United States v. Troy Brasby

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-1537
______________
UNITED STATES OF AMERICA
v.
TROY BRASBY,
Appellant
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-20-cr-00122-001)
U.S. District Judge: Honorable Noel L. Hillman
______________
Argued November 17, 2021
Before: CHAGARES, Chief Judge, BIBAS and FUENTES,
Circuit Judges.
(Filed: February 23, 2023)
Lori M. Koch [ARGUED]
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102
Counsel for Appellant Troy Brasby
Mark E. Coyne
Steven G. Sanders [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee United States of America
______________
OPINION OF THE COURT
______________
FUENTES, Circuit Judge.
Troy Brasby appeals his federal sentence for which he
received a sentencing enhancement for a prior conviction of
aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1). The
New Jersey offense can be committed recklessly “under
circumstances manifesting extreme indifference to the value of
human life.”1 We have yet to review whether a state crime that
can be committed with extreme indifference recklessness
qualifies as a crime of violence for purposes of sentencing
enhancement under Section 4B1.2(a) of the U.S. Sentencing
Guidelines. Since the Model Penal Code, learned treatises, and
our own multijurisdictional survey show that New Jersey
aggravated assault matches the generic federal offense, we
1
N.J. Stat. Ann. § 2C:12-1(b)(1).
2
hold that Brasby’s prior conviction qualifies as a crime of
violence under Section 4B1.2(a). We therefore affirm the
District Court’s judgment imposing Brasby’s sentence.
FACTS AND PROCEDURAL HISTORY
In December 2005, Brasby was convicted in New Jersey
state court of aggravated assault in violation of N.J. Stat. Ann.
§ 2C:12-1(b)(1)—a second-degree felony—for recklessly
causing serious bodily injury to another person by utilizing a
handgun to shoot the person four times in the back. The New
Jersey aggravated assault statute under which Brasby was
convicted provided:
A person is guilty of aggravated assault if he . . .
[a]ttempts to cause serious bodily injury to
another, or causes such injury purposely or
knowingly or under circumstances manifesting
extreme indifference to the value of human life
recklessly causes such injury . . . .2
Brasby was sentenced to nine years’ imprisonment for this
felony conviction.
In November 2019, police again arrested Brasby after
they observed him selling drugs. A search incident to the arrest
found suspected controlled substances and a stolen handgun
loaded with nine rounds of ammunition. Because of Brasby’s
2
Id.; see also 2003 NJ Sess. Laws Ch. 218 (eff. Jan. 9, 2004).
In 2019, the law was amended. See 2019 N.J. Laws Ch. 219
(eff. Dec. 1, 2019). We express no opinion about whether that
change would alter our analysis.
3
prior felony conviction for aggravated assault, it was illegal for
him to possess a firearm. Brasby was indicted in the U.S.
District Court for the District of New Jersey on a single count
of illegal possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Brasby entered into a guilty
plea agreement with the Government, but the parties did not
agree on whether Brasby’s 2005 conviction was a felony
conviction for a crime of violence. The Government reserved
the right to argue that Brasby’s previous conviction for
aggravated assault was a crime of violence, and that his base
offense level should be 20 under the U.S. Sentencing
Guidelines (“U.S.S.G.”) § 2K2.l(a)(4)(A).3 Brasby reserved
the right to argue that his conviction for aggravated assault was
not a crime of violence, and that his base offense level should
be 14 under U.S.S.G. § 2K2.l(a)(6)(A).4
At sentencing in March 2021, the District Court
considered which base offense level applied based on whether
Brasby’s aggravated assault conviction qualified as a felony
conviction for a crime of violence. A “crime of violence” is
defined in U.S.S.G. § 4B1.2(a) (emphasis added):
3
U.S.S.G. § 2K2.1(a)(4)(A) provides: “Base Offense Level . . .
20, if . . . the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of
either a crime of violence or a controlled substance offense
. . . .” (emphasis added).
4
U.S.S.G. § 2K2.l(a)(6)(A) provides: “Base Offense Level . . .
14, if the defendant . . . was a prohibited person at the time the
defendant committed the instant offense . . . .”
4
The term “crime of violence” means any offense
under federal or state law, punishable by
imprisonment for a term exceeding one year,
that—
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible
sex offense, robbery, arson, extortion, or
the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a)
or explosive material as defined in 18
U.S.C. § 841(c).
The Government argued that Brasby’s conviction for
aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1)
should qualify as a crime of violence under both clauses.
However, the Government conceded that its argument under
the elements clause was foreclosed by this Court’s precedent
in United States v. Otero, in which we held that a conviction
for reckless conduct is insufficient to qualify as a crime of
violence under the elements clause.5 The Government
therefore focused its argument on Brasby’s conviction for
aggravated assault as a crime of violence under the enumerated
offenses clause. The Government argued that the New Jersey
statute “is in sync with the generic definition of aggravated
assault,” which makes New Jersey aggravated assault a crime
of violence that would support a base offense level of 20 under
5
See 502 F.3d 331, 335 (3d Cir. 2007).
5
the enumerated offenses clause.6 Brasby argued in opposition
that his conviction for aggravated assault does not meet the
definition of a “crime of violence,” and so the base offense
level should be 14.
The District Court noted “a lack of consensus on the
generic definition of assault . . . across the circuits and across
the federal courts,” including conflicting cases from the Eighth
and Ninth Circuits.7 Although the Eighth and Ninth Circuits
conducted multijurisdictional surveys of criminal codes to
determine whether some degree of recklessness could satisfy
the mens rea for aggravated assault in each jurisdiction, the
District Court concluded that the Eighth Circuit in United
States v. Schneider “took a more searching and comprehensive
review” that “more accurately captures the generic offense of
aggravated assault across the states and, therefore, for federal
purposes in the [Sentencing Guidelines].”8 The District Court
also noted that “the Model Penal Code tracks the New Jersey
statute almost word by word, suggesting that the Model Penal
Code is an accurate reflection of the generic offense of
assault.”9
The District Court concluded that a conviction for
aggravated assault in New Jersey can be obtained with a
minimum mens rea of heightened recklessness. The District
Court also concluded that the federal generic definition of
6
App. 87.
7
App. 91–92 (comparing United States v. Schneider, 905 F.3d
1088 (8th Cir. 2018), with United States v. Garcia-Jimenez,
807 F.3d 1079 (9th Cir. 2015)).
8
See App. 91–92, 94.
9
App. 92–93.
6
aggravated assault—and therefore the definition under the U.S.
Sentencing Guidelines—includes the same mens rea of
heightened recklessness as the New Jersey statute.
Accordingly, the District Court found that Brasby’s conviction
under N.J. Stat. Ann. § 2C:12-1(b)(1) qualifies as a crime of
violence under the enumerated offenses clause of U.S.S.G.
§ 4B1.2(a) to support a base offense level of 20.
From the base offense level of 20, the District Court
calculated a Guidelines range of 57 to 71 months’
imprisonment.10 Had Brasby’s conviction for aggravated
assault not been deemed a crime of violence—such that his
base offense level would have been 14—he would have faced
a Guidelines range of 30 to 37 months’ imprisonment. The
District Court sentenced Brasby to 57 months’ imprisonment,
10
From the base offense level of 20, the District Court added 6
levels because the firearm involved was stolen and because
Brasby used or possessed a firearm or ammunition in
connection with another felony offense. The District Court
subtracted 3 levels because Brasby demonstrated acceptance of
responsibility for the offense and assisted authorities in the
investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a guilty plea.
Based on these adjustments, the District Court calculated
Brasby’s total offense level to be 23 Brasby’s criminal history
score was 6 because he had two prior felony convictions: the
conviction for aggravated assault, and a conviction for
unlawful possession of a firearm. This criminal history score
established a criminal history category of III. With a total
offense level of 23 and a criminal history category of III, the
Guidelines range for imprisonment was 57 to 71 months.
7
the minimum of the calculated Guidelines range.11 Brasby
timely appealed.
JURISDICTION
The District Court had subject-matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise
plenary review over the District Court’s legal conclusions,
including the determination that a prior conviction constitutes
a crime of violence under the U.S. Sentencing Guidelines.12
DISCUSSION
Brasby argues that New Jersey aggravated assault under
N.J. Stat. Ann. § 2C:12-1(b)(1) does not qualify as a crime of
violence under U.S.S.G. § 4B1.2(a)(2) because it is broader
than the federal generic definition of aggravated assault in that
a person can commit aggravated assault under N.J. Stat. Ann.
§ 2C:12-1(b)(1) with a reckless mens rea, whereas the federal
generic definition does not include recklessness.
The U.S. Sentencing Guidelines define a “crime of
violence” as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year,”
that:
11
The District Court stated that, even if it had applied a base
offense level of 14, it would have varied upward to the same
sentence “to afford adequate deterrence, both general and
specific, and to protect the public.” App. 113.
12
United States v. McCants, 952 F.3d 416, 421 (3d Cir. 2020);
United States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017).
8
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible
sex offense, robbery, arson, extortion, or
the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a)
or explosive material as defined in 18
U.S.C. § 841(c).13
The definition of “crime of violence” in the Sentencing
Guidelines (U.S.S.G. § 4B1.2(a)(1)) bears “substantial
similarity” to the definition of “violent felony” in the Armed
Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)(2)(B)).14
Because of this similarity, courts generally apply authority
interpreting one provision to the other.15 In a plurality opinion
in Borden v. United States, the Supreme Court held that a
criminal offense cannot count as a “violent felony” under the
elements (or use-of-force) clause of the ACCA if it requires
only a mens rea of ordinary recklessness.16 However, the
Supreme Court explicitly stated in Borden that it did not decide
13
U.S.S.G. § 4B1.2(a) (emphasis added).
14
See United States v. Marrero, 743 F.3d 389, 395 n.2 (3d Cir.
2014); United States v. Hopkins, 577 F.3d 507, 511 (3d Cir.
2009) (“[T]he definition of a violent felony under the ACCA
is sufficiently similar to the definition of a crime of violence
under the Sentencing Guidelines that authority interpreting one
is generally applied to the other.”).
15
Marrero, 743 F.3d at 395 n.2; Hopkins, 577 F.3d at 511.
16
141 S. Ct. 1817, 1821–22, 1834 (2021) (plurality opinion);
id. at 1834 (Thomas, J., concurring in the judgment).
9
whether offenses with “extreme recklessness” fall within the
ACCA elements clause.17 Some of our sister circuit courts
have applied Borden to conclude that an aggravated assault
conviction does not count as a violent felony under the ACCA
if the state statute requires a minimum of ordinary
recklessness.18 We have similarly held that “a conviction for
mere recklessness cannot constitute a crime of violence” under
the Sentencing Guidelines.19 But we have not before decided
whether a conviction for heightened recklessness can
constitute a crime of violence under the Sentencing Guidelines.
We need not decide how Borden applies here because we
decide this case under the enumerated offenses clause rather
than the elements clause of U.S.S.G. § 4B1.2(a).
Courts employ the categorical approach to determine
whether a prior conviction qualifies as a crime of violence
17
Borden, 141 S. Ct. at 1825 n.4; see also id. at 1856 n.21
(Kavanaugh, J., dissenting) (“As the plurality notes, today’s
decision should not be construed to express any view on the
application of the use-of-force clause to crimes requiring a
mental state of extreme recklessness.” (emphasis in original)).
18
See, e.g., United States v. Hoxworth, 11 F.4th 693, 696 (8th
Cir. 2021) (Texas); United States v. Ash, 7 F.4th 962, 963 (10th
Cir. 2021) (Kansas); United States v. Brenner, 3 F.4th 305, 307
(6th Cir. 2021) (Tennessee).
19
United States v. Lee, 612 F.3d 170, 195–97 (3d Cir. 2010)
(emphasis added); see also United States v. Quinnones, 16
F.4th 414, 420 (3d Cir. 2021) (explaining that, “if an offense
can be committed with recklessness . . . it is not a crime of
violence” under U.S.S.G. § 4B1.2 (citing Borden, 141 S. Ct. at
1825).
10
under the enumerated offenses clause of U.S.S.G. § 4B1.2(a).20
Under the categorical approach, “the facts of a given case are
irrelevant” and courts focus “instead on whether the elements
of the statute of conviction meet the federal standard.”21 The
federal standard is the “generic” definition of the offense (i.e.,
“the offense as commonly understood”), which courts define
by considering how the Model Penal Code, learned treatises,
and the criminal codes of most states define the offense.22
Courts follow three steps for the categorical approach:
(1) identify the elements of the offense underlying the
conviction; (2) identify the elements of the generic offense; and
(3) determine whether the former “substantially corresponds”
to the latter.23 If the statute of conviction has the same
elements as the generic offense, or if the statute defines the
offense more narrowly, then the prior conviction is a
categorical match and can serve as a predicate offense for a
sentencing enhancement.24 However, if the statute sweeps
more broadly than the generic offense, then a conviction under
that statute cannot serve as a predicate offense.25
20
McCants, 952 F.3d at 425; Chapman, 866 F.3d at 133.
21
Borden, 141 S. Ct. at 1822; see also Mathis v. United States,
579 U.S. 500, 505 (2016) (“The court . . . lines up that crime’s
elements alongside those of the generic offense and sees if they
match.”); Taylor v. United States, 495 U.S. 575, 600 (1990).
22
Mathis, 579 U.S. at 503; See Taylor, 495 U.S. at 598–600;
McCants, 952 F.3d at 428.
23
See Taylor, 495 U.S. at 592–602; United States v. Graves,
877 F.3d 494, 501 (3d Cir. 2017).
24
Descamps v. United States, 570 U.S. 254, 261 (2013).
25
Id.11
Courts employ an additional step when the statute
forming the basis of a defendant’s prior conviction is
“divisible,” meaning that it provides “elements in the
alternative, and thereby define[s] multiple crimes.”26 Under
this “modified categorical approach,” the sentencing court
looks beyond the statute of conviction to a restricted set of
documents—such as the charging document, plea agreement,
and transcript of the plea colloquy27—“to identify the specific
statutory offense that provided the basis for the prior
conviction.”28 The court then compares those elements to the
elements of the generic offense using the formal categorical
approach.29
The determination of whether a statute is divisible turns
on the distinction between “elements” and “means.” A
divisible statute sets out one or more elements in the
alternative, often using disjunctive language such as “or” to list
26
Mathis, 579 U.S. at 503; see also Descamps, 570 U.S. at 260(explaining that the modified categorical approach “helps
effectuate the categorical analysis when a divisible statute,
listing potential offense elements in the alternative, renders
opaque which element played a part in the defendant’s
conviction”).
27
See Shepard v. United States, 544 U.S. 13, 26 (2005) (listing
the charging document, plea agreement, plea colloquy
transcript, or other comparable judicial record); McCants, 952
F.3d at 427 (listing the charging document, guilty plea
allocution, jury instructions, and judgment of conviction).
28
United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 2018).
29
Mathis, 579 U.S. at 505-06; United States v. Abdullah, 905
F.3d 739, 744 (3d Cir. 2018).
12
multiple, alternative criminal offenses.30 “Each alternative
offense listed in a divisible statute must be proven beyond a
reasonable doubt to sustain a conviction.”31 In contrast,
“means” are “merely the factual ways that a criminal offense
can be committed” that “need neither be found by a jury nor
admitted by a defendant.”32
A. Specific Offense
The New Jersey aggravated assault statute under which
Brasby was convicted, N.J. Stat. Ann. § 2C:12-1(b)(1),
provided:
A person is guilty of aggravated assault if he . . .
[a]ttempts to cause serious bodily injury to
another, or causes such injury purposely or
knowingly or under circumstances manifesting
extreme indifference to the value of human life
recklessly causes such injury . . . .
The statute is divisible into two separate offenses: (1)
attempted aggravated assault (“[a]ttempt[ing] to cause serious
bodily injury to another”), and (2) aggravated assault
(“caus[ing] such injury purposely or knowingly or under
circumstances manifesting extreme indifference to the value of
human life recklessly causes such injury”).33 Because the
statute defines more than one offense, we apply the modified
30
Mathis, 579 U.S. at 506, 513.
31
Ramos, 892 F.3d at 608.
32
Id. (quoting Mathis, 579 U.S. at 504).
33
See New Jersey Model Criminal Jury Charges, Aggravated
Assault – Serious Bodily Injury, at p.3 n.2 (2012).
13
categorical approach to determine the specific subsection and
offense under which Brasby was convicted. Although the
parties do not provide court documents for Brasby’s
aggravated assault conviction in New Jersey state court,
reliance on the Presentence Investigation Report (“PSR”) in
the subsequent federal offense is permitted to establish the
basis of a defendant’s prior conviction where the defendant
does not object to its factual findings.34 Brasby’s PSR shows
that he was convicted under the second subsection for actually
causing serious bodily injury to another, rather than attempting
to cause such injury. Neither party disputes this.
The second subsection of § 2C:12-1(b)(1) lists three
mens rea: (1) purposely, (2) knowingly, or (3) recklessly
“under circumstances manifesting extreme indifference to the
value of human life.” Mens rea generally is one element of an
offense, and the specific mens rea is simply a means.35 Indeed,
the New Jersey Model Criminal Jury Instructions and the New
Jersey Practice Series on Criminal Law list two elements to
34
See United States v. Siegel, 477 F.3d 87, 93 (3d Cir. 2007);
see also Abdullah, 905 F.3d at 746 (identifying the basis of a
prior conviction upon agreement of the parties and “as stated
in the PSR without objection, confirmed by the judgment of
conviction, and admitted by [the defendant] through counsel”).
35
See Cabeda v. Att’y Gen., 971 F.3d 165, 174 n.9 (3d Cir.
2020) (holding that three types of mens rea listed in the
disjunctive in a Pennsylvania law are “alternate means rather
than elements”); see also Hoxworth, 11 F.4th at 696 (noting
that the Texas aggravated assault statute “defines a single,
indivisible offense that can be committed under any of three
mental states—intentionally, knowingly, or recklessly”
(emphasis in original)).
14
convict someone under § 2C:12-1(b)(1) for aggravated assault:
(1) causing serious bodily injury (i.e., the actus reus), and (2)
acting with one of the three listed mens rea.36 In our analysis
under the categorical approach, we review the least culpable
mens rea of the statute of conviction.37 In this case, the least
culpable mens rea is recklessly “under circumstances
manifesting extreme indifference to the value of human life.”
It is undisputed that Brasby was convicted under this mens rea.
36
New Jersey Model Criminal Jury Charges, Aggravated
Assault – Serious Bodily Injury, at p.1 (2012); 33 N.J. Prac.,
Criminal Law § 5:08 (5th ed. 2012).
37
See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568
(2017) (explaining that a petitioner’s state conviction is an
“aggravated felony” “only if the least of the acts criminalized
by the state statute falls within the generic federal definition”);
Quinnones, 16 F.4th at 418–19 (“[W]e next look at that
offense’s elements to ‘ascertain the least culpable conduct
hypothetically necessary to sustain a conviction.’” (quoting
United States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016))).
15
Under New Jersey law:
A person acts recklessly with respect to a
material element of an offense when he
consciously disregards a substantial and
unjustifiable risk that the material element exists
or will result from his conduct. The risk must be
of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the
circumstances known to him, its disregard
involves a gross deviation from the standard of
conduct that a reasonable person would observe
in the actor’s situation.38
The New Jersey Model Criminal Jury Charges and the New
Jersey Practice Series on Criminal Law explain that the phrase
“under circumstances manifesting extreme indifference to the
value of human life” is not part of the recklessness mens rea
for aggravated assault:
38
N.J. Stat. Ann. § 2C:2-2(b)(3) (emphasis added).
16
The phrase “under circumstances manifesting
extreme indifference to the value of human life”
does not focus on the state of mind of the actor,
but rather on the circumstances under which [the
jury] find[s] that he/she acted. If, in light of all
the evidence, [the jury] find[s] that the conduct
of the defendant(s) resulted in a probability as
opposed to a mere possibility of serious bodily
injury, then [the jury] may find that (he/she/they)
acted under circumstances manifesting extreme
indifference to the value of human life.39
Recklessness “under circumstances manifesting extreme
indifference to the value of human life” therefore elevates a
reckless action due to the probability that serious bodily injury
will result, as opposed to a mere possibility of such injury.40
The New Jersey Supreme Court recognizes that recklessness
39
New Jersey Model Criminal Jury Charges, Aggravated
Assault – Serious Bodily Injury, at p.2 (2012); 33 N.J. Prac.,
Criminal Law § 5:08 (5th ed. 2012).
40
Cf. State v. Galicia, 45 A.3d 310, 318 (N.J. 2012) (explaining
that the difference between reckless manslaughter (under N.J.
Stat. Ann. § 2C:11-4(b)(1)) and aggravated manslaughter for
“recklessly caus[ing] death under circumstances manifesting
extreme indifference to human life” (under N.J. Stat. Ann.
§ 2C:11-4(a)(1)) “turns on the degree of probability that the
death will result from the defendant’s conduct” since reckless
manslaughter is “when it is only possible that death will
result,” while aggravated manslaughter for “recklessly
caus[ing] death under circumstances manifesting extreme
indifference to human life” is “[w]hen it is probable that death
will result”).
17
under circumstances manifesting extreme indifference to
human life is “a more stringent standard of reckless conduct.”41
The U.S. Supreme Court and the Model Penal Code similarly
recognize “extreme recklessness” as a higher degree of
recklessness.42 The parties here do not dispute that the
applicable mens rea for our review is extreme indifference
recklessness.
The elements of Brasby’s statute of conviction—
aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1)—are
therefore, causing serious bodily injury to another at least
recklessly under circumstances manifesting extreme
indifference to the value of human life.
B. Generic Offense
As previously stated, an offense qualifies as a crime of
violence under the enumerated offenses clause of U.S.S.G.
§ 4B1.2(a) if the elements of the specific offense for which a
defendant was convicted are the same as or narrower than the
elements of the “generic” offense.43 To identify the elements
of the generic offense, courts examine the Model Penal Code,
learned treatises, and state laws.44
41
See State v. Bakka, 826 A.2d 604, 613 (N.J. 2003).
42
See Borden, 141 S. Ct. at 1825 n.4; Am. Law Inst., Model
Penal Code Commentaries, Part II § 210.2, p.22, 25 (1980)
(distinguishing ordinary recklessness as less than extreme
recklessness).
43
See Descamps, 570 U.S. at 257.
44
Graves, 877 F.3d at 502; see also Taylor, 495 U.S. at 598–
600; McCants, 952 F.3d at 428.
18
Model Penal Code: The Model Penal Code (“MPC”) is
“an ideal starting point” for the categorical approach.45 Under
MPC § 211.1(2)(a), “[a] person is guilty of aggravated assault
if he . . . attempts to cause serious bodily injury to another, or
causes such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life.” Section 211.1(2)(a) “therefore reserves major
felony sanctions for assaults resulting in serious bodily injury
where the actor was at least reckless ‘under circumstances
manifesting extreme indifference to the value of human
life.’”46 This definition “approximates the definition of
‘aggravated assault’ used by several states that have
consolidated the crimes of assault and battery.”47 In fact, the
language of § 211.1(2)(a) is nearly identical to the language in
N.J. Stat. Ann. § 2C:12-1(b)(1).48 Aggravated assault is also a
45
Marrero, 743 F.3d at 400; see also Schneider, 905 F.3d at
1093 (“[T]he relevant Model Penal Code provision, if widely
adopted, can reflect the elements of the generic offense.”).
46
Am. Law Inst., Model Penal Code & Commentaries, Part II
§ 211.1, p.189 (1980).
47
United States v. McFalls, 592 F.3d 707, 717 (6th Cir. 2010).
48
Compare Model Penal Code § 211.1(2)(a) (“A person is
guilty of aggravated assault if he . . . attempts to cause serious
bodily injury to another, or causes such injury purposely,
knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life . . . .” (emphasis
added)), with N.J. Stat. Ann. § 2C:12-1(b)(1) (“A person is
guilty of aggravated assault if he . . . [a]ttempts to cause serious
bodily injury to another, or causes such injury purposely or
knowingly or under circumstances manifesting extreme
indifference to the value of human life recklessly causes such
injury . . . .” (emphasis added)).
19
second-degree felony under both the Model Penal Code and
the New Jersey statute.49 The Model Penal Code therefore
supports the generic offense of aggravated assault as conduct
causing serious bodily injury to another at least recklessly
under circumstances manifesting extreme indifference to the
value of human life.
Learned Treatises: The Government cites two treatises
to support its position that the generic offense of aggravated
assault requires at least recklessness “under circumstances
manifesting extreme indifference to the value of human life.”
Just one of those treaties actually goes its way. The first
treatise, Wharton’s Criminal Law, states: “An assault may . . .
be aggravated when the defendant’s conduct shows extreme
indifference to life.”50 It also notes that when the assault results
in bodily injury, the defendant’s recklessness and the
seriousness of the victim’s injury are typical aggravators. So,
this treatise supports the Government.51 The second treatise,
Substantive Criminal Law, goes the other way. It discusses
“extreme indifference to the value of human life” with respect
to battery, and notes that some jurisdictions “appear not to
require [a] higher mental state” like purpose or knowledge for
a battery involving serious bodily injury.52 But it also
describes this as the minority approach. It says that the
majority of states require knowledge or intent.53 So it goes
49
Model Penal Code § 211.1(2)(a).
50
2 Francis Wharton, Crim. L. § 196 (15th ed., updated Aug.
2020); N.J. Stat. Ann § 2C:12-1(b).
51
Id. § 198.
52
See 2 Wayne R. LaFave, Subst. Crim. L. § 16.2(d) (3d ed.,
updated Oct. 2020) (citing Schneider, 905 F.3d 1088).
53
Id.20
against the Government. Yet this treatise is of little value to us
here because it merely describes the states’ various
approaches.54 We conduct our own multijurisdictional
analysis below.
Breaking the tie, two other treatises support the
Government’s position. Corpus Juris Secundum explains that
aggravated assault generally requires an intentional infliction
of injury and “the intention to injure cannot be satisfied by a
showing of . . . mere recklessness.”55 However, the treatise
recognizes that “a person can commit aggravated assault
recklessly” under some state statutes.56 And it notes that an
assault causing injury can be aggravated even if the defendant
has no “specific intent to inflict the injury.”57 In addition,
according to American Jurisprudence, “[a]ggravated assault
usually consists of intentionally or recklessly causing great or
serious bodily harm to another.”58 This includes “recklessness
to the extent that almost assures that injury or death will ensue”
or “blatant disregard for the risk to the victim’s life.”59 The
treatise specifies that a person cannot commit aggravated
assault with “ordinary recklessness.”60 These treatises provide
further support that the generic definition of aggravated assault
requires at least a heightened degree of recklessness.
54
Id.55
6A C.J.S. § 88 (updated Oct. 2021).
56
See id.
57
Id. § 96.
58
6 Am. Jur. 2d § 30 (updated Aug. 2021).
59
Id. § 30 n.1.
60
Id. § 30.
21
Comparison of State Laws: This Court has previously
held that “the most important factor in defining the generic
version of an offense is the approach of the majority of state
statutes defining the crime.”61 However, the Supreme Court
recently indicated in Esquivel-Quintana that “this sort of
multijurisdictional analysis . . . is not required by the
categorical approach” but may nonetheless offer “useful
context” to “shed light on the ‘common understanding and
meaning’ of the federal provision being interpreted.”62 We
therefore hold that multijurisdictional surveys are not required
under the categorical approach, though they will still often be
helpful in determining the generic definition of an offense.
Yet some approaches to multijurisdictional surveys can
be problematic. Federal courts of appeals that have conducted
surveys of state laws have reached inconsistent conclusions on
which jurisdictions require at least extreme indifference
recklessness to sustain a conviction for aggravated assault.
This inconsistency appears to, in part, result from an attempt
by our sister circuit courts to review state court statutes without
regard to labels.63 That approach, however, risks
bootstrapping.
61
Graves, 877 F.3d at 503–04.
62
Esquivel-Quintana, 137 S. Ct. at 1571 n.3 (quoting Perrin v.
United States, 444 U.S. 37, 45 (1979)); see also Ho Sang Yim
v. Barr, 972 F.3d 1069, 1078 n.2 (9th Cir. 2020) (“To the extent
we have implied that the categorical approach requires a multi-
jurisdictional analysis, that guidance has been superseded by
Esquivel-Quintana.”) (internal citation omitted).
63
McFalls, 592 F.3d at 716–17 (“Defining aggravated assault
generically is particularly difficult because many states define
assault in terms of degrees rather than with the terms simple or
22
For example, in Schneider the Eighth Circuit considered
whether “willful” aggravated assault under North Dakota law
qualifies as a crime of violence under the U.S. Sentencing
Guidelines. The Court looked to aggravated assault “or an
equivalent crime” in conducting its survey.64 By doing so, the
court was forced to assume the elements of aggravated assault
before reaching a generic definition of the offense. The Eighth
Circuit determined that, in 32 jurisdictions “a conviction for
aggravated assault or an equivalent crime requires a person to
cause serious bodily injury with at least an extreme
indifference to human life.”65 The group of 32 jurisdictions
included 14 jurisdictions that require at least extreme
indifference recklessness, plus 18 jurisdictions that require a
knowledge or purposeful mens rea.66 Based on this
multijurisdictional analysis, the Eighth Circuit concluded that,
“to the extent that there is a consensus, ordinary recklessness
is not an element of aggravated assault.”67
aggravated, and because some states still retain the common
law distinction between assault and battery.” (internal citation
omitted)).
64
Schneider, 905 F.3d at 1093.
65
Id. at 1094, 1094 n.3.
66
Schneider, 905 F.3d at 1094 & n.3.
67
Id. at 1095. The Eighth Circuit identified Louisiana as the
only outlier since the state defines “aggravated assault” as a
simple assault that is committed “with a dangerous weapon” or
against a select group of victims but does not specifically
require serious bodily injury. Id. at 1094 n.2 (citing La. Stat.
Ann. §§ 14:37–14:37.7).
23
Applying a similar approach in Garcia-Jimenez,68 the
Ninth Circuit evaluated the same New Jersey statute for
aggravated assault at issue in this case, N.J. Stat. Ann.
§ 2C:12–1(b)(1), and identified 17 jurisdictions that “punish
aggravated assaults committed with extreme indifference
recklessness (or a lesser level of mens rea).”69 The Court
concluded that “a substantial majority of U.S. jurisdictions
require more than extreme indifference recklessness to commit
aggravated assault” because 34 jurisdictions “do not punish as
aggravated assault offenses committed with only extreme
indifference recklessness.”70
We believe that this approach puts the cart before the
horse and decline to follow it. Indeed, these surveys do not
agree on which jurisdictions fall into which category of mens
rea, nor do they agree on which statute in each jurisdiction is
the relevant statute for aggravated assault, or the equivalent
offense. These inconsistencies underscore the difficulty of
finding consensus on the generic definition of aggravated
assault across all jurisdictions. Thus, we conducted our own
multijurisdictional analysis employing a two-step approach.
First, we applied a label-based approach to determine
whether the generic definition as gleaned from the Model Penal
Code and treatises “roughly correspond[s] to the definition[s]
of [aggravated assault] in a majority of the States’ criminal
68
Garcia-Jimenez, 807 F.3d at 1085 n.5 (“select[ing] the
statutes or specific provisions that most closely mirror the
aggravated assault provision under [New Jersey law]”).
69
Id. at 1086, 1086 n.7.
70
Id. at 1085–86, 1085 n.6.
24
codes.”71 Thus, we began by reviewing what state laws that
use the phrase “aggravated assault” have in common with each
other and with the definitions of the offense in the Model Penal
Code and learned treatises.72
At this step in our methodology, we identified the
jurisdictions with felony statutes expressly labeled “aggravated
assault.” Once we identified the relevant statutes, we
determined which statutes would be satisfied by the actus
reus—serious bodily injury—and mens rea—extreme
indifference recklessness—of the New Jersey statute at issue.
For statutes that include a reckless mens rea alongside the
phrase “under circumstances manifesting extreme indifference
to the value of human life,” or a similar phrase, we construed
the mens rea to be extreme indifference recklessness.
Otherwise, where the statute includes a reckless mens rea
without this phrase, we construed the mens rea to be ordinary
recklessness. For statutes that include this phrase alongside a
knowledge or purpose mens rea, we did not consider the phrase
to serve any purpose with respect to our analysis.
71
Taylor, 495 U.S. at 589.
72
Although the Supreme Court has cautioned against relying
on state labels, see Mathis, 579 U.S. at 509; Taylor, 495 U.S.
at 592, those warnings concern the misguided reliance on the
labels states assign to statutes of conviction and do not relate
to the use of state labels when deducing the elements of the
generic offense.
25
Based on our independent analysis, we conclude that 24
jurisdictions have a felony labeled “aggravated assault.”73 Of
those 24 jurisdictions,74 we conclude that 14 punish causing
serious bodily injury (or the virtually identical “serious
physical injury,” “great bodily injury,” or “serious physical
harm”) with a mens rea of extreme indifference recklessness
73
Ariz. Rev. Stat. Ann. § 13-1204; Ark. Code Ann. § 5-13-
204; D.C. Code Ann. § 22-404.01; Fla. Stat. Ann. § 784.021;
Ga. Code Ann. § 16-5-21; Idaho Code Ann. § 18-905; 720 Ill.
Comp. Stat. Ann. 5/12-2; Kan. Stat. Ann. § 21-5412; Me. Rev.
Stat. tit. 17-A, § 208; Miss. Code. Ann. § 97-3-7; Mont. Code
Ann. § 45-5-202; N.J. Stat. Ann. § 2C:12-1(b); N.M. Stat. Ann.
§ 30-3-2; N.D. Cent. Code Ann. § 12.1-17-02; Ohio Rev. Code
Ann. § 2903.12; Okla. Stat. Ann. tit. 21, § 646 (aggravated
assault and battery); 18 Pa. Stat. and Cons. Stat. Ann. § 2702;
S.C. Code Ann. § 16-3-600(B)(1) (assault and battery of a high
and aggravated nature); S.D. Codified Laws § 22-18-1.1;
Tenn. Code Ann. § 39-13-102; Tex. Penal Code Ann. § 22.02;
Utah Code Ann. § 76-5-103; Vt. Stat. Ann. tit. 13, § 1024;
Wyo. Stat. Ann. § 6-2-502 (aggravated assault and battery).
74
Although it is titled “aggravated assault,” we do not consider
La. Stat. § 14:37 because the maximum punishment is six
months imprisonment. See La. Stat. §§ 14:37(A), (B).
26
or less.75 We therefore conclude that the majority of states with
aggravated assault statutes allow for a conviction based on
causing serious bodily injury to another either recklessly or
recklessly under circumstances manifesting extreme
indifference to the value of human life.
In some cases, the MPC, treatises, and label-based
multijurisdictional survey will agree, and the analysis will end
there. But when many states do not use the label and there is
meaningful disagreement on an element of the offense among
the label-based state statutes or between the label-based survey
and the other sources, we may move on to a second step of the
multijurisdictional analysis for further clarification. Here,
because of the disagreement as to the least culpable mental
state for the generic definition of aggravated assault, it is
beneficial to move on to step two.
At step two, we determine the elements clearly agreed-
upon between the Model Penal Code, learned treatises, and
75
Ariz. Rev. Stat. Ann. §§ 13-1203(A)(1), 13-1204(A)(1); Me.
Rev. Stat. tit. 17-A, § 208(1)(A); Miss. Code. Ann. § 97-3-
7(2)(a)(i); N.J. Stat. Ann. § 2C:12-1(b)(1); N.D. Cent. Code
Ann. §§ 12.1-02-02(1)(e); 12.1-17-02(1)(a); Okla. Stat. Ann.
tit. 21, §§ 641 646(A)(1); State v. Madden, 562 P.2d 1177,
1180 (Okla. Crim. App. 1977); 18 Pa. Stat. and Cons. Stat.
Ann. § 2702(a)(1); S.C. Code Ann. § 16-3-600(B)(1)(a); State
v. Fennell, 531 S.E.2d 512, 517 (S.C. 2000); S.D. Codified
Laws § 22-18-1.1(1); Tenn. Code Ann. § 39-13-
102(a)(1)(B)(i); Tex. Penal Code Ann. §§ 22.01(a)(1),
22.02(a)(1); Utah Code Ann. § 76-5-103(2)(a)(iii), 76-2-102;
Vt. Stat. Ann. tit. 13, § 1024(a)(1); Wyo. Stat. Ann. § 6-2-
502(a)(i).
27
state statutes labeled “aggravated assault,” and hold these
elements constant. We then examine all state statutes that
reflect the elements we are holding constant, regardless of
labels. In approaching the analysis in this manner, we can
focus at the second step on the element for which there is
meaningful disagreement. Here, we held the agreed-upon
elements—feloniously causing substantial bodily injury with
some mens rea—constant to search for the majority approach
to the uncertain element: level of mens rea.76 We looked at
state statutes, regardless of labels, to find the number of states
that punish, as a felony, causing serious bodily injury with a
mental state of extreme indifference recklessness or less.
We already identified 14 states that punish causing
serious bodily injury (or the virtually identical “serious
physical injury,” “great bodily injury,” or “serious physical
harm”) with a mens rea of extreme indifference recklessness
or less at step one of the multijurisdictional survey. Looking
at state statutes that do not use the phrase “aggravated assault,”
there are 17 additional jurisdictions that punish this conduct as
a felony.77 Adding these together, at least 31 jurisdictions
76
We limit our analysis to felonies because U.S.S.G. §
4B1.2(a) defines “crime of violence” as any offense under
federal or state law that is “punishable by imprisonment of a
term exceeding one year.” U.S.S.G. § 4B1.2(a).
77
Alaska Stat. § 11.41.210(a)(2); Ark. Code Ann. § 5-13-
201(a)(3); Cal. Penal Code §§ 242, 243(d); People v.
Colantuono, 865 P.2d 704, 713 (Cal. 1994); D.C. Code Ann. §
22-404(a)(2); Del. Code Ann. tit. 11, § 612(a)(1); Haw. Rev.
Stat. § 707-711(1)(b); 720 Ill. Comp. Stat. § 5/12-5(a)(2); Iowa
Code §§ 708.1, 708.2(4); Kan. Stat. Ann. § 21-5413(b)(2)(A);
Mass. Gen. Laws ch. 265, § 13A(b)(i); Commonwealth v.
28
punish, as a felony, causing serious bodily injury with a mental
state of extreme indifference recklessness or less. There are
just 14 jurisdictions that clearly require a mental state greater
than extreme indifference recklessness.78 The laws in six
jurisdictions are harder to place. 79 We do not need to do so,
however, because inclusion of these jurisdictions would not
change the result: the majority of jurisdictions allow for a
conviction based on causing serious bodily injury to another
Porro, 939 N.E.2d 1157, 1162 (Mass. 2010); Minn. Stat. §
609.02(10), 609.221(1); State v. Dorn, 887 N.W.2d 826, 830–
31 (Minn. 2016); Mo. Rev. Stat. § 565.052(1)(3); N.H. Rev.
Stat. Ann. § 631:2(I)(a); N.C. Gen. Stat. § 14-32.4(a); United
States v. Simmons, 917 F.3d 312, 318–19 (4th Cir. 2019); State
v. Rushing, 836 S.E.2d 262, 265 (N.C. App. 2019); Or. Rev.
Stat. § 163.165(1)(b); 11 R.I. Gen. Laws § 11-5-2.2; Wis. Stat.
§ 940.23.
78
Ala. Code § 13A-6-21(a)(1); Conn. Gen. Stat. Ann. § 53a-
60; Ga. Code § 16-5-24(a); Hillsman v. State, 802 S.E.2d 7, 10
(Ga. Ct. App. 2017); Idaho Code §§ 18-903, 18-907(1)(a); Ky.
Rev. Stat. Ann. § 508.020(1)(a); La. Stat. Ann. § 14.34.1(A);
Md. Code Ann., Crim. Law § 3-202(b)(1); Mich. Comp. Laws
§ 750.84(1)(a); Mont. Code Ann. § 45-5-202; Neb. Rev. Stat.
§ 28-308(1); N.Y. Penal Law § 120.05(1); Ohio Rev. Code
Ann. § 2903.11(A)(1); Va. Code Ann. §§ 18.2-51, 18.2-
51.2(A); W. Va. Code § 61-2-9(a).
79
Colo. Rev. Stat. § 18-3-203(1)(g); Fla. Stat. § 784.03(1)(a),
784.041(1)(b); United States v. Vail-Bailon, 868 F.3d 1293,
1299 (11th Cir. 2017); Ind. Code § 35-42-2-1(g)(1); Nev. Rev.
Stat. § 200.481(1)(a), (2)(b); N.M. Stat. Ann. §§ 30-3-5(A),
(C); Wash. Rev. Code §§ 9A.36.011(1)(d), 9A.36.021(1)(a),
9A.36.031(f).
29
either recklessly or recklessly under circumstances manifesting
extreme indifference to the value of human life.
As previously stated, a multijurisdictional survey is not
required under the categorical approach. Nevertheless, courts
should continue to conduct these surveys where, as here, they
provide useful context for how different jurisdictions in the
United States define the offense. Our two-step approach is
consistent with Esquivel-Quintana. There, the Court was
interpreting the phrase “sexual abuse of a minor,” and the
petitioner had “concede[d] that sexual abuse of a minor under
the INA includes some statutory rape offenses.”80 So both sides
agreed that the “sexual abuse” element encompassed statutory
rape, and the only dispute was over the meaning of “minor.”
Holding “sexual abuse” constant at statutory rape, then, the
Court conducted a multijurisdictional survey of statutory-rape
laws based solely on the age of the participants.81 That survey
helped define “minor” by identifying the majority age of
consent. Thus, multijurisdictional analysis may vary with
context, but it is always driven by the categorical approach’s
goal: defining the generic offense. We consider our
80
Esquivel-Quintana, 137 S. Ct. at 1568.
81
See Id. at 1569 (“Accordingly, to qualify as sexual abuse of
a minor, the statute of conviction must prohibit certain sexual
acts based at least in part on the age of the victim.”).
30
multijurisdictional survey alongside our review of the Model
Penal Code and treatises.82
C. Categorical Matching
Brasby’s prior conviction for New Jersey aggravated
assault under § 2C:12-1(b)(1) qualifies as a crime of violence
under the enumerated offenses clause of U.S.S.G. § 4B1.2(a)
only if “the statutory definition of the prior conviction
‘substantially corresponds’ to the generic definition of the
offense.”83 As previously discussed, the elements of Brasby’s
statute of conviction for aggravated assault under N.J. Stat.
Ann. § 2C:12-1(b)(1) are causing serious bodily injury to
another with at least extreme indifference recklessness.
According to the Model Penal Code and the treatises that we
reviewed, the generic offense of aggravated assault involves
causing serious bodily injury to another with a heightened
degree of recklessness, namely extreme indifference
82
In addition to the sources reviewed above, the Government
contends that the U.S. Sentencing Guidelines also provide the
definition of “aggravated assault.” The Sentencing Guidelines
provide some evidence that serious bodily injury combined
with extreme indifference recklessness suffices for the generic
definition of “aggravated assault.” In particular, U.S.S.G. §
2A2.2 defines aggravated assault as “a felonious assault that
involved . . . serious bodily injury.” Although the Guidelines
do not provide a mens rea, as our sister circuit court has
reasonably concluded based upon cross-referenced statutes
within the Guidelines, the definition requires only generalized
intent. See, e.g., United States v. Two Eagle, 318 F.3d 785, 790-
91 (8th Cir. 2003).
83
Marrero, 743 F.3d at 400 (quoting Taylor, 495 U.S. at 602).
31
recklessness. Our two-step multijurisdictional survey further
shows that the majority of states allow for a conviction based
on causing serious bodily injury to another with a mens rea of
extreme indifference recklessness.
Based on these sources, Brasby’s conviction for
aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1) has
the same elements as the generic offense of aggravated assault.
Brasby’s prior conviction is a categorical match and may serve
as a predicate offense for a sentencing enhancement under the
Sentencing Guidelines for a crime of violence under the
enumerated offenses clause of U.S.S.G. § 4B1.2(a). We
therefore hold that the District Court did not err in applying the
sentencing enhancement under U.S.S.G. § 2K2.l(a)(4)(A)
based on Brasby’s conviction for aggravated assault qualifying
as a crime of violence under U.S.S.G. § 4B1.2(a)(2).
CONCLUSION
For the foregoing reasons, we will affirm Brasby’s
sentence and conviction in the District Court’s judgment.84
84
Brasby raises additional issues on appeal, including whether
his conviction for aggravated assault is a crime of violence
under the elements clause of U.S.S.G. § 4B1.2(a), whether the
Government waived this argument, and whether the District
Court committed harmless error in calculating his Guidelines
range and sentence. Since we will affirm Brasby’s sentence
based on our analysis of the enumerated offenses clause of
U.S.S.G. § 4B1.2(a), we need not decide these additional
issues.
32