The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-17508
Plaintiff-Appellant,
D.C. Nos.
v. 2:16-cv-02160-SRB
2:11-cr-00856-SRB-1
SELSO RANDY ORONA,
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted February 4, 2019
Phoenix, Arizona
Filed May 10, 2019
Before:Michael Daly Hawkins, Milan D. Smith, Jr.,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hawkins
2 UNITED STATES V. ORONA
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.
*
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. ORONA 3
COUNSEL
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.
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
1
ACCA defines “violent felony” as any crime punishable by more
than one year in prison that:
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or [(iii)] otherwise involves conduct that
4 UNITED STATES V. ORONA
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.
presents a serious potential risk of physical injury to
another.
18 U.S.C. § 924(e)(2)(B). These are commonly referred to as (i) the
“force clause,” (ii) the “enumerated crimes clause,” and (iii) “the residual
clause.” See United States v. Walton, 881 F.3d 768, 771 (9th Cir. 2018).
2
We GRANT the government’s unopposed motion to take judicial
notice of certain documents regarding Orona’s prior convictions (Dkt.
Entry No. 8).
UNITED STATES V. ORONA 5
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.
3
The state statute provides, in relevant part, that a person commits
assault by “[i]ntentionally, knowingly or recklessly causing any physical
injury to another person.” A.R.S. § 13-1203(A)(1).
6 UNITED STATES V. ORONA
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 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
4
Although Fernandez-Ruiz considered whether A.R.S.
§ 13-1203(A)(1) was a crime of violence within the meaning of
18 U.S.C. § 16(a), its holding also applies to the force clause of ACCA’s
“violent felony” definition. Lawrence, 627 F.3d at 1284 n.3. The parties
agree that Fernandez-Ruiz controls the outcome of this appeal, unless
Voisine implicitly overruled it.
UNITED STATES V. ORONA 7
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 (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.
8 UNITED STATES V. ORONA
Id. at 9 (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. 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.
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
UNITED STATES V. ORONA 9
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, 136 S. Ct. 2272 (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.
10 UNITED STATES V. ORONA
The Court confirmed that its interpretation was
consistent with the purpose and history of § 922(g)(9). Id.
at 2280. Indeed, “Congress enacted § 922(g)(9) in 1996 to
bar those domestic abusers convicted of garden-variety
assault or battery misdemeanors—just like those convicted
of felonies—from owning guns.” Id. Many states defined
misdemeanor domestic assault and battery crimes to include
the reckless infliction of injury. Id. “[I]n linking § 922(g)(9)
to those laws, Congress must have known it was sweeping
in some persons who had engaged in reckless conduct.” Id.
Construing the statute to exclude recklessness would risk
rendering it “broadly inoperative in the 35 jurisdictions with
assault laws extending to recklessness.” Id.
The Court rejected the petitioners’ argument that Leocal
required a different conclusion and explained:
[N]othing in Leocal . . . suggests a different
conclusion—i.e., that “use” marks a dividing
line between reckless and knowing
conduct. . . . Conduct like stumbling . . . is a
true accident, and so too the injury arising
from it; hence the difficulty of describing that
conduct as the “active employment” of force.
But the same is not true of reckless
behavior—acts undertaken with awareness of
their substantial risk of causing injury . . . .
The harm such conduct causes is the result of
a deliberate decision to endanger another—
no more an “accident” than if the “substantial
risk” were “practically certain.” And indeed,
Leocal itself recognized the distinction
between accidents and recklessness,
specifically reserving the issue whether the
UNITED STATES V. ORONA 11
definition in § 16 embraces reckless conduct
....
Id. at 2279 (alterations in original) (internal citations
omitted). Voisine identified several examples to illustrate
that reckless conduct could involve a “use of force”: a
person who injures his wife by throwing a plate against the
wall near where she is standing, and a person who catches
his girlfriend’s fingers in the door jamb by slamming the
door shut with her following close behind. Id.
Voisine expressly limited its holding to the specific issue
before it and explained that its decision “does not resolve
whether § 16 includes reckless behavior.” 136 S. Ct. at 2280
n.4. The Court proceeded to distinguish § 921(a)(33)(A)
from § 16, explaining that “[c]ourts have sometimes given
those two statutory definitions divergent readings in light of
differences in their contexts and purposes, and we do not
foreclose that possibility with respect to their required
mental states.” Id.
II. Voisine’s Impact on Fernandez-Ruiz.
Fernandez-Ruiz brought the law of our circuit in line
with that of several of our sister circuits. 466 F.3d at 1129.
Now, however, the tide has changed, and the majority of our
sister circuits, either by overruling prior precedent or
deciding the issue in the first instance, have extended
Voisine’s holding to other “crime of violence” and “violent
felony” definitions. See United States v. Haight, 892 F.3d
1271, 1280–81 (D.C. Cir. 2018) (ACCA); Davis v. United
States, 900 F.3d 733, 736 (6th Cir. 2018) (same); United
States v. Pam, 867 F.3d 1191, 1207–08 (10th Cir. 2017)
(same); United States v. Fogg, 836 F.3d 951, 956 (8th Cir.
2016) (same); see also United States v. Mann, 899 F.3d 898,
905–06 (10th Cir. 2018) (18 U.S.C. § 924(c)(3)); United
12 UNITED STATES V. ORONA
States v. Bettcher, 911 F.3d 1040, 1045–46 (10th Cir. 2018)
(U.S.S.G. § 4B1.2(a)(1)); United States v. Ramey, 880 F.3d
447, 448–49 (8th Cir. 2018) (same); United States v.
Verwiebe, 874 F.3d 258, 262–64 (6th Cir. 2017) (same);
United States v. Howell, 838 F.3d 489, 500–01 (5th Cir.
2016) (same).
There is no question that Voisine casts serious doubt on
the continuing validity of Fernandez-Ruiz’s analysis. 5
Fernandez-Ruiz relied on Leocal to hold that felony assault
under Arizona law is not a “crime of violence” involving the
use or threatened use of force because the crime
encompasses reckless conduct. Fernandez-Ruiz, 466 F.3d
at 1129–32. Voisine explained that Leocal did not impact its
determination that a domestic assault statute encompassing
reckless conduct constitutes a “misdemeanor crime of
domestic violence” involving the use or threatened use of
force. 136 S. Ct. at 2279. Fernandez-Ruiz reasoned that the
“conscious disregard of a substantial and unjustifiable risk
5
Our court has noted this tension numerous times. See United States
v. Vasquez-Gonzalez, 901 F.3d 1060, 1067 n.4 (9th Cir. 2018) (“In a
different context, the Supreme Court later held [in Voisine] that reckless
assault implies intentional conduct. We do not need to revisit the
recklessness issue to decide this case because . . . assault in California
requires more than recklessness.” (internal citation omitted)); United
States v. Perez-Silvan, 861 F.3d 935, 942 n.4 (9th Cir. 2017) (noting the
same when analyzing Tennessee assault statute); United States v.
Benally, 843 F.3d 350, 354 (9th Cir. 2016) (“After Leocal, we held that
neither recklessness nor gross negligence is a sufficient mens rea to
establish that a conviction is for a crime of violence under § 16. This
June, the Supreme Court [in Voisine] suggested the opposite, and held
that for purposes of a similar statute—18 U.S.C. § 921(a)(33)(A)—
reckless conduct indeed can constitute a crime of violence. But we need
not resolve any tension regarding the inclusion of reckless conduct in
this case.” (internal quotation marks and citations omitted)).
UNITED STATES V. ORONA 13
of injury [does not] impl[y] that physical force is
instrumental to carrying out the crime, such as the plain
meaning of the word ‘use’ denotes.” 466 F.3d at 1130.
Voisine explained that “the word ‘use’ does not demand that
the person applying force have the purpose or practical
certainty that it will cause harm, as compared with the
understanding that it is substantially likely to do so.” 136 S.
Ct. at 2279.
Nevertheless, Voisine expressly did not decide whether
reckless conduct falls within the scope of § 16(a) and instead
confirmed that it did not foreclose a different interpretation
of that statute. 6 136 S. Ct. at 2280 n.4. Nor did Voisine
wholly “undercut the theory or reasoning” of Fernandez-
Ruiz that is central to this case. See Miller, 335 F.3d at 900.
Indeed, analyzing “the full range of conduct” proscribed
under A.R.S. § 13-1203(A)(1), Fernandez-Ruiz determined
that some of the proscribed conduct—“running a stop sign
solely by reason of voluntary intoxication and causing
physical injury to another”—similar to the conduct at issue
in Leocal, could not “in the ordinary sense be called active
or violent.” 446 F.3d at 1130 (internal quotation marks and
citations omitted).
Although we acknowledge that an intervening case need
not involve the exact same issue to implicitly overrule prior
authority, the distinctions here make it possible to “apply our
prior circuit precedent without running afoul of the
intervening authority.” Close, 894 F.3d at 1073. Thus, we
must do so. See id. at 1074 (“Nothing short of ‘clear
irreconcilability’ will do.”). At least one of our sister
6
See Gonzalez-Ramirez v. Sessions, 727 F. App’x 404, 405 n.7 (9th
Cir. 2018) (noting Voisine “does not affect our § 16(a) case law [and]
our § 16(a) cases remain the law of this circuit”).
14 UNITED STATES V. ORONA
circuits, the First, has reached a similar conclusion with
respect to its pre-Voisine law, confirming our view that it is
possible to reconcile Fernandez-Ruiz and Voisine. See
United States v. Rose, 896 F.3d 104, 109–10 (1st Cir. 2018)
(continuing to hold that reckless conduct does not meet force
clause of ACCA’s “violent felony” definition despite
Voisine).
CONCLUSION
Were we writing on a blank slate, we very well might
follow the lead of our sister circuits and extend Voisine’s
reasoning to the statute before us. But we are not, and
Voisine expressly left open the question that Fernandez-Ruiz
answered. We cannot say that Voisine is so clearly
irreconcilable with Fernandez-Ruiz’s reasoning that this
three-judge panel is no longer bound by the precedent of our
court. We therefore affirm the district court’s judgment.
AFFIRMED.