United States v. Marc Harris

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1861
_____________
UNITED STATES OF AMERICA
v.
MARC JAMES HARRIS,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 09-cr-00283)
District Judge: Honorable Berle M. Schiller
_____________
Argued: January 16, 2018
______________
Before: AMBRO*, RESTREPO and FUENTES, Circuit
Judges.
(Filed: May 17, 2023)
______________
Arianna J. Freeman [ARGUED]
Brett G. Sweitzer
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
*
Judge Ambro assumed senior status on February 6, 2023.
Robert A. Zauzmer [ARGUED]
Josh A. Davison
Bernadette McKeon
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
______________
OPINION OF THE COURT
______________
RESTREPO, Circuit Judge.
The Armed Career Criminal Act (“ACCA” or “the
Act”) establishes a fifteen-year mandatory minimum term of
imprisonment for anyone convicted of a firearms offense under
18 U.S.C. § 922(g) who has at least three prior convictions for
a “violent felony or a serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1). Our precedent dictates that Marc Harris’ prior
aggravated assault conviction should not be deemed a violent
felony under the Act.
Harris was sentenced to a fifteen-year term of
imprisonment pursuant to ACCA and challenged his sentence.
He appealed to this Court, claiming the statutes underlying his
prior convictions criminalize reckless conduct. Harris argued
only crimes involving intentional acts of physical force could
serve as an ACCA predicate offense, rendering his enhanced
sentence illegal.
The Supreme Court has since agreed with Harris. In
Borden v. United States, the Court held crimes that could be
committed with a mens rea of recklessness do not qualify as
violent felonies under ACCA’s element of force clause. 141
S. Ct. 1817 (2021) (plurality opinion). Simply put, crimes that
can be committed recklessly do not necessarily entail, as
ACCA requires, “the active employment of force against
another person.” Id. at 1834.
2
The Government has conceded that Borden eliminates
some of Harris’ prior convictions as predicate offenses but
maintains that three qualifying offenses remain. Harris
disagrees, arguing the Borden decision renders all of his
Pennsylvania prior convictions for robbery and aggravated
assault to be non-predicate offenses, leaving only one
qualifying drug offense.
But this Court need not address the effect of Borden on
these Pennsylvania statutes to decide this appeal. Prior to the
Borden decision, this Court decided United States v. Mayo,
which held a Pennsylvania conviction for first-degree
aggravated assault does not require physical force as
understood within the context of ACCA. 901 F.3d 218 (3d Cir.
2018). Applying Mayo, as we are bound to do, Harris’
aggravated assault conviction is stricken as a predicate, and he
no longer has the three violent felony convictions necessary to
justify the enhancement. We therefore vacate Harris’ sentence
and remand for further proceedings.
I. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. §§
2241 and 2255. We have jurisdiction under 28 U.S.C. §§ 1291and 2253. We exercise plenary review over the question of
whether a prior conviction qualifies as a violent felony under
ACCA. United States v. Jones, 332 F.3d 688, 690 (3d Cir.
2003).
II. Procedural History
In 2010, Marc Harris pled guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C. §§
922(g)(1) and 924(e). This offense typically carries a
maximum sentence of ten years’ imprisonment. 18 U.S.C. §
924(a)(2). In Harris’ pre-sentence report, however, the
probation officer concluded that Harris qualified as an armed
career criminal under ACCA because his criminal record
included three predicate offenses: one serious drug conviction
and at least two violent felony convictions. Based on this
determination, the District Court imposed a mandatory
3
minimum sentence of fifteen years’ imprisonment under
ACCA. Harris did not file a direct appeal.
In 2016, Harris moved to correct his sentence pursuant
to 28 U.S.C. § 2255 following the Supreme Court’s decision in
Johnson v. United States (Johnson 2015), which he argued
rendered the ACCA enhancement inapplicable. 576 U.S. 591(2015). Prior to Johnson 2015, ACCA defined “violent
felony” as any crime punishable by a term of imprisonment
exceeding one year that fit under one of three alternate clauses:
the element of force clause (a crime that “(i) has as an element
the use, attempted use, or threatened use of physical force
against the person of another”); the enumerated offenses clause
(a crime that “(ii) is burglary, arson, or extortion, [or] involves
the use of explosives”); or the residual clause (a crime that
“otherwise involves conduct that presents a serious potential
risk of physical injury to another”). 18 U.S.C. § 924(e)(2)(B).
The Supreme Court in Johnson 2015 invalidated the residual
clause on the grounds that it was unconstitutionally vague. 576
U.S. at 606. Harris argued his prior convictions for robbery
and aggravated assault only qualified under the residual clause,
rendering his ACCA sentence illegal.1
The District Court denied Harris’ § 2255 motion
without explanation. Harris appealed and we remanded to
permit the Court to determine whether a certificate of
appealability (COA) should be issued. The Court denied the
COA, concluding that Harris’ sentence was legal because his
prior robbery and aggravated assault convictions “qualify as
violent felonies under the ACCA’s [element of force] clause,”
and he thus “has more than three qualifying convictions.” JA
4 (alterations and internal quotation marks omitted). In finding
the sentence was not based on the unconstitutional residual
clause, the Court ruled there was no merit to the appeal.
Harris subsequently filed an unopposed motion for a
COA, which this Court granted “on the question [of] whether
[his] due process rights were violated by the use of his
Pennsylvania robbery and aggravated assault convictions to
enhance his sentence under [ACCA].” JA 5.
1
Harris argued in his § 2255 motion that, but for the ACCA
enhancement, his Sentencing Guidelines range would have
been 51 to 63 months’ imprisonment. J.A. 17.
4
The parties briefed this issue and presented oral
argument to this panel on January 16, 2018. This Court
subsequently ordered this case to be reargued en banc and
permitted the parties to submit supplemental briefing. On
August 22, 2018, before the parties’ en banc briefing was filed,
a panel of this Court decided Mayo. Before the en banc Court
issued an opinion, the Supreme Court granted review in
Borden and this Court stayed Harris’ appeal pending the
outcome.
After the Supreme Court issued its decision in Borden,
this Court ordered the parties to submit additional briefing
addressing the decision’s effect. Specifically, they were
directed to address whether Harris’ prior Pennsylvania
convictions for first-degree robbery and aggravated assault
were pursuant to statutes that could be violated by conduct
committed with a mens rea of recklessness.
In its post-Borden briefing, the Government concedes
that the Borden decision eliminated two of Harris’ prior
Pennsylvania robbery convictions as ACCA predicates. The
first conviction stemmed from Harris pleading guilty to first-
degree robbery generally in April of 1993. The Government
acknowledges that two of the three subsections defining first-
degree robbery can be committed recklessly. The second
conviction, for second-degree robbery, occurred in May of
1993. The Government recognizes Harris could establish his
conviction arose from a portion of the statute that criminalized
reckless conduct. Both robbery convictions, therefore, could
no longer serve as predicate offenses under ACCA.
Notwithstanding these concessions, however, the
Government posits Harris has three remaining convictions of
“a violent felony or a serious drug offense,” or some
combination of both under 18 U.S.C. § 924(e)(1), rendering the
ACCA enhancement appropriate. It is undisputed that he has
one qualifying serious drug offense under § 924(e)(2)(A). The
Government contends his third conviction for robbery and a
conviction for first-degree aggravated assault, both under
Pennsylvania law, remain qualifying predicate offenses.
5
Harris disagrees, arguing both convictions fail to
constitute violent felonies in light of Borden. He suggests,
however, that this panel need not address the effect of Borden
given our Court’s decision in Mayo. It is the controlling law
of this Circuit that a Pennsylvania conviction for first-degree
aggravated assault “does not categorically require the use of
physical force against another” and therefore cannot constitute
a violent felony under ACCA. Mayo, 901 F.3d at 224, 230.
Harris asserts Mayo is binding on this panel and, because it
eliminates one of his three remaining prior convictions, is
dispositive of this appeal.
The Government has consistently argued that Mayo was
wrongly decided and should be overturned, in part because it
improperly relied on a “single intermediate appellate court”
decision in concluding that Pennsylvania first-degree
aggravated assault can be committed without the use of
physical force. Gov’t Br. 17, July 26, 2001. Indeed, Mayo
cites Commonwealth v. Thomas, 867 A.2d 594, 597 (Pa. Super.
Ct. 2005), a case where a mother starved her four-year-old son
to death, to support its holding that the use of force is not an
element of aggravated assault under 18 Pa. Cons. Stat. §
2702(a). The Government argues that Thomas’ conduct of
executing the “prolonged confinement, torture, and starvation
of a little boy” necessitated physical force sufficient to qualify
the crime as a violent felony under ACCA. Gov’t Br. 20, Aug.
28, 2018. It opines that Mayo, by citing Thomas as grounds for
finding that starving a child to death does not constitute a
predicate offense for the ACCA sentencing enhancement,
“freed all other Pennsylvania defendants of the federal
consequences of a conviction for the prototypically violent
crime of first-degree aggravated assault.” Id.Recognizing that the Thomas decision was not issued by
Pennsylvania’s highest appellate court, this panel petitioned
the Pennsylvania Supreme Court for a controlling decision on
whether first-degree aggravated assault necessarily requires
the perpetrator to use force. In so doing, we sought to
determine definitively whether Mayo was premised on an
accurate interpretation of 18 Pa. Cons. Stat. § 2702(a)(1).2
2
The specific question of law certified to the Pennsylvania
Supreme Court was:
6
The Pennsylvania Supreme Court granted our petition
and issued an opinion answering the “narrow inquiry” of
whether the use of force is an element of first-degree
aggravated assault. United States v. Harris, 289 A.3d 1060,
1069 (Pa. 2023). Upholding the Superior Court’s decision in
Thomas, the Supreme Court held it is not. The attempted or
actual infliction of serious bodily injury is a required element,
but the perpetrator need not use force to inflict such an injury.
The Supreme Court interpreted Section 2702(a)(1) to mean
that criminal liability is not tethered “to the use or attempted
use of physical force but, instead, to the infliction of a specified
harm, i.e., serious bodily injury, regardless of the means by
which the harm is inflicted.” Harris, 289 A.3d at 1074.
Given this authoritative confirmation that Mayo
correctly determined that committing first-degree aggravated
Whether the Pennsylvania First-Degree
Aggravated Assault provision, codified at 18 Pa.
Cons. Stat. § 2702(a)(1), requires some use of
physical force, as the Government contends, or,
instead, as the Pennsylvania Superior Court said
in Commonwealth v. Thomas, 867 A.2d 594, 597
(Pa. Super. Ct. 2005), the statute means that “the
use of force or threat of force is not an element
of the crime . . . .”
United States v. Harris, 272 A.3d 1286 (Pa. 2022) (Table).
We note the Government objected to our formulation of the
certified question, asserting that only federal courts can
determine what constitutes “physical force” under ACCA’s
definition of a violent felony and whether that articulation of
physical force is an element of Section 2702(a)(1). But, as the
Pennsylvania Supreme Court recognized, this panel sought
only to determine whether a violation of Section 2702(a)(1)
“requires some use of physical force,” which requires the
interpretation of a state statute. Harris, 289 A.3d at 1068-69
(emphasis added). The interpretation of a state statute is a
question of state law, and federal courts are bound by a state’s
highest court’s interpretation. United States v. Johnson
(Johnson 2010), 559 U.S. 133, 138 (2010).
7
assault in Pennsylvania does not require the perpetrator to use
physical force, we turn to whether the opinion correctly
interpreted ACCA to hold a conviction under 18 Pa. Cons. Stat.
§ 2702(a)(1) cannot qualify as a predicate offense. We
conclude that it did and follow our precedent accordingly.
III. Analysis
The parties agree that Harris’ aggravated assault
conviction could only qualify as a predicate offense under the
element of force clause of ACCA. See 18 U.S.C. §
924(e)(2)(B)(i). To determine whether the clause covers this
offense, we apply the categorical approach. This requires us to
identify the elements of aggravated assault and determine
whether “the use, attempted use, or threatened use of physical
force against another person is categorically an element of the
offense of conviction.” United States v. Ramos, 892 F.3d 599,
606 (3d Cir. 2018) (citing USSG § 4B1.2(a)(1)).3 If the statute
defining aggravated assault contains an element of physical
force within the context of ACCA, then the offense constitutes
a violent felony under Section 924(e)(2)(B)(i). If the statute
lacks such an element, then it “sweeps more broadly” than
ACCA’s definition of a violent felony, and a conviction under
the statute cannot count as a predicate offense. Descamps v.
United States, 570 U.S. 254, 261 (2013).
In determining whether the physical force element
exists, we identify “the least culpable conduct hypothetically
necessary to sustain a conviction under the statute” and
presume the defendant engaged in that conduct when
committing the prior offense. Hernandez-Cruz v. Att’y Gen.,
3
Although this Court’s decision in Ramos addresses the
definition of a “crime of violence” as defined under the career
offender Guideline, U.S.S.G. § 4B1.2(a), and not the definition
of “violent felony” in ACCA, the decision is still binding on
our analysis. Because of the substantial similarity between the
two definitions, “courts generally apply authority interpreting
one provision to the other.” United States v. Brasby, 61 F.4th
127, 133 (3d Cir. 2023); see e.g., United States v. Hopkins, 577
F.3d 507, 511 (3d Cir. 2009) (applying ACCA precedent in
Guidelines Definition case)).
8
764 F.3d 281, 285 (3d Cir. 2014) (quoting Jean-Louis v. Att’y
Gen., 582 F.3d 462, 471 (3d Cir. 2009)). When identifying the
least culpable conduct, we must remain tethered to reality.
There must be “legal authority establishing that there is ‘a
realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct’” that falls outside the
ACCA definition of a violent felony. Ramos, 892 F.3d at 606(quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)).
Categorizing the elements of a prior conviction requires
us to ascertain the precise crime a defendant committed. If the
statute underlying the prior conviction is divisible, meaning it
encompasses “multiple, alternative versions of the crime,” then
we modify the categorical approach to determine which
version “formed the basis of the defendant’s conviction.”
Descamps, 570 U.S. at 262. This requires us to look beyond
the statute to “the terms of the charging document, the terms of
a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial record of this
information.” Shepard v. United States, 544 U.S. 13, 26
(2005). This limited review is only to identify the elements of
the crime underpinning a defendant’s conviction, not to
uncover facts that would reveal whether a violent felony was
committed.
It is undisputed that the Pennsylvania statute for
aggravated assault is a divisible offense, and that Harris was
convicted of aggravated assault in the first degree. The parties
do dispute, however, whether the extra-statutory documents
can establish which version of aggravated assault he
committed. At the time of Harris’ conviction, a person was
guilty of first-degree aggravated assault if he:
(1) attempt[ed] to cause serious
bodily injury to another, or causes
such injury intentionally,
knowingly or recklessly under
circumstances manifesting
extreme indifference to the value
of human life; [or]
9
(2) attempt[ed] to cause or
intentionally, knowingly or
recklessly causes serious bodily
injury to any of the officers,
agents, employees or other persons
enumerated in subsection (c) or to
any employee of any agency,
company or other entity engaged
in public transportation, while in
the performance of a duty.
18 Pa. Cons. Stat. § 2702(a).
While Harris is correct that the charging documents do
not identify the subsection of his conviction, the guilty plea
colloquy is informative. It contains no indication that the
assault involved a police officer or any other person referenced
in subsection (a)(2). The only reasonable reference from the
factual retelling is that the victim was a citizen who suggested
a woman call the police “while he kept [Harris] stalled” outside
her home. We find these circumstances sufficient to establish
Harris was convicted under subsection (a)(1). See Thomas v.
Att’y Gen., 625 F.3d 134, 146–47 (3d Cir. 2010) (applying the
modified categorical approach and considering the factual
basis for the guilty plea to discern which of the “alternative
elements” defendant committed).
This determination reinforces the conclusion that this
case is governed by our decision in Mayo. It is a well-
established “tradition of this court” that an opinion with
precedential authority “is binding on subsequent panels.” 3d
Cir. I.O.P. 9.1. This panel is not free to disregard the decision
in Mayo, regardless of whether we agree with the outcome. En
banc consideration is the only means by which we can overrule
our existing precedential authority, and even then the full Court
“do[es] not overturn our precedents lightly.” Al-Sharif v.
United States Citizenship & Immigration Servs., 734 F.3d 207,
212 (3d Cir. 2013) (en banc). “[T]his practice shows our
Court’s respect for the role of stare decisis and the
predictability it affords.” Bastardo-Vale v. Att’y Gen., 934
F.3d 255, 267 (3d Cir. 2019) (citation omitted). In accordance
with this Court’s practice, we adopt Mayo’s holding that a
10
conviction under 18 Pa. Cons. Stat. § 2702(a)(1) cannot serve
as a predicate offense under ACCA.4
This panel is obligated to follow Mayo, but we also
agree with the opinion’s interpretation of how ACCA’s
element of force clause applies to Pennsylvania’s first-degree
aggravated assault. To qualify as a predicate violent felony,
the clause requires an offense have “as an element the use,
attempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Court in
Mayo recognized that subsection (a)(1) of the aggravated
assault statute contains no such element. To be found guilty
under Section 2702(a)(1), the offender must attempt to cause
or cause serious bodily injury, but there is no requirement that
the bodily injury result from physical force. In fact, the statute
criminalizes the omission of an act, or the failure to act, that
causes serious bodily injury. As we held in Mayo, an act of
omission does not constitute an act of physical force within the
meaning of ACCA. 901 F.3d at 227–229.
The Supreme Court has defined physical force under
ACCA to be “violent force— that is, force capable of causing
physical pain or injury to another person.” Johnson v. United
States (Johnson 2010), 559 U.S. 133, 140 (2010). The Court
held the word “violent . . . connotes a substantial degree of
force” and that the term physical force “connotes force strong
enough to constitute ‘power’,” especially when used within the
definition of “violent felony.” Id. at 140, 142. Johnson 2010
disavowed the common law’s definition of force in the context
of ACCA, concluding that crimes that may be “satisfied by
even the slightest offensive touching” are not violent felonies.
Id. at 139. Instead, the relevant conduct under the Act is
“extreme and sudden . . . ; furious; severe; vehement” and
“characterized by strong physical force.” Id. at 140 (citations
omitted).
In Mayo, we recognized that Pennsylvania courts have
sustained convictions for aggravated assault under Section
2702(a)(1) where a defendant causes serious bodily injury
without using or threatening physical force. The Mayo Court
4
The Government’s petition for en banc rehearing in Mayo
was denied on October 25, 2018.
11
identified one Pennsylvania case as particularly instructive,
Commonwealth v. Thomas, 867 A.2d 594 (Pa. Super. Ct.
2005). In Thomas, the Pennsylvania Superior Court held that
“evidence of the use of force or the threat of force is not an
element of the crime of aggravated assault.” Id. at 597. As a
result, the prosecution was not required to provide “proof of
the use of force or the threat of force” to obtain a conviction;
the evidence was sufficient to sustain a conviction because the
prosecution established Thomas “did cause[] serious bodily
injury to [her son]” by starving him to death. Id. at 597, 602.5
If a crime satisfied by the slightest offensive touch does
not qualify as a violent offense under ACCA, it necessarily
follows that a crime satisfied without physical force cannot
constitute a predicate offense. When applying ACCA, the law
requires us to parse out different types of crimes to identify the
prior convictions that expose a defendant as “‘the kind of
person who,’ when armed, ‘might deliberately point the gun
and pull the trigger.’” Borden, 141 S. Ct. at 1822 (citing Begay
v. United States, 553 U.S. 137, 146 (2008)). “Th[is] approach
is under-inclusive by design: It expects that some violent acts,
because charged under a law applying to non-violent conduct,
will not trigger enhanced sentences.” Id. at 1832. Following
this mandate of under-inclusivity, it follows that a statute that
can be violated without the use of physical force would not
trigger a mandatory minimum sentence of fifteen years.
5
In answering our question regarding the required elements of
first-degree aggravated assault, the Pennsylvania Supreme
Court noted that Thomas “is not the only Pennsylvania decision
where an aggravated assault conviction pursuant to Section
2702(a)(1) was upheld absent evidence of physical force.”
Harris, 289 A.3d at 1071 n.17. The Court cited
Commonwealth v. Bullock, 170 A.3d 1109 (Pa. Super. Ct.
2017), which held there was sufficient evidence of aggravated
assault where the defendant directed the utility provider to shut
off the electricity even though his elderly mother needed
electricity to run her oxygen machine to breathe. Id. Also cited
was Commonwealth v. Taylor, No. 1641 WDA 2013, 2015 WL
7576457 (Pa. Super. Ct. Feb. 9, 2015), where the defendant’s
failure to feed her six-year-old twins caused serious bodily
injury and constituted aggravated assault. Id.12
As the Pennsylvania Supreme Court clarified at our
request, Thomas was properly convicted of aggravated assault
for committing a horrific crime in a manner that remains an
example of how 18 Pa. Cons. Stat. § 2702(a)(1) is applied in
Pennsylvania. There, aggravated assault convictions can be
sustained based on evidence of serious bodily injury, not
physical force. Mayo’s holding that physical force is not an
element of Pennsylvania aggravated assault is not this Court’s
assessment of Thomas’ conduct, which the Pennsylvania
courts found culpable. It is instead a reflection of the
categorical approach and the Act’s restrictive definition of a
violent felony. ACCA imposes a significant mandatory
sentence on those who meet its requirements. The severe
punishment was not intended for all perpetrators who
committed crimes where bodily injury could or did occur. The
Act is instead designed to apply to those offenders who have
committed numerous crimes involving a substantial degree of
violent force.
The Government argues physical force as defined by
federal law requires us to find that starving a child to death is
a violent felony. Specifically, it cites the Supreme Court’s
decision in United States v. Castleman, which held that “[i]t is
impossible to cause bodily injury without applying force in the
common-law sense.” 572 U.S. 157, 170 (2014) (emphasis
added). The Government contends that Castleman requires
this Court to conflate the infliction of bodily injury with
physical force. But, as we concluded in Mayo, the Castleman
decision involved the common-law concept of force, and it
“expressly reserved the question of whether causing ‘bodily
injury’ necessarily involves the use of ‘violent force’ under the
ACCA.” 901 F.3d at 228 (internal citation omitted). And the
Pennsylvania aggravated assault statute criminalizes the
infliction of bodily injury “without any affirmative use of
force.” Id. at 228 (emphasis added). 6
6
At en banc argument for this case, the Government argued
that the Supreme Court’s decision in Stokeling v. United States,
139 S. Ct. 544 (2019), affects this Court’s decision in Mayo.
But Stokeling held that the force element in Florida’s robbery
statute was “the force necessary to overcome a victim’s
physical resistance,” which the Court held was sufficient to
satisfy physical force as defined by Johnson 2010. Stokeling,
13
There have been no developments in the law since Mayo
that would give this panel the authority to extend ACCA’s
limited scope to include crimes committed by acts of omission.
Although excluding aggravated assault under Section
2702(a)(1) from ACCA’s scope may be counterintuitive, it is
the consequence of the Act’s restricted, and perhaps sometimes
under-inclusive, application.
IV. Conclusion
For the foregoing reasons, we will vacate the order
denying Harris’ motion to correct his sentence and remand the
case to the District Court for resentencing. The District Court
is instructed to assess the applicability of the ACCA sentencing
enhancement now that Harris’ aggravated assault conviction is
no longer considered a predicate offense.7 On remand the
District Court should resentence Harris consistent with this
opinion.
139 S. Ct. at 553. In Mayo, there was no force element in the
aggravated assault offense, and the requisite serious bodily
injury could result from the absence of physical force. Thus,
Stokeling does not give this Court the authority to extend
ACCA to Harris’ aggravated assault conviction.
7
As a result of this opinion, Harris seemingly does not have
three prior qualifying violent felony convictions for purposes
of ACCA. For this reason, we do not address whether his first-
degree conviction for robbery qualifies as a predicate offense
under ACCA.
14