F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

T A V A R E S C H A N D L E R , Defendant-Appellant

. N o. 12-10331

D.C. No. 2:10-cr-00482- GMN-PAL -1

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Gloria M. Navarro, District J udg e, Presiding

Arg ued and Submitted J une 13, 2013—San F rancisco, California

F iled F ebruary

20, 2014

B efore: A. W a llace Tashima and J ay S. B y bee, Circuit J udg es, and Kimba M. W ood, Senior District J u dg e. *

Per Curiam Opinion; Concurrence by

J udg e B y bee

* T h e Ho n o rab le K im

b a M. W o o d
, Sen io r District J u d g e f o r th e U

. S

. District Co u rt f

o r th e S o u t

h ern District o f New Yo rk
, sitti n g b y d esig n atio n

.U N I T E D S T A T E S V

. C H A N D L E R 2

SUMMARY * *

Crim inal Law

The panel affirmed the district court’s conclusion that the defendant had previously been con v i c t ed of three “ violent felonies,” w hich 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 c onviction for robbery is a violent felony because it creates a serious risk o f harm that is comparable to the r isk posed b y burg lary ; and that b e c a u se after United States v

. Mendez
, 992 F .2d 1488 (9th Cir. 1992), “the § 924(e) analy sis of a prior conspiracy convi ct i o n is
g overned by the substantive offense that was the object of the conspiracy ,” conspiracy to commit robbery
, pursuant to Nev. Rev. Stat. §§ 199.480, 2 00.380, is also a “viol ent felony ” under the ACCA’s residual clause.

The panel also held that second deg ree kidnapping in Nevada, Nev. Rev. Stat. §§ 200.310, 200.330
, c a t eg orically involves a serious risk that phy sical force may be used in the

course o f committing the offense; that this risk is roug hly similar to the risk involved in burg lary ; and that s e c o n d deg ree kidnapping u n d er Nevada law is, according ly
, catego r i c a lly a “violent felony ” under the residual clause o f the ACCA.

Concurring
, J udg e B y

bee, joined b y J udg es Tashima a nd District J udg e W ood, ag ree d t h a t M endez r equires the per

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. C H A N D L E R 3

c u r iam holding that conspiracy to commit robbery is a “violent f elony ” under 18 U.S.C. § 9 24(e)(2)(B )(ii), but wrote separately to q

uestion the r easoning a

n d continued validity o f Mendez

.

COUNSEL

J ames A. Oronoz (arg

ued) a nd L ucas J

. Gaffney
, Oronoz & Ericsson, L .L .C., L as V eg as, Nevada, for D efendantAppellant.

Phillip N. Smith, J r

. (a rg ued), Assistant United States Attorney
, D aniel G. B o g d en, United States Attorney
, Robert L

. Ellman, Appellate Chief, United States Attorney ’s Office for the District of Nevada, L as Veg as, Nevada, for PlaintiffAppellee.

OP INION

PER CURI AM:

T a v ares Chandler pleaded g uilty to being a felon in possession of a firearm in violation o f 18 U.S.C. § 922(g )(1). At sentencing
, the district court c oncluded that Chandler h ad been convicted of three “violent felonies,” as defined by the Armed Career C riminal Act ( ACCA), and sentenced Chandler to a term of 235 months’ imprisonment. Chandler does not contest h is ex tensive criminal history
, but he contends that the district court erred in c o ncluding that he h ad been convicted of three vio l en t felonies. B ecause we conclude that a l l three prior convictions are violent felonies under the ACCA, we affirm.U N I T E D S T A T E S V

. C H A N D L E R 4

I

. F ACTS AND PROCEDURAL HI STORY

C h a ndler w as indicted in 2 010 for being a felon i n possession of a firearm, a violation of 1 8 U.S.C. § 922(g )(1). Chandler pleaded g u ilty to the indictment without the benefit of a plea ag reement. Chandler had previously b een convicted in Nevada state court of the offenses o f (1) second d eg r ee kidnap ping
, Nev. Rev. Stat. § § 200.310, 200.330; (2) coercion, N ev. Rev. Stat. § 207.190; and (3) conspiracy to commit robbery
, Nev. Rev. Sta t

. § § 199.480, 200.380. The
g overnment soug ht an increased penalty under the ACCA,
arg uing that Chandler’s Nevada state convictions qualified a s violent felo n i es

. See 18 U.S.C. § 924(e)(1). Chandler objected, ar g u ing that neither his c o nspiracy conviction nor his k idnapping conviction was a violent felony as defined b y the ACCA. He did not dispu t e t h a t his conviction for coercion qualified as a violent f e l o n y

. Over Chandler’s objection, the district court determined that Chandler’s three Nevada state convictions were all violent felonies under the A C C A a n d s e n t e n c e d C h a n d l e r t o 2 3 5

- m o n t h s ’ imprisonment. Chandler timely appealed.

“ W e review de novo whether a prior conviction i s a predicate felony under the ACCA.” United States v. Grisel
, 488 F .3d 844, 846 (9th Cir. 2007) (en banc).

I I . DI SCUSSI ON

Under 18 U.S.C. § 924(e)(1), any “pers o n w h o violates section 9 22(g ) of this title and has three previous convictions

. . . for a violent felony or a serious drug offense, or b oth,

. . . shall be

. . . imprisoned not less than fifteen y e ars.” F o r purposes of this subsection of the ACCA, a violent felony is “any crime punishable by imprisonment for a term ex ceedingU N I T E D S T A T E S V

. C H A N D L E R 5

one y ear

. . . [ that] is burg lary
, arson, or ex tortion, involves

use of ex p losives, o r o therwise involves conduct that presents

a serious potential risk of phy sical injury to an o t h er.” 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’ C areer Offender enhancement. 1 Compare 1 8 U.S.C. § 924(e)(B )(i i ) w i th U.S. Sentencing Guidelines Manual § 4B 1.2(a) (providing that a crime o f violence is (1) “any o ffense

. . . punishable by imprisonment for a term ex ceeding one y ear, that

. . . is b u r glary of a dwelling
, arson, or ex tortion, invo l v e s u se o f ex plosives, o r otherwise involves conduct that presents a serious potential risk of phy sical injury to another”). B eca u s e there is no meaning ful distinction between the definitions, we have used

our analy sis of the definition of crime o f violence in the Sentencing G uidelines to g uide o ur interpretation of v i olent 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, 8 5 2 n.4 (9th Cir. 2010); United States v. M elton
, 344 F .3d 1021, 1027 (9th Cir. 2003).

I n U n i ted States v

. Park
, 649 F .3d 1175 (9th Cir. 2011 ),

we established a f

ramework f

o r analy z ing whether a conviction under state law is a c onviction fo r a crime o f violence. “F irst, the ‘conduct encompassed by the elements

1 S im ilarly
, w e h av e o b serv ed th at th e d ef i n itio n o f “ crim e o f v io len ce” in 1 8 U.S.C. § 9 2 4(c) “ is v ery sim i lar to th at o f ‘ v io len t f elo n y ’ in sectio n 9 2 4 (e)(2 )(B ).” Un ited S ta tes v. Sh erb o n d y , 8 6 5 F.2 d 9 9 6
, 1 0 08 n .1 5 (9 th Cir. 1 9 88 ). A lth o u g h th e d ef i n itio n s are n o t alw ay s in terch an g e ab le, sim ilar statu to ry l an g u a g e s u g g ests th at th e d ef in itio n s m ay b e sim ilarly in terp reted

. Un ited S ta tes v. Co ro n ad o , 6 0 3 F.3 d 7 0 6
, 7 0 9 (9 th Cir. 2 0 1 0 ).U N I T E D S T A T E S V

. C H A N D L E R 6

of the offense, in the ordinary case,’ must ‘present[ ] a serious potential risk of phy sical injury to another.’” Id. at 1177–78 (alteration in orig ina l ) ( q uoting James v. United States
, 550 U .S. 192, 208 (2007)). “ S e c o n d
, the state offense must be ‘roug hly similar, in kind as well as in deg ree of risk posed’
to those offenses enumerated at the beg inning of the residual clause—burg lary

of a dwelling
, arson, ex tortion, and crimes involving ex plos ives.” Id. a t 1178 (quoting B e gay v. United States
, 553 U.S. 137, 143 ( 2 008)). As we recently observed:

The inquiry under Park ’s fi r s t prong is straig htforward. B ut the second requ irement— whether the state offense is “ ‘roug hly similar, i n kind as well as in d eg r e e of risk posed’ to those offenses enumerated a t the beg i n ning of the residual c lause”—is more c omplicated, and must be a ddressed i n l i g ht of the Supreme Court’s quartet of ACCA cases.

Spencer
, 724 F .3d a t 1138 ( internal citation omitted) (quoting Park , 649 F .3d at 1178).

I n J a m e s , the Supreme Court held that the second requirement should focus on whether the ris k posed by the
state offense “ is c omparable to that posed by its closest analog among the enumerated offenses.” James
, 5 50 U.S. at 203. I n Be

g ay , however, the Court concluded that a state conviction for driving u n der the influence was not categ orically a violent f

elony under the ACCA because it did
not “involve purposeful, vio l e nt, and a g g ressive conduct.” Begay
, 553 U.S. at 144–45 ( i n ternal quotation marks omitted); s ee also Chambers v. United S tates , 555 U.S. 122, 128 (2009) (apply ing Begay ’s “purpose f u l
, violent, a

nd
ag g r essive conduct” formula). I n its most r e c e nt ACCAU N I T E D S T A T E S V

. C H A N D L E R 7

o p i n i o n, the Court once a g ain focused on the level of ris k posed by the state offense a t issue c o mpared with the level o f risk posed by the enumerated of f e n s e s. See Sykes v. United St a t es , 1 31 S. Ct. 2267, 2275 (2011) (“I n g e neral, levels o f risk divide crimes that qualify from those that do not.”).

W e concluded in Spencer that Sykes meant that Begay ’s “‘purposeful, violent, and ag g ressive formulation’ is only dispositive in cases involving a strict liability
, neg lig ence, o r

r e c k l e s s n e s s o f

f e n s e ”

— s u c h a s d r i v i n g u n d er t h e influence—and does no t apply to intentional crimes. Spencer
, 724 F .3d at 1139; see also Sykes
, 131 S. Ct. at 2276 (“ Begay involved a crime a kin to strict liability
, neg l i ge n c e , and recklessness crimes; and the p u r poseful, violent, a

nd

a gg ressive formulation was used in that case to ex plai n t h e

re s ult. T he felony at issue here is not a strict liability
, neg lig ence, or recklessness crime.”)

. M a ny of our sister circuits h ave interpreted Sykes similarl y

. S ee, e.g. , Harrington v. United States
, 6 89 F .3d 124, 135 (2d Cir. 2 012) (“In Sykes
, the Court clarified that in cases i n v o l ving intentional criminal conduct, the fo c u s of judicial inquiry should remain on the risk assessment specified in the ACCA’s tex t, i.e., whether the proscribed conduct presents ‘a serious potential risk of p hy sical injury to a n o t h er’

co m p a r able to that posed by the enumerated offenses.” (quoting 18 U.S.C. § 924(e)(2)(B )(ii))); Unit e d States v

. Chitwood
, 676 F .3d 971, 979 (11th Cir. 2012) (“ S ykes makes clear that B egay ’s ‘purposeful, violent, and ag g ressive’ analy sis does not apply to o ffenses that are not strict liability
, neg lig ence, or recklessness crimes.”); U nited 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. 2 011); Un i t e d States v

. Rodriguez , 659 F .3d 117, 119 (1st Cir. 2011).U N I T E D S T A T E S V

. C H A N D L E R 8

Here, neither c o nspiracy to commit robbery nor seco nd deg ree k idnapping is a strict liability crime or of f e n s e t hat punishes reckless or neg lig ent behavior. See Doyle v. State
, 921 P.2d 901, 911 (Nev. 1 996) ( overruled on other g rounds by Kaczmarek v. State
, 9 1 P .3d 16 ( Nev. 2004)) (“A person who knowingly does any a ct to f urther the o b

j e c t of a conspiracy
, or otherwise participates therein, i s criminally liable as a conspirator; however, ‘[ m] ere knowledg e o r approval of, or acquiescence in, the o b j e c t a nd purpose of a conspiracy without an ag reeme n t to c ooperate in a chieving such object or purpos e d o e s n o t make one a party to conspir a cy .’” (alteration in orig inal) (emphasis a dded) ( q uoting S

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

. 1987))); N e v

. Rev. Stat. § 200.310(2) (“A person w ho willfully and without authority o f law seiz es, inveig les, takes, carries away , or kidnaps a nother person wi t h t he intent to keep the person secretly imprison ed

. . . is g uilty o f kidnapping in the second deg ree.” (emphasis added)). As a

r e s u l t, we apply the “closest analog test” set forth in James

. See Spencer , 724 F .3d at 1140.

W ith this framework in mind, we turn to Chandler’s prior convictions.

A. Conspiracy to Commit Robbery

W e have not previously c onsidered whether conspiracy to commit robbery is a violent felony

. 2 W e have
, however,

2 W e recen tl y h e ld t

h at a Nev ad a co n

v i ctio n f o r co n sp iracy to co m

m i t b u rg lary is n o t an ag g r a v ated f elo n y u n der th e im

m ig ratio n an d N a t i o n ality A ct (INA ), 8 U.S.C. § 1 1 0 1 (a)(4 3)(U). Un ited S ta tes v. Ga rcia -S a n ta n a ,

_ _ _ F .3 d

_ _ _ , No

. 1 2

- 1 0 4 7 1 (9 th Cir. Feb

. 20
, 2 0 1 4 ). Ga rcia -S a n ta n a d o es n o t g o v ern t

h is case becau se th e INA ’ s ag g rav atedU N I T E D S T A T E S V

. C H A N D L E R 9

determi n e d that conspiracy to interfere with interstate

c o m m e r ce b y r obbery is a crime of v iolence for purposes o f the firearm sentencing enhancement in 1 8 U .S.C. § 924(c)(1). 3 See United States v. Mendez
, 992 F .2d 1488, 1489 ( 9th Cir. 1993). I n Mendez
, w e ex plained 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 1 4 91 (quoting United States v. Chimurenga
, 760 F .2d 400, 404 (2d Cir. 1985)). Due to this heig htened risk of harm, a “ conspiracy to commit

a crime of violence is a ‘ crime of violence’ u n d er the substantial risk definition of § 924(c ) ( 3 ) (B ) or its equivalent.” 4 Id. at 1492. I n other words, “conspiracy to rob

f elo n y d ef in itio n su b stan tially d if

f ers f ro m t h e A CCA ’ s d ef

in i t i o n o f a

“ v io l en t f elo n y .” S

ee Nijh a wa n v. Ho ld

er , 1 2 9 S. Ct. 2 2 9 4
, 23 0 0

– 0 1 (2 0 0 9). Un lik e th e A CCA
, th e INA d ef in es “ ag g rav ated f

elo n y ” to sp ecif ically in clu de a “ co n sp i racy to co m m it” o n e o f its listed o f

f en ses,

am o n g w h ich is “ b u rg lary .” 8 U.S.C. § 1 1 0 1 (a)(4 3)(U). I n Ga r cia

S a n ta n a , th eref

o re, th e q u estio n p resen t ed w as w h eth er “ co n sp iracy ”—as

u sed i n th e INA

—req u ires p ro o f o f an o v ert act; w e h eld t h at it d oes. S

ee Ga rcia -S a n ta n a , slip o p

. at 3. Here, b y co n trast, w e m u st d ecid e w

h eth er

a N ev ad a co n v ictio n f

o r co n s p iracy to co m

m it ro b b ery , ev en th o u g h i t d o es n o t req u i re an o v ert act, n o n eth eless “ i n v o lv es co n d u ct th at p resen ts

a serio u s p o ten t ial risk o f ph y sical in j u r y t o a n o th er.” 1 8 U.S.C. § 9 2 4 (e)(B )(ii).

3 T h e f irearm sen ten cin g en h an cem en t p ro v isio n p ro v id es t h at “ an y p erso n w h o , d u rin g an d in relatio n to an y crim e o f v io len ce

. . . u s es or carries a f

irearm
, sh all, in a d d i t io n to th e p u n ish m en t p ro v id ed f o r su ch crim e o f v io l en ce

. . .b e sen ten ced to a term o f i m p r i s o nm en t o f n o t less th an 5 y ears.” 1 8 U.S.C. § 9 2 4(c)(1 ).

4 T h e p ro v i sio n ref

eren ced in Men d

ez —1 8 U.S.C. § 9 2 4 (c)(3 )(B )— d ef in es crim e o f v io len ce f o r th e p u rp oses o f th e f irearm sen ten c i n g

en h an cem en t p ro v isio n th at w a s at issu e in th at case. It states th at “ th e term ‘ crim e o f v io len ce’ m ean s an o f f en se t h at is a f elo n y a n d

. . . by itsU N I T E D S T A T E S V

. C H A N D L E R 10

i n v i olation of [ the Hobbs Act] ‘by its nature, involves a substantial risk that phy sical f orce

. . . may be u s ed i n t he

c o u r se o f committing the offense,’” and is thus a crime o f

v iolence. Mendez
, 9 92 F .2d at 1491 (quoting 18 U. S

. C

. § 924(c)(3)(B )). Cog niz ant of this b inding p recedent, 5 we conside r w hether conspiracy to commit robbery under Nevada law is a “violent f elony ” as that term is defined in § 924(e)(2)(B )(ii).

1. Serious potential risk of injury

The first question under Park is wheth e r the conduct

e n compassed by the elements o f conspiracy to co m m i t robbery under Nevada law o rd i narily “present[ ] a serious potential risk of phy sical injury to another.” Park
, 649 F .3d
at 1177–78 (quoting James
, 550 U.S. at 208) (brackets in the orig inal). B e cause Mendez establish e d that conspiracy to

c ommit robbery “categ orically creates a substantial risk that phy sical force may be used,” M endez
, 9 9 2 F .2d at 1492, we must answer in the affirmative.

n atu re, i n v o lv es a su

b s tan tial risk th at p h y sical f o rce ag ain st th e p erso n or p ro p erty of an o th er m ay be u sed in th e co u rse o f co m m ittin g th e o f

f en se.” 1 8 U.S.C. § 9 2 4 (c)(3 )(B ).

5 A s J u d g e B y

b ee p o i n ts ou t, th e circu its are sp lit o v er w h e t h e r

co n sp i ra cy to co m

m it a v io l en t fe l o n y i s itself a v io len t f elo n y

. S ee Co n cu rren ce at 2 8

– 2 9 (B y b ee, J
., co n cu rrin g ). Gi v e n t h at sp lit, w e

reco g n ize th at Men d

ez m ay n o t su

rv iv e t h e Su p rem e Co u rt’ s q u artet of A CCA cases. B u t, at th e least, Men d ez i s n o t “ clearly irreco n cilab l e” w i th th e Su p rem e Co u rt’ s p reced en t, so w e are b o u n d to ap p ly M en dez u n t i l i t is ex p ressly o v erru led b y an en b an c p an el of th is co u rt. S ee Miller v. Ga mmie , 3 35 F.3 d 8 8 9, 9 0 0 (9 th Cir. 2 0 0 3 ) (en b an c).U N I T E D S T A T E S V

. C H A N D L E R 11

A dmittedly
, Mendez differs from this case in two r e spects

. F irst, Mendez involved conspiracy to c o m mit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, whereas h ere, Chandler was convicted o f conspiracy to commit r obbery in violation of Nev. Rev. Stat. §§ 199.480, 200.380. The H obbs A ct penaliz es “[ w] hoever in any way or deg ree o bstructs, delay s or affects commerce

. . . by robbery

. . . or conspires so to do.” 18 U.S. C

. § 1 9 51(a). The Act then defines robbery

as “the unlawful taking or o b t aining of personal property from the person or in the presence of another, ag ainst his will, by means of actual or threatened fo r c e , or v iolence.” 18 U.S.C. § 1951(b)(1). A nd co n s p i racy u nder federal law

o c c u r s “[ i] f two or more persons c onspire [ ] to commit any offense ag a inst the United States.” 18 U.S.C. § 371; see also United States v. Feola
, 4 20 U.S. 671, 692 (1975) (“[ T] he essence of conspiracy

is ag reement.”).

Nevada also defines conspiracy as “an a g r eement b etween two or more persons for an unlawful pu r p o se.” Nunnery v

. Eighth Judicial Dist. Court ex rel. Cnty. o f C lark
, 1 86 P.3d 886, 888 ( Nev. 2008) (per curiam) (internal quotation marks omitted); see also N ev. Rev. Stat. § 199.480(1). A nd, under Nevada l a

w, robbery is “the u n lawful taking of personal property fro m t h e person of another, or in the person’s
presence, ag a inst h i s or her will, by means of force o r violence or fear of injury .” Nev. Rev. Stat. § 200.380(1).

Thus, federal law and Nevada law b oth effectively define conspiracy to commit robbery as a n ag reement b etween two

or more persons to unlawfully take p roperty from another
person ag ainst h is o r her will. B ecause federa l l aw is substantially similar to N e v a d a law, the first distinction between Mendez and this case is insig nificant.U N I T E D S T A T E S V

. C H A N D L E R 12

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 c ourse of a “crime of violence” to an additional five y ears’ imprisonmen t

. T h e statute defines a crime o f violence as any o ffense “th a t b y its nature, involves a substantial r isk that phy sical force ag ainst the per son o r property of another may be used in the course of committing the offe n s e

. ” 18 U.S.C. § 924(c)(3)(B ). B y contrast, Chandler appeals a sentencing enhancement under 18 U .S.C. § 924(e)(2)(B )(ii), which subjects individuals w ho have three previous convictions for “violent felonies” to a minimum o f fift e e n -y e ars imprisonment. A violent felony is an offense that “is bur g lary
, a

rson, o r ex tortion, involves use o f

ex p losives, or otherwise involves c o nduct that presents a serious potential risk of phy sical injury to another.” Id.

B o th statutes are similar because they apply to c rimes that involve a s erious or substantial r isk that phy sical force will

occur during the course o f the o ffense. The major difference between these two statutes is that the A CCA only a pplies to seriously dang e rous crimes that are similar to the enumerated offenses, w her e as 18 U.S.C. § 924(c)(1) applies to all substantially d ang erous o ffens e s

. I n lig ht of this difference, Mendez is not h elpful when a naly z ing the second prong o f the Park framework. Nevertheless, beca u s e Mendez uses the

s u b stantial risk of injury test, w hich is similar to the ser i o u s risk of injury test that we consider here, it still applies to our analy sis of the first prong

. 6

6 In deed
, “ su

b stan tial” is d ef

in ed as i m

p o rtan t, essen tial, “ n o t seem in g

o r im ag in ary .” W

eb ster’s Th ird New In tern a tio n a l Dictio n ary o f th e En g lish La n g u a g e Un a b rid g ed (2 0 0 2 ). Sim ilarly
, “ serio u s” i s d ef in ed as

“ [g ]rav e in d isp o s itio n , ap p earan ce, o r m an n er: n o t lig h t .” Id

.U N I T E D S T A T E S V

. C H A N D L E R 13

According ly
, despite the differences between Mendez a nd this case, we are bound by Mende z to conclude that “conspiracy to rob

. . . ‘by its nature, involves a substanti al risk that phy sical force

. . . m a y b e used in the course o f committing the offense.’” M endez
, 992 F .2d at 1491 (quoting 18 U.S.C. § 9 24(c)(3)(B )); see also United S tates v. Gore
, 636 F .3d 728, 738 (5th Cir. 2 0 11) (“An ag reement to commit
ag g r avated r obbery presents a serious pote ntial risk o f in j u ry .”); United States v. Turner
, 501 F .3d 59, 67 ( 1st Cir. 2007).

2. Risk of injury roug hly similar to t h e enumerated offenses in the ACCA

B e cause we previously determined that robbe r y in Nevada involves a serious r isk of p h y sical force, we must

now answer the more difficult question: whether conspiracy
to commit robbery in Nevada is “‘roug hly similar, in kind a s well as in deg ree of r isk posed’ to those offenses enumerated
at the beg inning o f the r esidual clause.” Spencer
, 724 F

. 3d at 1 1 40 (quoting Park
, 649 F .3d a t 1178). Under Mendez
, a conspiracy to commit a violent crime creates the same risk o f harm as the violent crime i t s e l f. 9 9 2 F .2d at 1492. So, if robbery in N evada is “ r o u gh l y s imilar, in kind as well as in deg ree of risk po s e d ” to burg lary
, a rson, or e x tortion, 18 U.S.C. § 9 24(e)(2)( B) ( ii), then conspiracy to commit robbery is also comparable to the enumerated offenses. Here, robbery a s defined by Nevada is most similar to ex tortion a nd burg lary

.U N I T E D S T A T E S V

. C H A N D L E R 14

T h e Supreme Court has defined ex tortion as “obtaini n g something of value from another with his consent[ 7 ] induced by the wrong ful use o f f

o r c e , fear, or threats.” Scheidler v

. Na t ’ l O rg. for W

o men, I nc. , 537 U.S. 393, 409 (2003) (internal quotation marks o m itted). We previously d e termined that a Nevada state conviction for robbery i s a crime of violence u n d e r the U.S. Sentencing Guidelines because “Nev. Rev. Stat. § 200.380

. . . satisf[ ies] the g eneric definition of ex tortion.” See United States v. H a r r i s , 572 F .3d 1065, 1065–66 (9th Cir. 2009) (per curiam).

B u rg lar y i s “ an unlawful or unprivileg ed entry into, o r

r emaining in, a building or other structure, with intent to commit a crime.” Taylor v. U nited States
, 495 U.S. 5 75, 598 ( 1 9 90). The real dang er o f burg lary
, like r obbery
, is “ t h e possibility of a face-to-face confrontation” with the v ictim o r

an intervener. James
, 5 50 U.S. at 2 03. I ndeed, robbery
, like burg lary
, “is dang erous because it can end in c o n frontation leading to violence.” S

ykes , 131 S. Ct. at 2273. I n fact, the risk posed by robbery may actually be gr e a t e r than the risk posed by burg lary b ecause robbery req u ires a taking from a person, ag ainst his or her will, by means of force o r violence

or fear of injury

, w hereas burg lary may be completed without
any human interaction. See United States v. Davis
, 487 F .3d 282, 286 (5th Cir. 2 007) (“To commit robbery
, an individual
must i n t e ract with the victim in order to cause bodily injury or place the victim in fear of it.”).

7 Nev ad a’ s d ef

in itio n o f ro b bery d i f

f ers f ro m ex to rtio n b ecau se th e tak i n g o f p ro p erty th ere m u s t b e “ ag ain s t t h e w ill” o f th e v i ctim

. B u t as P ro f esso r L aFav e h as ex plain ed
, th is d i f f eren ce i s n o t sig n if

ican t b ecau s e

“ bo th crim es eq u ally req u ire th at th e d ef en d an t ’ s th reats in d u ce th e v ictim
to g iv e u p h is p ro p erty , s o m eth in g w h ich h e w o u ld n o t o th erw ise h av e d o n e.” 3 W

. L aFav e, S

u b sta n tive Crimin al La w § 2 0 .4 (b ) (2 d ed

. 2 0 0 3 ).U N I T E D S T A T E S V

. C H A N D L E R 15

According ly
, we conclude that r obbery poses r isks similar
to ex tortion and burglary

. As such, c o nspiracy to commit robbery in Nevada is also similar, in k ind and deg ree of risk posed, to ex tortion and burg lary

. See Gore , 636 F .3d at 741 (“W e a re satisfied that con s p iracy to commit ag g ravated robbery
, in the ordinary c ase, presents a serious risk of injury similar in kind and deg ree to the enumerated offenses.”).

3. Conclusion

A N evada conviction f

o r robbery is a violent felony because it c reates a serious risk of h arm that is comparable to t h e r i s k posed by b u rg lary

. A nd because after Mendez
, “the § 924(e) analy sis of a prior c o nspiracy conviction is g overned by the substantive o ffense that w as the object of the conspiracy ,” United States v. Boaz
, 558 F

. 3 d 8 0 0 (8th Cir. 2009), conspiracy to commit robbery , pursuant to Nev. Rev. Stat. §§ 199.480, 2 00.380, is also a “violent felon y ” under the A CCA’s residual clause. See also United States v

. W hite
, 571 F .3d 3 65, 370, 372 (4th Cir. 2009) (“[ T] he essential conduct underly ing the Conspiracy Off e nse is categ orically violent

. . . [and] [ t] he Conspiracy Offense 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 a uthority of law seiz es, inveig les, takes, carries away o r kidnaps another person with the intent to keep the person secretly imprisoned within t h e State, o r for the purpose of c o n v e y i ng the
person out of the State without a uthority o fU N I T E D S T A T E S V

. C H A N D L E R 16

l a w , or in any manner held to service o r detained ag a inst the p erson’s will, is g uilty o f kidnapping in the second deg ree.

Nev. Rev. Stat. § 200.310(2).

W e have not previ o u s l y had the opportunity to consider whether second deg ree ki d n a p p i ng under N evada law is a violent f elony

. B ut, in United States v. W illiams
, 110 F .3d 50 (9th Cir. 1997), we d etermined that second deg ree kidnapping under Oreg on law, Ore. Rev. Stat. § 1 63.225(1)(a), is a crime of violence as the term is defined in § 4B 1.2( a ) ( 2 ) of the Sentencing Guidelines. Id. at 51–53. And in United States v

. Sherbondy
, 8 65 F .2d 996 (9th Cir. 1 988), we observed that kidnapping as defined by th e Model Penal Code “ entails a ‘serious potential risk of p hy sical injury ’ t o the victim, making the offense a ‘violent felony ’ under subsection (ii).” Id. at 1009 (quoting 18 U.S.C. § 924(e)(2)(B )(ii)). Althoug h neither of these cases involved statutes ex actly like Nevada’s,

we keep these persuasive a u thorities in m i n d as we r eview Chandler’s second d e g ree kidnapping conviction. Once
ag ain, we apply the f

ramework that w e e s t a blished in P a rk
, 649 F .3d 1175.

1. Serious risk of harm

Chandle r a

rg ues that second deg ree kidnapping a s defined by Nevada law can o ccur in way s that are both v i o l ent a nd nonviolent, particularly b e c ause “inveig ling ” does not require f o rce or restraint. See Bridges v. State
, 6 P.3d 10 0 0
, 1 0 0 9 (Nev. 2000); Black’s La w Dictionary 843 (8th Ed. 2 004) (inveig le means “to lure or entice throug h deceit o r insincerity ”). A ccording ly
, he contends that w e must use theU N I T E D S T A T E S V

. C H A N D L E R 17

modified c ateg orical a

pproach t o determine whether his conviction involved violent conduct. W e disag ree.

W e have determined that k i d n ap p ing presents a risk o f serious force, even where the kidnapping statute at issue has

no force requirement. S ee Delgado-Hernandez v. H older
, 697 F. 3 d 1125, 1133 (9th Cir. 2012) (considering whether attempted kidnapping is an ag g ravated felony ). I n DelgadoHernandez
, w e referenced the federal kidnapping statute, 1 8 U .S.C. § 1201(a), which punishes any one w h o “‘unlawfully seiz es, confines, inveig les, decoy s, k idnaps, abducts, or carries away and holds f or ransom o r reward o r otherwise an y person.’” Id. at 1130 (quoting 18 U .S.C. § 1201(a)). W e a d opted t h e S i x th Circuit’s reasoning in

ex p laining that:

[ T] he essence of k i d napping is requiring another to do something ag ai n s t his or her will; and because phy sical force or restraint is usuall y the best way to overbear the will o f another, p h y sical force or threat of force is a latent, but more of

t e n actual, companion o f the coercive element. T hat deception may be used to effect the kidnapp i n g does not erase the e ver- p r esent possibility that the victim
may f i gu r e out what’s really g oing on a nd decide to resist, in t u rn requiring the perpetrator to resort t o actual phy sical restraint if he is to c arry out the criminal plan.

Id. at 1130–31 (quoting United States v. Kaplansky , 42 F .3d 320, 324 (6th Cir. 199 4)). A dditionally
, we observed in Delgado-Hernandez that “ the Supreme Court has seen fit to
assume, admittedly without deciding
, that [ kidnapping ]U N I T E D S T A T E S V

. C H A N D L E R 18

constitutes a crime t h at presents a substantial risk o f force.” Delgado-Hernandez
, 69 7 F. 3d at 1 130 (citing United States

v. Rodriguez-Moreno
, 526 U.S. 275, 280 (1999)). And while the Supreme Court’s statemen t i n t his r eg ard was dictum, it is nevertheless hig hly p ersuasive. See United States v

. Montero-Camargo
, 208 F .3d 1122, 1 132 n.17 (9th Cir. 2 000) (“S upreme Court dicta have a weig ht that is g reater than ordinary judicia l d i c t a as p rophecy o f what the Court mig ht hold; a ccording ly
, we do not blandly shrug them off because they were not a holding .”). 8

Of particular importance here, N evada’s seco n d deg r ee kidnapping statut e i s very similar to the federal kidnapping
statute that we r eviewed in D elgado-Hernandez

. Compare Nev. Rev. Stat. § 200.310(2) (a person is g uilty of kidnapping if he unlawfully “seiz es, inveig les, takes, c arries away , o r kidnaps” another person), with 18 U .S.C. § 1201(a) (a person commits kidnapping if he unlawfully “sei z es, confines, inveig les, d ecoy s, k idnaps, abducts, or carries away ” another person). Kidnapping could potentially be committed in both jurisdictions without the use o f f orce. B ecause o f the similarities between the Nevada second deg r ee ki d n a pping
statute and the federal kidnapping statute, our reasoning in Delgado-Hernandez is hig hly persuasive here.

8 In Delg a d

o -Hern a n d

ez w e also n o ted t

h at “ leg islativ e b o d i e s , in clu d in g C o n g ress, h av e co n si s t en t ly treated k id n ap p in g as a crim e of

v io len ce.” Delg a d

o -Hern a n d

ez , 6 9 7 F.3 d at 1 13 1

– 3 3

. A f ter su rv ey in g th e ev id en ce, w e co n clu ded : “ In su m , n u m ero u s co u rts h av e h eld th at k id n ap p in g g en erally presen ts a risk o f su b stan tial f

o rce. Co n g ress, th e Sen ten cin g Co m

m issio n , an d f

o rty j u risd ictio n s h av e co n c l u d ed
, co n sisten t w ith h isto rical practice, t h at k id n ap p i n g is a v io len t crim e.” Id

. at 1 1 3 3

.U N I T E D S T A T E S V

. C H A N D L E R 19

Thus, e ven thoug h force is n o t r e q u ired, second deg r ee kidnapping as defined b y Nevada law still presents a serious potential risk of phy sical injury to another. 9 See also United States v. Sherbondy
, 865 F .2d at 1009 (“kidnapping entails a

‘ s erious potential risk of phy sical injury ’ to the victim ”) ; Kaplansky
, 42 F .3d a t 3 24 (“kidn a p p ing is the ‘ty pe’ o f offense where the risk o f phy sical injury to the victim is invariably present”).

2. Risk of injury roug hly similar to the enumer a t e d offenses in the ACCA

The only question remaining
, then, is whether sec o n d deg ree ki d n ap p i ng under Nevada law is a crime that is “roug hly similar, in k i n d as well as in deg ree of risk posed”
to burg lary
, ar s o n, ex tortion, or crimes involving the use o f

ex p losives. Begay
, 553 U.S. at 1 4 3

. L ike conspiracy to commit robbery
, second deg ree kidnapping i s similar to the enumerated crime of burg lary

.

As we discussed above, “[ b] urg lary is dang erous because it can e nd in confrontation leading to violence.” Sykes
, 131 S. Ct. at 2 2 7 3

. B y comparison, kidnapping is riskier than burg lary b ec a u se “a face-to-face confrontation,” James
, 550 U.S. at 203, with the victim is v e ry likely when a kidn a p p i n g occurs. According ly
, the second prong of the

9 If an y th in g , it w o u ld seem th at Nev ad a seco n d d eg ree k id n a p p i ng categ o rically p resen ts a g reater risk o f f o rce th an th e f

ed eral k id n ap p in g statu te. Co mp a re Nev . Rev

. Stat.§ 2 0 0 .3 1 0 (2 ) (req u irin g th at th e actio n b e d o n e “ w ith th e in ten t to k eep th e p erso n s ecretly im p riso n ed w ith i n th e State,” “ f o r th e p u rp o se o f co n v ey in g th e p erso n o u t o f th e State w ith o u t

a u t h o r i ty o f law ,” o r “ in an y m an n er h eld t o serv ice o r d etain ed ag ain st th e p erso n ’ s w ill”), with 1 8 U .S.C. § 1 2 0 1 (a) (lack in g th e h eig h ten ed men s

rea req u irem en ts o f

th e Nev ad a statu te).U N I T E D S T A T E S V

. C H A N D L E R 20

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

. 3 d a t 1128–30 (describing the substantial risks kidnapping p oses); She r b o n dy
, 865 F .2d at 1009 ( r easoning that kidnapping
, as def

i n e d in the Model Penal Code, is a violent felony

).

3. Conclusion

W e conclude that second deg ree kidnapping in N e v a d a categ orically involves a serious risk that phy sical forc e m ay be used in the course of committing the offense and that this risk is roug hly similar to the r isk involved in b urg lary

. According ly
, w e hold t hat second deg ree k idnapping under Nevada law is categ orica l l y a “violent felony ” under the residual clause of the ACCA.

I I I . CONCL U SI ON

F or the foreg oing r easons, conspiracy to commit robbery and second deg ree kidnapping are “viole n t f elonies” under 18 U.S.C. § 924(e)(2)(B )(ii). According ly
, Chandler is subject to the fifteen-year sentencing enhanceme nt under § 924(e)(1) for having previously been con v i c t e d of three violent felonies.

The judg ment of the district court is AF F IRMED

.

B YB EE, C i r c uit J udg e, with whom T ASHI MA, Circuit J udg e , and W OOD, Senior District J udg e, join, concurring :

I ag ree that United States v. Mendez , 992 F .2d 1488 (9th Cir. 1993), requires our per curiam holding that conspiracy toU N I T E D S T A T E S V

. C H A N D L E R 21

commit robbery is a “v i o l ent felony ” under 18 U .S.C. § 924(e)(2)( B) ( i i )

. I write separately to question the reasoningand continued validity of Mendez.

I

Not all felonies are “violent felonies.” As indicated by its title, t h e Armed Career Criminal Act’s (“ACCA”) fifteeny ear mandatory prison term is intende d for career c riminals, those o ffenders whose prior crimes “re v e a l a deg ree o f callousness toward risk” and “ show a n increased l ikelihood that the offender is the kind of person who mig ht deliberately point [ a] g un and p ull the trig g er. ” B egay v. United States
, 553 U.S. 137, 146 (2008); see also Sykes v. Un ited States
, 131 S. Ct. 2267, 22 7 5 ( 2 0 11). B y 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.

W h en determining whether a f elony is a “violent felony ”
courts must “employ the ‘ categ orical approach’” to determine whether an offense “ ‘ involves c onduct that presents a serious potential risk of phy sical injury to another.’” James v

. United States
, 550 U.S. 192, 201–02 ( 2 0 0 7 ) (quoting 18 U .S.C. § 924(e)(2)(B )(ii)). Under the categ orical approach, the relevant inquiry is whether the statutory elements of the offense “are of the ty

pe that w ould justify its inclusion within the residual provision.” Id. at 202.

Mendez does not s atisfy this standard for two reasons. F irst, M e n d ez treats the elements of conspiracy to commit a cri m e as i dentical to the e lements of the underly ing crime. Second, proceeding from that faulty premise, Mendez holds that conspiracy to commit robbery is a c r ime of violence evenU N I T E D S T A T E S V

. C H A N D L E R 22

thoug h conspiracy rarely
, if e ver, p resents a serious potential risk of injury

to another.

I I

I n Mendez
, we u sed the catego r i c a l approach—as we understood it in 1 993—to determine “whether conspiracy to rob is

. . . by d e fi n i t i on [ ] a ‘crime of violence’” under 18 U.S.C. § 9 24(c)(1). 992 F .2d at 1 490–91. This was a g ood start, but w e then broadly declared, intuit i vely
, but without any analy sis o f the elements of robbery as defined in the Hobbs Act, that “[ r] obbery indisputably qu a l i fies as a crime of violence.” I

d. at 1 491. Then, without any analy sis of the elements o f conspiracy
, we decided that conspiracy to commit r o bbery presents the same serious po t e ntial risk o f phy sical injury as completed r obbery because the ex istence o f

a criminal conspiracy increases the chances the planned crime will be committed. Id. at 1492.

I n addition to being illog ical, Mendez ’s conclusion is questionable in lig ht of recent Supreme Court precedent. I n James
, the Court considered whether a ttempted burg lary was

a viole n t f

elony under the ACCA’s residual clause, even thoug h burg lary is one of the violent f elonies e numerated in the ACCA’s residual clause. 550 U.S. at 195. A prolong ed analy sis would have been w holly unnecessary if the inchoate offense, attempted burg lary
, w as the same as the actual felony
, b urg lary

. B ut, as the Court determined
, i n choate offenses may pose different risks than the underly ing offense. Id. at 204. F or ex ample, “the risk posed by an a t tempted burg lary

. . . may be even g reater than that posed b y a ty pical completed burg lary ” becaus e at tempted burg laries are often thwarted by a

n intervenor. Id

. Thus, James demonst rates that e very inchoate offense must be considered individually
,U N I T E D S T A T E S V

. C H A N D L E R 23

reg ardless of whether the underly ing offense is categ orically

a violent felony
, because differen t o f fenses pose different risks.

James is consistent with the well-established r u le that inchoate offenses are separate f r o m completed offenses. Iannelli v

. U

nited States
, 420 U.S. 770, 778 (1975) (“ This Court repeatedly has recog n iz ed that a con s piracy poses distinct dang ers quite apart from those of the su bstantive offense.”); Braverman v

. United States
, 317 U.S. 49, 54 (1942) (“A cons p i r a cy is not the commission of the crime which it contemplates, and neither violates nor ‘arises under’ the statute whose violation is its o b j e c t .”); see also United States v

. Iribe
, 564 F .3d 1155, 1160 (9th Cir. 2 009) (quoting United States v. Macias-Valencia
, 510 F .3d 1012, 1014 (9th Cir. 2 007) ( “‘Conspiracy and attempt a re inchoate crimes that do not require completion of the criminal objective.’”)).

T h i s c ase presents a prime ex a mple of the sig nificant differences between a

n inchoate offense (conspiracy to commit r obbery

) and a completed offense (robbery )

. I n Nevada, robbery

is defined as:

the unlawful taking of personal property f rom the p erson of a n o t her, or in the person’s
presence, ag ainst his or her will, by means o f force or violence or fear of injury

, immediate

or future, to hi s o r her person or property , o r the person or property of a m e m b e r of his o r her family
, or of a

ny one in h is o r her company at the time of the robbery

.

Nev. Rev. Stat. § 200.380(1). “More b r i efly stated, robbery has as its e lements the taking of the property of another fromU N I T E D S T A T E S V

. C H A N D L E R 24

h i s p e rson or presence throug h the application o f force o r f e a r

. ” State v. Feinzilber
, 350 P.2d 399, 401 ( Nev. 196 0 ) (discussing Nev. Rev. Stat. § 200.380(1)).

B y c omparison, Nevada’s conspiracy s t atute, Nev. Rev. Stat.§ 199.480, simply s t ates that conspiracy occurs “whenever two or more p ersons conspire to commit murder, robbery
, sex ual assault, [ o r o t her enumerated offenses]

. ” Unlike some states, N evada does not require an overt act in pursuance of the crime, N ev. Rev. Stat. § 199.490, so “[ t] he
g ist of the crime of conspi racy is the u nlawful ag reement o r confederation.” Lane v. Torvinen
, 624 P.2d 1385, 1386 (Nev. 1981).

The Supreme Court o f Nevada addressed the difference between conspiracy to commit robber y a n d r o bbery in Nunnery v. Eighth Judicial Dist. C o urt ex rel. County of Clark
, 186 P.3d 886 (Nev. 2 008) (per cu r i a m )
, in o rder to decide whether “conspiracy to commit robbery is [ ] a felony involving the use or threat of violence.” I d. at 887. The court beg an by analy

z ing an earlier case where it d e c i d e d 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 J udicial Dist. Court
, 184 P.3d 3 69, 373 (Nev. 2008) (en banc) (per curiam) (citations and internal quotation marks omitt e d). 1 The

1 Hid a l g o also in clu ded o b s erv atio n s th at are eq u ally ap p licab le to

co n sp iracy

. Fo r ex am

p le, co n sp iracy
, m

u ch lik e “ [s ]o licitatio n is crim in alized

. . . b ecau se it carries th e risk o r po ssib ility th at it co u ld lead
to a co n su

m m ated crim e,” b u t u n der Nev ad a law “ a risk o r p o ten tial of h a r m to o th ers ‘ d o es n ot co n stitu t e a “ t h reat.”’ ” Id

. (q u o tin g Red eker v. Eig h th Ju d i cia l D i s t

. Co urt ex rel. Co un ty o f Cla rk
, 1 2 7 P .3 d

. 5 2 0
, 5 2 7 (Nev

. 2 0 06 )). “ Ob v io u sly
, th e n atu re of th e crim e Hid alg o alleg ed lyU N I T E D S T A T E S V

. C H A N D L E R 25

Supreme Court of Nevada then ex plained that H i d a l go “applie[ d] with equal force here” because “c o n s p iracy is

c ommitted u

pon reaching the unlawful ag reement.” Nunne r y , 186 P.3d at 888. And because conspiracy does not require an

ove r t a c t—let alone a violent one—the Supreme Court o f Nevada concluded, “althoug h conspiracy to commit robbery involves c onspiri ng 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 d iverg e from the Su p r e m e Court o f Nevada’s sound reasoning and the wellestablished law that c onspiracy to commit a crime is not the

same as committin g a c r ime. B ut until we a re willing to reevaluate Mendez
, offenders like Chandler will be categ oriz ed

as “ career offenders” b a sed on robberies which they discussed but did not actually commit.

I I I

F u r thermore, because o f its illog ical holding that conspiracy to d

o x = x , M

endez did not evaluate whether the elements of conspiracy to co m m i t robbery “involve[ ] conduct that presents a serious pot e n t i a l risk of phy sical injury to another.” 1 8 U

. S

. C

. § 924(e)(2)(B ) (ii). I submit that this omission sig nif i c antly undermines Mendez ’s continued validity bec a u s e conspiracy to commit robbery does not “ show a

n i n c reased likelihood that the offender is the kind of per s o n wh o mig ht deliberately point [a] g u n a nd pull the trig g er.” Begay , 553 U.S. at 146.

so licited is itself v io len t. B u t th i s d o es n ot tran sf o rm so licitin g m

u rd er in to th rea t en in g

m u rd er.” Id

. at 3 7 4

.U N I T E D S T A T E S V

. C H A N D L E R 26

There is little doubt that robbery poses a “ serious potential r i s k of phy sical injury to another” at the time it is committed. S

ee United States v. Harris
, 572 F .3d 1065, 1066 (9th Cir. 2 009) (per curiam) (determining that “a conviction under Nev. Rev. Stat. § 2 0 0

. 3 8 0 [ for robbery ] categ orically qualifies as a crime o f v iolence 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 o n ly in the future

. See Chambers v. United States
, 555 U.S

. 1 22, 128 (2009) (rejecting the g overnment’s arg u m e n t that an offense is a violent felony because it posed a risk of violence in the future); Lane
, 624 P.2d at 1386 (“The g ist o f t h e crime o f conspiracy is the unlawful ag reemen t or confederation.”). And as the Supreme Court of Nevada has aptly ex plained, “a risk or potential o f harm to others d o e s not constitute a threat.” Hidalgo
, 184 P.3d at 373 ( cit a t i o n s and internal quotation marks omitted); see also Nunnery
, 186 P.3d at 888–89 (holding that conspiracy to co mmit robbery is not a violent c rime b ecause “the elements of conspiracy to commit robbery do not include the u se or threat of violence to the person of another”).

Mendez incidentally a c k

n o w l e d g e s t

h e d i f f e r e n c e b etween imminen t an d future harm. 9 92 F .2d a t 1491–92 ( “[ W ] here conspirators ag ree to use ‘actual or threatened f o r ce, o r

v i o l e nce’ to obtain personal property from another

. . . t h e risk that phy sical force may be u sed

. . . is substantial.” (emphasis added) (c i t a t ions and internal quotation marks omitted))). B ut Mendez do e s n ot recog niz e that althoug h a person c onspiring to commit robbery is “doing something at the relevant time, there is no reason to b elieve that theU N I T E D S T A T E S V

. C H A N D L E R 27

s o m ething p oses a serious potential risk of phy sical injur y

. ” Chambers , 555 U.S. at 128. “To the contrary , an individual who [ conspires to c o mmit robbery ] would seem unlikely
, not likely
, to c all attention to his whereabouts by simultaneously
eng ag ing in additional violent and unlawful conduct.” Id. at 127; see also Grunewald v. United States
, 353 U.S. 391, 402 (1957) (“F or eve r y c o nspiracy is by its very nature secret; a case can hardly

be supposed where men concert tog ether for crime and advertise their purpose to the world.”).

I t is only when overt acts directed toward the commission of the crime are co m m itted that a crime b e g ins to pose a “serious p ot e ntial risk of p hy sical injury to another.” 18 U.S.C. § 924(3)(2)(B )(ii). B ut, in Nevada, once there has been an o vert act, the offense is no long er a mere conspiracy

. 2 Nunnery
, 1 86 P.3d at 888–89. I nstead, the offense becomes either attempted or completed robbery —off enses which ordinarily pose a more serious poten t i a l risk of harm to others.

I n other words, conspiracy is at least one “ step a way from
any phy sical dimension.” U nited Sta t e s v. R aupp , 677 F .3d 756, 763 (7th Cir. 2012) (W ood, J
., dissenting ). And because the “step” between discussing or even agr eeing on possibilities and phy sical action is a sig ni f i c a n t one, I maintain that conspiracy

to commit robbery is simply not an offense “of the ty

pe that would justify its inclusion w ithin the

2 T h e Su p rem e Co u rt o f N e v ad a ap tly ex p lain ed th is dif f eren ce:

“ Betw een p rep aratio n f

o r th e attem

p t an d th e attem

p t itself
, th ere is a w id e d if f eren ce. T h e p rep a r a t i o n co n sists in dev isin g o r arran g in g th e m ean s

o r m easu res n ecessary f

o r th e co m

m issio n of th e o f

f en se; th e attem

pt is
t h e d irect m ov em en t to w ard th e co m m issio n af

ter th e p rep aratio n s a r e

m ad e.” S ta te v. V

e r g a n a d is
, 2 48 P

. 9 0 0
, 90 1 (Nev

. 1 9 2 6 ) (citatio n an d in tern al q u o tatio n

m ark s o m itted ).U N I T E D S T A T E S V

. C H A N D L E R 28

r e s i d u al provision.” James
, 550 U.S. at 202. At the ver y least, the r i s k o f serious phy sical harm posed by conspiracy
t o c o m m i t r o b b e r y

— M e n d e z n o t w i t h s t a n d i n g

— i s substantially different from the risk of serious harm posed b y robbery

.

I V

Despite t h e s e concerns, I
, like the majority

, cannot say that the Supreme Court’s ACCA decisions “undercut the theory or reasoning ” o f 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 a dded). I ndeed, interpretation of the A CCA is challeng ing
, and the circuits a re split over whether conspiracy is a violent felony

.

At least five circuits have held that con s piracy may qualify as a violent felony

. See United States v. Gore
, 636 F .3d 728, 738 (5th Cir. 2 0 11) (“An ag reement to commit
ag g r avated robbery presents a serious potential risk of injury

. . . . This is particularly true when an overt act in furtherance of the ag reement is p erformed. We need not consider whether

an ag reement without such an overt act would suffice for
purposes of the ACCA.”); United States v. W h i t e , 5 71 F .3d 365, 372 (4th Cir. 2009) ( “ [T] he essential conduct underly ing the Conspir a c y O ffense is categ orically violent. The Conspiracy Offense cannot be divorced from its violent objective—robbery with a deadly weapon.”); United States v

. Boaz
, 558 F

. 3d 800, 8 07 (8th Cir. 2 009) (“The § 924(e) analy sis of a prior conspiracy conviction is g overne d b y the substantive offense that was the o b ject of the conspiracy

. . . .” ) ; U nited States v. Hawkins
, 139 F .3d 29, 34 ( 1st Cir. 1998) (holding that conspiracy to commit armed robbery is a violent felony under the A CCA b e c a u s e “[ w] e have alsoU N I T E D S T A T E S V

. C H A N D L E R 29

unequiv o c ally held that conspiracy to commit a crime o f violence

. . . it itself a crime of violence”); U nit e d S t ates v

. Preston
, 9 10 F

. 2d 81, 8 7 (3d Cir. 1 990) (“S i n c e [ the defendant] was c onvicted of conspiracy to commit a vio l e n t felony
, the use or threat of p h y sical f o rce w as a part of his prior conviction for this crime.”).

B y contrast, a t least two circuits have held that conspiracy does not qual i fy as a violent felony

. S ee United S

tates v

. W hitson
, 597 F .3d 1 218, 1222 (11th Cir. 2010) (per curiam) (“Conspiring to commit a crime is a purposeful act . . . . B ut in South Carolina, the ‘ g r avamen of co n s piracy is an ag reement or combination. A n overt act in furtherance of the conspiracy is n ot necessary to p rove the crime.’” (intern al citation o mitted) (re af

f irmed and a

pplied in U

nited States v

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

. Fell , 511 F

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

a Colorado conviction f or conspiracy to commit seconddeg ree burg lary w as not a violent felony because “[ a ] lthoug h there is an overt act element, the act n eed not be directed toward the entry of a building or structure

. . . . [ M] a ny overt acts sufficient to sustain a Colorado conspiracy conviction
create no risk of a violent c onfronta t i o n between the defendant and an indiv i d u a l interacting with the conspirator while the overt act is b e i n g committed.”); United States v

. King
, 979 F .2d 801, 804 ( 10th Cir. 1992) (ex plaining that the Tenth Circuit “look[ s] only to the elements of the conspiracy crime” and holding that conspiracy to commit ro b b ery does “not necessarily present circumstances which created the hig h risk o f violent confrontation inherent in a completed [ armed robbery ] ” (alteration in o rig inal) (quotation m arks a nd citation omitted)).U N I T E D S T A T E S V

. C H A N D L E R 30

The cir cuit split shows that there are valid reasons to believe the Supreme Court’s ACCA cases did n o t “clearly ” overrule Mendez ’s holding that conspiracy to commit robbery categ orically is a crime o f violence ( and thus a v i o l e nt felony ). B ut in lig ht of the questionable reasoning in Mendez and interv e n ing Supreme Court precedent, I submit that whether c onspiracy can qualify as a v i o l e nt felony is a difficult issue that warrants our en banc consideration.