Sunday, December 17, 2017

Case o' The Week: A Present in the Johnson Stocking - Jones, Arizona Armed Robbery, and ACCA "Crime of Violence"

 Merry Christmas, and Happy New Year, Mr. Jones.
United States v. Rick Allen Jones, 2017 WL 6395827 (9th Cir. Dec. 15, 2017), decision available here.

Players: Per curiam decision with Judges M. Smith, Motz, and Nguyen. 
  Big win for AFPD Keith Hilzendeger, District of Arizona.

Facts: Jones pleaded guilty to 18 USC § 922(g)(1). Id. at *1. The court found he had been convicted of at least three violent felonies, and sentenced him under the ACCA. Id. 
  After the Supreme Court’s 2015 Johnson decision and Welch, Jones filed a § 2255 motion attacking these priors. Id. 
  The district court denied the motion.

Issue(s): “Of Jones’s five prior felony convictions, three were for armed robbery under Arizona Revised Statutes § 13-1904. Therefore, whether Jones is subject to the ACCA’s fifteen-year mandatory minimum sentence depends on whether these convictions qualify as violent felonies.” Id. (footnotes omitted).  

Held:We conclude that [the holding in United States v. Molinar, 2017 WL 5760565 (9th Cir. Nov. 29, 2017)] 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. . . . .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.” Id. at *2.

Of Note: The holding above was the first half of this admirable win: Arizona armed robbery not a C.O.V. under the ACCA’s force clause. What about the “enumerated felonies” clause, and the wacky government theory that “generic extortion” is the same as “generic robbery?” Another defense win: “Arizona armed robbery also does not qualify as a violent felony under the ACCA’s enumerated felonies clause.” Id. at *3.
  A clean Ninth sweep makes for a great Christmas for Mr. Jones, and a Happy New Year resentencing.  

How to Use: Jones reverses that damnable whipsaw that has long sliced against our clients. 

  After years of suffering adverse guideline decisions extended to the ACCA, and vice versa, the Court now flips that approach and extends a favorable Johnson guideline analysis to our benefit, in the context of the ACCA. Id. at *2 ("The ACCA's force clause is identical to the Sentencing Guidelines' force clause, and we see no reason to analyze these provisions differently.") 
  Jones is a good reminder to mine both veins of law - Guidelines and ACCA - when mounting a Johnson challenge.
For Further Reading: The big shoe yet to drop in the Johnson saga is Dimaya.
 You’ll recall that great Ninth decision applied Johnson to a civil statute – 18 USC § 16(b) – that defines “crime of violence” in the context of immigration. Judge Reinhardt persuasively explained that the same due process principles that drove the vagueness analysis in Johnson applied with equal force to this important immigration definition, in Dimaya. See blog entry here
  The SCOTUS case was carried over onto Court’s October 2017 term, to give Justice Gorsuch a chance to weigh in. As of this writing, we’re waiting anxiously for the decision (note at least one veteran observer reads the tea leaves favorably). See SCOTUS blog here
  When will we know the outcome? “Opinions are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting, when the Court takes the Bench but no arguments are heard.” See Suorene Court website here
  Last Spring the Court handed its final decisions at the end of June.  See article here Pundits predict a 5-4 decision in Dimaya, which takes a little longer to write, but the Court also had this case the previous term – so it has had much time to start hammering on an earlier draft.
   Punchline? Look for the decision sometime in the next 195 days . . .

Image of whipsaw from 

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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