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

.

R I C A R D O G U I Z A R -R O D R

I G U E Z , Defendant-Appellant. N o. 16-10507

D.C. No. 3:16-cr-00022- MMD-VPC-1

OPI NI ON

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

Arg ued and Submitted F ebruary 15, 2018 San F rancisco, California

F iled Aug ust 17, 2018

B efore: Carlos T. B ea and N. Randy Smith, Circuit J udg es, and David C. Ny e , * District J udg e.
Opinion by

J udg e N.R. Smith

* T h e Ho n o rab le Dav id C. Ny e, Un ited States D istrict J u d g e f o r th e District o f

Id ah o , sittin g b y

d esig n atio n

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

. G U I Z A R -R O D R I G U E Z 2

SUMMARY * *

Crim inal Law

Affirming a conviction for illeg al r eentry into the United States in violation of 8 U

. S

. C. § 1326, the panel held that battery committed with the use of a deadly weapon u n d er Nevada Revised Statute § 200.481(2)(e)(1) is categ o rically a crime of violence as defined in 18 U.S.C. § 16(a).

COUNSEL

Cristen C. Thay er (arg

ued) and Amy B

. C l e ary , Assistant F ederal Public Defenders; Rene L

. Valladares, F ederal Public Defender; Office of the F ederal Public Defender, Reno, Nevada; for Defendant-Appellant.

Eliz abeth O. White (arg

ued), A ppellate Chief; United States Attorney ’s Office, Reno, Nevada; for Plaintiff-Appellee.

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

t es n o p art o f th 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

. G U I Z A R -R O D R I G U E Z 3

OP INION

N.R. SMI TH, Circuit J udg e :

As we have p r e v i ously determined, “even the least touching with a deadly we a p o n o r instrument is violent in nature.” United States v. Grajeda
, 581 F .3d 1186, 1 192 (9th Cir. 2009). Thus, battery committed with the u se of a deadly weapon under Nevada Revised Statute § 200.481(2)(e)(1) is a crime of violence as defined in 18 U.S.C. § 16(a).

I. F ACTS AND P ROCEDURAL HISTORY

I n 1998, Ricardo G uiz ar-Rodrig uez , a citiz en of Mex ico,

was convicted in Nevada of battery c o m mitted with the use of a deadly weapon. See Nev. Rev. Stat. § 200.481(2 ) ( e)(1). The I mmig ration and Naturaliz ation Service (“I NS”) determined that b a ttery committed w ith t h e u s e of a deadly
weapon unde r N e v a da law was an ag g ravated felony a nd ordered Guiz ar-Rodrig uez ’s removal on that b a sis. 1 Guiz arRodrig uez was removed from this country

.

1 In th e co n tex t o f

th is case, a “ crim e o f v io len ce” is an “ ag g rav ated f elo n y .” T itle 8
, Sectio n 1 22 7 (a)(2 )(A )(iii) o f t h e U.S. Co de g ran t s th e A tto rn ey Gen eral th e p ow er to d ep ort “ [a]n y alien w h o is co n v i cted o f an ag g rav ated f

elo n y at an y tim e af

ter ad m issio n .” T itle 8
, Secti on 1 1 0 1 (a)(4 3 )(F) of th e U.S. C o d e d ef i n es an ag g rav ated f

elo n y to in clu d e

“ a crim e o f v i o len ce (as d ef in ed in sectio n 1 6 o f T itle 1 8
, b u t n o t i n clu d in g

a p u rely p o l itical o f

f en se) f o r w h ich t h e term of im

p riso n m en t [is] at least

o n e y ear.” T itle 1 8
, Sectio n 1 6 (a) of th e U.S. Co d e d ef in es a crim e of

v io len ce to in clu d e “ an

o f f en se th at h as as an elem en t th e u se, attem pted

u se, o r th reaten ed u se o f

p h y sical f

o rce ag ain st th e p erso n

o r p ro p erty

o f

an o th er.”U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 4

I n 1999, Guiz ar-Rodrig uez illeg ally reentered the United States. I n 2 004, Guiz a r -Rodrig uez was ag ain removed, this time based on his i l l e gal reentry

. After his second deportation, Guiz ar-Rodrig uez ag ain reentered the United States.

On April 2 0, 2016, a Nevada g rand jury indicted Guiz arRodrig uez with unlawful r eentry

. Guiz ar-Ro d r i g uez moved
to dismis s t h e indictment o n the g round that his initial deportation w as u nlawful, becaus e b a t t e r y c o m mitted with the

use of a deadly weapon under Nevada law is not an ag g r avated felony

. The district court rejected this arg ument. Consequently
, Guiz ar-Rodrig uez p leaded g uilty but reserved the rig h t to challeng e the district court’s ruling on appeal.

II. JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction pursuant to 28 U.S.C. § 1291. “W e review de novo the deni a l o f a motion to dismiss an indictment under 8 U.S.C. § 1326 [ f or i l l e g al reentry ] when the motion is based on alleg ed due process de f e c t s in an underly ing deportation proceeding .” U nited States v. VegaOrtiz
, 822 F .3d 1031, 1034 ( 9th Cir

. 2 0 16) (quoting United S t a t es v. Alvarado-Pineda
, 774 F .3d 1198, 1201 (9th Ci r. 2014)). Similarly
, we review de novo a district court’s determination that a state crime is a crime of violence. United States v

. Rivera-Muniz
, 854 F .3d 1047, 1048–49 (9th Cir. 2017).U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 5

III. DISCUSSION

A.

“A defendant charg ed w ith illeg al reentry under 8 U .S.C. § 1326 has a F ifth Amendment rig ht to collaterally attack his removal order, because the removal order serves as a predicate element of h is conviction.” U n i t e d States v. UbaldoFigueroa
, 364 F .3d 1042, 1 047 (9th Cir. 2004). Section 1326(d) allows a defendant c o l laterally to attack the underly ing deportation o r de r i f “ ( 1) the alien e x hausted any administrative remedies that may have been available to seek relief ag ainst th e o r d er; (2) the deportation proceeding s at which the order w as issued improperly d eprived the alien of the opportunity for judicial r eview; and (3) the entry of the order was fundamentally u nfair

. ” I n this appeal, w e need review only whether the entry of Guiz ar-Rodrig ue z ’ s initial removal order was fundamentally unfair. 2

“An underly ing order is ‘fundamentally unfair’ i f ( 1 ) a defendant’s due process rig hts were violated by defects in his underly ing dep o r tation proceeding
, and ( 2) he suffered prejudice as a result of the d efects.” Id. “W h e r e a prior removal o rder is premised on the commiss i o n of an ag g r avated felony
, a defendant w h o s hows that the crime o f which he was p reviously convicted was not, i n fact, an ag g r ava t e d f

e lony
, has established both that his due process rig hts wer e v i olated a

nd that he suffered prejudice as a result.” United States v. Martinez , 786 F .3d 1227, 1230 (9th Cir. 2015). Thus, Guiz ar-Rodrig uez is entitled to a d ismissal

2 B ef o re th e d istrict co u rt, th e p art i e s d i sp u ted o n ly w h eth er th e

rem o v al o rd er w as f

u n d am en tally

u n f air.U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 6

if his conviction for battery with the use of a deadly weapon was not a crime of violence.

To determine whether battery committed with the use of

a deadly weapon is a crime of viol e n c e , “ we apply the categ orical and modified categ orical a pproaches.” Mendoza

v. Holder
, 623 F .3d 1299, 1 3 0 2 (9th Cir. 2010) ( quotation marks o mitted). This requires following a three-step process. Descamps v. United States
, 570 U.S. 254, 257 (2013). F irst, “we compare the statute of conviction to the removal statute’s definition of ag g ravated felon y

. ” Carlos-Blaza v

. H older
, 611 F .3d 583, 5 87 (9th Cir. 2010). “ I f every conviction under the statute of conviction is also an ag g r avated felony
, then there is a ‘categ orical match’ and the defendant’s conviction perforce qualifies a s an ag g ravated f elony .” Id. Second, if section 2 00.481(2)(e)(1) is “‘overb road,’ meaning that it criminaliz es conduct that g oes bey on d the e lements of the federal offense,” we then must determine “whether the statute is ‘divisible’ or ‘indivisible.’” 3 Lopez-Valencia v. L y nch
, 798 F .3d 863, 867–68 ( 9th Cir. 2 015) (quoting Medina-Lara

v. Holder
, 771 F .3d 1106, 1112 ( 9th Cir. 2014)). Third, if the
statute is divisible, “we may ex amine certain d ocuments from the d efendant’s recor d o f conviction to determine what elements of the divisible statute he was convi c ted o f

v i o l a t i n g .” Id

. at 868. As we ex plain below, we need not determine w hether the statute is divisible, because Nev. Rev. Stat. § 200.481(2)(e)(1), b attery committed wi t h a deadly weapon, is a categ orical crime of violence.

3 A statu te is d iv isib le w

h en it “ lists m

u ltip le, altern ativ e el e m e nt s , an d so ef f ectiv ely creates sev eral d if

f eren t crim es.” Desca mp s , 5 7 0 U.S. at 2 6 4 (q u otatio n

m ark s an d ellip s is o m i tted ).U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 7

B

.

A c rime o f violence is “an offense that has as an element the use, attempted use, or t h r e a tened use of p hy sical force
ag ainst the person o r property of a nother.” 4 18 U.S.C. § 16(a); 8 U.S.C. § 1 101(a)(43)(F ) (defining an “ag g ravated f e l ony ”

as “a crime of violence (as defined in section 16 o f Title 18, but not includin g a purely political offense) for which the
term of imprisonment at least o ne y ear”). “‘[ P] hy sical f orce’

means violent f

orce—that i s , f

o rce capable of causing phy sical pain or injury to another p e r son.” Johnson v. United States 559 U.S. 133, 140 (2010) (orig inal emphasis omitted). G u i z ar-Rodrig uez must show that there is “a realistic probability
, not a theoretical possibility
, that [ N evada] would apply its statute to conduct that falls outside [ this definition]

. ” Gonzales v. Duenas-Alvarez
, 5 4 9 U.S. 183, 193 (2007). Ordinarily
, “he must at least point to his own case or ot her

cases in which the state courts in fact d id apply the statute in the [ overbroad] manner for w hich he a rgu es.” Id. However, “when a ‘state statute’s g reater breadth i s ev i d ent from its
tex t,’ a [ defendant] need not point to an actual case a pply ing the statute of conviction in a[ n overbroad] manner.” ChavezSolis v. Lynch
, 803 F .3d 1 004, 1010 (9th Cir. 2015) (quoting U nited States v. G risel
, 488 F .3d 844, 850 (9th Cir. 2007)). I n determining whether the statute’s overbreadth is “ evident,”

we look both to the tex t of the s t at u t e and to state court interpr etations of the statute. United States v. Strickland
,

4 T itle 1 8
, S ectio n 1 6(b ) o f th e U.S. Co d e also i n c l u d es w ith in th e d ef in i tio n o f a crim e o f v io l e n c e “a n y o th er o f f en se th at i s a f

elo n y an d th at, b y i t s n atu re, in v o lv es a su b stan tial risk th at p h y sical f o rce ag ain st th e p erso n o r pro p erty o f an o th er m ay b e u sed in th e co u rse o f co m m ittin g th e o f f en s e.” Ho w ev er, th at su

b s ectio n w as h eld u

n co n stitu tio n ally v ag u e b y th e Su p rem e Co u rt in S

essio n s v. Dima

ya , 1 3 8 S. Ct. 1 2 0 4 (2 0 1 8 ).U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 8

860 F .3d 1224, 1226 ( 9th Cir. 2017). Here, Guiz ar-Rodrig uez contends tha t , b ased o n Nevada Supreme Court precedent, section 200.481(2)(e)(1) is not a crime of violence.

Section 2 00.481(2)(e)(1) prohibits “any willf ul a nd unlawful u se of force or violence upon the person of another

. . . committed wit h the use o f a deadly weapon

. . . [ that results in] [ n] o substantial bodily harm to the victim.” § 200.481(1)(a), (2)(e). To commit simple battery in Nevada, the “force n e e d not b e violent or severe and n eed not cause bodily pain or bodily harm.” Hobbs v. State
, 25 1 P .3d 177, 179 ( Nev. 2 011). As a result, simple battery in Nevada would

n o t o r dinarily be a crime of v iolence under Johnson ’ s definition o f “phy sical force.” S ee G rajeda
, 581 F .3d at 1192. However, “even the least touching w i th a deadly w eapon o r instrument is violent in nature,” because it “ demonstrates at

a minimum the threatened use of actual f orce.” 5 Id. T h us, the
outcome o f this case depends on Nevada’s definition of “use of a deadly weapon” in section 200.481(2)(e). I f Nevada law requires actual use of a truly “ deadly ” we a p o n , then it is a crime of violence. Grajeda , 581 F .3d at 1192.

1.

Nevada courts h ave an ex tensive common law tradition o f defining the term “deadly weapon .” “As early as 1870, [ the Nevada Supreme C] ourt d efined objects as ‘deadly weapons’

5 Gra jed a p red ates th e Su

p rem e Co u

rt’ s d ecisio n in Jo h n so n v. Un ited S ta tes w h ich clarif

ied th at “ ‘ p h y sical f

o rce’ m ean s v io len t f

o rce—th at is, f o rce cap a b l e o f cau sin g p h y sical p ain o r in j u ry to an o th er p erso n .” 5 5 9 U.S. at 1 4 0

. Ho w ev er, th e Gra jed a c o u rt reaso n ed th at “ ev en th e ‘least to u ch i n g ’ w ith a dead ly w eap o n o r in stru m en t

. . . is v io l e n t i n

n atu re.” Gra

jed a , 5 8 1 F.3 d at 1 19 2

. T h u s, th e Gra jed a co u rt’ s reaso n in g ap p lies ev en

af ter Jo h nso n

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

. G U I Z A R -R O D R I G U E Z 9

if they satisfied either the inherently dang erous or the functional test.” Rodriguez v

. State
, 407 P.3d 771, 773 (Nev. 2017) (emphasis omitted). Under the inherently dang erous te s t , a deadly weapon is any instrument that “if u sed in the ordinary manner contemplated by its desig n and construction, will, or is likely to, cause a life-threatening injury or death.” Zgombic v. State
, 798 P.2d 548, 551 (Nev. 1990) superseded by statute as recognized in Rodriguez
, 407 P.3d at 774. Under the functiona l test, a deadly weapon is any instrumentality that is “used in a deadly

manner.” Id. at 550.

The N evada Supreme Court r ecently addr e s sed the definition of “deadly weapon” in section 200.481(2)(e). Rodrigue z , 407 P.3d at 7 72. T h e Rodriguez Court h eld conclusively that “the L eg islature intended ‘deadly weapon’ within [ section] 2 00.481(2)(e) to b e i n terpreted broadly
, according to both the functional definition and the inherently dangerous definition .” Id. at 774 (emphasis added). W e take the Nevada Supreme Court at its word.

The disjunctive definition o f “deadly weapon” a rticulated by the Nevada S u p r eme Court is nearly identical to the definition of “deadly w eapon” in Ca l i f o r nia, see People v

. Aguilar
, 945 P.2d 1204, 1207 (Cal. 1997), and w e h ave already determined that assault with a deadly weapon under California law is a c r i m e o f violence, Grajeda
, 581 F .3d at 1192. W e similarly conclude that “ even the lea s t t o u ching with a deadly weapon or instrument is violent in nature” when the weapon is d esig ned to c a use life-threatening injury

or death
, i .e. , when it satisfies the inherently dang erous test, because it “demonstrates at a minimum the threatened use o f actual force.” See id. Moreover, a battery committed with the

use of an instrum e nt that is used in a deadly manner, i.e.
, a weapon that satisfies th e functional test, would c ertainlyU N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 10

involve the use of violent force. S ee id. Thus, a c onviction for battery w i t h the use of a deadly weapon under section 200.481(2)(e) is a crime of violence.

Guiz a r-Rodrig uez urg e s us to look b ey ond the c o mmon law definition of “deadly w eapon” to the statutory definition of “ deadly weapon” in Nevada Revised Statute 193.165. That
statute provides for a sentencing enhancement when a deadly
weapon is u sed to commit any c r ime. Nev. Rev. Stat. 193.165. Section 193.165(6) defines a deadly weapon as:
(a ) Any instrument which, if used in the ordinary manner contemplated by its design and construction, wi l l o r is likely to cause substantial bodily

harm or death;

(b) Any weapon, device, instrument, material

or substance which, under the ci rcumstances in w hich it is used, a ttempted to be used o r threat e n e d to be used, is readily capable o f causing substantial bodily harm or death; or

(c) A dang erous or deadly weapon specifically described in [ Nevada Revised Statutes] 202.255, 202.265, 202. 2 90, 202.320 o r 202.350.

Subsection (a) appears to codify the inherently dang e rous test whereas subsection (b) appears to codify the f u nctional test. However, the Nevada leg islature a lso included a third test in subsection (c). The enumerated statutes in subsection ( c) list

som e i t ems that are n ot truly “deadly .” See Nev. Rev. Stat. § 202.265(1)(g ) (including “[ a] n y device used to mark any part of a person with paint o r any other substance” in a list o fU N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 11

items p rohibited on s c h o o l property ). A battery committed with one o f those items would not necessarily be “violent in nature.” See Grajeda
, 581 F .3d at 1191. Guiz ar-Rodrig uez

a r g ues that the overbroad definition of “deadly weapon ” i n subsection (c) applies to section 200.481(2)(e); i.e.
, that a person could be convicted of violating section 200.481(2)(e) for the u n-consented marking of another person with p a i n t

. W e are not convinced.

W h en the Nevada leg islatur e i nitially adopted section 193.165, it did not define “deadly weapon.” R o d riguez
, 407 P.3d at 773 n .1. I n Zgombic
, the Nevada Supreme Court held that the def

i n i t ion of “deadly w eapon” as it related to section 1 9 3.165 was limited to inherently dang erous instruments. Zgombic
, 798 P.2d at 5 5 0

. However, the court

ex p licitly left intact the functional test “where a deadly
weapon [is] an element of a crime, s u ch as assault with a deadly weapon .” Id. at 549–50 (emphasis added). Then, “five
y ears after Zgombic was decided, [ the N evada] L e g islature superseded [ Zgombic ’s] holding by amending [ section] 193.165 to define ‘deadly weapon’ a ccording to b o th t h e inherently dang erous and the f unctional definitions.” Rodriguez
, 407 P.3d at 774 (emphasis omitt e d )

. N othing in this history sug g e s t s that the statutory definition o f “deadly

w e a pon” in section 193.165(6)(c) applies to sectio n 200.481(2)(e).

The Nevada Supreme Cou rt has twice stated that the definitio n s i n section 193.165(6) are “instructive” in interpreting the meaning o f “ deadly weapon” in other
statutes. Rodriguez
, 407 P. 3 d a t 7 74; F underburk v. State
, 212 P.3d 337, 337 (Nev. 2 009). Nevertheless, the Nevada S u p r eme Court has never w avered from the historical approach of d efining “deadly w e a p on” in sectionU N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 12

200.481 (2)(e) according to the inherently dang erous a nd functional tests only

. I n deed it has made clear that “[ section] 193.165

. . . do e s n ot apply to crimes like [ section] 2 00.481(2)(e) that contain ‘deadly weapon’ as a ‘ neces s a r y element’ of the u n derly i n g crime.” Rodriguez
, 407 P.3d at 773. Therefore, it is not “ e vide n t” from Nevada law a nd precedent that the d e f

i n i tion of “deadly weapon” in section 193.165(6)(c) ap p lies to section 200.481(2)(e). See ChavezSolis v. Lynch
, 803 F

. 3d a t 1 0 1 0 ; S t rickland
, 860 F .3d at 1226. Quite the opposite.

W e disag r ee that Funderburk supp l i e s the p recedent Guiz a r-Rodri g uez needs to make his arg ument. I n Funderburk
, the defendan t had been convicted of burg lary while in possession of a firearm or deadly weapon. 212 P.3d
at 337–40. I n instructing the jury
, the district court used the definition of “firearm” found in N evada Revised Statute § 202.265(5)(b), one of the statutes lis t e d in section 193.165(6)(c). Id. a t 337.

I n affirming the district court, the Nevada Supreme Court addressed the interplay between the common law definition of “deadly weapon” and the statutor y d e finition in section 193.165(6). I

d. at 338–40. The Funderburk court affirmed the district court, but its reasoning was nuanced. Id. at 37–38. The court n oted that the N e vada Supreme Court h ad previously determine d that the enhancement in section 193.165 could not be applied to burg lary
, becau s e s e ction 193.165 requires “use” of a deadly w eapon. Id. at at 339. I n response, the Nevada leg islature had amended its burg lary
statute to prescribe an enhancement w hen the burg lar “has in his o r her possession or g a ins possession of any firearm o r deadly weapon a t a

n y time during the c o m m ission of the crime.” Nev. Rev. Stat. § 205.060 ( emphasis a dded). B ecauseU N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 13

the functional test applied at the time of the amendment, the Funderburk court reasoned that the leg islature “intended the
term [ ‘ deadly weapon’] to have broad applic a bility

. ” Fu nderburk
, 2 12 P.3d at 340. Consequently
, the court

con c l u d e d that “ based o n the Legislature’s intent
, the definitions set forth in [ section] 193.165(6) are instructive to determine what constitutes a ‘deadly w e a p on’ under [ the burg lary statute] .” Id. (emphasis added).

I n other words, the definitions in section 193.165(6) were instructive, because they helped illuminate the l e g islature’s intent in other statutes where “deadly weapon” was n o t defined. This conclusion flows from the N evada leg islature’s rebuke of the Nevada Supreme Court’s d ecision in Zgombic

. The Funderburk cou r t w a s apparently unwilling to walk down that road ag ain. So, it a ffirmed the d i s t ri c t court’s definition of “firearm” that was dra w n f r om a statute specifically listed in section 193.165(6 )(c). However, the Funderburk court never stated that the definitions in section 193.165(6) were controlling or in some w a y superseded the common law functional or inherently dang erous tests.

W h at was implicit in Funderburk was later made ex plicit in Rodriguez

. I n Rodriguez , the Nevada Supreme Court was asked to define “deadly weapon” i n Nevada’s battery with a deadly weapon statute. Rodriguez
, 407 P.3d at 772. I n the district court, the g overnment an d R odrig uez had submitted dueling jury instructions reg arding the definition o f “ d e adly weapon.” Id. The g overnment proposed using the functional
test whereas Rodrig uez propo s e d using the inherently dang erous test. I

d

. T h e district court adopted the
g overnment’s instruction. I d.U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 14

The Nevada Supreme Court held that the jury instruction

was proper a n d concluded that “the L eg islature intended ‘deadly w eapon’ within [ section] 200.481(2) ( e ) to be interpreted broadly
, acco r ding to both the functional definition a nd the inherently dangerous definition .” Id. at 774 (emphasis added). The court’s reasoning was two-fold. F irst and primarily
, “when a leg islature adopts lang uag e that has a particular meaning or h istory the leg islature inte n d e d the lang uag e to have meaning consi stent w ith previous interpretations of the lang uag e.” Id. a t 773 (alteration s and quotation marks omitted). W hen it d rafted secti on 200.481, the leg islature wa s a w are that Nevada courts applied the inherently dang erous and the functional tests to define “deadly weap o n

. ” Id. at 773. T h us, the Rodriguez court determined that the leg islature intended to define “de adly

weapon” in section 200.481(2)(e) a c cording to the inherently dang erous and functional tests. Id.

S e c o n d, the court addressed Rodrig uez ’s arg ument that section 19 3

. 1 65(6) precluded the court from using the functional test to define “deadly weapon” in section 200.481(2)(e). Rodrig uez b ased his a r g ument on the limiting lang uage in section 193.165(6) which specifies that its definition o f “deadly weapon” applies only in “this section.” Id. at 774 (quoting Nev. Rev. Stat. 1 93.165(6)). The court did
not overtur n Funderburk but c larified that, “althoug h [ sectio n ] 193.165(6)’s definitions do not necessarily ex tend bey ond [ s e ction] 193.165, nothing prevents them from helping to define ‘deadly

weapon’ within other statutes.” Id. (emphasis in ori g inal). I mportantly
, the Rodriguez court ind i c a t ed what it meant by “ helping to define ‘deadly weapon’ within other statutes.” Id. The court determined that “[ t ] h e L eg islature’s rejection of Zgombic indicates its continued approval o

f the functional definition .” Id. at 774U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 15

(emphasis added). Thus, the Rodriguez Court concluded that (1) an instrument is a deadly weapon for purposes of section 200.481(2)(e) if the instrument meets either the inherently dang erous or functional test, and (2) section 193.165( 6 ) ’s definitions of “ deadly weapon” a re n ot c ontrolling in section 200.481(2)(e) and do not a ffect the v alidity of the traditional common law approach.

Nevertheless, Guiz ar-Rodrig uez a rg ues that there is a realistic p r o bability that Nevada courts would apply the definition of “deadly w eapon” i n section 193.165(6)(c) to section 200.481(2)(e). W e d isag ree, be c a u s e it would
contravene the Nevada Supreme Court’s statement in Rodriguez that “when a leg islature adopts lang uag e that h a s

a parti c u l a r meaning or h istory the leg islature intended the la ng uag e to have meaning consistent w ith previous interpretations of the lang uag e.” Rodriguez , 407 P.3d at 773 (alterations and quotation marks omitted)). W hen the leg islature adopted section 200.481(2) (e), the inherently dang erous and functional tests c ontrolled. Id. A reading of the
statute that ex pands the definition o f “deadly weapon” bey ond those tests, i.e., “[ a] ny d e vice used to mark any part of a person with p a int or any other substa n c e , ” Nev. Rev. Stat. § 202.265(1)(g ), would not b e faithful to the Nevada Supreme Court’s reasoning in Rodriguez

. 6

I n sum, Guiz ar-Rodrig uez must demonstrate “a real istic probability
, not a theoretical possibility
, that [ N evada] would apply its statute to conduct that falls o utside [ the definition o f

6 Mo reo v er, ad o p tin g a d ef in itio n o f “ d ead ly w e a p o n ” th at in clu des in stru m en ts th at are n o t actu ally “ d ead ly ” w o u ld co n trav en e t h e N e vad a Su p rem e Co u rt’ s i n s t r u c tio n t o “ co n stru e th e statu te in a m an n er w h ich

av o id s u n reaso n ab le resu lts.” Fu n d erb u rk , 2 1 2 P .3 d at 3 3 9.U N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 16

a crime of violence] .” Gonzales
, 549 U.S. at 193. T he statute’s g reater bre a d t h must be “evident from its tex t” Chavez-Solis
, 803 F .3d at 1010 (quotation marks omitted), o r “evident” f

rom state court precedents interpreting that tex t. Here, the Nevada Supreme Court h as indicated that the inherently -dang erous and f u nctional tests apply when defining “deadly weapon” in section 200.481(2)(e), because those tests constituted the common law definition of “deadly weapon” at the time the statute was drafted. Nevada d oes not apply an overbroad definition o f “deadly weapon” to section 200.481(2)(e).

2.

Guiz a r-Rodrig uez also contends that he could have been convicted of v iolating section 2 00.481(2)( e)(1) even if he merely possessed a deadly weapon during the battery

. Nothing in the tex t of the statute o r Ne v a d a p recedent
sug g ests such an interpretation. I n M oore v. State
, the Nevada Supreme Court interpreted the word “uses” with respect to a

s ection 193.165 “deadly weapon” sentencing enhanceme n t

. 27 P.3d 447, 4 49 (Nev. 2001). The court invoked the rule of lenity and held that “[ t] he v e r b ‘ u se’ connotes ‘to put into action or service’ and ‘to c a r r y out a purpose o r action b y

m e a ns of.’” Id. Thus, in order to receive the sentencing enha n c e m ent in section 193.165, a criminal must “‘put’ a deadly weapon ‘into a c tion’ to commit the [ underl y ing ] crime.” Id. Section 200.481(2)(e)(1) requires that the battery be “committed with the use of a deadl y weapon.” Guiz arRodrig uez has not shown that “ u se” would b e interpreted differently in section 200.481. F urthermore, th e N evada leg islature has shown that it differentiates between “use” a nd

“ p o s s e ssion” of a deadly weapon. As we have already discuss e d
, the Nevada Supreme Court determined that theU N I T E D S T A T E S V

. G U I Z A R -R O D R I G U E Z 17

sentencing enhanceme n t in section 193.165 could not a pply
to burg lary
, because the enhancement require s “use” of a deadly weapon. Carr v. Sheriff, Clark Cty.
, 6 01 P.2d 422, 424 (Nev. 1979). Subsequently
, the N evada leg islature amended its burg lary statute to p r e s cribe an enhancement when the b urg lar “has in his or her p ossession o r g ains posse s s i o n o f
any firearm or deadl y w e a p on at any time during the commission of the crime.” Nev. Re v

. Stat. § 205.060 (emphasis added); Funderburk
, 212 P.3d a t 339. I n other words, had the leg islature meant to allow a conviction under section 200.481(2)(e)(1) when a p e rson merely possesses a deadly weapon, it w ould have said so. Guiz a r-Rodrig u ez has

n o t s hown a realistic probability that mere possession of a deadly weapon wou l d satisfy the requirements of section 200.481(2)(e)(1).

IV. CONCLUSION

B e cause a violation of section 200.481( 2 ) (e)(1) requires committing a b attery “with the use of a deadly weapon,” it is

a c a tego r i c al crime o f violence. As we h ave previously determined, “even the ‘ least touching ’ with a d eadly weapon

or instrument

. . . is v iolent in nature.” Grajeda
, 581 F

. 3d at 1192. The Nevada Supreme Court cases cited by G u i z a r

Rodrig uez do not undermine this conclusion.

AF F IRMED.