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Reckless Mens Rea Crimes Do Not Count for ACCA Enhancement: Borden

In Borden, the Supreme Court indicated that crimes that involve a Reckless Mens Rea are not suitable enhancements for the Armed Career Criminal Act

In Borden, the Supreme Court has determined that "a criminal offense can not count as a “violent felony” if it requires only a mens rea of recklessness."

Borden's Underlying Case and Enhancement

Borden pled guilty to a felon in possession charge. At his sentencing, the government sought an enhanced sentence under the ACCA. One of his priors that was alleged as a predicate was reckless aggravated assault. The statute of that crime is:

“[r]ecklessly commit[ting] an assault” and either “caus[ing] serious bodily injury to another” or “us[ing] or display[ing] a deadly weapon.”

Borden argued that crime was not a violent felony because the mens rea was reckless. The district court overruled his objection and the Sixth Circuit affirmed.

Culpable Mental States

There are four main mental states in the US Federal crime system: Purposefully (intentionally), knowingly, recklessness and negligently. "A person acts purpose- fully when he “consciously desires” a particular result...He acts knowingly when “he is aware that [a] result is practically certain to follow from his conduct,” whatever his affirmative desire.

Recklessly and negligence are less culpable because they involve insufficient concern with a risk of injury: "A person acts recklessly, in the most common formulation, when he “consciously disregards a substantial and unjustifiable risk” attached to his conduct, in “gross deviation” from accepted standards...A person acts negligently if he is not but “should be aware” of such a “substantial and unjustifiable risk,” again in “gross deviation” from the norm."

In Leocal v. Ashcroft, the Supreme court determined that offenses requiring a negligent mens rea fell out of a statutory definition that was similar to the ACCA's elements clause (which means that the court should find the same to be true here). Similarly the court found that "reckless offenses fall within a different statutory definition—this one lacking the “against another” phrase Leocal deemed “critical."

Are Reckless Crimes Appropriate ACCA Enhancements?

The parties disputed the phrase “use of physical force against the person of another." "According to Borden, that word means “in opposition to,” and so “introduces the target of the preceding action...The Government responds that “against” instead means “mak[ing] contact with,” and so introduces the mere recipient of force rather than its “intended target...Borden’s view of “against,” as introducing the conscious object (not the mere recipient) of the force, is the right one given the rest of the elements clause."

The court stated that the term "against" in this instance is a word that modifies volitional conduct. "That is just as true when someone, as in the elements clause, actively employs physical force."

"The critical context here is the language that “against another” modifies—the “use of physical force.” As just explained, “use of force” denotes volitional conduct. And the pairing of volitional action with the word “against” supports that word’s oppositional, or targeted, definition.

The court noted that the Leocal case confirms their conclusion:

"Recall that Leocal held that negligent conduct falls outside a statutory definition much like the elements clause—one requiring the use of physical force “against the person or property of another...When read against the words “use of force,” the “against” phrase—the definition’s “critical aspect”—“suggests a higher degree of intent” than (at least) negligence."

Further the court noted that these things in actuality were not suitable for ACCA predicates:

"Under the same Tennessee reckless-assault law applied to Borden, people have been convicted for injuries attributable to running a stop sign or veering onto the sidewalk...In States with similar statutes requiring only a reckless mens rea, many individuals have been convicted for accidents resulting from text messaging or, of course, drunk driving...In one case, even a police officer was convicted of a reckless assault for speeding to a crime scene without his siren on and hitting another patrol car...Or take some real-life non-driving examples. A shoplifter jumps off a mall’s second floor balcony while fleeing security only to land on a customer...An experienced skier heads straight down a steep, mogul-filled slope, “back on his skis, arms out to his sides, off-balance”—until he careens into someone else on the hill...Or a father takes his two-year-old go-karting without safety equipment, and injures her as he takes a sharp turn...Are these really ACCA predicates? All the defendants in the cases just described acted recklessly, taking substantial and unjustified risks. And all the defendants hurt other people, some seriously, along the way. But few would say their convictions were for “violent felonies...Few would think their offenses of a kind “typically committed by” armed career criminals...And few would believe those defendants to pose an exceptional danger of doing harm were they to possess a gun."

The Supreme Court Reversed the Sixth Circuit, No. 19–5410


So who is eligible for relief here? First of all, you would have to look at your prior cases and determine if any of your prior cases involved a mens rea of "reckless." As in "that the defendant did then and there recklessly injure another." If there is a mens rea of knowingly or intentionally that is pled there then that complicates things. Ex: "that the defendant did then and there intentionally, knowingly, and recklessly injured another." The reckless mens rea has to be tied to a one of your ACCA predicates. You would need to refer to your PSI in order to determine which cases were used as career offender predicates.

The most likely avenue would be to file for 3582 relief (unless you're in the 11th circuit, see Bryant) unless you are on direct appeal.  As of now I do not believe that this is appropriate for a motion to vacate because it is a case of statutory interpretation as opposed to constitutional interpretation.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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