Case preview: Does “use of physical force” include a mens rea of recklessness?
on Nov 2, 2020 at 1:00 pm
The Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(2)(B)(i), imposes a mandatory minimum sentence of 15 years to life for people convicted of possessing a firearm after being convicted of three prior violent felonies. In its “elements clause” or “force clause,” the ACCA defines a “violent felony” as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” In Borden v. United States, which will be argued on Tuesday, the Supreme Court will determine whether a felony offense involving recklessness satisfies the “use of physical force” element under the ACCA. The government argues in the affirmative. Charles Borden contends otherwise.
Borden pleaded guilty to possessing a firearm illegally in Tennessee in 2017. Previously, he had been convicted of three felony aggravated assaults under Tennessee state law. During sentencing, the government argued that all three assaults qualified as violent felonies under the ACCA’s elements clause. Borden did not question that the ACCA classified his first two aggravated assault convictions as violent felonies, which entailed knowing or intentional conduct. He contended, however, that his third conviction did not count as a violent felony under the ACCA because it lacked the necessary mens rea – the legal term for the state of mind that a prosecutor must prove a defendant had while committing an alleged offense. Borden’s third conviction in Tennessee required a mens rea of recklessness, and Borden argued that the ACCA required a higher mens rea to warrant a mandatory minimum sentence.
When analyzing whether an offense qualifies as a violent felony under the ACCA’s elements clause, the court must look at the offense’s elements and not review the facts that led to the conviction – a mode of analysis known as the “categorical approach.” Tennessee’s aggravated assault statute dealing with recklessness states, “A person commits aggravated assault who … [r]ecklessly commits an assault … and (A) [c]auses serious bodily injury to another; or (B) [u]ses or displays a deadly weapon.”
Over Borden’s objections, the district court classified all three aggravated assault convictions as violent felonies under the ACCA. Under the federal sentencing guidelines, Borden faced between 15 and 17.5 years when applying the ACCA enhancement, as opposed to roughly 6.5 to 8 years without the ACCA enhancement. Although the district court ruled the ACCA mandatory minimum applied, the district court reduced Borden’s sentence to just over 9.5 years because of Borden’s cooperation with law enforcement.
Borden appealed his sentence, but the U.S. Court of Appeals for the 6th Circuit affirmed the trial court based on its own precedent. In United States v. Verwiebe, the 6th Circuit applied the Supreme Court’s rationale in Voisine v. United States to hold that reckless conduct constituted use of physical force under the sentencing guidelines. According to Voisine, 18 U.S.C. § 922(g)(9) bans a person convicted of a misdemeanor crime of domestic violence with a mens rea of recklessness from possessing a firearm and ammunition. Under Section 921(a)(33)(A), a “misdemeanor crime of domestic violence” involves “the use or attempted use of physical force” in domestic violence cases. The Supreme Court reasoned that “use” targets the action of employing something, not a person’s mental state while doing so.
Following Voisine’s rationale, the 6th Circuit analyzed the sentencing guidelines in Verwiebe. Section 4B1.2(a) of the guidelines defines a crime of violence as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” which is the same wording as the ACCA’s violent-felony force clause. Because the Supreme Court held that recklessness applied to use of force in Voisine, the 6th Circuit saw no reason to ban its application under the sentencing guidelines. In addition, the 6th Circuit explained that excluding recklessness offenses from crimes of violence would mean courts could not include assault statutes in 34 states and the District of Columbia as crimes of violence. The 6th Circuit posited that such a result would not be what Congress intended.
Citing Verwiebe, the 6th Circuit rejected Borden’s arguments and affirmed the district court. Borden then sought relief from the Supreme Court. In its brief while the petition was pending, the government agreed that a circuit split exists as to whether Voisine applies to Section 924(e)(2)(B)(i) of the ACCA and asked the Supreme Court to alleviate the conflict. Originally, the Supreme Court granted certiorari in Walker v. United States, also out of the 6th Circuit, to address this question in the 2019-20 term. After James Walker died, however, the Supreme Court agreed to take up the issue in Borden’s case.
Parties’ legal arguments
Overall, Borden reasons that the ACCA’s force clause reserves only the most violent offenses as worthy of enhanced punishment, while the government maintains that excluding crimes of recklessness from the ACCA would undermine Congress’ intent to increase the punishment of people convicted of offenses that harm others.
Recklessness under the ACCA’s elements clause
Under the Model Penal Code, a crime committed with the mens rea of recklessness requires proof that a person “consciously disregards a substantial and unjustifiable risk” that harm will result from the conduct. In addition, the person’s conduct must “involve a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”
Borden argues the plain meaning of the ACCA’s force clause requires at least a knowing or intentional use of force against a person. To include the mens rea of recklessness would be to expand the clause beyond its intent and cause an inaccurate and unjust application of the ACCA. The Supreme Court should not lump recklessness in with intentional and knowing conduct because Congress in the ACCA sought to punish a person’s culpability, rather than how much that person injured the victim. Voisine’s rationale does not require the Supreme Court to hold otherwise, and neither does the ACCA’s legislative history, Borden explains.
The government contends that applying Voisine’s reasoning to the ACCA’s elements clause is the only logical step. The Model Penal Code established reckless, knowing and intentional conduct as sufficient mens rea for criminal liability. Robbery, one of the original ACCA offenses, included recklessness as one of its elements and, the government argues, Congress would not have then excluded it when expanding the offenses eligible for enhanced punishment. Should the Supreme Court reverse the 6th Circuit, state statutes covering extreme recklessness and depraved indifference would not qualify for ACCA sentence enhancement, a result the government believes would lessen the ACCA’s purpose.
“Against the person of another” language
Borden seeks to distinguish Voisine’s statutory analysis by emphasizing the inclusion of “against the person of another” in the ACCA’s force clause. He argues that “a person who has committed a reckless offense has not directed his use of force at another person,” and he uses Leocal v. Ashcroft to further his argument. In Leocal, the Supreme Court reversed the U.S. Court of Appeals for the 11th Circuit, holding that a crime of violence under the Immigration and Nationality Act required a mens rea higher than negligence or accidental conduct. Through Leocal, Borden contends, lower courts learned that the phrase “against the person” determined the mens rea necessary when a person applies use of force. To be a crime of violence under the INA, a person must have used physical force against a person or property. Borden argues it is so under the ACCA’s force clause as well.
According to the government, Borden improperly focuses on the addition of “against the person of another” in the ACCA’s elements clause, and also on Leocal to distinguish that phase from the misdemeanor reckless domestic violence language analyzed in Voisine. The Supreme Court explicitly noted in Leocal that its decision did not address whether crimes with the mens rea of recklessness qualified as crimes of violence. The government advocates that the Supreme Court should hold that, as in Voisine, the use of physical force takes precedent, not the person who is the target of the force. Though the purpose of the laws in Voisine and the ACCA’s elements clause differ, the government believes it would be illogical for the Supreme Court to exclude reckless convictions from the latter, while already allowing those offenses in the former. The phrase “against the person” ensures sentencing enhancements for people who commit offenses against people, not property. Further, the ACCA is meant to include “classically violent crimes,” not ones in which a reckless driver, for example, happened to injure a victim.
In his reply, Borden contends that, prior to Voisine, courts repeatedly interpreted the ACCA’s force clause the way Borden now describes and that Voisine did not address the “against the person” language currently at issue. Courts have been improperly interpreting Voisine to mean more than it does, Borden says. In his view, Leocal mandates a targeted act against a person under the ACCA’s force clause.
Rule of lenity
Borden seeks application of the rule of lenity, a criminal-procedure doctrine that ambiguous laws should be interpreted in the manner most favorable to the defendant, to the ACCA’s force clause. The rule of lenity, Borden argues, warrants a narrow interpretation of the force clause that excludes recklessness. Under the government’s analysis, the rule of lenity should not apply because the ACCA’s elements clause is unambiguous and Voisine further clarifies it.
If the briefs are any indication of what is to come during Tuesday’s oral argument, expect the justices to pose different, and perhaps convoluted, hypotheticals to apply the ACCA’s elements clause. Both parties repeatedly critiqued the other’s interpretation of the ACCA, claiming by analogies that the other’s arguments would lead to illogical or impossible outcomes.
Undoubtedly, the Supreme Court’s decision in this case will offer needed clarity and uniformity among the circuits. Parties continue to litigate ACCA sentencing enhancements because of the law’s massive impact on the sentencing ranges people face in federal court every day. Should the Supreme Court side with the government, offenses involving recklessness would fall within the ACCA’s purview in all circuits under Section 924(e)(2)(B)(i), resulting in courts imposing mandatory minimum sentences of 15 years to life on people with three violent felonies. If the court agrees with Borden, he would be resentenced under a lower sentencing-guidelines range, and courts would no longer apply the ACCA mandatory minimums to recklessness offenses under Section 924(e)(2)(B)(i). The upcoming argument will help inform the legal issues and the court’s analysis on this ACCA mens rea issue.