UNITED STATES of America, Plaintiff-Appellee, v. Joseph P. RYNCARZ, Defendant-Appellant, 697 F. App'x 495

MEMORANDUM Joseph Ryncarz appeals the denial of his successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(a). We have jurisdiction under 28 U.S.C. § 2253(a). We reverse and remand with instructions to grant Ryncarz’s successive motion to vacate his sentence. Ryncarz challenges his 262-month sentence pursuant to the Armed Career Criminal Act (“ACCA”), which imposes a mandatory 15-year prison term for felons who unlawfully possess a firearm and have three or more previous convictions for certain drug crimes or “violent felonfies].” 18 U.S.C. § 924(e)(1).

We agree with Ryncarz that his sentence relied at least in part on the residual clause of the ACCA, which the Supreme Court deemed unconstitutionally vague in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Ryncarz’s second-degree assault convictions cannot serve as predicates under the ACCA. The district court did not have the benefit of our very recent decision that second-degree assault under § 9A.36.021 does not constitute a “violent felony” for purposes of the ACCA because it is over-broad and indivisible. United States v.

Robinson, No. 16-30096, 869 F.3d 933, 2017 WL 3648524 (9th Cir. Aug. 25, 2017) (holding that § 9A.36.021 is not a “crime of violence” under U.S.S.G. § 2K2.1); United States v. Ladwig, 432 F.3d 1001, 1005 n.9 (9th Cir. 2005) (noting that courts treat the term “violent felony” under the ACCA as identical to the term of “crime of violence” under the U.S. Sentencing Guidelines).

Section § 9A.36.021’s predecessor statute, § 9A.36.020, is similarly overbroad and indivisible. See Robinson, 869 F.3d 933, 2017 WL 3648524, at *3 (determining that an assault “[w]ith intent to commit a felony” does not necessarily require violent force); State v. Smith, 159 Wash.2d 778, 154 P.3d 873, 879 n.9 (2007) (discussing § 9A.36.020 as an “alternative means” statute). Because the three convictions of second-degree assault do not qualify as violent felonies under the ACCA, we need not address Ryncarz’s arguments regarding second-degree extortion. REVERSED AND REMANDED FOR RESENTENCING.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.