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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."

The Borden Case

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.

Courts Apply Borden's Principles to other Cases

Sixth Circuit Holds Aggravated Robbery not A Crime of Violence for ACCA Purposes: White

Facts:  Ohio Robbery Disputed as ACCA Predicate

White pled guilty to a one-count indictment which charged him with being a felon in possession of a firearm, in violation of 18 U.S.C 922(g)(1). The plea agreement stipulated that White had at least two prior convictions that qualified as “crimes of violence” under the U.S. Sentencing Guidelines. However, the agreement also noted that the parties disputed whether the Armed Career Criminal Act (ACCA) under 18 U.S.C. 924(e) was applicable-which would raise the statutory penalties from 0 to 10 years in prison to 15 to life. Further, the plea agreement waived White’s right to challenge his sentence on appeal except for claims that (1) the sentence exceeded the statutory maximum, (2) ineffective assistance of counsel, and (3) prosecutorial misconduct.

The PSR recommended White be sentenced as a career offender under 924(e) based on having three prior qualifying convictions. The PSR noted that White had been previously convicted of aggravated armed robbery in violation of Ohio Code 2911.01, and six counts of aggravated robbery in violation of Ohio Code 2911.01(A)(1) which it treated as two separate offenses (four of the robberies occurred on March 19, 2009, and two occurred on March 22, 2009).

White objected to the ACCA designation on the grounds that the 2009 aggravated robbery convictions constituted a single offense and that he did not commit some of the robberies. White did not argue that the robberies failed to categorically qualify as ACCA predicates. The district court overruled White’s objections and sentenced him with the ACCA enhancement to 180 months imprisonment. White timely appealed to the Sixth Circuit.

White Appeals Based on Borden

On appeal, one of White’s arguments was that Ohio aggravated robbery convictions do not qualify as violent felonies because the offense can be committed with a mens rea less than purposeful or knowing conduct, citing the Supreme Court’s recent decision in Borden v. United States, 141 S.Ct. 1817 (2021). However, because White did not object on this ground before the district court, the Sixth Circuit reviewed for plain error.

The Sixth Circuit had previously held in United States v. Patterson, 853 F.3d 298 (6th Cir. 2017), that aggravated robbery under Ohio Rev. Code 2911.01(A)(1) categorically qualifies as a violent felony under the ACCA. However, White argued that the court’s decision in Patterson did not consider whether the offense’s force element has a mens rea greater than recklessness as now required by Borden.

The Sixth Circuit noted that 2911.01(A)(1) does not specify the state of mind that a defendant must have in displaying, brandishing, indicating possession of, or using a weapon. White argued, consistent with the Ohio Supreme Court’s prior decision, that the state statute’s lack of a mens rea in its text “plainly indicated its purpose to impose strict liability[.] State v. Lester, 916 N.E.2d 1038, 1044 (Ohio 2009).

The court found that its prior precedent on Ohio aggravated robbery established that displaying, brandishing, indicating possession of, or using a deadly weapon during a robbery conviction conveys an implied threat to inflict physical harm. However, the court held that it does not follow that the implied threat is necessarily accomplished with a mens rea greater than recklessness.

Applying Borden, the Sixth Circuit held that the district court plainly erred in finding White’s aggravated robbery convictions qualify as violent felonies. Accordingly, White’s sentence was vacated and remanded for resentencing.

Fifth Circuit:  Borden's Reasoning Applies to "Crimes of Violence" in the Guidelines: Greer

In United States v. Desmond Greer, the Fifth Circuit reviewed a case that was sent back to it after the Supreme Court’s decision in Borden. The Fifth Circuit held that the district court erred when it counted Mr. Greer’s prior conviction as a crime of violence since the prior conviction could be committed by a mental state of mere recklessness.

RELEVANT FACTS: Felon in Possession with two prior Texas assault convictions

In 2019, Greer pleaded guilty to being a felon in possession of a firearm. The Presentence Report applied the increased base offense level of 26 under U.S.S.G. Section 2K2.1(a)(1) because the probation officer determined Mr. Greer had two prior felony convictions for a “crime of violence” as defined in that section. Mr. Greer’s prior convictions were for 1) Texas assault family violence by impeding breath and 2) Texas assault family violence with prior convictions.

Greer objected to the enhancement because he argued the Texas statutes could be violated by a mental state (also called “mens rea”) of mere recklessness. Greer acknowledged at the time that 5th Circuit caselaw foreclosed his argument, but he raised it for further appellate review.

The district court overruled Mr. Greer’s objection and imposed sentence. Mr. Greer appealed to the 5th Circuit and raised the same argument knowing that he would lose again. Mr. Greer’s sentence was affirmed and he timely sought review in the Supreme Court.

In June 2021 the Supreme Court issued its Borden opinion. In the Borden case SCOTUS said that prior convictions which can be achieved with only a mental state of recklessness are not “violent felonies” under the Armed Career Criminal Act of 924(e). Shortly after the Borden decision, SCOTUS sent Mr. Greer’s case back to the 5th Circuit for reconsideration.

Appeal Ruling and Reasoning: Borden is easy, but what about harmless error?

The Government essentially conceded that the rule announced in Borden should be applied in the context of the “crime of violence” guideline found in 2K2.1. The 5th Circuit quickly agreed and explained that since both of Mr. Greer’s Texas convictions could be committed with a mens rea of recklessness they were no longer qualifying predicates. This is the same outcome as the Borden case, but in a different context. Borden was all about the similarly worded ACCA (see 924(e)). Greer’s case was about the crime of violence guideline definition, but that definition was virtually identical to the ACCA one.

With the old enhancement, Greer’s advisory range was 121 to 151 months (he received 120 months). Without the enhancement, Greer’s advisory range dropped all the way down to 70 to 87 months.

The Government argued that any error was harmless and the district court indicated at sentencing that a maximum sentence of 120 months was appropriate. The 5th Circuit said that the Government could not meet its burden. The Government was required to show some evidence that the sentencing judge said he would have imposed the same sentence even if the guideline calculation was wrong.

The 5th Circuit reversed and remanded Mr. Greer’s case to the district court for a resentencing.

Impact of Greer

The 5th Circuit wasted no time in saying that the same rationale applied in Borden should be applied in other contexts such as the 2K2.1 crime of violence guideline. This means that fewer prior convictions will be able to be used to enhance people’s sentences as a “crime of violence” moving forward.

This same logic could also apply to many other portions of federal law that increase punishment based on a similar definition of a “crime of violence."

Totem-Pole Recklessness:  Toki

Facts: Toki's (and Maumau's) Well-Tread waters

Toki, Maumau and Kamahele were found guilty of several offenses including convictions based on VICAR offenses (remember that VICAR is engaging in crimes like murder, kidnapping, assault and threats that are for the purpose of furthering an illegal enterprise such as a gang) as well as 924(c) offenses. The violent crimes that served as the basis of the 924(c) offenses were based on the VICAR charges, some of which were based on Utah and Arizona state crimes of assault of a dangerous weapon.

The defendants in this case [Toki] argued that since the Arizona and Utah state crimes could be committed with a mens era (or mental state) of reckless, that they could not serve as violent crimes for purposes of VICAR. And since the offenses that serve as the basis for VICAR can't serve as violent crimes, Toki argued that the 924(c) offenses also had to fall because there was no longer a crime of violence to serve as a back bone either (remember that a 924(c) can be committed by possession/branishing/discharge of a firearm in furtherance of a CRIME OF VIOLENCE, so if you have no crime of violence then you have no 924(c)).

(If Maumau's name sounds familiar to you, that is because separately they argued [and won] the argument that their pre-First Step Act "stacked 924(c)" convictions served as extraordinary and compelling circumstances for a 3582 motion and that USSG 1B1.13 was not applicable after the signing of the FIRST STEP Act).

Toki originally made this argument pre-Borden and lost. Borden, as you may remember, is a Supreme Court case "which held that a crime that can be committed with a mens rea of recklessness cannot qualify as a “violent felony” under the Armed Career Criminal Act’s (“ACCA”) “elements” or “force” clause, § 924(e)(2)(B)(i)." After the Supreme Court decided Borden, they sent Toki's case back down to the 10th Circuit, which asked the Toki and the prosecutors to discuss whether Borden affected their case.

HOLDING: The holding in Borden (indicating that crimes with a mens rea of recklessness cannot qualify as a "violent felony" under the ACCA) should be applied to 924(c)'s "elements" clause.

The Corollaries between the ACCA and 924(c)'s elements clause

The Tenth Circuit previously stated that the elements clauses of the ACCA and 924(c) should be interpreted identically regarding what mens rea they require in United States vs. Mann, 899 F.3d 898, 907-08. As a result, "after Borden, an offense that can be committed recklessly is not categorically a “crime of violence” under 924(c)’s elements clause."

When a Supreme Court Rule Applies Retroactively:

Toki was originally sentenced long before Borden. However the Tenth Circuit held that Borden was a "substantive rule" which should apply retroactively. A substantive rule includes decisions that narrow the scope of a criminal statute by interpreting its terms.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004). The court determined that Borden was properly decided as a "Substantive Rule":

"Borden is properly understood as establishing a substantive rule because it interpreted the language of ACCA’s elements clause—which, as discussed above, is materially identical to § 924(c)’s elements clause—and held it did not reach predicate crimes that can be committed recklessly... Accordingly, we accept the government’s concession that Borden’s rule applies to our review of petitioners’ § 924(c) claims."

As a result of this, Toki's claim that he was entitled to relief from VICAR-based 924(c) convictions was granted:

In light of the above, petitioners are entitled to relief from their VICAR-based § 924(c) convictions. The government concedes that, pursuant to Borden, petitioners’ VICAR convictions for crimes that can be committed recklessly cannot satisfy § 924(c)’s elements-clause definition of a crime of violence. Those convictions also cannot qualify as valid § 924(c) predicates under the unconstitutional residual clause...Petitioners’ VICAR offenses are therefore not “crime[s] of violence” that can support their separate § 924(c) convictions. The trial court erred when it instructed the jury otherwise. Moreover, the trial court’s error had a “substantial and injurious effect or influence in determining the jury’s verdict,” and therefore was not harmless.

The Tenth Circuit gave orders to remand Toki's case back down to the district court and vacate Toki's 924(c) convictions that were based on the recklessly-based Arizona and Utah state crimes that served as the basis of the VICAR convictions. No. 17-4153

Borden As Applied to Career Offenders:  Fraizer

Facts:  Repeat Offender Sentenced As Career Offender For Prior "Crime of Violence"

Frazier was sentenced to a term of 240 months imprisonment after the district court determined him to be a career offender under U.S.S.G. 4B1.1. On appeal, Frazier argued that his Iowa conviction for Intimidation with a Dangerous Weapon was not a “crime of violence” as defined by the Guidelines under U.S.S.G. 4B1.2.

The Iowa statute provides that

“A person commits a class ‘D’ felony when the person shoots, throws, launches, or discharges a dangerous weapon at, into, or in a building, vehicle . . . occupied by another person, or within an assembly of people, and thereby places the occupants or people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.”

Iowa Code 706.6(2).

The government argued on appeal that section 708.6(2) is comprised of two separate offenses, and that the court should consider only the “threatens” alternative under which Frazier was convicted. The Eighth Circuit, for the sake of its analysis, assumed the government’s theory was correct. However, the court concluded that the offense of making a threat by itself does not require the use or attempted use of force required to be deemed a “crime of violence.”

The district court concluded that Frazier was a career offender by relying on the Eighth Circuit’s decision in United States v. Langston, 772 F.3d 560 (8th Cir. 2014). There, the court determined that a violation of section 708.6 requires “the use of force, threat, or intimidation,” and that a violation “necessarily requires violent force.” As such, the Eighth Circuit previously held a violation of section 708.6(2) under Iowa law qualifies as a valid career offender predicate.

But the Supreme Court’s recent decision in Borden v. United States, 141 S.Ct. 1817 (2021) led the Eighth Circuit to reconsider its earlier decision in Langston. In Borden, the Supreme Court held in the context of the Armed Career Criminal Act that the use of force clause does not support an offense that can be committed with a mens rea of recklessness.

Holding:  Borden causes the Court to Rethink its Definition Concerning Bodily Injury.

In light of Borden, the Eighth Circuit concluded that section 708.6(2) does not satisfy the force clause of U.S.S.G. 4B1.2. The court held that the Iowa offense is a “general intent crime” and does not require the prosecution prove the defendant “subjectively desired the prohibited result; he need only intend to commit the prohibited act.” In other words, the Eighth Circuit held that a defendant may violate the Iowa code without knowingly or intentionally placing an occupant in reasonable apprehension of serious bodily injury. And because Borden made reckless actions insufficient to constitute a crime of violence, the Eight Circuit concluded that Frazier’s violation of section 708.6(2) was an invalid predicate and the district court erred in sentencing Frazier as a career offender.

The court of appeals vacated the district court’s judgment and remanded the case for resentencing without the career offender enhancement.

If anything here applies to you, contact us today.

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