U.S. v. Jones
877 F.3d 884 (9th Cir. 2017)
Decided December 15, 2017
Sentencing Enhancement under the ACCA: Arizona Armed Robbery Not a Violent Felony
Issue: Whether Arizona armed robbery qualifies as a violent felony under the ACCA for the purposes of sentencing range enhancements and because the Supreme Court invalidated the residual clause, the Arizona armed robbery qualifies as a violent felony only if it meets the requirements of the ACCA’s force clause or enumerated felonies clause.
Holding: Applying the categorical approach and pointing to its recent decision in United States v. Molinar, 2017 WL 5760565, the Ninth Circuit Court of Appeals held that armed robbery in Arizona does not qualify as a violent felony under the ACCA and, therefore, it cannot serve as a predicate violent conviction for sentencing enhancement purposes.
Facts: Jones pled guilty to one count of being a felon, in violation of 18 U.S.C. Section 922(g)(1) and the Armed Career Criminal Act, 18 U.S.C. Section 924(e). The district court found that Jones was convicted of at least three violent felonies (three were armed robbery convictions) and sentenced him to the fifteen-year mandatory minimum under the ACCA. Jones later filed a § 2255 motion, arguing that he no longer has three qualifying convictions to trigger the ACCA’s fifteen-year minimum sentence. The district court denied Jones’s motion and Jones appealed the district court’s denial.
Analysis: The Armed Career Criminal Act (ACCA), Section 924(e), 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.
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. A prior conviction qualifies as an ACCA predicate only if, after “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.
United States v. Jones, 877 F.3d 884, 887 (C.A.9 (Ariz.), 2017)
What is a “crime of violence” under the U.S. Sentencing Guidelines?
Under the U.S. Sentencing Guidelines, a “crime of violence” is “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 (the “force clause”), or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives (the “enumerated felonies clause”), or otherwise involves conduct that presents a serious potential risk of physical injury to another (the “residual clause”).
Guidelines manual § 4B1.2(a)
The U.S. Supreme Court has since denounced the “residual clause” of the ACCA as it violates due process and is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2555-57 (2015) (Johnson II). The residual clause states that a felony that “involves conduct that presents a serious potential risk of physical injury to another” should be treated as a “violent felony.
Thus, Jones only needed to demonstrate that Arizona armed robbery meets the requirements of the force clause or the enumerated felonies clause.
Is armed robbery in Arizona a violent felony under the ACCA’s “Force Clause”?
In Johnson v. United States (Johnson I), the U.S. Supreme Court defined “violent felony” under the ACCA as a “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson, 559 U.S. 133, 140 (2010). Last year, in United States v. Molinar, 2017 WL 5760565, the Ninth Circuit examined the Supreme Court’s “violent felony” definition in Johnson I and held that Arizona’s armed robbery statute “on its face . . . does not require that the robber actually use or even threaten to use a weapon.” Therefore, in Arizona, “armed robbery is indistinguishable from robbery for the categorical analysis under the force clause” and the Molinar panel concluded that Arizona armed robbery can no longer be considered a violent crime under Section 4B1.2’s force clause of the U.S. Sentencing Guidelines.
Here, the Ninth Circuit concluded that the holding in Molinar “applies equally” to the ACCA’s force clause because it is identical to the Sentencing Guidelines’ force clause. Accordingly, the Court held that Arizona armed robbery is not categorized as a violent felony under the ACCA’s force clause.
Is armed robbery in Arizona a violent felony under the ACCA’s “Enumerated Felonies Clause?”
While the Molinar panel held that Arizona armed robbery was not a violent crime under the Sentencing Guidelines’ “force clause,” it came to a different conclusion with regard to the “enumerated felonies” clause. Though robbery is not listed as an enumerated felony under the U.S. Sentencing Guidelines, the Molinar court looked to the commentary of Section 4B1.2, which specifically states that robbery is a crime of violence. However, the ACCA’s enumerated felonies clause contains no such clarifying commentary and, thus, the commentary in the U.S. Sentencing Guidelines does not apply to Jones. The Ninth Circuit also pointed out that a previous decision had already determined that robbery is not an enumerated felony under the ACCA. United States v. Dixon, 805 F.3d 1193, 1196 (9th Cir. 2015).
Concluding that Arizona armed robbery does not qualify as a violent felony under the ACCA, the Ninth Circuit Court of Appeals reversed the district court’s denial of Jones’s Section 2255 motion.