Nickles

ORDER SUSTAINING DEFENSE OBJECTION TO RECOMMENDED OFFENSE LEVEL

Defendant Howard Eugene Nickles, III, objects to applying an increased offense *1163 level as recommended in the PSR based on his prior robbery conviction under U.S.S.G. § 2K2.1 (a)(3) (applying base offense level of 22 if (A) the offense involved a semiautomatic firearm that is capable of accepting a large capacity magazine; and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense). Def. Obj. and Sent. Mem. (doc. no. 18). The applicable definition of a “crime of violence” is set forth in U.S.S.G. § 4B1.2, which was amended, effective August 1, 2016, to clarify the enumerated offenses that qualify as a crime of violence and to define “extortion” as used in the guideline. As the court determined at the sentencing hearing, under the Sentencing Guidelines currently in effect, robbery under California law no longer qualifies as a “crime of violence” as défined in §' 4B1.2.

In support of the increased base offense level for a prior crime of violence conviction, the government cites the court’s earlier…