United States of America v. Jamon Morton

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMON MORTON,
Defendant-Appellant.
No. 21-10291
D.C. Nos. 3:21-cr-00180-SI-1
3:21-cr-00180-SI
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted November 14, 2022**
San Francisco, California
Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE,***
District Judge.
Jamon Morton appeals the fifty-seven-month sentence he received after
pleading guilty to being a felon in possession of a firearm and ammunition, in
* 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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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violation of 18 U.S.C. § 922(g). We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742, and we affirm the sentence.
Morton challenges the district court’s decision to increase his base offense
level under section 2K2.1(a)(1) of the United States Sentencing Guidelines
(“USSG”), due to his two prior felony convictions for crimes of violence. Those
convictions were for assault with a semiautomatic firearm and assault by means of
force likely to produce great bodily injury, under sections 245(b) and 245(a)(4) of
the California Penal Code, respectively.
1. We have repeatedly held that assaults under sections 245(a)(1) and 245(a)(2)
of the California Penal Code are categorically crimes of violence. United States v.
Vasquez-Gonzalez, 901 F.3d 1060, 1067–68 (9th Cir. 2018); United States v.
Jimenez-Arzate, 781 F.3d 1062, 1064 (9th Cir. 2015) (per curiam); United States v.
Grajeda, 581 F.3d 1186, 1196–97 (9th Cir. 2009); United States v. Heron-Salinas,
566 F.3d 898, 899 (9th Cir. 2009) (per curiam). Although Vasquez-Gonzalez dealt
with section 245(a)(1), the statute’s reorganization moved the exact language of
that subsection to section 245(a)(4). See 901 F.3d at 1068 n.8. That case controls
our decision today as to section 245(a)(4). And the elements of section 245(b) are
the same as those of section 245(a)(2), except that subsection (b) requires use of a
“semiautomatic firearm” instead of any “firearm.” See People v. Martinez, 145
Cal. Rptr. 3d 141, 142 (Ct. App. 2012). Thus, under our precedent, the assaults for

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which Morton was convicted are plainly crimes of violence.
2. Morton argues that Borden v. United States, 141 S. Ct. 1817 (2021),
abrogates this precedent. Borden concerned the definition of “violent felony” in
the Armed Career Criminal Act (“ACCA”), id. at 1821–22, but also governs our
interpretation of “crime of violence” in the USSG, which “is defined identically to
the phrase ‘violent felony’ in the ACCA.” United States v. Walker, 953 F.3d 577,
579 (9th Cir. 2020). Borden held that an offense is not a violent felony—and thus,
not a crime of violence—“if it requires only a mens rea of recklessness—a less
culpable mental state than purpose or knowledge.” 141 S. Ct. at 1821–22. We
previously held that section 245 offenses are crimes of violence precisely because
the statute requires a mens rea greater than recklessness. See Vasquez-Gonzalez,
901 F.3d at 1067 (“[T]he California Supreme Court expressly rejected the
conclusion that the mens rea for assault could be satisfied by negligent or reckless
conduct.” (citing People v. Williams, 29 P.3d 197, 203 (Cal. 2001)). Borden
requires nothing more. See Amaya v. Garland, 15 F.4th 976, 983 (9th Cir. 2021)
(citing Borden, 141 S. Ct. at 1825) (rejecting the argument that a crime of violence
requires proof of specific intent after Borden).
AFFIRMED.

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