United States v. Adarius Harper

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0254p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellant, │

│

> No. 17-5037

v. │

│

│

ADARIUS HARPER, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:16-cr-20085-1—John Thomas Fowlkes Jr., District Judge.

Argued: July 26, 2017

Decided and Filed: November 9, 2017

Before: GIBBONS, KETHLEDGE, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee,

for Appellant. Mary C. Jermann-Robinson, FEDERAL PUBLIC DEFENDER, Memphis,

Tennessee, for Appellee. ON BRIEF: Kevin G. Ritz, UNITED STATES ATTORNEY’S

OFFICE, Memphis, Tennessee, for Appellant. Mary C. Jermann-Robinson, FEDERAL PUBLIC

DEFENDER, Memphis, Tennessee, for Appellee.

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OPINION

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KETHLEDGE, Circuit Judge. Under § 4B1.2(a) of the Sentencing Guidelines, a “crime

of violence” involves “the use . . . of physical force against the person of another.” The question

presented here is whether a Tennessee aggravated-assault offense that requires the defendant to

No. 17-5037 United States v. Harper Page 2

be merely reckless as to whether his conduct injures another is a “crime of violence” under that

definition. The district court held it was not. The government brought this appeal. A recent

published decision by this court compels us to reverse.

In April 2012, Harper shot his brother on a public street in Memphis. He later pled guilty

in state court to reckless aggravated assault in violation of Tenn. Code Ann. § 39-13-

102(a)(1)(B) (2012). Three years later, Harper was caught selling drugs while possessing a

loaded pistol. He thereafter pled guilty in this case to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g).

At sentencing, the district court calculated Harper’s Guidelines range to be 46-57

months’ imprisonment. But the government argued that Harper’s range should be increased to

84-105 months because, the government said, Harper’s prior conviction for Tennessee reckless

aggravated assault was one for a felony “crime of violence.” See U.S.S.G. §§ 2K2.1(a)(4)(A),

4B1.2(a). That argument, the government acknowledged, was contrary to our court’s caselaw.

See, e.g., United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010). But the government

contended that the Supreme Court’s decision in Voisine v. United States, 136 S. Ct. 2272 (2016),

effectively overruled McFalls. The district court disagreed, refused to increase the sentencing

range, and sentenced Harper to 46 months.

In a published decision released shortly before this one, our court adopted the

government’s argument that, post-Voisine, offenses that require only recklessness can be crimes

of violence under U.S.S.G. § 4B1.2(a). See United States v. Verwiebe, 872 F.3d 408 (6th Cir.),

amended, 874 F.3d 258 (6th Cir. 2017). We see no basis to distinguish the reckless-assault

offense in Verwiebe (namely 18 U.S.C. § 113(a)(6)) from the offense here. Thus we are bound

to hold that reckless aggravated assault in violation of Tenn. Code Ann. § 39-13-102(a)(1)(B) is

a crime of violence for purposes of U.S.S.G. § 4B1.2(a).

* * *

That said, we write further to explain why, in our view, the decision in Verwiebe was

mistaken. Section 4B1.2(a) of the Sentencing Guidelines provides in relevant part that “[t]he

term ‘crime of violence’” includes any offense, punishable by more than one year in prison, that

No. 17-5037 United States v. Harper Page 3

“has as an element the use . . . of physical force against the person of another[.]” In McFalls, we

held that this language requires more than reckless conduct. 592 F.3d at 716. And here Harper’s

Tennessee conviction for aggravated assault required only that. Thus, if McFalls remains good

law, the district court was correct to hold that Harper’s Tennessee offense was not a crime of

violence.

But Verwiebe says that McFalls is no longer good law, specifically in light of Voisine.

There, the Supreme Court construed a single word—“use”—in the definition of “misdemeanor

crime of domestic violence” as set forth in 18 U.S.C. § 921(a)(33)(A). That phrase, under

§ 921(a)(33)(A), includes crimes that necessarily involve “the use . . . of physical force[.]”

Intentional or knowing assaults of course involve “the use of physical force”; the issue in Voisine

was whether reckless assaults do as well. That issue implicated the actor’s state of mind as to

two different things: first, the conduct giving rise to the force, that is, whether the conduct was

intentional or accidental; and second, the potentially harmful consequences of that conduct.

The word “use,” the Supreme Court made clear, concerns primarily (if not exclusively)

the first of those things, i.e., the actor’s state of mind regarding the conduct giving rise to the

force. The noun “use” means “the ‘act of employing’ something.” Voisine, 136 S. Ct. at 2278

(quoting various dictionary definitions). One does not “employ” force accidentally; instead, to

count as a “use” of force, the force “must be volitional[.]” Id. at 2279. Thus, a husband “uses”

force if he rams his wife into a wall, but not if he stumbles into her with the same effect. For

only when he rams her into the wall is the application of force volitional.

“The use of physical force,” then, is the volitional application of it. And a volitional

application of physical force counts as a “use” even if the actor merely disregards a substantial

risk of harm, rather than intend the harm. For the word “use” is “indifferent as to whether the

actor has the mental state of intention, knowledge, or recklessness with respect to the harmful

consequences of his volitional conduct.” Id. The Supreme Court therefore held that reckless

assaults—for example, a husband hurling “a plate in anger against the wall near where his wife is

standing,” which causes the shards to ricochet and injure her, id.—involve “the use . . . of

physical force” as that phrase is used in § 921(a)(33)(A).

No. 17-5037 United States v. Harper Page 4

Here, the relevant Guidelines provision likewise includes the phrase “use . . . of physical

force” in its definition of “crime of violence.” See U.S.S.G. § 4B1.2(a)(1). The government thus

argues, understandably, that Tennessee reckless aggravated assault is a “crime of violence” as

defined by § 4B1.2. But the definition in § 4B1.2 includes language that the definition in Voisine

did not. There, § 921(a)(33)(A) required only “the use . . . of physical force” simpliciter (so far

as the “use of force” element was concerned); here, in contrast, § 4B1.2 requires “the use . . . of

physical force against the person of another[.]” (Emphasis added.) The italicized language is a

restrictive phrase that describes the particular type of “use of physical force” necessary to satisfy

§ 4B1.2. See generally Shertzer, The Elements of Grammar 7 (1986). Specifically, § 4B1.2

requires not merely a volitional application of force, but a volitional application “against the

person of another.”

Under § 4B1.2, therefore, the force’s application to another person must be volitional or

deliberate. Thus, § 4B1.2 requires a mens rea—not only as to the employment of force, but also

as to its consequences—that the provision in Voisine did not. That requirement is met if the

actor intends (i.e., “consciously desires”) to apply force to the person of another. See United

States v. Walli, 785 F.3d 1080, 1084 (6th Cir. 2015). And as a practical matter the requirement is

met if the actor knowingly applies force to the person of another (i.e., if he knows that his

“action is practically certain to cause that result”). Id. For one “may infer that a defendant

consciously desires a result if he knows that result is practically certain to follow from his

conduct.” Id. (internal quotation marks and citation omitted). An actor who intentionally or

knowingly applies physical force to the person of another, therefore, does so volitionally—which

is to say he engages in a “use . . . of physical force against the person of another[.]” U.S.S.G.

§ 4B1.2(a)(1).

But the same is not true of an actor who uses force recklessly. True, to “use” force, the

actor must choose to employ it; and thus his employment of the force is volitional. But the

force’s application “against the person of another” is not. To the contrary, the actor is reckless if

he “consciously disregard[s] a substantial risk that the conduct will cause harm to another.”

Voisine, 136 S. Ct. at 2278 (emphasis added; internal quotation marks omitted). The reckless

actor is indifferent, therefore, to the substantial possibility that his force will apply to the person

No. 17-5037 United States v. Harper Page 5

of another. Hence he does not consciously desire that application; nor, since recklessness does

not require a “practical certainty” of harm, can we infer that he desires it. See Walli, 785 F.3d at

1084. As culpable as the reckless actor might be, therefore, he does not volitionally apply force

“against the person of another.”

For good reason, then, the circuit courts overwhelmingly held before Voisine that crimes

involving the reckless use of force are not crimes of violence as defined by § 4B1.2 and by the

various statutory provisions that use the same definition at issue here. See, e.g., McFalls,

592 F.3d at 716; United States v. Palomino-Garcia, 606 F.3d 1317, 1335-36 (11th Cir. 2010);

Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (7th Cir. 2008); United States v. Torres-

Villalobos, 487 F.3d 607, 615-16 (8th Cir. 2007); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121,

1127-32 (9th Cir. 2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006);

Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir. 2005); Jobson v. Ashcroft, 326 F.3d 367,

373 (2d Cir. 2003); United States v. Chapa-Garza, 243 F.3d 921, 926-27 (5th Cir. 2001).

None of the more recent cases upon which Verwiebe relies—see United States v. Pam,

867 F.3d 1191, 1207-08 (10th Cir. 2017); United States v. Mendez-Henriquez, 847 F.3d 214,

221-22 (5th Cir. 2017); United States v. Fogg, 836 F.3d 951, 956 (8th Cir. 2016)—even

acknowledge, much less analyze, the language that § 4B1.2 has but that the provision in Voisine

did not: namely, “against the person of another.” Those cases therefore “confirm” very little

about the meaning of the language at issue here. Nor did the definition at issue in Voisine

implicitly require the mens rea (as to the consequences of one’s use of force) that is explicitly

required under § 4B1.2. True, the definition of “misdemeanor crime of domestic violence” in

§ 921(a)(33)(A) required that there be a domestic “victim” in addition to a “use of physical

force[.]” 18 U.S.C. § 921(a)(33)(A). Hence that provision (like § 4B1.2) implicitly requires that

the defendant’s “use of physical force” in fact harm another person. But nothing in the text of

§ 921(a)(33)(A) requires that the defendant act knowingly or intentionally with respect to that

harm. Here, in contrast, § 4B1.2(a) does include language to that effect: “against the person of

another.” That phrase is not meaningless, but restrictive. And understood the way the English

language is ordinarily understood, it narrows the scope of the phrase “use of force” to require not

No. 17-5037 United States v. Harper Page 6

merely recklessness as to the consequences of one’s force, but knowledge or intent that the force

apply to another person.

The various other reasons offered in support of the government’s position are similarly

unpersuasive. The hypothetical plate-throwing in Voisine satisfies § 921(a)(33)(A) but not

§ 4B1.2 because the husband employs force volitionally (by throwing the plate) but does not

knowingly or intentionally apply that force “against the person” of his wife; instead, being only

reckless, he is indifferent as to whether the plate hits her. Nor does Leocal v. Ashcroft, 543 U.S.

1 (2004), help the government’s position here. True, the Court there focused on the word “use”

rather than on the phrase “against the person of another.” But the Court had no reason to address

the “against” phrase, because the Court held that the offense there (drunk driving) did not

involve a “use” of force in the first place. Id. at 9-10. Nor does reading § 4B1.2 to mean what it

says (rather than to mean what only a part of it says) add undue complexity to our application of

the sentencing laws. To the contrary, the distinction between knowing or intentional conduct, on

the one hand, and reckless conduct, on the other, is one of the more familiar in criminal law.

And a desire to simplify our own application of the law is hardly good enough reason to double a

man’s Guidelines range—which is approximately the result of applying Verwiebe here.

In sum, Voisine tells us what “use” means, not what “against the person of another”

means. And the latter phrase, as shown above, means that an actor who is only reckless as to

whether his force injures another does not commit a “crime of violence” as defined by § 4B1.2.

Absent Verwiebe, therefore, we would hold that the offense at issue here was not a crime of

violence under that provision.

The district court’s decision in this case was contrary to the holding in Verwiebe. Hence

we vacate its judgment and remand the case for resentencing.