United States v. Orona

• Citation: 923 F.3d 1197
• Decision Date: 10 May 2019
• Docket Number: No. 17-17508,17-17508
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Selso Randy ORONA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

923 F.3d 1197

UNITED STATES of America, Plaintiff-Appellant,

v.Selso Randy ORONA, Defendant-Appellee.

No. 17-17508

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2019 Phoenix, Arizona

Filed May 10, 2019

Krissa M. Lanham (argued), Assistant United States Attorney; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellant.

Keith J. Hilzendeger (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellee.

Before: Michael Daly Hawkins, Milan D. Smith, Jr., and Andrew D. Hurwitz, Circuit Judges.

HAWKINS, Senior Circuit Judge:

This is a government appeal from the grant of habeas relief to Selso Randy Orona in connection with a 2012 conviction for which he received an enhanced sentence under the Armed Career Criminal Act ("ACCA").

Following the Supreme Court’s decision in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the residual clause¹ of ACCA’s "violent felony" definition is unconstitutionally vague, Orona filed a motion under 28 U.S.C. § 2255, arguing that his conviction for aggravated assault under Arizona Revised Statute ("A.R.S.") § 13-1203(A)(1)² no longer qualified as a predicate felony under ACCA. The district court agreed, relying on our opinion in Fernandez-Ruiz v. Gonzales , which held that A.R.S. § 13-1203(A)(1) does not have as an element "the use, attempted use or threatened use of physical force against the person ... of another" because it encompasses reckless conduct. 466 F.3d 1121, 1126, 1132 (9th Cir. 2006) (en banc); see also United States v. Lawrence , 627 F.3d 1281, 1284 n.3 (9th Cir. 2010) (extending Fernandez-Ruiz to ACCA’s force clause), overruled on other grounds by Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

Although the government conceded Orona was entitled to relief under Fernandez-Ruiz , it argued that the Supreme Court’s decision in Voisine v. United States , ––– U.S. ––––, 136 S. Ct. 2272, 195 L.Ed.2d 736 (2016), implicitly overruled that case. Because we conclude that Fernandez-Ruiz remains in effect, we affirm.

BACKGROUND

In 2012, Orona was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). The government sought an enhanced sentence under ACCA, which provides for a mandatory minimum fifteen-year sentence for individuals who violate 18 U.S.C. § 922(g) and have three prior convictions for certain violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The district court found that Orona had at least three qualifying prior convictions—including a 2007 aggravated assault conviction under A.R.S. § 13-1203(A)(1)³ —and imposed the fifteen-year mandatory minimum sentence.

Following the Supreme Court’s decision in Johnson , Orona received permission to file a second § 2255 habeas motion challenging his ACCA sentence. In that motion, Orona argued that his 2007 aggravated assault conviction no longer qualified as a violent felony under ACCA’s residual clause, in light of Johnson , and could not qualify as a violent felony under ACCA’s force clause, in light of Fernandez-Ruiz . The district court agreed with Orona, rejected the government’s contention that Fernandez-Ruiz had been implicitly overruled, and resentenced Orona to time served and thirty months of supervised release. This timely appeal followed.

STANDARD OF REVIEW

We review de novo the grant of a motion under 28 U.S.C. § 2255. United States v. Allen , 157 F.3d 661, 663 (9th Cir. 1998). We also review de novo whether a state conviction qualifies as a violent felony under ACCA. Walton , 881 F.3d at 770–71.

DISCUSSION

Because Voisine did not expressly overrule Fernandez-Ruiz ,⁴ we must follow it unless Voisine "undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The "clearly irreconcilable" standard is a high one, and as long as we "can apply our prior circuit precedent without running afoul of the intervening authority[,] [we] must do so." Close v. Sotheby’s, Inc. , 894 F.3d 1061, 1073 (9th Cir. 2018).

I. Evolution of Precedent Regarding A.R.S. § 13-1203(A)(1) and the "Crime of Violence"/"Violent Felony" Definition.

When first confronted with the issue, we held that A.R.S. § 13-1203(A)(1) has "as an element the use, attempted use or threatened use of physical force against the person or property of another." United States v. Ceron-Sanchez , 222 F.3d 1169, 1172–73 (9th Cir. 2000). Ceron-Sanchez considered the definition of "crime of violence" in 18 U.S.C. § 16(a), which includes verbatim ACCA’s force clause. See id. at 1171–72. The defendant in Ceron-Sanchez argued that A.R.S. § 13-1203(A)(1) is not a "crime of violence" because it encompasses reckless conduct. Id. at 1172. We rejected the argument because, "in order to support a conviction under § 13-1203(A)(1), the reckless conduct must have caused actual physical injury to another person." Id. at 1172–73.

Several years later, the Supreme Court granted certiorari "to resolve a conflict among the Courts of Appeals on the question whether state DUI offenses ... which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, qualify as a crime of violence [under § 16(a) ]" and held that they do not. Leocal v. Ashcroft , 543 U.S. 1, 6, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In relevant part, the Court explained:

The critical aspect of § 16(a) is that a crime of violence is one involving the "use ... of physical force against the person or property of another ." As we said in a similar context ... "use" requires active employment. While one may, in theory, actively employ something in an accidental manner, it is much less natural say to say that a person actively employs physical force against another person by accident. Thus, a person would "use ... physical force against" another when pushing him; however, we would not ordinarily say a person "use[s] ... physical force against" another by stumbling and falling into him. ... The key phrase in § 16(a) —the "use ... of physical force against the person or property of another"—most naturally suggests a higher degree of intent than negligent or merely accidental conduct.

Id. at 9, 125 S.Ct. 377 (alterations in original) (internal citations omitted). Accordingly, the Court held that the DUI conviction at issue did not qualify as a crime of violence under § 16(a). Id. at 10, 125 S.Ct. 377. The Court clarified, however, that the case did not address "whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under ... § 16." Id. at 13, 125 S.Ct. 377.

Following Leocal , our court, sitting en banc, reconsidered whether assault under A.R.S. § 13-1203(A)(1) qualifies as a crime of violence under § 16(a). Fernandez-Ruiz , 466 F.3d at 1126–32. Acknowledging that Leocal "merely holds that using force negligently or less is not a crime of violence," we extended that case’s reasoning to "crimes involving the reckless use of force." Id. at 1129. We saw no "important differences between negligence and recklessness," as neither "implies that physical force is instrumental to carrying out the crime, such as the plain meaning of the word ‘use’ denotes." Id. at 1130. The en banc court recognized that "[r]eckless conduct, as generally defined, is not purposeful," and "[e]ven more clearly, reckless conduct as defined by Arizona law is not purposeful." Id. Looking at the "full range of conduct proscribed by [A.R.S.] § 13-1203(A)(1)," we elaborated:

As the Court suggested in Leocal ... any other conclusion would blur the distinction between the violent crimes Congress sought to distinguish for heightened punishment and other crimes. ... Indeed, a person could be convicted of assault under [A.R.S.] § 13-1203(A)(1) by running a stop sign solely by reason of voluntary intoxication and causing physical injury to another. Such conduct cannot, in the ordinary sense, be called active or violent.

Id. (internal quotation marks and citations omitted).

Fernandez-Ruiz "expressly overrule[d] our cases holding that crimes of violence under ... § 16 may include offenses committed through the reckless, or grossly negligent, use of force" and held that A.R.S. § 13-1203(A)(1) is not a crime of violence under § 16(a). Id. at 1132. In doing so, we relied on "[t]he bedrock principle of Leocal ... that to constitute a federal crime of violence an offense must involve the intentional use of force against the person or property of another." Id. Because § 16(a) is materially identical to ACCA’s definition of "violent felony," we later recognized that Fernandez-Ruiz controls our interpretation under ACCA. Lawrence , 627 F.3d at 1284 n.3.

In 2016, the Supreme Court held in Voisine v. United States , ––– U.S. ––––, 136 S. Ct. 2272, 195 L.Ed.2d 736 (2016), that a misdemeanor conviction for recklessly assaulting a domestic relation disqualifies an individual from possessing a firearm under 18 U.S.C. § 922(g)(9). The statute at issue there applied to a "misdemeanor under federal, state, or tribal law, committed by a person with a specified domestic relationship with the victim, that ‘has as an element, the use or attempted use of physical force.’ " Id. at 2276 (quoting 18 U.S.C. § 921(a)(33)(A) ). Explaining that "[n]othing in the word ‘use’ ... indicates that § 922(g)(9) applies exclusively to knowing or intentional domestic assaults," the Court determined that § 922(g)(9)"applies to reckless assaults, as it does to knowing or intentional ones." Id. at 2278.

The Court confirmed that its interpretation was consistent with the purpose and history of § 922(g)(9). Id....