United States v. Orona, No. 17-17508 (9th Cir. 2019)
Annotate this CaseThe Ninth Circuit affirmed the district court's grant of defendant's 28 U.S.C. 2255 motion for habeas relief in connection with a 2012 conviction for which he received an enhanced sentence under the Armed Career Criminal Act (ACCA). The panel held 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), did not expressly overrule Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006)(en banc), which held that Arizona Revised Statute 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 panel held that Voisine expressly left open the question that Fernandez-Ruiz answered.
Court Description: 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.
The court issued a subsequent related opinion or order on November 18, 2019.
The court issued a subsequent related opinion or order on February 18, 2021.
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