                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-36051

                Plaintiff-Appellee,             D.C. Nos.    2:16-cv-00225-RMP
                                                             2:01-cr-00015-WFN-1
 v.

JOSEPH P. RYNCARZ,                              MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Wm. Fremming Nielsen, District Judge, Presiding

                           Submitted August 29, 2017**
                              Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and ROTHSTEIN,*** District
Judge.

      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


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
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 felon[ies].” 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, 135 S. Ct. 2551 (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 overbroad and indivisible.

United States v. Robinson, No. 16-30096, 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, 2017 WL 3648524, at *3 (determining


                                          2
that an assault “[w]ith intent to commit a felony” does not necessarily require

violent force); State v. Smith, 154 P.3d 873, 879 n.9 (Wash. 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.




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