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Eleventh Circuit: Georgia Aggravated Assault with a Deadly Weapon Only Requires Mens Rea of Recklessness Thus Not a ‘Violent Felony’ Under ACCA

by Dale Chappell 

The U.S. Court of Appeals for the Eleventh Circuit held that because the defendant was convicted of an aggravated assault with a deadly weapon in Georgia under a statute that could be violated with a mens rea of mere reckless conduct, it could not qualify as a predicate offense under the Armed Career Criminal Act (“ACCA”).

The case goes back to 2013, when Leon Carter sold a firearm to a confidential informant. Carter was already a felon and was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty and would have faced up to 10 years in prison, but because he had two prior drug convictions and an aggravated assault with a deadly weapon conviction under O.C.G.A. § 16-5-21(a)(2) in Georgia, his sentenced was increased to a minimum of 15 years. Citing the Government’s two-year delay in charging Carter (during which he sold firearms on two more occasions), the U.S. Court for the Southern District of Georgia concluded the 135 to 168-month range under the U.S. Sentencing Guidelines misrepresented the seriousness of Carter’s offense and explained its downward variance was based on § 3553(a) factors. The Government could have prevented the further crimes by timely arresting Carter for the first offense, the court said, and imposed a 96-month term.

Although neither party objected to the sentence, the Government appealed, as did Carter. The Government argued that the sentence below the ACCA’s mandatory minimum was not sufficient, and Carter argued that his Georgia aggravated assault didn’t qualify under the ACCA. Reviewing both issues only for plain error, a panel of the Eleventh Circuit agreed with the Government, and rejected Carter’s argument because he failed to cite any Supreme Court or Eleventh Circuit cases that held Georgia aggravated assault isn’t an ACCA predicate offense. On remand, the 15-year ACCA sentence was imposed.

During his second appeal after resentencing, the Eleventh Circuit decided United States v. Moss, 920 F.3d 752 (11th Cir. 2019), which that held that O.C.G.A. § 16-5-21(a)(2) can be satisfied by a mens rea of recklessness when based on simple assault under § 16-5-20(a)(2) and thus doesn’t qualify as a crime of violence under the elements clause of the ACCA. See §924(e)(2)(B)(i). The U.S. Supreme Court affirmed the Moss Court’s reasoning in Borden v. United States, 141 S. Ct. 1817 (2021), in which the Supreme Court held that the phrase “use … against the person of another” in the ACCA’s elements clause sets forth a “mens rea requirement—of purposeful or knowing conduct,” and thus an offense that only requires a mens rea of mere recklessness doesn’t qualify as a crime of violence and can’t serve as an ACCA predicate.

Georgia’s aggravated assault statute, O.C.G.A. § 16-5-21(a), defines an aggravated assault as simple assault but “with intent to murder, to rape, or to rob; [or] with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Simple assault, under § 16-5-20(a), is defined as: “Attempts to commit a violent injury to the person of another; or commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

Because simple assault is divisible, meaning it creates two separate offenses, see Descamps v. United States, 570 U.S. 254 (2013), the sentencing court was required to look at Carter’s state court papers in the aggravated assault conviction to determine which provision formed the offense. But since those papers failed to identify which provision formed his conviction, the sentencing court had to assume it was “the least of the acts criminalized.” Moncrieffe v. Holder, 569 U.S. 184 (2013). This meant the second provision regarding placing another person in “reasonable apprehension” of injury was the least of his conduct.

The Georgia Supreme Court has held that this second provision does not require intent, making it a recklessness offense. “The crime of simple assault ... does not require proof of specific intent. The state need only prove that the defendant intended to do the act that placed another in reasonable apprehension of immediate violent injury.” Patterson v. State, 789 S.E.2d 175 (Ga. 2016). Moss held that this amounts to only reckless conduct and further noted that use of a deadly weapon does not add an intent element to the offense. “The crime only requires placing the victim in reasonable apprehension of harm by intentionally using the aggravating object,” the Patterson Court explained.

Turning to the present case, the Court concluded that Georgia’s aggravated assault doesn’t meet the ACCA’s elements clause under Borden and Moss. Thus, the Court ruled that Carter didn’t have three ACCA predicate offense, and it was error for the sentencing court to classify him as an armed career criminal subject to a 15-year mandatory minimum under the ACCA.

Accordingly, the Court vacated Carter’s ACCA sentence and remanded for resentencing. See: United States v. Carter, 7 F.4th 1039 (11th Cir. 2021). 

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Related legal cases

United States v. Carter

Descamps v. U.S.

Supreme Court of the United States
570 U.S. 254; 133 S.Ct. 2276; 186 L.Ed.2d 438

Matthew Robert DESCAMPS, Petitioner
v.
UNITED STATES.

No. 11–9540.

Argued Jan. 7, 2013.

Decided June 20, 2013.


Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*1 The Armed Career Criminal Act (ACCA) increases the sentences of certain federal defendants who have three prior convictions “for a violent felony,” including “burglary, arson, or extortion.” 18 U.S.C. § 924(e). To determine whether a past conviction is for one of those crimes, courts use a “categorical approach”: They compare the statutory elements of a prior conviction with the elements of the “generic” crime— i.e., the offense as commonly understood. If the statute's elements are the same as, or narrower than, those of the generic offense, the prior conviction qualifies as an ACCA predicate. When a prior conviction is for violating a “divisible statute”—one that sets out one or more of the elements in the alternative, e.g., burglary involving entry into a building or an automobile—a “modified categorical approach” is used. That approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative element formed the basis of the defendant's prior conviction.

Petitioner Descamps was convicted of being a felon in possession of a firearm. The Government sought an ACCA sentence enhancement, pointing to Descamps' three prior convictions, including one for burglary under California Penal Code Ann. § 459, which provides that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” In imposing an enhanced sentence, the District Court rejected Descamps' argument that his § 459 conviction cannot serve as an ACCA predicate because § 459 goes beyond the “generic” definition of burglary. The Ninth Circuit affirmed, holding that its decision in United States v. Aguila–Montes de Oca, 655 F.3d 915, permits the application of the modified categorical approach to a prior conviction under a statute that is “categorically broader than the generic offense.” It found that Descamps' § 459 conviction, as revealed in the plea colloquy, rested on facts satisfying the elements of generic burglary.

Held : The modified categorical approach does not apply to statutes like § 459 that contain a single, indivisible set of elements. Pp. –––– – ––––.

(a) This Court's caselaw all but resolves this case. In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607, and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205, the Court approved the use of a modified categorical approach in a “narrow range of cases” in which a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction. Because a sentencing court cannot tell, simply by looking at a divisible statute, which version of the offense a defendant was convicted of, the court is permitted to consult extra-statutory documents—but only to assess whether the defendant was convicted of the particular “statutory definition” that corresponds to the generic offense. Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22, and Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1, also emphasized this elements-based rationale for the modified categorical approach. That approach plays no role here, where the dispute does not concern alternative elements but a simple discrepancy between generic burglary and § 459. Pp. –––– – ––––.

(b) The Ninth Circuit's Aguila–Montes approach turns an elements-based inquiry into an evidence-based one, asking not whether “statutory definitions” necessarily require an adjudicator to find the generic offense, but whether the prosecutor's case realistically led the adjudicator to find certain facts. Aguila–Montes has no roots in this Court's precedents. In fact, it subverts those decisions, conflicting with each of the rationales supporting the categorical approach and threatening to undo all its benefits. Pp. –––– – ––––.

*2 (1) Taylor 's elements-centric categorical approach comports with ACCA's text and history, avoids Sixth Amendment concerns that would arise from sentencing courts' making factual findings that properly belong to juries, and averts “the practical difficulties and potential unfairness of a factual approach.” 495 U.S., at 601.

ACCA's language shows that Congress intended sentencing courts “to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Id., at 600. The Ninth Circuit's approach runs headlong into that congressional choice. Instead of reviewing extra-statutory documents only to determine which alternative element was the basis for the conviction, the Circuit looks to those materials to discover what the defendant actually did.

Under ACCA, the sentencing court's finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would (at least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. That is why Shepard refused to permit sentencing courts to make a disputed determination about what facts must have supported a defendant's conviction. 544 U.S., at 25 (plurality opinion). Yet the Ninth Circuit flouts this Court's reasoning by authorizing judicial factfinding that goes far beyond the recognition of a prior conviction.

The Ninth Circuit's decision also creates the same “daunting” difficulties and inequities that first encouraged the adoption of the categorical approach. Sentencing courts following Aguila–Montes would have to expend resources examining (often aged) documents for evidence that a defendant admitted, or a prosecutor showed, facts that, although unnecessary to the crime of conviction, satisfied an element of the relevant generic offense. And the Aguila–Montes approach would also deprive many defendants of the benefits of their negotiated plea deals. Pp. –––– – ––––.

(2) In defending Aguila– Montes, the Ninth Circuit denied any real distinction between divisible and indivisible statutes extending further than the generic offense. But the Circuit's efforts to imaginatively reconceive all indivisible statutes as divisible ones are unavailing. Only divisible statutes enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime. Pp. –––– – ––––.

(c) The Government offers a slightly different argument: It contends that the modified categorical approach should apply where, as here, the mismatch of elements between the crime of conviction and the generic offense results not from a missing element but from an element's overbreadth. But that distinction is malleable and manipulable. And in any event, it is a distinction without a difference. Whether the statute of conviction has an overbroad or missing element, the problem is the same: Because of the mismatch in elements, a person convicted under that statute is never convicted of the generic crime. Pp. –––– – ––––.

*3 (d) Because generic unlawful entry is not an element, or an alternative element of, § 459, a conviction under that statute is never for generic burglary. Descamps' ACCA enhancement was therefore improper. Pp. –––– – ––––.

466 Fed. Appx. 563, reversed.


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


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


Dan B. Johnson, Spokane, WA, for Petitioner.

Benjamin J. Horwich, for Respondent.

Matthew Campbell, Assistant Federal Defender, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, Dan B. Johnson, Counsel of Record, Spokane, WA, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Benjamin J. Horwich, Assistant to the Solicitor General, Daniel S. Goodman, Attorney Department of Justice, Washington, DC, for Respondent.



Justice KAGAN delivered the opinion of the Court.

The Armed Career Criminal Act (ACCA or Act), 18 U.S.C. § 924(e), increases the sentences of 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 crimes, courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant's conviction with the elements of the “generic” crime— i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.

We have previously approved a variant of this method—labeled (not very inventively) the “modified categorical approach”—when a prior conviction is for violating a so-called “divisible statute.” That kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.

This case presents the question whether sentencing courts may also consult those additional documents when a defendant was convicted under an “indivisible” statute— i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense. That would enable a court to decide, based on information about a case's underlying facts, that the defendant's prior conviction qualifies as an ACCA predicate even though the elements of the crime fail to satisfy our categorical test. Because that result would contravene our prior decisions and the principles underlying them, we hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.

I

*4 Petitioner Michael Descamps was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). That unadorned offense carries a maximum penalty of 10 years in prison. The Government, however, sought an enhanced sentence under ACCA, based on Descamps' prior state convictions for burglary, robbery, and felony harassment.

ACCA prescribes a mandatory minimum sentence of 15 years for a person who violates § 922(g) and “has three previous convictions ... For a violent felony or a serious drug offense.” § 924(e)(1). The Act defines a “violent felony” to mean any felony, whether state or federal, that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B).

Descamps argued that his prior burglary conviction could not count as an ACCA predicate offense under our categorical approach. He had pleaded guilty to violating California Penal Code Ann. § 459 (West 2010), which provides that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” That statute does not require the entry to have been unlawful in the way most burglary laws do. Whereas burglary statutes generally demand breaking and entering or similar conduct, California's does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours. See People v. Barry, 94 Cal. 481, 483–484, 29 P. 1026, 1026–1027 (1892). In sweeping so widely, the state law goes beyond the normal, “generic” definition of burglary. According to Descamps, that asymmetry of offense elements precluded his conviction under § 459 from serving as an ACCA predicate, whether or not his own burglary involved an unlawful entry that could have satisfied the requirements of the generic crime.

The District Court disagreed. According to the court, our modified categorical approach permitted it to examine certain documents, including the record of the plea colloquy, to discover whether Descamps had “admitted the elements of a generic burglary” when entering his plea. App. 50a. And that transcript, the court ruled, showed that Descamps had done so. At the plea hearing, the prosecutor proffered that the crime “ ‘ involve[d] the breaking and entering of a grocery store,’ “ and Descamps failed to object to that statement. Ibid. The plea proceedings, the District Court thought, thus established that Descamps' prior conviction qualified as a generic burglary (and so as a “violent felony”) under ACCA. Applying the requisite penalty enhancement, the court sentenced Descamps to 262 months in prison—more than twice the term he would otherwise have received.

The Court of Appeals for the Ninth Circuit affirmed, relying on its recently issued decision in United States v. Aguila–Montes de Oca, 655 F.3d 915 (2011) (en banc) ( per curiam ). There, a divided en banc court took much the same view of the modified categorical approach as had the District Court in this case. The en banc court held that when a sentencing court considers a conviction under § 459—or any other statute that is “categorically broader than the generic offense”—the court may scrutinize certain documents to determine the factual basis of the conviction. See id., at 940. Applying that approach, the Court of Appeals here found that Descamps' plea, as revealed in the colloquy, “rested on facts that satisfy the elements of the generic definition of burglary.” 466 Fed.Appx. 563, 565 (2012).

*5 We granted certiorari, 567 U.S. –––– (2012), to resolve a Circuit split on whether the modified categorical approach applies to statutes like § 459 that contain a single, “indivisible” set of elements sweeping more broadly than the corresponding generic offense.FN1 We hold that it does not, and so reverse.

FN1. Compare, e.g., 466 Fed.Appx. 563, 565 (C.A.9 2012) (case below) (applying the modified categorical approach to § 459); United States v. Armstead, 467 F.3d 943, 947–950 (C.A.6 2006) (applying that approach to a similar, indivisible statute), with, e.g., United States v. Beardsley, 691 F.3d 252, 268–274 (C.A.2 2012) (holding that the modified categorical approach applies only to divisible statutes); United States v. Giggey, 551 F.3d 27, 40 (C.A.1 2008) (en banc) (same).


II

Our caselaw explaining the categorical approach and its “modified” counterpart all but resolves this case. In those decisions, as shown below, the modified approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which e

 

 

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