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Prior conviction was not crime of violence based on Borden rule: Greer

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.

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.


Were prior convictions still a crime of violence under USSG 2K2.1 after Borden?


No. Offenses which can be committed with a mens rea of recklessness do not qualify as a crime of violence under the guideline post-Borden.

ISSUE PRESENTED: 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.


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.”

If your loved one's sentence was enhanced because your prior convictions were treated as a “crime of violence”, you should reach out to the Law Office of Jeremy Gordon. 

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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