FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICARDO GUIZAR-RODRIGUEZ,

Defendant-Appellant.

No. 16-10507

D.C. No.

3:16-cr-00022-

MMD-VPC-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Argued and Submitted February 15, 2018

San Francisco, California

Filed August 17, 2018

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,

and David C. Nye,

* District Judge.

Opinion by Judge N.R. Smith

* The Honorable David C. Nye, United States District Judge for the

District of Idaho, sitting by designation.
2 UNITED STATES V. GUIZAR-RODRIGUEZ

SUMMARY**

Criminal Law

Affirming a conviction for illegal reentry 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 under

Nevada Revised Statute § 200.481(2)(e)(1) is categorically a

crime of violence as defined in 18 U.S.C. § 16(a).

COUNSEL

Cristen C. Thayer (argued) and Amy B. Cleary, Assistant

Federal Public Defenders; Rene L. Valladares, Federal Public

Defender; Office of the Federal Public Defender, Reno,

Nevada; for Defendant-Appellant.

Elizabeth O. White (argued), Appellate Chief; United States

Attorney’s Office, Reno, Nevada; for Plaintiff-Appellee.

** 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. GUIZAR-RODRIGUEZ 3

OPINION

N.R. SMITH, Circuit Judge:

As we have previously determined, “even the least

touching with a deadly weapon or instrument is violent in

nature.” United States v. Grajeda, 581 F.3d 1186, 1192 (9th

Cir. 2009). Thus, battery committed with the use 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. FACTS AND PROCEDURAL HISTORY

In 1998, Ricardo Guizar-Rodriguez, a citizen of Mexico,

was convicted in Nevada of battery committed with the use

of a deadly weapon. See Nev. Rev. Stat. § 200.481(2)(e)(1).

The Immigration and Naturalization Service (“INS”)

determined that battery committed with the use of a deadly

weapon under Nevada law was an aggravated felony and

ordered Guizar-Rodriguez’s removal on that basis.1 GuizarRodriguez was removed from this country.

1

 In the context of this case, a “crime of violence” is an “aggravated

felony.” Title 8, Section 1227(a)(2)(A)(iii) of the U.S. Code grants the

Attorney General the power to deport “[a]ny alien who is convicted of an

aggravated felony at any time after admission.” Title 8, Section

1101(a)(43)(F) of the U.S. Code defines an aggravated felony to include

“a crime of violence (as defined in section 16 of Title 18, but not including

a purely political offense) for which the term of imprisonment [is] at least

one year.” Title 18, Section 16(a) of the U.S. Code defines a crime of

violence to include “an offense that has as an element the use, attempted

use, or threatened use of physical force against the person or property of

another.”
4 UNITED STATES V. GUIZAR-RODRIGUEZ

In 1999, Guizar-Rodriguez illegally reentered the United

States. In 2004, Guizar-Rodriguez was again removed, this

time based on his illegal reentry. After his second

deportation, Guizar-Rodriguez again reentered the United

States.

On April 20, 2016, a Nevada grand jury indicted GuizarRodriguez with unlawful reentry. Guizar-Rodriguez moved

to dismiss the indictment on the ground that his initial

deportation was unlawful, because batterycommitted with the

use of a deadly weapon under Nevada law is not an

aggravated felony. The district court rejected this argument.

Consequently, Guizar-Rodriguez pleaded guilty but reserved

the right to challenge the district court’s ruling on appeal.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. “We

review de novo the denial of a motion to dismiss an

indictment under 8 U.S.C. § 1326 [for illegal reentry] when

the motion is based on alleged due process defects in an

underlying deportation proceeding.” United States v. VegaOrtiz, 822 F.3d 1031, 1034 (9th Cir. 2016) (quoting United

States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir.

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).
UNITED STATES V. GUIZAR-RODRIGUEZ 5

III. DISCUSSION

A.

“A defendant charged with illegal reentry under 8 U.S.C.

§ 1326 has a Fifth Amendment right to collaterally attack his

removal order, because the removal order serves as a

predicate element of his conviction.” United States v. UbaldoFigueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). Section

1326(d) allows a defendant collaterally to attack the

underlying deportation order if “(1) the alien exhausted any

administrative remedies that may have been available to seek

relief against the order; (2) the deportation proceedings at

which the order was issued improperly deprived the alien of

the opportunity for judicial review; and (3) the entry of the

order was fundamentally unfair.” In this appeal, we need

review only whether the entry of Guizar-Rodriguez’s initial

removal order was fundamentally unfair.2

“An underlying order is ‘fundamentally unfair’ if (1) a

defendant’s due process rights were violated by defects in his

underlying deportation proceeding, and (2) he suffered

prejudice as a result of the defects.” Id. “Where a prior

removal order is premised on the commission of an

aggravated felony, a defendant who shows that the crime of

which he was previously convicted was not, in fact, an

aggravated felony, has established both that his due process

rights were violated and that he suffered prejudice as a

result.” United States v. Martinez, 786 F.3d 1227, 1230 (9th

Cir. 2015). Thus, Guizar-Rodriguez is entitled to a dismissal

2 Before the district court, the parties disputed only whether the

removal order was fundamentally unfair.
6 UNITED STATES V. GUIZAR-RODRIGUEZ

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 violence, “we apply the

categorical and modified categorical approaches.” Mendoza

v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010) (quotation

marks omitted). This requires following a three-step process.

Descamps v. United States, 570 U.S. 254, 257 (2013). First,

“we compare the statute of conviction to the removal statute’s

definition of aggravated felony.” Carlos-Blaza v. Holder,

611 F.3d 583, 587 (9th Cir. 2010). “If every conviction under

the statute of conviction is also an aggravated felony, then

there is a ‘categorical match’ and the defendant’s conviction

perforce qualifies as an aggravated felony.” Id. Second, if

section 200.481(2)(e)(1) is “‘overbroad,’ meaning that it

criminalizes conduct that goes beyond the elements of the

federal offense,” we then must determine “whether the statute

is ‘divisible’ or ‘indivisible.’”3 Lopez-Valencia v. Lynch,

798 F.3d 863, 867–68 (9th Cir. 2015) (quoting Medina-Lara

v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014)). Third, if the

statute is divisible, “we may examine certain documents from

the defendant’s record of conviction to determine what

elements of the divisible statute he was convicted of

violating.” Id. at 868. As we explain below, we need not

determine whether the statute is divisible, because Nev. Rev.

Stat. § 200.481(2)(e)(1), battery committed with a deadly

weapon, is a categorical crime of violence.

3 A statute is divisible when it “lists multiple, alternative elements,

and so effectively creates several different crimes.” Descamps, 570 U.S.

at 264 (quotation marks and ellipsis omitted).
UNITED STATES V. GUIZAR-RODRIGUEZ 7

B.

A crime of violence is “an offense that has as an element

the use, attempted use, or threatened use of physical force

against the person or property of another.”418 U.S.C. § 16(a);

8 U.S.C. § 1101(a)(43)(F) (defining an “aggravated felony”

as “a crime of violence (as defined in section 16 of Title 18,

but not including a purely political offense) for which the

term of imprisonment at least one year”). “‘[P]hysical force’

means violent force—that is, force capable of causing

physical pain or injury to another person.” Johnson v. United

States 559 U.S. 133, 140 (2010) (original emphasis omitted).

Guizar-Rodriguez must show that there is “a realistic

probability, not a theoretical possibility, that [Nevada] would

apply its statute to conduct that falls outside [this definition].”

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

Ordinarily, “he must at least point to his own case or other

cases in which the state courts in fact did apply the statute in

the [overbroad] manner for which he argues.” Id. However,

“when a ‘state statute’s greater breadth is evident from its

text,’ a [defendant] need not point to an actual case applying

the statute of conviction in a[n overbroad] manner.” ChavezSolis v. Lynch, 803 F.3d 1004, 1010 (9th Cir. 2015) (quoting

United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)). In

determining whether the statute’s overbreadth is “evident,”

we look both to the text of the statute and to state court

interpretations of the statute. United States v. Strickland,

4 Title 18, Section 16(b) of the U.S. Code also includes within the

definition of a crime of violence “any other offense that is a felony and

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.” However, that subsection was held unconstitutionally vague

by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
8 UNITED STATES V. GUIZAR-RODRIGUEZ

860 F.3d 1224, 1226 (9th Cir. 2017). Here, Guizar-Rodriguez

contends that, based on Nevada Supreme Court precedent,

section 200.481(2)(e)(1) is not a crime of violence.

Section 200.481(2)(e)(1) prohibits “any willful and

unlawful use of force or violence upon the person of another

. . . committed with the use of 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 need not be violent or severe and need not cause

bodily pain or bodily harm.” Hobbs v. State, 251 P.3d 177,

179 (Nev. 2011). As a result, simple battery in Nevada would

not ordinarily be a crime of violence under Johnson’s

definition of “physical force.” See Grajeda, 581 F.3d at 1192.

However, “even the least touching with a deadly weapon or

instrument is violent in nature,” because it “demonstrates at

a minimum the threatened use of actual force.”5Id. Thus, the

outcome of this case depends on Nevada’s definition of “use

of a deadly weapon” in section 200.481(2)(e). If Nevada law

requires actual use of a truly “deadly” weapon, then it is a

crime of violence. Grajeda, 581 F.3d at 1192.

1.

Nevada courts have an extensive common law tradition of

defining the term “deadly weapon.” “As early as 1870, [the

Nevada Supreme C]ourt defined objects as ‘deadly weapons’

5 Grajeda predates the Supreme Court’s decision in Johnson v. United

States which clarified that “‘physical force’ means violent force—that is,

force capable of causing physical pain or injury to another person.”

559 U.S. at 140. However, the Grajeda court reasoned that “even the

‘least touching’ with a deadly weapon or instrument . . . is violent in

nature.” Grajeda, 581 F.3d at 1192. Thus, the Grajeda court’s reasoning

applies even after Johnson.
UNITED STATES V. GUIZAR-RODRIGUEZ 9

if they satisfied either the inherently dangerous or the

functional test.” Rodriguez v. State, 407 P.3d 771, 773 (Nev.

2017) (emphasis omitted). Under the inherently dangerous

test, a deadly weapon is any instrument that “if used in the

ordinarymanner contemplated by its design 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 functional test, a deadly weapon is any instrumentality

that is “used in a deadly manner.” Id. at 550.

The Nevada Supreme Court recently addressed the

definition of “deadly weapon” in section 200.481(2)(e).

Rodriguez, 407 P.3d at 772. The Rodriguez Court held

conclusively that “the Legislature intended ‘deadly weapon’

within [section] 200.481(2)(e) to be interpreted broadly,

according to both the functional definition and the inherently

dangerous definition.” Id. at 774 (emphasis added). We take

the Nevada Supreme Court at its word.

The disjunctive definition of “deadlyweapon” articulated

by the Nevada Supreme Court is nearly identical to the

definition of “deadly weapon” in California, see People v.

Aguilar, 945 P.2d 1204, 1207 (Cal. 1997), and we have

already determined that assault with a deadly weapon under

California law is a crime of violence, Grajeda, 581 F.3d at

1192. We similarly conclude that “even the least touching

with a deadly weapon or instrument is violent in nature”

when the weapon is designed to cause life-threatening injury

or death, i.e., when it satisfies the inherently dangerous test,

because it “demonstrates at a minimum the threatened use of

actual force.” See id. Moreover, a battery committed with the

use of an instrument that is used in a deadly manner, i.e., a

weapon that satisfies the functional test, would certainly
10 UNITED STATES V. GUIZAR-RODRIGUEZ

involve the use of violent force. See id. Thus, a conviction for

battery with the use of a deadly weapon under section

200.481(2)(e) is a crime of violence.

Guizar-Rodriguez urges us to look beyond the common

law definition of “deadly weapon” to the statutory definition

of “deadlyweapon” in Nevada Revised Statute 193.165. That

statute provides for a sentencing enhancement when a deadly

weapon is used to commit any crime. 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, will or is likely to cause

substantial bodily harm or death;

(b) Any weapon, device, instrument, material

or substance which, under the circumstances

in which it is used, attempted to be used or

threatened to be used, is readily capable of

causing substantial bodily harm or death; or

(c) A dangerous or deadlyweapon specifically

described in [Nevada Revised Statutes]

202.255, 202.265, 202.290, 202.320 or

202.350.

Subsection (a) appears to codify the inherently dangerous test

whereas subsection (b) appears to codify the functional test.

However, the Nevada legislature also included a third test in

subsection (c). The enumerated statutes in subsection (c) list

some items that are not truly “deadly.” See Nev. Rev. Stat.

§ 202.265(1)(g) (including “[a]ny device used to mark any

part of a person with paint or any other substance” in a list of
UNITED STATES V. GUIZAR-RODRIGUEZ 11

items prohibited on school property). A battery committed

with one of those items would not necessarily be “violent in

nature.” See Grajeda, 581 F.3d at 1191. Guizar-Rodriguez

argues that the overbroad definition of “deadly weapon” in

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 un-consented marking of another person with paint.

We are not convinced.

When the Nevada legislature initially adopted section

193.165, it did not define “deadly weapon.” Rodriguez,

407 P.3d at 773 n.1. In Zgombic, the Nevada Supreme Court

held that the definition of “deadly weapon” as it related to

section 193.165 was limited to inherently dangerous

instruments. Zgombic, 798 P.2d at 550. However, the court

explicitly left intact the functional test “where a deadly

weapon [is] an element of a crime, such as assault with a

deadly weapon.” Id. at 549–50 (emphasis added). Then, “five

years after Zgombic was decided, [the Nevada] Legislature

superseded [Zgombic’s] holding by amending [section]

193.165 to define ‘deadly weapon’ according to both the

inherently dangerous and the functional definitions.”

Rodriguez, 407 P.3d at 774 (emphasis omitted). Nothing in

this history suggests that the statutory definition of “deadly

weapon” in section 193.165(6)(c) applies to section

200.481(2)(e).

The Nevada Supreme Court has twice stated that the

definitions in section 193.165(6) are “instructive” in

interpreting the meaning of “deadly weapon” in other

statutes. Rodriguez, 407 P.3d at 774; Funderburk v. State,

212 P.3d 337, 337 (Nev. 2009). Nevertheless, the Nevada

Supreme Court has never wavered from the historical

approach of defining “deadly weapon” in section
12 UNITED STATES V. GUIZAR-RODRIGUEZ

200.481(2)(e) according to the inherently dangerous and

functional tests only. Indeed it has made clear that “[section]

193.165 . . . does not apply to crimes like [section]

200.481(2)(e) that contain ‘deadly weapon’ as a ‘necessary

element’ of the underlying crime.” Rodriguez, 407 P.3d at

773. Therefore, it is not “evident” from Nevada law and

precedent that the definition of “deadly weapon” in section

193.165(6)(c) applies to section 200.481(2)(e). See ChavezSolis v. Lynch, 803 F.3d at 1010; Strickland, 860 F.3d at

1226. Quite the opposite.

We disagree that Funderburk supplies the precedent

Guizar-Rodriguez needs to make his argument. In

Funderburk, the defendant had been convicted of burglary

while in possession of a firearm or deadly weapon. 212 P.3d

at 337–40. In instructing the jury, the district court used the

definition of “firearm” found in Nevada Revised Statute

§ 202.265(5)(b), one of the statutes listed in section

193.165(6)(c). Id. at 337.

In affirming the district court, the Nevada Supreme Court

addressed the interplay between the common law definition

of “deadly weapon” and the statutory definition in section

193.165(6). Id. at 338–40. The Funderburk court affirmed the

district court, but its reasoning was nuanced. Id. at 37–38.

The court noted that the Nevada Supreme Court had

previously determined that the enhancement in section

193.165 could not be applied to burglary, because section

193.165 requires “use” of a deadly weapon. Id. at at 339. In

response, the Nevada legislature had amended its burglary

statute to prescribe an enhancement when the burglar “has in

his or her possession or gains possession of any firearm or

deadly weapon at any time during the commission of the

crime.” Nev. Rev. Stat. § 205.060 (emphasis added). Because
UNITED STATES V. GUIZAR-RODRIGUEZ 13

the functional test applied at the time of the amendment, the

Funderburk court reasoned that the legislature “intended the

term [‘deadly weapon’] to have broad applicability.”

Funderburk, 212 P.3d at 340. Consequently, the court

concluded that “based on the Legislature’s intent, the

definitions set forth in [section] 193.165(6) are instructive to

determine what constitutes a ‘deadly weapon’ under [the

burglary statute].” Id. (emphasis added).

In other words, the definitions in section 193.165(6) were

instructive, because they helped illuminate the legislature’s

intent in other statutes where “deadly weapon” was not

defined. This conclusion flows from the Nevada legislature’s

rebuke of the Nevada Supreme Court’s decision in Zgombic.

The Funderburk court was apparently unwilling to walk

down that road again. So, it affirmed the district court’s

definition of “firearm” that was drawn from 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 way superseded the

common law functional or inherently dangerous tests.

What was implicit in Funderburk was later made explicit

in Rodriguez. In Rodriguez, the Nevada Supreme Court was

asked to define “deadly weapon” in Nevada’s battery with a

deadly weapon statute. Rodriguez, 407 P.3d at 772. In the

district court, the government and Rodriguez had submitted

dueling jury instructions regarding the definition of “deadly

weapon.” Id. The government proposed using the functional

test whereas Rodriguez proposed using the inherently

dangerous test. Id. The district court adopted the

government’s instruction. Id.
14 UNITED STATES V. GUIZAR-RODRIGUEZ

The Nevada Supreme Court held that the jury instruction

was proper and concluded that “the Legislature intended

‘deadly weapon’ within [section] 200.481(2)(e) to be

interpreted broadly, according to both the functional

definition and the inherently dangerous definition.” Id. at 774

(emphasis added). The court’s reasoning was two-fold. First

and primarily, “when a legislature adopts language that has a

particular meaning or history the legislature intended the

language to have meaning consistent with previous

interpretations of the language.” Id. at 773 (alterations and

quotation marks omitted). When it drafted section 200.481,

the legislature was aware that Nevada courts applied the

inherently dangerous and the functional tests to define

“deadly weapon.” Id. at 773. Thus, the Rodriguez court

determined that the legislature intended to define “deadlyweapon” in section 200.481(2)(e) according to the inherently

dangerous and functional tests. Id.

Second, the court addressed Rodriguez’s argument that

section 193.165(6) precluded the court from using the

functional test to define “deadly weapon” in section

200.481(2)(e). Rodriguez based his argument on the limiting

language in section 193.165(6) which specifies that its

definition of “deadly weapon” applies only in “this section.”

Id. at 774 (quoting Nev. Rev. Stat. 193.165(6)). The court did

not overturn Funderburk but clarified that, “although

[section] 193.165(6)’s definitions do not necessarily extend

beyond [section] 193.165, nothing prevents them from

helping to define ‘deadly weapon’ within other statutes.” Id.

(emphasis in original). Importantly, the Rodriguez court

indicated what it meant by “helping to define ‘deadly

weapon’ within other statutes.” Id. The court determined that

“[t]he Legislature’s rejection of Zgombic indicates its

continued approval of the functional definition.” Id. at 774
UNITED STATES V. GUIZAR-RODRIGUEZ 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

dangerous or functional test, and (2) section 193.165(6)’s

definitions of “deadly weapon” are not controlling in section

200.481(2)(e) and do not affect the validity of the traditional

common law approach.

Nevertheless, Guizar-Rodriguez argues that there is a

realistic probability that Nevada courts would apply the

definition of “deadly weapon” in section 193.165(6)(c) to

section 200.481(2)(e). We disagree, because it would

contravene the Nevada Supreme Court’s statement in

Rodriguez that “when a legislature adopts language that has

a particular meaning or history the legislature intended the

language to have meaning consistent with previous

interpretations of the language.” Rodriguez, 407 P.3d at 773

(alterations and quotation marks omitted)). When the

legislature adopted section 200.481(2)(e), the inherently

dangerous and functional tests controlled. Id. A reading of the

statute that expands the definition of “deadly weapon”

beyond those tests, i.e., “[a]ny device used to mark any part

of a person with paint or any other substance,” Nev. Rev.

Stat. § 202.265(1)(g), would not be faithful to the Nevada

Supreme Court’s reasoning in Rodriguez.

6

In sum, Guizar-Rodriguez must demonstrate “a realistic

probability, not a theoretical possibility, that [Nevada] would

apply its statute to conduct that falls outside [the definition of

6 Moreover, adopting a definition of “deadly weapon” that includes

instruments that are not actually “deadly” would contravene the Nevada

Supreme Court’s instruction to “construe the statute in a manner which

avoids unreasonable results.” Funderburk, 212 P.3d at 339.
16 UNITED STATES V. GUIZAR-RODRIGUEZ

a crime of violence].” Gonzales, 549 U.S. at 193. The

statute’s greater breadth must be “evident from its text”

Chavez-Solis, 803 F.3d at 1010 (quotation marks omitted), or

“evident” from state court precedents interpreting that text.

Here, the Nevada Supreme Court has indicated that the

inherently-dangerous and functional 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 does not

apply an overbroad definition of “deadly weapon” to section

200.481(2)(e).

2.

Guizar-Rodriguez also contends that he could have been

convicted of violating section 200.481(2)(e)(1) even if he

merely possessed a deadly weapon during the battery.

Nothing in the text of the statute or Nevada precedent

suggests such an interpretation. In Moore v. State, the Nevada

Supreme Court interpreted the word “uses” with respect to a

section 193.165 “deadly weapon” sentencing enhancement.

27 P.3d 447, 449 (Nev. 2001). The court invoked the rule of

lenity and held that “[t]he verb ‘use’ connotes ‘to put into

action or service’ and ‘to carry out a purpose or action by

means of.’” Id. Thus, in order to receive the sentencing

enhancement in section 193.165, a criminal must “‘put’ a

deadly weapon ‘into action’ to commit the [underlying]

crime.” Id. Section 200.481(2)(e)(1) requires that the battery

be “committed with the use of a deadly weapon.” GuizarRodriguez has not shown that “use” would be interpreted

differently in section 200.481. Furthermore, the Nevada

legislature has shown that it differentiates between “use” and

“possession” of a deadly weapon. As we have already

discussed, the Nevada Supreme Court determined that the
UNITED STATES V. GUIZAR-RODRIGUEZ 17

sentencing enhancement in section 193.165 could not apply

to burglary, because the enhancement requires “use” of a

deadlyweapon. Carr v. Sheriff, Clark Cty., 601 P.2d 422, 424

(Nev. 1979). Subsequently, the Nevada legislature amended

its burglary statute to prescribe an enhancement when the

burglar “has in his or her possession or gains possession of

any firearm or deadly weapon at any time during the

commission of the crime.” Nev. Rev. Stat. § 205.060

(emphasis added); Funderburk, 212 P.3d at 339. In other

words, had the legislature meant to allow a conviction under

section 200.481(2)(e)(1) when a person merely possesses a

deadly weapon, it would have said so. Guizar-Rodriguez has

not shown a realistic probability that mere possession of a

deadly weapon would satisfy the requirements of section

200.481(2)(e)(1).

IV. CONCLUSION

Because a violation of section 200.481(2)(e)(1) requires

committing a battery “with the use of a deadly weapon,” it is

a categorical crime of violence. As we have previously

determined, “even the ‘least touching’ with a deadly weapon

or instrument . . . is violent in nature.” Grajeda, 581 F.3d at

1192. The Nevada Supreme Court cases cited by GuizarRodriguez do not undermine this conclusion.

AFFIRMED.