United States v. Terin Moss , 920 F.3d 752 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10473
________________________
D.C. Docket No. 4:16-cr-00154-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERIN MOSS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 4, 2019)
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
WILSON, Circuit Judge:
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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). Based on his prior Georgia
convictions for aggravated assault, possession of cocaine with intent to distribute,
and felony obstruction of a law enforcement officer, Moss was sentenced under the
Armed Career Criminal Act (ACCA) to serve 180 months in prison. On appeal,
Moss argues that his sentence was erroneously enhanced because his prior Georgia
conviction for aggravated assault does not qualify as a predicate “crime of
violence” under the ACCA or the Sentencing Guidelines.1 When based on a
simple assault under O.C.G.A. § 16-5-20(a)(2), Georgia’s aggravated assault
statute, O.C.G.A. § 16-5-21(a)(2), can be satisfied by a mens rea of recklessness.
When this is the case, we hold that it does not qualify as a violent felony under the
ACCA. We therefore vacate and remand for resentencing.
I. Factual and Procedural Background
On October 8, 2015, officers from the Savannah-Chatham Metropolitan
Police Department responded to a request for assistance to recover a missing
vehicle. Upon locating the missing vehicle, the officers found Moss asleep in the
driver’s seat. The officers woke Moss, who was largely incoherent, and removed
1
Moss argues that Georgia’s aggravated assault statute does not qualify as a crime of violence
under U.S.S.G. § 4B1.2’s enumerated offenses clause. That was not the basis, however, for his
enhanced base offense level. Instead, Moss received an enhanced base offense level under the
elements clause of the ACCA, pursuant to § 4B1.4(b)(3)(B). Accordingly, we do not address
Moss’s arguments under the Guidelines.
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him from the car. The officers recovered a loaded firearm from the driver’s seat
and a concealed carry holster from inside Moss’s waistband. An officer on the
scene was familiar with Moss and knew he was a convicted felon. Moss was
arrested. Once at the detention center, the officers recovered additional
ammunition from the pocket of Moss’s pants.
Moss was charged with being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One), and being a felon in
possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Count Two). Moss pleaded guilty to Count Two pursuant to a written plea
agreement.2
According to the Presentence Investigation Report (PSI), Moss had been
convicted of two prior violent felony offenses and one felony drug offense. His
felony drug conviction was for possession of less than one ounce of marijuana and
possession with intent to distribute cocaine, in violation of O.C.G.A. § 16-13-30.
His two prior violent felony offenses included two counts of aggravated assault on
a police officer, in violation of O.C.G.A. § 16-5-21(a)(2), and one count of felony
obstruction of an officer, in violation of O.C.G.A § 16-10-24(b). The facts
underlying Moss’s aggravated assault conviction involved Moss fleeing from state
2
In return for Moss’s guilty plea, the government agreed to dismiss Count One.
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police after being found in possession of an unknown substance and a set of scales.
Moss assaulted the officers by biting them, drawing blood from the bite location.
Because Moss had three prior convictions for a violent felony or felony drug
offense, the U.S. Probation Officer concluded that Moss qualified as an armed
career criminal under 18 U.S.C. § 924(e). Moss’s armed career criminal status
resulted in a base offense level of 33 under U.S.S.G. § 4B1.4. Moss received a
three-level reduction under §§ 3E1.1(a) and (b) for acceptance of responsibility.
Based on a total offense level of 30 and a criminal history category of VI, the
resulting Guideline range was 168 to 210 months’ imprisonment. But because
Moss qualified as an armed career criminal, the ACCA mandated a 15-year
minimum sentence. Accordingly, the Guideline range was 180 to 210 months.
Moss objected to his status as an armed career criminal, arguing that his
conviction for aggravated assault did not qualify as a predicate crime of violence
under the ACCA or U.S.S.G. § 4B1.4. He asserted that his prior aggravated
assault conviction failed to meet the generic definition of an aggravated assault and
failed to satisfy the ACCA’s “use of force” requirement for a crime of violence.
The Probation Officer responded that, according to the state indictment,
Moss was charged with two counts of knowingly assaulting a police officer with
his mouth, an “instrument which, when used offensively against a person, is likely
to result or does result in serious bodily injury.” O.C.G.A. § 16-5-21(a)(2). Thus,
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Moss’s aggravated assault conviction had as an element the attempted use or
threatened use of physical force against the person of another, which met the
ACCA’s definition of violent felony. See 18 U.S.C. § 924(e)(2)(B).
The district court rejected Moss’s objections to his armed career criminal
status. Moss was sentenced to 180 months’ imprisonment, to be served concurrent
with Moss’s revoked probation terms, followed by 5 years’ supervised release.
This appeal followed.
II. Discussion
Moss challenges the district court’s determination that his prior Georgia
aggravated assault conviction qualifies as a predicate violent felony under the
elements clause of the ACCA. He argues that Georgia’s statute (1) does not
require a mens rea of specific intent and (2) its definition of “deadly weapon” is
overbroad and unconstitutionally vague. His challenge ultimately contests the
ACCA enhancement.
We review de novo a district court’s determination that a prior conviction
qualifies as a violent felony under the ACCA. United States v. Howard, 742 F.3d
1334, 1341 (11th Cir. 2014).
A. The ACCA Enhancement
The ACCA mandates a 15-year minimum sentence for a defendant who
commits an offense in violation of 18 U.S.C. § 922(g) and has three prior
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convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1).
The ACCA defines the term “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 use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
Id. § 924(e)(2)(B). This case involves only the first part of that definition,
§ 924(e)(2)(B)(i), known as the elements clause. United States v. Owens, 672 F.3d
966, 968 (11th Cir. 2012).
To determine whether a prior conviction qualifies as a violent felony under
the elements clause, we employ a “categorical approach.” United States v. Davis,
875 F.3d 592, 597 (11th Cir. 2017). In cases where the statute of conviction is
“divisible” in that it “list[s] elements in the alternative, and thereby define[s]
multiple crimes,” we employ the “modified categorical approach.” Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). The modified categorical approach
“allows us to look at ‘a limited class of documents’—known as Shepard
documents and including such items as 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, 1316 (11th Cir.
2018) (quoting Mathis, 136 S. Ct. at 2249). Once we determine which divisible
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portion of the statute a defendant was convicted under, we then apply the
categorical approach to that statutory phrase. Davis, 875 F.3d at 598 (“If we can
tell which statutory phrase the defendant was necessarily convicted under [using
the modified categorical approach], we return to the categorical approach and
apply it to that statutory phrase.” (internal quotation marks and citations omitted)).
In applying the categorical approach, we look only at the statutory definition
of the prior offense and not the facts underlying the conviction. Howard, 742 F.3d
at 1342; see also Davis, 875 F.3d at 597 (“All that counts . . . are the elements of
the statute of conviction, not the specific conduct of a particular offender.”
(quotation marks omitted)). Because an examination of the state conviction does
not involve an analysis of the facts underlying the case, we must presume that the
conviction rested upon the “least of the acts criminalized.” Moncrieffe v. Holder,
569 U.S. 184, 190–91 (2013). If the “least of the acts criminalized” in the statutory
phrase has an element requiring “the use, attempted use, or threatened use of
physical force against the person of another,” then the offense categorically
qualifies as a violent felony under the elements clause. See Davis, 875 F.3d at
597–98; 18 U.S.C. § 924(e)(2)(B)(i).
Under the elements clause, “use” requires active employment of physical
force. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). “[T]he phrase ‘physical force’
means violent force—that is, force capable of causing physical pain or injury to
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another person.” Johnson v. United States, 559 U.S. 133, 140 (2010). But active
employment of physical force “most naturally suggests a higher degree of intent
than negligent or merely accidental conduct.” Leocal, 543 U.S. at 9. In Leocal,
the Supreme Court made clear that crimes of violence must be volitional, but also
repeatedly emphasized that such crimes cannot be “accidental.” See id. at 8–10.
Following Leocal’s reasoning, we held that “a conviction predicated on a mens rea
of recklessness does not satisfy the ‘use of physical force’ requirement.” United
States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). Rather, for a
conviction to qualify as a predicate crime of violence under the elements clause, it
must require “the intentional use of force.” Id. Although Palomino Garcia’s
holding addressed Sentencing Guideline § 2L1.2’s elements clause, it compels the
conclusion that the ACCA’s elements clause likewise requires the intentional use
of force. See United States v. Green, 873 F.3d 846, 869 (11th Cir. 2017)
(determining that a § 2L1.2 case “compels a conclusion that [the same] statute
likewise constitutes a violent felony under the elements clause of the ACCA”);
United States v. Vail-Bailon, 868 F.3d 1293, 1298 n.8 (11th Cir. 2017) (“The
elements clause of the ACCA is identical to the elements clause of § 2L1.2. Cases
construing the ACCA’s elements clause are thus relevant to our inquiry here.”).
Of course, reckless conduct, as generally defined, is not intentional. See
Black’s Law Dictionary (10th ed. 2014) (defining recklessness as “[c]onduct
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whereby the actor does not desire harmful consequences but nonetheless foresees
the possibility and consciously disregards the risk” (emphasis added)). Nor is
reckless conduct, as defined by Georgia law, intentional. See O.C.G.A. § 16-5-60
(defining reckless conduct as “consciously disregarding a substantial and
unjustifiable risk that [the defendant’s] act or omission will cause harm or
endanger the safety of the other person”). Because Georgia law defines
recklessness as nothing more than the conscious disregard of a substantial and
unjustifiable risk, this is more akin to accidental conduct and cannot be said to
require intent.
With this framework in mind, we now consider whether a conviction for
aggravated assault under Georgia law qualifies as a crime of violence under the
elements clause of the ACCA.
B. Georgia’s Aggravated Assault Statute
i. Divisibility of Georgia’s Simple and Aggravated Assault Statutes
At the time of Moss’s conviction, Georgia’s aggravated assault statute
provided that a person commits the offense of aggravated assault when he commits
a simple assault:
(1) With intent to murder, rape, or to rob; or
(2) With a deadly weapon or with any object, device, or
instrument which, when used offensively against a person,
is likely to or actually does result in serious bodily injury.
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O.C.G.A. § 16-5-21(a) (2000). Georgia’s aggravated assault statute therefore has
two essential elements: (a) a simple assault as defined under O.C.G.A. §§ 16-5-
20(a)(1) or (2), and (b) that the assault was aggravated by either (1) an intention to
murder, rape or rob, or (2) the use of a deadly weapon. See Smith v. Hardrick, 464
S.E.2d 198, 200 (Ga. 1995). We have previously held that Georgia’s aggravated
assault statute, O.C.G.A. § 16-5-21(a), is divisible as to the aggravator component
of the statute, Morales-Alonso, 878 F.3d at 1316, but we have not addressed
whether Georgia’s simple assault statute, O.C.G.A. § 16-5-20(a), is divisible.
At the time of Moss’s conviction, Georgia’s simple assault statute provided
that a person commits the offense of simple assault when he either:
(1) Attempts 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) (2000). Georgia’s simple assault statute is divisible. The
face of the statute lists two separate crimes: (1) an attempt to commit a violent
injury to another person and (2) an act placing another in reasonable apprehension
of receiving a violent injury. See Davis, 875 F.3d at 598 (finding a statute divisible
on its face because it clearly listed two distinct crimes). As a result, we apply the
modified categorical approach to determine which version of simple assault Moss
was convicted of committing. Id. In making this determination, we may look only
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to the indictment, jury instructions, and plea agreement. See Shepard v. United
States, 544 U.S. 13, 26 (2005).
Because the Shepard documents do not indicate the portion of Georgia’s
simple assault statute under which Moss was convicted, we assume that he was
convicted under the “least of the acts criminalized” by the statute—here, § 16-5-
20(a)(2). See Johnson, 559 U.S. at 137 (considering the least culpable prong of a
divisible statute where Shepard documents did not make clear under which version
the defendant was convicted).
Similarly, Georgia’s aggravated assault statute is divisible. See Morales-
Alonso, 878 F.3d at 1316. Review of the permitted Shepard documents is
therefore necessary to determine which of the multiple crimes listed in the
aggravated assault statute Moss was convicted under. See Davis, 875 F.3d at 597.
The state indictment indicates that Moss was convicted of aggravated assault under
O.C.G.A. § 16-5-21(a)(2), which criminalizes an assault “[w]ith a deadly weapon
or with any object, device, or instrument which, when used offensively against a
person, is likely to or actually does result in serious bodily injury.” O.C.G.A. § 16-
5-21(a)(2) (2000).
Accordingly, our analysis is limited an aggravated assault under O.C.G.A.
§ 16-5-21(a)(2), which was predicated upon a simple assault under O.C.G.A. § 16-
5-20(a)(2).
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ii. Mens Rea Requirement
To qualify as a violent felony under the elements clause, a conviction must
be predicated on the intentional use of physical force. See Palomino Garcia, 606
F.3d at 1334–36. Georgia law holds that recklessness is a sufficient mens rea for
aggravated assault under O.C.G.A. § 16-5-21(a)(2), when based upon simple
assault under O.C.G.A. § 16-5-20(a)(2). See Patterson v. State, 789 S.E.2d 175,
176–78 (Ga. 2016). Therefore, a Georgia aggravated assault conviction cannot
qualify as a violent felony under the elements clause of the ACCA when based on
simple assault under O.C.G.A. § 16-5-20(a)(2).
The government incorrectly contends that our decision in Turner v. Warden
Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), should control here. In
Turner, we held that a conviction under Florida’s aggravated assault statute, which
incorporates a similar simple assault statute, categorically qualified as a violent
felony under the ACCA. Id. at 1337–38. We reasoned that an aggravated assault
conviction under Florida law necessarily included a simple assault, which was the
“intentional, unlawful threat by word or act to do violence to the person of another,
coupled with an apparent ability to do so.” Id. at 1338 (quoting Fla. Stat.
§ 784.011(1)). Florida’s assault statutes are distinguishable, however, from
Georgia’s assault statutes. Simply put, Florida requires the “intentional, unlawful
threat by word or act to do violence,” Fla. Stat. § 784.011(1) (emphasis added),
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while Georgia unequivocally does not require such intent under § 16-5-20(a)(2).
Turner therefore does not apply here.
The Supreme Court of Georgia addressed the culpable mental state required
under Georgia’s simple assault and aggravated assault statutes in Patterson v.
State, 789 S.E.2d 175 (Ga. 2016). In Patterson, the court concluded that “the
crime of simple assault as set forth in O.C.G.A. § 16-5-20(a)(2), does not require
proof of specific intent.” Id. at 177. All that is required is that the assailant intends
to commit the act which in fact places another in reasonable apprehension of
injury, not a specific intent to cause such apprehension. Id. “[T]his conclusion
regarding the requirements of O.C.G.A. § 16-5-20(a)(2) is demanded by the simple
fact that no requirement of a specific intent is set forth in O.C.G.A. § 16-5-
20(a)(2).” Id.
Nor does a Georgia conviction for aggravated assault with a deadly weapon,
O.C.G.A. § 16-5-21(a)(2), require an intent to injure or an intent to place the victim
in reasonable apprehension of injury when the underlying simple assault was based
on § 16-5-20(a)(2). Patterson, 789 S.E.2d at 178. Rather, a conviction under
Georgia’s aggravated assault statute can be predicated on a mens rea of
recklessness. See id. at 176–78 (explaining that trial court did not err by refusing
to give jury instruction on a lesser included offense of reckless driving because the
charged crime of aggravated assault required the same mens rea as the lesser
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included offense). Patterson is the law of Georgia, and Patterson must therefore
control here. See Davis, 875 F.3d at 597 (noting that we apply “federal law in
interpreting the ACCA, but state law in determining the elements of state offenses,
keeping in mind that state law is what the state supreme court says it is.”
(emphasis added)). Because Georgia’s aggravated assault statute, O.C.G.A. § 16-
5-21(a)(2) (2000), can be satisfied by a mens rea of recklessness when based on
simple assault under § 16-5-20(a)(2), it cannot qualify as a crime of violence under
the elements clause of the ACCA. See Palomino Garcia, 606 F.3d at 1336
(holding that crimes involving the reckless use of force cannot qualify as crimes of
violence under the elements clause).
III. Conclusion
For the reasons stated, we hold that the district court erroneously applied an
ACCA enhancement because Moss’s prior aggravated assault conviction does not
qualify as a “crime of violence” under the elements clause of the ACCA. We
vacate his sentence and remand for resentencing consistent with this opinion.
VACATED AND REMANDED FOR RESENTENCING.
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