United States v. Rick Jones , 877 F.3d 884 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-15869
Plaintiff-Appellee,
D.C. Nos.
v. 2:16-cv-01326-SRB
2:06-cr-00020-SRB-1
RICK ALLEN JONES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued October 5, 2017
Submitted November 29, 2017
Pasadena, California
Filed December 15, 2017
Before: Diana Gribbon Motz, * Milan D. Smith, Jr.,
and Jacqueline H. Nguyen, Circuit Judges.
Per Curiam Opinion
*
The Honorable Diana Gribbon Motz, United States Circuit Judge
for the U.S. Court of Appeals for the Fourth Circuit, sitting by
designation.
2 UNITED STATES V. JONES
SUMMARY **
28 U.S.C. § 2255
Reversing the district court’s denial of a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255,
the panel held that Arizona armed robbery does not qualify
as a violent felony under either the force clause or the
enumerated felonies clause of the Armed Career Criminal
Act.
COUNSEL
Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
Frederick A. Battista (argued), Assistant United States
Attorney; Krissa M. Lanham, Deputy Appellate Chief;
Elizabeth A. Strange, Acting United States Attorney; United
States Attorney’s Office, Phoenix, Arizona; 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. JONES 3
OPINION
PER CURIAM:
Rick Allen Jones appeals the district court’s order
denying his motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255. In light of our recent decision in
United States v. Molinar, No. 15-10430, 2017 WL 5760565
(9th Cir. Nov. 29, 2017), we reverse and remand.
I.
BACKGROUND
On August 21, 2006, Jones pleaded guilty to one count
of being a felon in possession of a firearm and armed career
criminal, in violation of 18 U.S.C. § 922(g)(1) and the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
The ACCA imposes a mandatory minimum sentence of
fifteen years of imprisonment on a person who violates
Section 922(g) and has three previous convictions for a
“serious drug offense” or a “violent felony” or some
combination of the two. 18 U.S.C. § 924(e)(1). A “violent
felony” is “any crime punishable by imprisonment for a term
exceeding one year” that:
(i) has as an element the use, attempted use,
or threatened use of physical force against the
person of another [known as the “force
clause”]; or
(ii) is burglary, arson, or extortion, involves
use of explosives [known as the “enumerated
felonies clause”], or otherwise involves
conduct that presents a serious potential risk
4 UNITED STATES V. JONES
of physical injury to another [known as the
“residual clause”] . . . .
Id. § 924(e)(2)(B). Because the district court found that
Jones previously was convicted of at least three violent
felonies, it sentenced Jones on December 11, 2006, to
174 months of imprisonment, which the court calculated as
the fifteen-year mandatory minimum sentence minus six
months for time Jones served in state custody for conduct
giving rise to the federal offense.
On June 26, 2015, the Supreme Court struck down the
ACCA’s “residual clause” as unconstitutionally vague.
Johnson v. United States, 135 S. Ct. 2551, 2555–57 (2015)
(hereinafter Johnson II). The Court later declared that
Johnson II was a substantive decision with retroactive effect
in cases on collateral review. Welch v. United States, 136 S.
Ct. 1257, 1265 (2016). After Welch, Jones timely filed his
§ 2255 motion, arguing that he no longer has three
qualifying prior convictions to trigger the ACCA’s fifteen-
year minimum sentence. The district court denied Jones’s
motion. Jones timely appealed.
II.
STANDARD OF REVIEW
We review a district court’s denial of a § 2255 motion de
novo. United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir.
2012). We also review de novo a district court’s
determination that a prior conviction is a violent felony
under the ACCA. United States v. Bonat, 106 F.3d 1472,
1474 (9th Cir. 1997).
UNITED STATES V. JONES 5
III.
ANALYSIS
Of Jones’s five prior felony convictions, three were for
armed robbery under Arizona Revised Statutes § 13-1904.1
Therefore, whether Jones is subject to the ACCA’s fifteen-
year mandatory minimum sentence depends on whether
these convictions qualify as violent felonies. 2 Because the
Supreme Court in Johnson II invalidated the residual clause,
Arizona armed robbery qualifies as a violent felony only if
it meets the requirements of the ACCA’s force clause or
enumerated felonies clause.
To determine whether a conviction qualifies as a “violent
felony” under the ACCA, we apply the “categorical
approach,” looking “only to the fact of conviction” and “the
statutory definitions of the prior offense, and not to the
particular facts underlying those convictions.” United States
v. Werle, 815 F.3d 614, 618 (9th Cir. 2016) (quoting Taylor
v. United States, 495 U.S. 575, 600–02 (1990)). A prior
conviction qualifies as an ACCA predicate only if, after
1
Though the parties agree that all three of Jones’s armed robbery
convictions were pursuant to Arizona Revised Statutes § 13-1904, the
Presentence Report identifies Arizona Revised Statutes § 13-604 as the
relevant statute for one conviction. Because neither the parties nor the
court below were concerned with this discrepancy, and because Arizona
Revised Statutes § 13-604 governs the state courts’ ability to designate a
felony as a misdemeanor, we presume the citation to § 13-604 to have
been a typographical error.
2
The government does not contest that Jones’s two remaining
convictions do not qualify as either a “violent felony” or a “serious drug
offense,” but even if it did so, it would make no difference under the
ACCA because three qualifying convictions are necessary to trigger the
fifteen-year minimum sentence. See 18 U.S.C. § 924(e)(1).
6 UNITED STATES V. JONES
“compar[ing] the elements of the statute forming the basis of
the defendant’s conviction with the elements of the ‘generic’
crime—i.e., the offense as commonly understood[,] . . . the
statute’s elements are the same as, or narrower than, those of
the generic offense.” Id. (quoting Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013)).
We have not previously decided whether Arizona armed
robbery, Ariz. Rev. Stat. § 13-1904, qualifies as a violent
felony under the ACCA. But, recently, in United States v.
Molinar, 2017 WL 5760565, this court applied the
categorical approach to determine whether Arizona armed
robbery qualifies as a “crime of violence” under the 2014
version of the U.S. Sentencing Guidelines. Similar to the
ACCA, the Sentencing Guidelines defined “crime of
violence” as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year”
that:
(1) has as an element the use, attempted use,
or threatened use of physical force against the
person of another [known as the “force
clause”], or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives [known
as the “enumerated felonies clause”], or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another [known as the “residual clause”].
UNITED STATES V. JONES 7
U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S.
Sentencing Comm’n 2014). 3
A. Whether Arizona Armed Robbery is a “Violent
Felony” under the ACCA’s Force Clause
In Molinar, this court held that Arizona armed robbery is
not a crime of violence under Section 4B1.2(a) of the
Sentencing Guidelines’ force clause. Molinar, 2017 WL
5760565, at *3–5. Molinar began by examining the
Supreme Court’s definition of the term “physical force”
under the ACCA as “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) (hereinafter
Johnson I). In light of Johnson I, this court in Molinar
recognized that it “must assess whether Arizona courts apply
the armed robbery statute to punish conduct that does not
involve violent force.” Molinar, 2017 WL 5760565, at *3.
This court found that Arizona’s armed robbery statute “[o]n
its face . . . does not require that the robber actually use or
even threaten to use a weapon,” and that “Arizona courts
have not imposed any further requirements.” Id. Therefore,
in Arizona, “armed robbery is indistinguishable from
robbery for the purposes of the categorical analysis under the
force clause.” Id. Turning to Arizona’s robbery statute,
Ariz. Rev. Stat. § 13-1902, the panel found that “Arizona
punishes as robbery conduct that does not involve violent
force.” Id. at *4. Thus, Molinar held that “Arizona armed
robbery can no longer be considered a categorical crime of
violence under Section 4B1.2’s force clause.” Id. at *5.
3
All references to the Sentencing Guidelines are to the 2014 version
unless otherwise stated.
8 UNITED STATES V. JONES
We conclude that Molinar’s holding applies equally to
the question of whether Arizona armed robbery is a “violent
felony” under the ACCA’s force clause. The ACCA’s force
clause is identical to the Sentencing Guidelines’ force
clause, and we see no reason to analyze these provisions
differently. Compare 18 U.S.C. § 924(e)(2)(B)(i) with
USSG § 4B1.2(a)(1). The fact that Johnson I specifically
defined “physical force” with respect to the ACCA’s force
clause (which definition was extended by Molinar to the
Sentencing Guidelines’ force clause) further bolsters our
conclusion. See Johnson I, 559 U.S. at 135. Therefore, we
hold that Arizona armed robbery does not categorically
qualify as a violent felony under the ACCA’s force clause.
B. Whether Arizona Armed Robbery is a “Violent
Felony” under the ACCA’s Enumerated Felonies
Clause
Though it found that Arizona armed robbery was not a
crime of violence under the Sentencing Guidelines’ force
clause, Molinar held that Arizona armed robbery qualifies as
such under the Sentencing Guidelines’ enumerated felonies
clause. 2017 WL 5760565, at *5, *8. As the panel in
Molinar explained, while robbery is not one of the
enumerated felonies, the commentary to Section 4B1.2
specifically clarified that robbery is a crime of violence. 4
U.S.S.G. § 4B1.2 cmt. n.1 (“Crime of violence” includes . . .
robbery . . . .”); see also id. § 2K2.1 cmt. n.1 (cross-
referencing both Section 4B1.2(a) and the commentary to
Section 4B1.2 in defining “crime of violence”).
4
The Sentencing Guidelines has been amended to specifically
include robbery in the enumerated felonies clause. See U.S.S.G.
§ 4B1.2(a)(2) (U.S. Sentencing Comm’n 2016).
UNITED STATES V. JONES 9
This holding in Molinar plainly does not apply to the
ACCA’s enumerated felonies clause, which contains no
similar clarification in a commentary elsewhere. In fact, we
already have held that robbery is not one of the ACCA’s
enumerated felonies. United States v. Dixon, 805 F.3d 1193,
1196 (9th Cir. 2015) (concluding that generic extortion,
which is enumerated, also does not encompass generic
robbery). 5 We are bound by Dixon. Therefore, Arizona
armed robbery also does not qualify as a violent felony under
the ACCA’s enumerated felonies clause.
* * *
We reverse the district court’s denial of Jones’s § 2255
motion and remand for proceedings consistent with this
opinion.
REVERSED and REMANDED.
5
That Arizona armed robbery is a crime of violence under the
Sentencing Guidelines but not a violent felony under the ACCA is
admittedly counterintuitive. However, as the panel recognized in
Molinar, “[r]ecent Supreme Court decisions . . . have resulted in material
differences between the [definitions of ‘violent felony’ and ‘crime of
violence’] that will likely limit our ability to treat the two as
interchangeable in future cases.” Molinar, 2017 WL 5760565, at *3 n.3.