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9th Circuit: Arizona Armed Robbery not a “violent felony” under the Armed Career Criminal Act

United States v. Jones, — F.3d —, 2017 WL 6395827 (9th Cir. Dec. 15, 2017): Armed Robbery in violation of Arizona Revised Statutes 13-1904 not a “violent felony” under the Armed Career Criminal Act

In 2006, Rick Allen Jones pleaded guilty to one count of being a felon in possession of a firearm, and an armed career criminal, in violation of 18 U.S.C. 922(g)(1) and the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA). ACCA imposes a mandatory minimum sentence of 15 years on a person who violates section 922(g) and has three previous convictions for a “serious drug offense,” a “violent felony,” or some combination of the two. In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court struck down the “residual clause” portion of ACCA’s “violent felony” definition as unconstitutionally vague, leaving intact the definition’s “force clause,” which refers to offenses that have the use of physical force as an element, and its “enumerated felonies” clause, which lists several covered crimes. The Supreme Court later held that Johnson applied retroactively, and Mr. Jones filed for relief pursuant to 28 U.S.C. 2255. The district court denied relief, and Mr. Jones appealed to the Ninth Circuit. The Ninth Circuit observed that, because three of Mr. Jones’ five prior felony convictions were for armed robbery under Arizona Revised Statutes 13-1904, his ACCA sentence could stand only if this offense categorically qualified as an ACCA “violent felony.” It did not. Arizona Armed Robbery does not fall under the “force clause,” because it does not require the use of violent force. And it does not fall under the “enumerated felonies” clause, because robbery is not among the felonies enumerated. The court accordingly reversed the district court’s denial of Mr. Jones’ section 2255 motion.

(Congratulations to Assistant Federal Public Defender Keith J. Hilzendeger of Phoenix, Arizona.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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