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The Many Roads to Relief Under Borden

In yet another case, the Supreme Court of the United States (“SCOTUS”) whittles away at the Armed Career Criminal Act (“ACCA”), this time narrowing what qualifies as a “violent felony” to impose the harsh 15-year minimum penalty for possessing a firearm as a felon.

On June 10, 2021, in Borden v. United States, 141 S. Ct. 1817 (2021), the Court held that reckless conduct is not enough for a prior conviction to count under the ACCA’s elements clause. The Court cited the purpose of the ACCA and its prior decisions to say that use of force must be “targeted” and intentional, and mere incidental injury from force isn’t sufficient.

The first question any inquisitive ACCA-prisoner should have is whether Borden opens the door for relief in court. This article sheds some light on the avenues to relief under Borden and seeks to spark some discussion on further-reaching effects of this important decision. But first, here’s the groundwork: Borden is not like Johnson v. United States, 576 U.S. 591(2015), or United States v. Davis, 139 S. Ct. 2319 (2019), declaring the residual clause dead. It is a statutory interpretation case that will require a different attack vector. For Borden, you won’t be able to follow the Johnson/Davis path.

What’s in a Claim?

In order for anyone to get relief underBorden, they’ll have to show that they were sentenced under the elements clause of the ACCA. That’s the part that says the prior had to have, as an element, “the use, attempted use, or threatened use of physical force against the person of another.” The prior can’t be one that was an enumerated offense or a qualifying drug offense. Borden doesn’t deal with any of those priors.

The first step would be to look at the elements of the prior conviction. Does the offense allow a conviction for mere recklessness or negligent conduct, or is it silent about the mental state required? If so, you’re on the right track. If it says you had to knowingly or purposely commit the offense, Borden doesn’t apply. If it says all of the above, Borden may still provide relief because the sentencing court must consider the least of the conduct required for the prior offense when there are numerous ways to commit an offense, and that would be the lesser reckless/negligent conduct.

If you’re unsure of the process for analyzing the elements of your prior conviction, then see Mathis v. United States, 136 S. Ct. 2243 (2016). In that case, the Supreme Court distinguished between “ways” of committing an offense versus true “elements” of the offense. In short, elements are what the prosecutor had to prove (or you had to admit to) in order to obtain a conviction. Usually, the mental state required is such an element.

Once you have figured out the elements of your prior conviction and that it only required reckless or negligent conduct, determine which provision of the ACCA it fell under. For violent felonies, there were three provisions before 2015: the elements clause, the residual clause, and the enumerated offenses. If you didn’t qualify under Johnson, which invalidated the residual clause, then your prior was likely under the elements clause. Researching your prior in some ACCA cases will also be helpful in sorting this out.

The Road to Relief

There are at least four roads to relief under Borden, depending on where your case currently sits. The easiest would be if your case is still on direct appeal. The Supreme Court has held that all new court rulings apply to criminal cases on direct appeal because they are not yet “final.” Griffith v. Kentucky, 479 U.S. 314 (1987). Not as easy but worth a try is if you raised a claim like the one in Borden and were denied on appeal before the Borden decision. You could ask the Court of Appeals to “recall” its mandate to revisit your claim. See: United States v. Tolliver, 116 F.3d 120 (5th Cir. 1997).

Most prisoners, however, have already exhausted their appeals and likely didn’t raise a Borden error because every court had flatly rejected such a claim and counsel wouldn’t have raised such a fruitless claim on appeal. One option would be to file a motion to vacate your sentence under 28 U.S.C. § 2255, if you’ve never filed one before. Under § 2255(f)(3), you have one full year to file such a motion in your sentencing court with your Borden claim. That clock started on the Court’s decision in Borden.

The substance of your claim must be about your prior conviction now not qualifying under the ACCA because of Borden. If you claim ineffective assistance of counsel, you run the risk of your claim being denied because nearly every court has said that counsel is not ineffective for failing to predict a sudden change in the law. See: Cooks v. United States, 2015 U.S. Dist. LEXIS 154669 (S.D. Fla. July 29, 2015).

Also note that Borden likely won’t allow a second or successive 2255 motion. That’s because Borden is a substantive statutory interpretation case that applies retroactively on collateral review for § 2255(f)(3), not a constitutional decision, so it wasn’t “made retroactive by the Supreme Court” to qualify under § 2255(h)(2). See: In re Jackson, 776 F.3d 292 (5th Cir. 2015) (explaining the difference between §§ 2255(f)(3) and 2255(h)(2)).

If you’ve used your one shot at § 2255 relief earlier, you may be able to resort to the savings clause in most circuits (except the Tenth and Eleventh Circuits). This is a traditional habeas corpus petition under 28 U.S.C. § 2241 that’s filed in the federal court where you’re incarcerated, not your sentencing court. You’ll have to show that § 2255 is “inadequate or ineffective” to raise your Borden claim. The criteria for doing this varies widely in each circuit, with the Fourth and Seventh Circuits being the most liberal in granting savings clause relief.

The catch-all method of relief from a defect in a federal sentence where no other avenue exists has lately been the revised compassionate release motion under the First Step Act. Numerous courts have granted compassionate relief to prisoners who’ve shown that a change in law amounted to an “extraordinary and compelling reason” for relief. Despite its name, compassionate release doesn’t require outright release and can include a reduced sentence under the new law or court decision. Prominent legal scholars, such as Prof. Douglas Berman in his popular “Sentencing Law and Policy” blog, assert that compassionate release may be the better (and faster) way to go. See: United States v. McCoy, 981 F.3d 271 (4th Cir. 2020) (change in sentencing law can be extraordinary and compelling reason for compassionate release).

It’s Not Just for ACCA

Borden may have wider-reaching effects on cases outside the ACCA realm. The elements clause of the harsh 18 U.S.C. § 924(c) penalty, dealing with a firearm connected to a “crime of violence,” has the same language as the ACCA’s elements clause, with the addition of force to property. The Supreme Court has treated the ACCA and § 924(c) similarly in ruling the residual clauses dead in Davis. Will the courts follow that same logic with § 924(c) under Borden? It seems like a worthwhile challenge to bring.

And along those lines, the mandatory career offender definition of a crime of violence is the same as the ACCA’s elements clause. In fact, it was adopted from the ACCA by the Sentencing Commission. That, too, would be a worthwhile challenge.


Borden has many possibilities for relief in the courts. Establish where your case stands to launch the proper challenge, and you might join the thousands of prisoners who obtained relief under Johnson and Davis recently. 

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Related legal cases

United States v. McCoy

Mathis v. U.S.

579 U.S. ___; 136 S.Ct. ___; 195 L.Ed.2d 604; 2016 U.S. LEXIS 4060


No. 15-6092.

April 26, 2016, Argued

June 23, 2016, Decided


This preliminary Lexis version is unedited and subject to revision. The LEXIS pagination of this document is subject to change pending release of the final published version.


DISPOSITION: 786 F. 3d 1068, reversed.


The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence on a defendant convicted of being a felon in possession of a firearm who also has three prior state or federal convictions “for a violent felony,” including “burglary, arson, or extortion.” 18 U. S. C. §§924(e)(1), (e)(2)(B)(ii). To determine whether a prior conviction is for one of those listed crimes, courts apply the “categorical approach”—they ask whether the elements of the offense forming the basis for the conviction sufficiently match the elements of the generic (or commonly understood) version of the enumerated crime. See Taylor v. United States, 495 U. S. 575, 600-601. “Elements” are the constituent parts of a crime’s legal definition, which must be proved beyond a reasonable doubt to sustain a conviction; they are distinct from “facts,” which are mere real-world things—extraneous to the crime’s legal requirements and thus ignored by the categorical approach.

When a statute defines only a single crime with a single set of elements, application of the categorical approach is straightforward. But when a statute defines multiple crimes by listing multiple, alternative elements, the elements-matching [*2] required by the categorical approach is more difficult. To decide whether a conviction under such a statute is for a listed ACCA offense, a sentencing court must discern which of the alternative elements was integral to the defendant’s conviction. That determination is made possible by the “modified categorical approach,” which permits a court to look at a limited class of documents from the record of a prior conviction to determine what crime, with what elements, a defendant was convicted of before comparing that crime’s elements to those of the generic offense. See, e.g., Shepard v. United States, 544 U. S. 13, 26. This case involves a different type of alternatively worded statute—one that defines only one crime, with one set of elements, but which lists alternative factual means by which a defendant can satisfy those elements.

Here, petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. Because of his five prior Iowa burglary convictions, the Government requested an ACCA sentence enhancement. Under the generic offense, burglary requires unlawful entry into a “building or other structure.” Taylor, 495 U. S., at 598. The Iowa statute, however, reaches “any building, structure, [or] land, water, or air vehicle.” Iowa Code §702.12. Under [*3] Iowa law, that list of places does not set out alternative elements, but rather alternative means of fulfilling a single locational element.

The District Court applied the modified categorical approach, found that Mathis had burgled structures, and imposed an enhanced sentence. The Eighth Circuit affirmed. Acknowledging that the Iowa statute swept more broadly than the generic statute, the court determined that, even if “structures” and “vehicles” were not separate elements but alternative means of fulfilling a single element, a sentencing court could still invoke the modified categorical approach. Because the record showed that Mathis had burgled structures, the court held, the District Court’s treatment of Mathis’s prior convictions as ACCA predicates was proper.

Held: Because the elements of Iowa’s burglary law are broader than those of generic burglary, Mathis’s prior convictions cannot give rise to ACCA’s sentence enhancement. Pp. 7-19.

(a) This case is resolved by this Court’s precedents, which have repeatedly held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. See, e.g., Taylor, 495 U. S., at 602. The [*4] “underlying brute facts or means” by which the defendant commits his crime, Richardson v. United States, 526 U. S. 813, 817, make no difference; even if the defendant’s conduct, in fact, fits within the definition of the generic offense, the mismatch of elements saves him from an ACCA sentence. ACCA requires a sentencing judge to look only to “the elements of the [offense], not to the facts of [the] defendant’s conduct.” Taylor, 495 U. S., at 601.

This Court’s cases establish three basic reasons for adhering to an elements-only inquiry. First, ACCA’s text, which asks only about a defendant’s “prior convictions,” indicates that Congress meant for the sentencing judge to ask only whether “the defendant had been convicted of crimes falling within certain categories,” id., at 600, not what he had done. Second, construing ACCA to allow a sentencing judge to go any further would raise serious Sixth Amendment concerns because only a jury, not a judge, may find facts that increase the maximum penalty. See Apprendi v. New Jersey, 530 U. S. 466, 490. And third, an elements-focus avoids unfairness to defendants, who otherwise might be sentenced based on statements of “non-elemental fact[s]” that are prone to error because their proof is unnecessary to a conviction. Descamps v. United States, 570 U. S. ___, ___.

Those reasons remain as strong as ever when a statute, like Iowa’s burglary [*5] statute, lists alternative means of fulfilling one (or more) of a crime’s elements. ACCA’s term “convictions” still supports an elements-based inquiry. The Sixth Amendment problems associated with a court’s exploration of means rather than elements do not abate in the face of a statute like Iowa’s: Alternative factual scenarios remain just that, and thus off-limits to sentencing judges. Finally, a statute’s listing of disjunctive means does nothing to mitigate the possible unfairness of basing an increased penalty on something not legally necessary to a prior conviction. Accordingly, whether means are listed in a statute or not, ACCA does not care about them; rather, its focus, as always, remains on a crime’s elements. Pp. 7-16.

(b) The first task for a court faced with an alternatively phrased statute is thus to determine whether the listed items are elements or means. That threshold inquiry is easy here, where a State Supreme Court ruling answers the question. A state statute on its face could also resolve the issue. And if state law fails to provide clear answers, the record of a prior conviction itself might prove useful to determining whether the listed items are elements of the offense. If such [*6] record materials do not speak plainly, a sentencing judge will be unable to satisfy “Taylor’s demand for certainty.” Shepard, 544 U. S., at 21. But between the record and state law, that kind of indeterminacy should prove more the exception than the rule. Pp. 16-18.

786 F. 3d 1068, reversed.

JUDGES: KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. KENNEDY, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. ALITO , J., filed a dissenting opinion.


JUSTICE KAGAN delivered the opinion of the Court.

The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense—i.e., the offense as commonly understood. For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower [*7] than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.



ACCA prescribes a 15-year mandatory minimum sentence if a defendant is convicted of being a felon in possession of a firearm following three prior convictions for a “violent felony.” §924(e)(1). (Absent that sentence enhancement, the felon-in-possession statute sets a 10-year maximum penalty. See §924(a)(2).) ACCA defines the term “violent felony” to include any felony, whether state or federal, that “is burglary, arson, or extortion.” §924(e)(2)(B)(ii). In listing those crimes, we have held, Congress referred only to their usual or (in our terminology) generic versions—not to all variants of the offenses. See Taylor v. United States, 495 U. S. 575, 598 (1990). That means as to burglary—the offense relevant in this case—that Congress meant a crime “contain[ing] the following elements: an unlawful or unprivileged entry into . . . a building or other structure, with intent to commit a crime.” Ibid.

To determine whether a prior conviction is for generic burglary (or other listed crime) courts apply what is known [*8] as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case. See id., at 600-601. Distinguishing between elements and facts is therefore central to ACCA’s operation. “Elements” are the “constituent parts” of a crime’s legal definition—the things the “prosecution must prove to sustain a conviction.” Black’s Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, see Richardson v. United States, 526 U. S. 813, 817 (1999); and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty, see McCarthy v. United States, 394 U. S. 459, 466 (1969). Facts, by contrast, are mere real-world things—extraneous to the crime’s legal requirements. (We have sometimes called them “brute facts” when distinguishing them from elements. Richardson, 526 U. S., at 817.) They are “circumstance[s]” or “event[s]” having no “legal effect [or] consequence”: In particular, they need neither be found by a jury nor admitted by a defendant. Black’s Law Dictionary 709. And ACCA, as we have always understood it, cares not a whit about them. See, e.g., Taylor, 495 U. S., at 599-602. A crime counts as “burglary” under the Act if its elements are the same as, or narrower than, [*9] those of the generic offense. But if the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA “burglary”—even if the defendant’s actual conduct (i.e., the facts of the crime) fits within the generic offense’s boundaries.

The comparison of elements that the categorical approach requires is straightforward when a statute sets out a single (or “indivisible”) set of elements to define a single crime. The court then lines up that crime’s elements alongside those of the generic offense and sees if they match. So, for example, this Court found that a California statute swept more broadly than generic burglary because it criminalized entering a location (even if lawfully) with the intent to steal, and thus encompassed mere shoplifting. See id., at 591; Descamps v. United States, 570 U. S. ___, ___-___ (2013) (slip op., at 5-6). Accordingly, no conviction under that law could count as an ACCA predicate, even if the defendant in fact made an illegal entry and so committed burglary in its generic form. See id., at ___-___ (slip op., at 22-23).

Some statutes, however, have a more complicated (sometimes called “divisible”) structure, making the comparison of elements harder. Id., at ___ (slip op., at 5). A single statute may list elements in the alternative, and thereby define multiple [*10] crimes. Suppose, for example, that the California law noted above had prohibited “the lawful entry or the unlawful entry” of a premises with intent to steal, so as to create two different offenses, one more serious than the other. If the defendant were convicted of the offense with unlawful entry as an element, then his crime of conviction would match generic burglary and count as an ACCA predicate; but, conversely, the conviction would not qualify if it were for the offense with lawful entry as an element. A sentencing court thus requires a way of figuring out which of the alternative elements listed—lawful entry or unlawful entry—was integral to the defendant’s conviction (that is, which was necessarily found or admitted). See id., at ___ (slip op., at 6). To address that need, this Court approved the “modified categorical approach” for use with statutes having multiple alternative elements. See, e.g., Shepard v. United States, 544 U. S. 13, 26 (2005). Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. See ibid.; Taylor, 495 U. S., at 602. The court can then compare that crime, as the categorical [*11] approach commands, with the relevant generic offense.

This case concerns a different kind of alternatively phrased law: not one that lists multiple elements disjunctively, but instead one that enumerates various factual means of committing a single element. See generally Schad v. Arizona, 501 U. S. 624, 636 (1991) (plurality opinion) (“[L]egislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes”). To use a hypothetical adapted from two of our prior decisions, suppose a statute requires use of a “deadly weapon” as an element of a crime and further provides that the use of a “knife, gun, bat, or similar weapon” would all qualify. See Descamps, 570 U. S., at ___ (slip op., at 16); Richardson, 526 U. S., at 817. Because that kind of list merely specifies diverse means of satisfying a single element of a single crime—or otherwise said, spells out various factual ways of committing some component of the offense—a jury need not find (or a defendant admit) any particular item: A jury could convict even if some jurors “conclude[d] that the defendant used a knife” while others “conclude[d] he used a gun,” so long as all agreed that the defendant used a “deadly weapon.” Ibid.; see Descamps, 570 U. S., at ___ (slip op., at 14) (describing means, for this reason, as “legally extraneous circumstances”). And similarly, [*12] to bring the discussion back to burglary, a statute might—indeed, as soon discussed, Iowa’s burglary law does—itemize the various places that crime could occur as disjunctive factual scenarios rather than separate elements, so that a jury need not make any specific findings (or a defendant admissions) on that score.

The issue before us is whether ACCA treats this kind of statute as it does all others, imposing a sentence enhancement only if the state crime’s elements correspond to those of a generic offense—or instead whether the Act makes an exception for such a law, so that a sentence can be enhanced when one of the statute’s specified means creates a match with the generic offense, even though the broader element would not.


Petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. See §922(g). At sentencing, the Government asked the District Court to impose ACCA’s 15-year minimum penalty based on Mathis’s five prior convictions for burglary under Iowa law.

In re Jackson

Cooks v. United States

United States v. Tolliver



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