United States v. Selso Orona
923 F.3d 1197
9th Cir.2019Background
- In 2012 Selso Randy Orona was convicted under 18 U.S.C. § 922(g)(1) and received an ACCA-enhanced 15-year mandatory minimum based on at least three prior qualifying convictions, including a 2007 Arizona aggravated assault conviction under A.R.S. § 13-1203(A)(1).
- After Johnson v. United States invalidated ACCA's residual clause, Orona filed a § 2255 motion arguing the Arizona aggravated-assault conviction no longer qualified as an ACCA predicate.
- The district court granted relief, concluding that under this circuit’s en banc precedent in Fernandez‑Ruiz v. Gonzales, A.R.S. § 13-1203(A)(1) (which criminalizes intentionally, knowingly, or recklessly causing physical injury) does not satisfy ACCA’s force clause because it covers reckless conduct.
- The government appealed, arguing the Supreme Court’s decision in Voisine v. United States (holding that recklessly committing misdemeanor domestic assault falls within the statutory phrase “use of physical force” in § 921(a)(33)(A)) implicitly overruled Fernandez‑Ruiz.
- The Ninth Circuit panel held Fernandez‑Ruiz remains binding circuit precedent because Voisine expressly left open the question Fernandez‑Ruiz answered and did not clearly and irreconcilably undermine its reasoning; the panel therefore affirmed the grant of § 2255 relief.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Orona) | Held |
|---|---|---|---|
| Whether A.R.S. § 13-1203(A)(1) qualifies under ACCA’s force clause ("use of physical force") | Voisine interpreted "use" to include reckless assaults and thus implicitly overrules Fernandez‑Ruiz; Arizona aggravated assault can qualify | Fernandez‑Ruiz controls: Arizona statute encompasses reckless conduct and therefore does not meet ACCA’s force-clause element | Fernandez‑Ruiz remains binding; § 13-1203(A)(1) does not qualify under ACCA’s force clause |
| Whether Voisine implicitly overruled Fernandez‑Ruiz such that the Ninth Circuit must abandon its prior precedent | Voisine’s reasoning on "use" and recklessness undermines Fernandez‑Ruiz and warrants adopting sister circuits’ post‑Voisine holdings | Voisine expressly left open whether § 16(a) (and materially identical ACCA force clause) covers recklessness; Voisine is not clearly irreconcilable with Fernandez‑Ruiz | Voisine did not clearly and irreconcilably overrule Fernandez‑Ruiz; panel must follow circuit precedent |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)
- Fernandez‑Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) (A.R.S. § 13-1203(A)(1) does not satisfy force-clause because it encompasses recklessness)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (held § 921(a)(33)(A) covers reckless misdemeanor domestic assaults; left open whether § 16(a) covers recklessness)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (interpreted "use of physical force" to require active employment of force; reserved question whether recklessness suffices)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) (standard for when intervening Supreme Court authority implicitly overrules prior circuit precedent)