United States v. Gary Ervin ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30184
Plaintiff-Appellee, D.C. No.
1:19-cr-00004-SPW-1
v.
GARY DUANE ERVIN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted June 3, 2020**
Portland, Oregon
Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,*** Judge.
Gary Ervin appeals his sentence. In calculating Ervin’s base offense level,
the district court determined that Ervin’s prior conviction of Assault with Intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
Do Great Bodily Harm, Mich. Comp. Laws § 750.84(1)(a), was categorically a
crime of violence under U.S.S.G. § 4B1.2(a).
Ervin contends that Mich. Comp. Laws § 750.84(1)(a) penalizes conduct
that does not fall within the definition of a crime of violence because “[n]o actual
force need be used against the victim in order to commit the offense[],” as “poison
could seriously harm the health or function of the body and thereby qualify as great
bodily injury in Michigan,” but would not involve actual force against the victim.
This Court has already rejected that argument. See United States v. Calvillo-
Palacios, 860 F.3d 1285, 1291 (9th Cir. 2017) (“[United States v. Castleman, 572
U.S. 157, 170 (2014),] explicitly rejected the poison hypothetical frequently
employed by other circuits—the notion that one could cause bodily harm without
using physical force by administering poison.”); see also id. (“[I]n the context of
assault statutes, bodily injury entails the use of violent, physical force[.]”).
Ervin’s appeal is therefore DENIED, and his sentence is AFFIRMED.
2