by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit held that convictions under Georgia’s aggravated assault statute, O.C.G.A. § 16-5-21(a)(2), that are based upon simple assault, O.C.G.A. § 16-5-20(a)(2), are not crimes of violence for purposes of the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e). 

Terin Moss pleaded guilty to being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His sentencing guideline range was 168 to 210 months. But the Government argued Moss had been convicted of two prior violent felony offenses and one felony drug offense. Thus, he qualified for enhanced sentencing under the ACCA. The ACCA requires a minimum sentence of 15 years, so his guidelines were changed to 180 to 210 months. Moss objected, arguing that his conviction for aggravated assault for biting and drawing blood from police officers did not qualify as a predicate crime of violence under the ACCA. The district court rejected Moss’ objections, and he was sentenced to a prison term of 180 months. He appealed.

The Eleventh Circuit began its analysis by observing that the ACCA defines “violent felony” as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.

Moss’ issue involved focused on subsection (i), known as the elements clause. United States v. Owens, 672 F.3d 966 (11th Cir. 2012). To determine whether a prior conviction qualifies as a violent felony under the elements clause, the court does not look to the defendant’s actions, but instead applies the “categorical approach” to the statute under which he was convicted. United States v. Davis, 875 F.3d 592 (11th Cir. 2017). The categorical approach means the court examines only the elements of the statute. Id. If a statute is “divisible”—meaning it “list[s] elements in the alternative, and thereby define[s] multiple crimes,” the court employs the “modified categorical approach.” Mathis v. United States, 136 S. Ct. 2243 (2016). Using the modified categorical approach permits the court to look at a limited class of documents—known as Shepard documents and includes the indictment, jury instructions, and plea agreement to determine what crime, with what elements, a defendant was convicted of. United States v. Morales-Alonso, 878 F.3d 1311 (11th Cir. 2018). If those documents do not reveal the required information, then the court looks to see what is the least offense of which a person could be convicted under the statute. Johnson v. United States, 559 U.S. 133 (2010). After the court determines which divisible portion of the statute a defendant was convicted under, it then applies the categorical approach to that portion. Davis. 

Since the examination of the state conviction does not involve an analysis of the actual facts involved in the case, the court must presume the conviction rests upon the “least of the acts criminalized.” Moncrieffe v. Holder, 569 U.S. 184 (2013). If the least of the acts criminalized satisfies the elements clause, then the conviction qualifies as a violent felony under the elements clause. Davis. Under the elements clause, the “use of physical force ... most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1 (2004). Following this reasoning, a conviction predicated on a mens rea of recklessness does not satisfy the use of physical force of the elements clause. United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2017). Georgia law holds that recklessness is a sufficient mens rea for aggravated assault when predicated upon simple assault contained in O.C.G.A. § 16-5-21(a)(2). Patterson v. State, 789 S.E.2d 175 (Ga. 2016). Recklessness means the actor is aware of the possibility of injury to another without any intent to actually cause injury. Black’s Law Dictionary, 10th Ed. (2014). 

Georgia’s aggravated assault statute is divisible because it has two elements: first, it must be a simple assault defined as either (1) an attempt to commit a violent injury to the person of another, or (2) commits an act which places another person in reasonable apprehension of immediately receiving a violent injury. O.C.G.A. § 16-5-20(a); and secondly, the simple assault must be aggravated by either (1) an intention to murder, rape, or rob, or (2) the use of a deadly weapon. O.C.G.A. § 16-5-21(a).

Accordingly, the Court applied the modified categorical approach. The Shepard documents in Moss’ case did not indicate which portion of the simple assault statute under which he was convicted, so the Court assumed he was convicted under “the least acts criminalized.” And because the aggravated assault statute is divisible, the Court looked to the same Shepard documents to determine that Moss was convicted under O.C.G.A. 16-5-21(a)(2). Since a conviction under the statute can be based upon a mens rea of recklessness, it does not qualify as a crime of violence under the elements clause of the ACCA. Thus, the Court held that the district court erred in applying the ACCA enhancement.

Accordingly, the Court vacated Moss’ sentence and remanded for resentencing consistent with its opinion. See: United States v. Moss, 2019 U.S. App. LEXIS 9919 (11th Cir. 2019). 

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