criminal Law § 20.4(b) (2d ed. 2003).
UNITED STATES V. CHANDLER 15

Accordingly, we conclude that robberyposes risks similar

to extortion and burglary. As such, conspiracy to commit

robbery in Nevada is also similar, in kind and degree of risk

posed, to extortion and burglary. See Gore, 636 F.3d at 741

(“We are satisfied that conspiracy to commit aggravated

robbery, in the ordinary case, presents a serious risk of injury

similar in kind and degree to the enumerated offenses.”).

3. Conclusion

A Nevada conviction for robbery is a violent felony

because it creates a serious risk of harm that is comparable to

the risk posed by burglary. And because after Mendez, “the

§ 924(e) analysis of a prior conspiracy conviction is governed

by the substantive offense that was the object of the

conspiracy,” United States v. Boaz, 558 F.3d 800 (8th Cir.

2009), conspiracy to commit robbery, pursuant to Nev. Rev.

Stat. §§ 199.480, 200.380, is also a “violent felony” under

the ACCA’s residual clause. See also United States v. White,

571 F.3d 365, 370, 372 (4th Cir. 2009) (“[T]he essential

conduct underlying the Conspiracy Offense is categorically

violent . . . [and] [t]he ConspiracyOffense cannot be divorced

from its violent objective—robbery with a deadly weapon.”).

B. Second degree kidnapping

Under Nevada law:

A person who willfully and without authority

of law seizes, inveigles, takes, carries away or

kidnaps another person with the intent to keep

the person secretly imprisoned within the

State, or for the purpose of conveying the

person out of the State without authority of
16 UNITED STATES V. CHANDLER

law, or in any manner held to service or

detained against the person’s will, is guilty of

kidnapping in the second degree.

Nev. Rev. Stat. § 200.310(2).

We have not previously had the opportunity to consider

whether second degree kidnapping under Nevada law is a

violent felony. But, in United States v. Williams, 110 F.3d 50

(9th Cir. 1997), we determined that second degree kidnapping

under Oregon law, Ore. Rev. Stat. § 163.225(1)(a), is a crime

of violence as the term is defined in § 4B1.2(a)(2) of the

Sentencing Guidelines. Id. at 51–53. And in United States v.

Sherbondy, 865 F.2d 996 (9th Cir. 1988), we observed that

kidnapping as defined by the Model Penal Code “entails a

‘serious potential risk of physical injury’ to the victim,

making the offense a ‘violent felony’ under subsection (ii).” 

Id. at 1009 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Although

neither of these cases involved statutes exactly like Nevada’s,

we keep these persuasive authorities in mind as we review

Chandler’s second degree kidnapping conviction. Once

again, we apply the framework that we established in Park,

649 F.3d 1175.

1. Serious risk of harm

Chandler argues that second degree kidnapping as defined

by Nevada law can occur in ways that are both violent and

nonviolent, particularlybecause “inveigling” does not require

force or restraint. See Bridges v. State, 6 P.3d 1000, 1009

(Nev. 2000); Black’s Law Dictionary 843 (8th Ed. 2004)

(inveigle means “to lure or entice through deceit or

insincerity”). Accordingly, he contends that we must use the
UNITED STATES V. CHANDLER 17

modified categorical approach to determine whether his

conviction involved violent conduct. We disagree.

We have determined that kidnapping presents a risk of

serious force, even where the kidnapping statute at issue has

no force requirement. See Delgado-Hernandez v. Holder,

697 F.3d 1125, 1133 (9th Cir. 2012) (considering whether

attempted kidnapping is an aggravated felony). In DelgadoHernandez, we referenced the federal kidnapping statute,

18 U.S.C. § 1201(a), which punishes anyone who

“‘unlawfully seizes, confines, inveigles, decoys, kidnaps,

abducts, or carries away and holds for ransom or reward or

otherwise any person.’” Id. at 1130 (quoting 18 U.S.C.

§ 1201(a)). We adopted the Sixth Circuit’s reasoning in

explaining that:

[T]he essence of kidnapping is requiring

another to do something against his or her

will; and because physical force or restraint is

usually the best way to overbear the will of

another, physical force or threat of force is a

latent, but more often actual, companion of

the coercive element. That deception may be

used to effect the kidnapping does not erase

the ever-present possibility that the victim

may figure out what’s really going on and

decide to resist, in turn requiring the

perpetrator to resort to actual physical

restraint if he is to carry out the criminal plan.

Id. at 1130–31 (quoting United States v. Kaplansky, 42 F.3d

320, 324 (6th Cir. 1994)). Additionally, we observed in

Delgado-Hernandez that “the Supreme Court has seen fit to

assume, admittedly without deciding, that [kidnapping]
18 UNITED STATES V. CHANDLER

constitutes a crime that presents a substantial risk of force.” 

Delgado-Hernandez, 697 F.3d at 1130 (citing United States

v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999)). And while

the Supreme Court’s statement in this regard was dictum, it

is nevertheless highly persuasive. See United States v.

Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000)

(“Supreme Court dicta have a weight that is greater than

ordinary judicial dicta as prophecy of what the Court might

hold; accordingly, we do not blandly shrug them off because

they were not a holding.”).8

Of particular importance here, Nevada’s second degree

kidnapping statute is very similar to the federal kidnapping

statute that we reviewed in Delgado-Hernandez. Compare

Nev. Rev. Stat. § 200.310(2) (a person is guilty of kidnapping

if he unlawfully “seizes, inveigles, takes, carries away, or

kidnaps” another person), with 18 U.S.C. § 1201(a) (a person

commits kidnapping if he unlawfully “seizes, confines,

inveigles, decoys, kidnaps, abducts, or carries away” another

person). Kidnapping could potentially be committed in both

jurisdictions without the use of force. Because of the

similarities between the Nevada second degree kidnapping

statute and the federal kidnapping statute, our reasoning in

Delgado-Hernandez is highly persuasive here.

8

In Delgado-Hernandez we also noted that “legislative bodies,

including Congress, have consistently treated kidnapping as a crime of

violence.” Delgado-Hernandez, 697 F.3d at 1131–33. After surveying

the evidence, we concluded: “In sum, numerous courts have held that

kidnapping generally presents a risk of substantial force. Congress, the

Sentencing Commission, and forty jurisdictions have concluded,

consistent with historical practice, that kidnapping is a violent crime.” Id.

at 1133.
UNITED STATES V. CHANDLER 19

Thus, even though force is not required, second degree

kidnapping as defined by Nevada law still presents a serious

potential risk of physical injury to another.9See also United

States v. Sherbondy, 865 F.2d at 1009 (“kidnapping entails a

‘serious potential risk of physical injury’ to the victim”);

Kaplansky, 42 F.3d at 324 (“kidnapping is the ‘type’ of

offense where the risk of physical injury to the victim is

invariably present”).

2. Risk of injury roughly similar to the enumerated

offenses in the ACCA

The only question remaining, then, is whether second

degree kidnapping under Nevada law is a crime that is

“roughly similar, in kind as well as in degree of risk posed”

to burglary, arson, extortion, or crimes involving the use of

explosives. Begay, 553 U.S. at 143. Like conspiracy to

commit robbery, second degree kidnapping is similar to the

enumerated crime of burglary.

As we discussed above, “[b]urglary is dangerous because

it can end in confrontation leading to violence.” Sykes, 131 S.

Ct. at 2273. By comparison, kidnapping is riskier than

burglary because “a face-to-face confrontation,” James,

550 U.S. at 203, with the victim is very likely when a

kidnapping occurs. Accordingly, the second prong of the

9

If anything, it would seem that Nevada second degree kidnapping

categorically presents a greater risk of force than the federal kidnapping

statute. Compare Nev. Rev. Stat.§ 200.310(2) (requiring that the action

be done “with the intent to keep the person secretly imprisoned within the

State,” “for the purpose of conveying the person out of the State without

authority of law,” or “ in any manner held to service or detained against

the person’s will”), with 18 U.S.C. § 1201(a) (lacking the heightened mens

rea requirements of the Nevada statute).
20 UNITED STATES V. CHANDLER

Park framework is satisfied. See, e.g., Delgado-Hernandez,

697 F.3d at 1128–30 (describing the substantial risks

kidnapping poses); Sherbondy, 865 F.2d at 1009 (reasoning

that kidnapping, as defined in the Model Penal Code, is a

violent felony).

3. Conclusion

We conclude that second degree kidnapping in Nevada

categorically involves a serious risk that physical force may

be used in the course of committing the offense and that this

risk is roughly similar to the risk involved in burglary. 

Accordingly, we hold that second degree kidnapping under

Nevada law is categorically a “violent felony” under the

residual clause of the ACCA.

III. CONCLUSION

For the foregoing reasons, conspiracy to commit robbery

and second degree kidnapping are “violent felonies” under

18 U.S.C. § 924(e)(2)(B)(ii). Accordingly, Chandler is

subject to the fifteen-year sentencing enhancement under

§ 924(e)(1) for having previously been convicted of three

violent felonies.

The judgment of the district court is AFFIRMED.

BYBEE, Circuit Judge, with whom TASHIMA, Circuit

Judge, and WOOD, Senior District Judge, join, concurring:

I agree that United States v. Mendez, 992 F.2d 1488 (9th

Cir. 1993), requires our per curiam holding that conspiracy to
UNITED STATES V. CHANDLER 21

commit robbery is a “violent felony” under 18 U.S.C.

§ 924(e)(2)(B)(ii). I write separately to question the

reasoning and continued validity of Mendez.

I

Not all felonies are “violent felonies.” As indicated by its

title, the Armed Career Criminal Act’s (“ACCA”) fifteenyear mandatory prison term is intended for career criminals,

those offenders whose prior crimes “reveal a degree of

callousness toward risk” and “show an increased likelihood

that the offender is the kind of person who might deliberately

point [a] gun and pull the trigger.” Begay v. United States,

553 U.S. 137, 146 (2008); see also Sykes v. United States,

131 S. Ct. 2267, 2275 (2011). By contrast, the ACCA’s

fifteen-year mandatory minimum sentence was not intended

for “reckless polluters” or those who “recklessly tamper with

consumer products.” Begay, 553 U.S. at 146–47.

When determining whether a felony is a “violent felony”

courts must “employthe ‘categorical approach’” to determine

whether an offense “‘involves conduct that presents a serious

potential risk of physical injury to another.’” James v. United

States, 550 U.S. 192, 201–02 (2007) (quoting 18 U.S.C.

§ 924(e)(2)(B)(ii)). Under the categorical approach, the

relevant inquiry is whether the statutory elements of the

offense “are of the type that would justify its inclusion within

the residual provision.” Id. at 202.

Mendez does not satisfy this standard for two reasons. 

First, Mendez treats the elements of conspiracy to commit a

crime as identical to the elements of the underlying crime. 

Second, proceeding from that faulty premise, Mendez holds

that conspiracy to commit robbery is a crime of violence even
22 UNITED STATES V. CHANDLER

though conspiracy rarely, if ever, presents a serious potential

risk of injury to another.

II

In Mendez, we used the categorical approach—as we

understood it in 1993—to determine “whether conspiracy to

rob is . . . by definition [ ] a ‘crime of violence’” under

18 U.S.C. § 924(c)(1). 992 F.2d at 1490–91. This was a

good start, but we then broadly declared, intuitively, but

without any analysis of the elements of robbery as defined in

the Hobbs Act, that “[r]obbery indisputably qualifies as a

crime of violence.” Id. at 1491. Then, without any analysis

of the elements of conspiracy, we decided that conspiracy to

commit robbery presents the same serious potential risk of

physical injury as completed robbery because the existence of

a criminal conspiracyincreases the chances the planned crime

will be committed. Id. at 1492.

In addition to being illogical, Mendez’s conclusion is

questionable in light of recent Supreme Court precedent. In

James, the Court considered whether attempted burglary was

a violent felony under the ACCA’s residual clause, even

though burglary is one of the violent felonies enumerated in

the ACCA’s residual clause. 550 U.S. at 195. A prolonged

analysis would have been wholly unnecessary if the inchoate

offense, attempted burglary, was the same as the actual

felony, burglary. But, as the Court determined, inchoate

offenses may pose different risks than the underlying offense. 

Id. at 204. For example, “the risk posed by an attempted

burglary . . . may be even greater than that posed by a typical

completed burglary” because attempted burglaries are often

thwarted by an intervenor. Id. Thus, James demonstrates

that every inchoate offense must be considered individually,
UNITED STATES V. CHANDLER 23

regardless of whether the underlying offense is categorically

a violent felony, because different offenses pose different

risks.

James is consistent with the well-established rule that

inchoate offenses are separate from completed offenses. 

Iannelli v. United States, 420 U.S. 770, 778 (1975) (“This

Court repeatedly has recognized that a conspiracy poses

distinct dangers quite apart from those of the substantive

offense.”); Braverman v. United States, 317 U.S. 49, 54

(1942) (“A conspiracy is not the commission of the crime

which it contemplates, and neither violates nor ‘arises under’

the statute whose violation is its object.”); see also United

States v. Iribe, 564 F.3d 1155, 1160 (9th Cir. 2009) (quoting

United States v. Macias-Valencia, 510 F.3d 1012, 1014 (9th

Cir. 2007) (“‘Conspiracy and attempt are inchoate crimes that

do not require completion of the criminal objective.’”)).

This case presents a prime example of the significant

differences between an inchoate offense (conspiracy to

commit robbery) and a completed offense (robbery). In

Nevada, robbery is defined as:

the unlawful taking of personal property from

the person of another, or in the person’s

presence, against his or her will, by means of

force or violence or fear of injury, immediate

or future, to his or her person or property, or

the person or property of a member of his or

her family, or of anyone in his or her company

at the time of the robbery.

Nev. Rev. Stat. § 200.380(1). “More briefly stated, robbery

has as its elements the taking of the property of another from
24 UNITED STATES V. CHANDLER

his person or presence through the application of force or

fear.” State v. Feinzilber, 350 P.2d 399, 401 (Nev. 1960)

(discussing Nev. Rev. Stat. § 200.380(1)).

By comparison, Nevada’s conspiracy statute, Nev. Rev.

Stat.§ 199.480, simply states that conspiracy occurs

“whenever two or more persons conspire to commit murder,

robbery, sexual assault, [or other enumerated offenses].” 

Unlike some states, Nevada does not require an overt act in

pursuance of the crime, Nev. Rev. Stat. § 199.490, so “[t]he

gist of the crime of conspiracy is the unlawful agreement or

confederation.” Lane v. Torvinen, 624 P.2d 1385, 1386 (Nev.

1981).

The Supreme Court of Nevada addressed the difference

between conspiracy to commit robbery and robbery in

Nunnery v. Eighth Judicial Dist. Court ex rel. County of

Clark, 186 P.3d 886 (Nev. 2008) (per curiam), in order to

decide whether “conspiracy to commit robbery is [ ] a felony

involving the use or threat of violence.” Id. at 887. The court

began by analyzing an earlier case where it decided that

solicitation to commit murder is not a violent crime because

“in the crime of solicitation, the harm is the asking—nothing

more need be proven.” Hidalgo v. Eighth Judicial Dist.

Court, 184 P.3d 369, 373 (Nev. 2008) (en banc) (per curiam)

(citations and internal quotation marks omitted).1 The

1 Hidalgo also included observations that are equally applicable to

conspiracy. For example, conspiracy, much like “[s]olicitation is

criminalized . . . because it carries the risk or possibility that it could lead

to a consummated crime,” but under Nevada law “a risk or potential of

harm to others ‘does not constitute a “threat.”’” Id. (quoting Redeker v.

Eighth Judicial Dist. Court ex rel. County of Clark, 127 P.3d. 520, 527

(Nev. 2006)). “Obviously, the nature of the crime Hidalgo allegedly
UNITED STATES V. CHANDLER 25

Supreme Court of Nevada then explained that Hidalgo

“applie[d] with equal force here” because “conspiracy is

committed upon reaching the unlawful agreement.” Nunnery,

186 P.3d at 888. And because conspiracy does not require an

overt act—let alone a violent one—the Supreme Court of

Nevada concluded, “although conspiracy to commit robbery

involves conspiring to commit a violent act, it is not itself a

felony involving the use or threat of violence.” Id. at 889.

I see no reason why this court should diverge from the

Supreme Court of Nevada’s sound reasoning and the wellestablished law that conspiracy to commit a crime is not the

same as committing a crime. But until we are willing to reevaluate Mendez, offenders like Chandler will be categorized

as “career offenders” based on robberies which they

discussed but did not actually commit.

III

Furthermore, because of its illogical holding that

conspiracy to do x = x, Mendez did not evaluate whether the

elements of conspiracy to commit robbery “involve[ ]

conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). I submit

that this omission significantly undermines Mendez’s

continued validity because conspiracy to commit robbery

does not “show an increased likelihood that the offender is

the kind of person who might deliberately point [a] gun and

pull the trigger.” Begay, 553 U.S. at 146.

solicited is itself violent. But this does not transform soliciting murder

into threatening murder.” Id. at 374.
26 UNITED STATES V. CHANDLER

There is little doubt that robbery poses a “serious

potential risk of physical injury to another” at the time it is

committed. See United States v. Harris, 572 F.3d 1065, 1066

(9th Cir. 2009) (per curiam) (determining that “a conviction

under Nev. Rev. Stat. § 200.380 [for robbery] categorically

qualifies as a crime of violence for purposes of the career

offender sentencing enhancement” under the Sentencing

Guidelines).

Conspiracy to commit robbery, however, poses a risk that

a robbery will be committed only in the future. See

Chambers v. United States, 555 U.S. 122, 128 (2009)

(rejecting the government’s argument that an offense is a

violent felony because it posed a risk of violence in the

future); Lane, 624 P.2d at 1386 (“The gist of the crime of

conspiracy is the unlawful agreement or confederation.”). 

And as the Supreme Court of Nevada has aptly explained, “a

risk or potential of harm to others does not constitute a

threat.” Hidalgo, 184 P.3d at 373 (citations and internal

quotation marks omitted); see also Nunnery, 186 P.3d at

888–89 (holding that conspiracy to commit robbery is not a

violent crime because “the elements of conspiracy to commit

robbery do not include the use or threat of violence to the

person of another”).

Mendez incidentallyacknowledgesthe difference between

imminent and future harm. 992 F.2d at 1491–92 (“[W]here

conspirators agree to use ‘actual or threatened force, or

violence’ to obtain personal property from another . . . the

risk that physical force may be used . . . is substantial.”

(emphasis added) (citations and internal quotation marks

omitted))). But Mendez does not recognize that although a

person conspiring to commit robbery is “doing something at

the relevant time, there is no reason to believe that the
UNITED STATES V. CHANDLER 27

something poses a serious potential risk of physical injury.”

Chambers, 555 U.S. at 128. “To the contrary, an individual

who [conspires to commit robbery] would seem unlikely, not

likely, to call attention to his whereabouts by simultaneously

engaging in additional violent and unlawful conduct.” Id. at

127; see also Grunewald v. United States, 353 U.S. 391, 402

(1957) (“For every conspiracy is by its very nature secret; a

case can hardly be supposed where men concert together for

crime and advertise their purpose to the world.”).

It is onlywhen overt acts directed toward the commission

of the crime are committed that a crime begins to pose a

“serious potential risk of physical injury to another.” 

18 U.S.C. § 924(3)(2)(B)(ii). But, in Nevada, once there has

been an overt act, the offense is no longer a mere conspiracy.

2

Nunnery, 186 P.3d at 888–89. Instead, the offense becomes

either attempted or completed robbery—offenses which

ordinarily pose a more serious potential risk of harm to

others.

In other words, conspiracy is at least one “step away from

any physical dimension.” United States v. Raupp, 677 F.3d

756, 763 (7th Cir. 2012) (Wood, J., dissenting). And because

the “step” between discussing or even agreeing on

possibilities and physical action is a significant one, I

maintain that conspiracy to commit robbery is simply not an

offense “of the type that would justify its inclusion within the

2 The Supreme Court of Nevada aptly explained this difference:

“Between preparation for the attempt and the attempt itself, there is a wide

difference. The preparation consists in devising or arranging the means

or measures necessary for the commission of the offense; the attempt is

the direct movement toward the commission after the preparations are

made.” State v. Verganadis, 248 P. 900, 901 (Nev. 1926) (citation and

internal quotation marks omitted).
28 UNITED STATES V. CHANDLER

residual provision.” James, 550 U.S. at 202. At the very

least, the risk of serious physical harm posed by conspiracy

to commit robbery—Mendez notwithstanding—is

substantially different from the risk of serious harm posed by

robbery.

IV

Despite these concerns, I, like the majority, cannot say

that the Supreme Court’s ACCA decisions “undercut the

theory or reasoning” of Mendez “in such a way that the cases

are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889,

900 (9th Cir. 2003) (en banc) (emphasis added). Indeed,

interpretation of the ACCA is challenging, and the circuits are

split over whether conspiracy is a violent felony.

At least five circuits have held that conspiracy may

qualify as a violent felony. See United States v. Gore,

636 F.3d 728, 738 (5th Cir. 2011) (“An agreement to commit

aggravated robbery presents a serious potential risk of injury

. . . . This is particularly true when an overt act in furtherance

of the agreement is performed. We need not consider whether

an agreement without such an overt act would suffice for

purposes of the ACCA.”); United States v. White, 571 F.3d

365, 372 (4th Cir. 2009) (“[T]he essential conduct underlying

the Conspiracy Offense is categorically violent. The

Conspiracy Offense cannot be divorced from its violent

objective—robberywith a deadlyweapon.”); United States v.

Boaz, 558 F.3d 800, 807 (8th Cir. 2009) (“The § 924(e)

analysis of a prior conspiracy conviction is governed by the

substantive offense that was the object of the conspiracy

. . . .”); United States v. Hawkins, 139 F.3d 29, 34 (1st Cir.

1998) (holding that conspiracy to commit armed robbery is a

violent felony under the ACCA because “[w]e have also
UNITED STATES V. CHANDLER 29

unequivocally held that conspiracy to commit a crime of

violence . . . it itself a crime of violence”); United States v.

Preston, 910 F.2d 81, 87 (3d Cir. 1990) (“Since [the

defendant] was convicted of conspiracy to commit a violent

felony, the use or threat of physical force was a part of his

prior conviction for this crime.”).

By contrast, at least two circuits have held that conspiracy

does not qualify as a violent felony. See United States v.

Whitson, 597 F.3d 1218, 1222 (11th Cir. 2010) (per curiam)

(“Conspiring to commit a crime is a purposeful act . . . . But

in South Carolina, the ‘gravamen of conspiracy is an

agreement or combination. An overt act in furtherance of the

conspiracy is not necessary to prove the crime.’” (internal

citation omitted) (reaffirmed and applied in United States v.

Lee, 631 F.3d 1343, 1349 (11th Cir. 2011)); United States v.

Fell, 511 F.3d 1035, 1039–41 (10th Cir. 2007) (holding that

a Colorado conviction for conspiracy to commit seconddegree burglary was not a violent felony because “[a]lthough

there is an overt act element, the act need not be directed

toward the entry of a building or structure . . . . [M]any overt

acts sufficient to sustain a Colorado conspiracy conviction

create no risk of a violent confrontation between the

defendant and an individual interacting with the conspirator

while the overt act is being committed.”); United States v.

King, 979 F.2d 801, 804 (10th Cir. 1992) (explaining that the

Tenth Circuit “look[s] only to the elements of the conspiracy

crime” and holding that conspiracy to commit robbery does

“not necessarilypresent circumstances which created the high

risk of violent confrontation inherent in a completed [armed

robbery]” (alteration in original) (quotation marks and

citation omitted)).
30 UNITED STATES V. CHANDLER

The circuit split shows that there are valid reasons to

believe the Supreme Court’s ACCA cases did not “clearly”

overrule Mendez’s holding that conspiracyto commit robbery

categorically is a crime of violence (and thus a violent

felony). But in light of the questionable reasoning in Mendez

and intervening Supreme Court precedent, I submit that

whether conspiracy can qualify as a violent felony is a

difficult issue that warrants our en banc consideration.