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United States v. Orona

United States Court of Appeals, Ninth Circuit

May 10, 2019

United States of America, Plaintiff-Appellant,
v.
Selso Randy Orona, Defendant-Appellee.

          Argued and Submitted February 4, 2019 Phoenix, Arizona

          Appeal from the United States District Court for the District of Arizona D.C. Nos. 2:16-cv-02160-SRB 2:11-cr-00856-SRB-1 Susan R. Bolton, District Judge, Presiding

          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.

         SUMMARY [*]

         28 U.S.C. § 2255

         The panel affirmed the district court's judgment granting Selso Randy Orona's 28 U.S.C. § 2255 motion in connection with a 2012 conviction for which Orona received an enhanced sentence under the Armed Career Criminal Act (ACCA).

         The district court agreed with Orona that, following Johnson v. United States, 135 S.Ct. 2551 (2015), his 2007 conviction for aggravated assault under Arizona Revised Statute § 13-1203(A)(1) no longer qualified as a predicate felony under the ACCA. The district court relied on Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc), which held that § 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.

         The government argued that Voisine v. United States, 136 S.Ct. 2272 (2016) - which held 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), and explained that § 922(g)(9) applies to reckless assaults - implicitly overruled Fernandez-Ruiz. The panel rejected this argument because Voisine expressly left open the question that Fernandez-Ruiz answered.

          OPINION

          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, 135 S.Ct. 2551 (2015), which held that the residual clause[1] 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 (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, 136 S.Ct. 2272 (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 ...


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