The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30030
Plaintiff-Appellee, D.C. No.
9:21-cr-00040-
v. DWM-1
JOHN LEE BARLOW,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted June 6, 2023
Seattle, Washington
Filed October 4, 2023
Before: Mary M. Schroeder, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Bea
2 USA V. BARLOW
SUMMARY *
Criminal Law
The panel affirmed a sentence imposed on John Barlow
following his guilty plea to possessing a firearm as a felon.
The panel rejected Barlow’s argument that the district
court’s application of a Sentencing Guidelines enhancement
pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing the
firearm in connection with another felony violated his Fifth
and Sixth Amendment rights under Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S.
99 (2013). The panel wrote that the determination of a
sentencing enhancement based on a new offense can be
made by a judge without a jury and by a standard of proof
lower than beyond a reasonable doubt; that there is no
mandatory minimum sentence at play and the enhancement
still placed Barlow’s Guidelines range within the maximum
possible sentence for the offense to which he pled guilty; and
that Barlow received all the notice that is required for the
enhancement.
The panel rejected Barlow’s argument that there was
insufficient evidence to support the district court’s finding
that he used or possessed a firearm in connection with
another felony offense under Montana law for purposes of
applying the enhancement. The panel concluded that the
district court’s account of the evidence is plausible in light
of the record viewed in its entirety.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. BARLOW 3
The panel rejected Barlow’s argument that the district
court erred by determining under the modified categorical
approach that his prior Georgia conviction for two counts of
aggravated assault under O.C.G.A. § 16-5-21(a)(2) qualifies
as a “crime of violence” under U.S.S.G. §§ 2K2.1 and
4B1.2. Regarding Barlow’s argument that this court must
presume that his conviction rested upon the least of the acts
criminalized by the statute, the panel wrote that it need not
decide whether a reasonable apprehension form of simple
assault constitutes a “crime of violence” because Barlow’s
indictment confirms that he committed the assault by
“striking [the victim] with said handgun” and “by shooting
[the victim] with a handgun,” not by placing him in
reasonable apprehension of receiving a violent injury. The
panel wrote that the charges as such could only aver an
attempted battery form of simple assault under
O.C.G.A.0020 16-5-20(a)(1)—that is, he attempted to
commit a violent injury to the person of another. The panel
therefore held that Barlow’s conviction for aggravated
assault necessarily has as an element the use, attempted use,
or threatened use plaintiff physical force against the person
of another, and qualifies as a “crime of violence” under the
elements clause definition in U.S.S.G. § 4B1.2(a)(1).
Judge Bea concurred in part, dissented in part, and
dissented in the judgment. He agreed that the district court
properly found that, for sentencing purposes, Barlow used or
possessed a firearm in connection with a felony offense
under Montana law. But he disagreed that Barlow’s Georgia
conviction for aggravated assault is categorically a “crime of
violence” under the Sentencing Guidelines. He wrote that
under the categorical approach, the Georgia conviction must
be deemed reasonable-apprehension assault, which is not a
4 USA V. BARLOW
crime of violence. He would therefore vacate and remand
for resentencing.
COUNSEL
John Rhodes (argued), Assistant Federal Defender; Rachel
Julagay, Federal Defender; Federal Defenders of Montana,
Missoula, Montana; for Defendant-Appellant.
Karla E. Painter (argued) and Timothy A. Tatarka, Assistant
United States Attorneys; United States Attorney’s Office,
Missoula, Montana; for Plaintiff-Appellee.
OPINION
CALLAHAN, Circuit Judge:
John Barlow pled guilty to possessing a firearm as a
felon, in violation of 18 U.S.C § 922(g)(1). He was
sentenced to 77 months in prison followed by three years of
supervised release. On appeal, Barlow raises three
challenges to the district court’s sentencing calculation
under the United States Sentencing Guidelines (“U.S.S.G.”
or “Guidelines”). First, Barlow argues that the district
court’s application of a four-level enhancement for
possessing the firearm in connection with another felony
violated his Fifth and Sixth Amendment rights under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.
United States, 570 U.S. 99 (2013). Second, Barlow asserts
that the application of a four-level enhancement was clear
error because the finding that Barlow used or possessed a
USA V. BARLOW 5
firearm in connection with the felony of assault with a
weapon under Montana law is not supported by clear and
convincing evidence. Third, Barlow argues that the district
court erred by determining that his prior conviction for
aggravated assault was a “crime of violence” because under
Georgia law that crime can be committed recklessly, and
thus the district court selected the incorrect Guidelines range
as a starting point for its sentencing determination. We have
jurisdiction under 28 U.S.C. § 1291, we reject these
arguments, and we affirm.
I.
In August 2021, Barlow was indicted for possessing a
firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).
Following Barlow’s motion to change his plea to guilty, the
Government filed an offer of proof which included the fact
that in 2013 Barlow had been convicted in Georgia of two
counts of felony aggravated assault. It also included the fact
that on May 23, 2021, days before officers discovered the
firearm in Barlow’s possession following his arrest on an
unrelated burglary, Barlow had been involved in an
altercation involving a gun in a parking lot. Barlow pled
guilty to the sole count in the indictment without a plea
agreement and the district court accepted his plea.
The Presentence Investigation Report (“PSR”) prepared
for the district court contained supporting details. In relevant
part, it stated that on July 9, 2013, Barlow was sentenced to
10 years’ incarceration (with 8 years suspended) in Cobb
County Superior Court for two counts of felony aggravated
assault. 1 At that time, Barlow signed a form acknowledging
1
The PSR also identified two prior felony convictions in New Jersey
related to possession and distribution of cocaine. The district court’s
6 USA V. BARLOW
that it was unlawful for him to possess or purchase a firearm
including a rifle, pistol, or revolver, or ammunition, pursuant
to federal law.
The PSR also provided the following details about the
parking lot altercation:
On May 23, 2021, an officer with the
Kalispell Police Department (KPD)
responded to a call about a disorderly male
pulling a gun on the reporting party. Upon
arrival, the officer spoke with Jeff Eickert,
the reporting party, who advised he was
waiting in the parking lot of the Asian Buffet
when a dodge pickup pulled up and stopped
abruptly. The driver got out of the vehicle
and was screaming. Eickert asked the driver
what was wrong, and the driver lifted up his
shirt exposing a holstered gun. He ultimately
placed his hand on the gun and stated he was
the police. The suspect left the scene in his
vehicle. Eickert provided the officer a
description of the suspect and pictures of the
vehicle taken by his girlfriend, Brenda
Benson. In one of the pictures, the officer
observed the suspect with a gun on his hip.
Based on the totality of circumstances,
description of the suspect, and the vehicle’s
registration, the officer believed the suspect
was Barlow. As the conversation continued
finding that these separate convictions were not “controlled substance
offenses” was the subject of the Government’s cross-appeal, which was
voluntarily dismissed and therefore is not discussed further.
USA V. BARLOW 7
with Eickert, the officer learned Barlow
never threatened him or pointed the firearm
at him. Benson spoke with an officer and
reported the male acted like he was going to
shoot them. She acknowledged she “felt very
threatened.” The officer obtained video
surveillance which reflected the suspect had
a verbal exchange with Eickert, placed his
left hand on his hip, and approached Eickert
and Benson with his hand still on his hip.
The PSR noted that just over a week later, on June 1,
2021, an officer with the Kalispell Police Department
arrested Barlow for an outstanding warrant stemming from
an unrelated burglary charge. Barlow was asked about the
firearm he possessed on May 23, 2021, and he initially
denied possessing a firearm until law enforcement explained
they had pictures of him with it. Barlow denied the firearm
was part of the burglary and stated he had purchased the
firearm. On the same day, law enforcement searched
Barlow’s residence and located a Glock 23 .40 caliber, semi-
automatic pistol in his bedroom matching the description of
the firearm he possessed during the parking lot altercation
on May 23, 2021.
The PSR calculated a base offense level of 24 under
U.S.S.G. § 2K2.1(a)(2) because it concluded Barlow had at
least two prior felony convictions for either a crime of
violence or a controlled substance offense. It added four
levels under U.S.S.G. § 2K2.1(b)(6)(B) because he
possessed the firearm in connection with another felony
offense, specifically assault with a weapon in violation of
Mont. Code Ann. § 45-5-213 based on his uncharged
conduct during the May 23, 2021, parking lot altercation.
8 USA V. BARLOW
The PSR subtracted three levels for acceptance of
responsibility, resulting in a total offense level of 25. With
a criminal history category of VI, the PSR concluded that
Barlow’s Guidelines range was 110 to 120 months (based on
the ten-year statutory maximum).
Barlow filed written objections to the PSR, arguing that
his prior convictions did not constitute either a “crime of
violence” or a “controlled substance offense” and therefore
the base offense level should have been 14, not 24. He also
argued that the parking lot altercation did not constitute
“another felony offense” and therefore the four-level
enhancement should not be applied. The probation officer
responsible for preparing the PSR did not revise the report
in response to the objections and the Government argued for
the base offense level outlined by probation and the four-
level enhancement in its sentencing memorandum.
The district court held a sentencing hearing on February
10, 2022. The Government called a single witness, Brenda
Benson, to testify about the facts supporting the four-level
enhancement. She testified that during the parking lot
altercation on May 23, 2021, Barlow approached her and her
boyfriend Jeff Eickert and began yelling and cursing at them,
accusing them of damaging his bumper. Benson testified
that Barlow then exited his truck to approach them, lifted his
shirt to display a firearm holstered on his hip, and
momentarily rested his hand on it, multiple times. Benson
testified that she felt threatened and in fear for her life based
on Barlow’s “irrational” and “belligerent” conduct, and the
fact that she observed he had two firearms. 2 On cross-
2
Benson testified that Barlow claimed to be a police officer and when
Barlow returned to his truck to find his “credentials” to prove he was a
cop, she observed a second firearm fall out of the truck onto the ground.
USA V. BARLOW 9
examination, Benson admitted that Barlow never pointed the
gun at them, nor did he verbally threaten physical harm. The
Government introduced as exhibits photos Benson took
during the altercation showing a firearm holstered on
Barlow’s hip, a blurry surveillance video from a nearby
casino depicting the interaction, and the recording of
Eickert’s 911 call following the incident.
The district court then heard arguments from the parties
and issued an oral ruling from the bench. Over Barlow’s
objection, the district court first concluded that based on the
testimony of Benson, the surveillance video, and the
photographs provided, the government had shown by clear
and convincing evidence that Barlow possessed a firearm in
connection with another felony offense (assault with a
weapon under Montana law) and thus the four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) applied.
Although the district court acknowledged that the question
of “use of a weapon” was a difficult one under the facts, it
found that the evidence established that Barlow “purposely
or knowingly cause[d] reasonable apprehension of serious
bodily injury in another by use of a weapon or what
reasonably appears to be a weapon.” The district court also
concluded, over Barlow’s objection, that his previous
conviction for aggravated assault under Georgia law was a
“crime of violence” as defined by the Guidelines.
Based on those determinations, the district court found
that Barlow’s base offense level was 20 under U.S.S.G.
§ 2K2.1 because Barlow had one prior conviction for a crime
of violence. The district court also found the four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) applied. The
Barlow’s counsel represents, without a record cite, that this second
firearm was ultimately determined to be a pellet gun.
10 USA V. BARLOW
district court further found that Barlow’s base offense level
should be reduced by two levels for acceptance of
responsibility and by one additional level for assisting
authorities in the investigation. With these adjustments, the
district court found that Barlow’s total offense level was 21,
and that with a criminal history category of VI, Barlow’s
Guidelines sentencing range was 77 to 96 months’
imprisonment. The district court sentenced Barlow to 77
months’ imprisonment, to be followed by three years’
supervised release.
The next day, the district court entered the judgment.
Barlow timely appealed.
II.
On appeal, Barlow raises three objections to his
sentence: (1) the district court’s application of a four-level
enhancement for possessing the firearm in connection with
another felony violated his Fifth and Sixth Amendment
rights under Apprendi, 530 U.S. 466, and Alleyne, 570 U.S.
99; (2) the application of the same four-level enhancement
was clear error because there was insufficient evidence to
support the finding that Barlow used or possessed a firearm
in connection with the felony of assault with a weapon under
Mont. Code Ann. § 45-5-213; and (3) the district court erred
by determining that Barlow’s prior conviction under Georgia
law for aggravated assault was a “crime of violence”
resulting in an increased base offense level calculation under
the Guidelines.
A. Constitutional Arguments
We review de novo whether a sentence violates a
defendant’s constitutional rights. United States v. Hunt, 656
F.3d 906, 911 (9th Cir. 2011). The Guidelines provide for a
USA V. BARLOW 11
four-level sentencing enhancement when the defendant
“[u]sed or possessed any firearm or ammunition in
connection with another felony offense[.]” U.S.S.G.
§ 2K2.1(b)(6)(B). The district court found by clear and
convincing evidence that Barlow possessed the firearm in
connection with another felony offense, namely assault with
a weapon under Montana law. Barlow argues that this
violated his constitutional rights.
The underlying premise for Barlow’s argument is that
following Apprendi and Alleyne, a sentencing enhancement
based on a new offense should not be decided by a judge.
Instead, Barlow contends the question of whether he
possessed the firearm in connection with another felony
offense should be considered by a jury and decided beyond
a reasonable doubt. Barlow also argues that the
enhancement increases his sentence “without sufficient
notice” that he would be punished for “another felony
offense.” Neither argument is persuasive.
First, as a constitutional matter, the determination of a
sentencing enhancement based on a new offense (a
“sentencing fact”) can be made by a judge without a jury and
by a lower standard of proof. 3 See United States v. Lonich,
23 F.4th 881, 910 (9th Cir. 2022); see also Rita v. United
States, 551 U.S. 338, 352 (2007). Moreover, there is no
basis for extending the reasoning of Apprendi and Alleyne to
Barlow’s circumstance. Specifically, there is no mandatory
3
Notably, here the district court applied the more stringent clear and
convincing evidence standard applicable to only a limited subset of
sentencing enhancements in determining that Barlow had committed
assault with a weapon under Montana law. United States v. Lonich, 23
F.4th 881, 910 (9th Cir. 2022). We offer no opinion on whether a lower
standard of proof would have also been proper.
12 USA V. BARLOW
minimum sentence at play and the district court’s application
of the four-level enhancement still placed Barlow’s
Guidelines range within the maximum possible sentence for
the offense to which he pled guilty. As the Supreme Court
in United States v. Watts, 519 U.S. 148, 155 (1997)
explained, “consideration of information about the
defendant’s . . . conduct at sentencing does not result in
‘punishment’ for any offense other than the one [for] which
the defendant was convicted”; rather, the defendant is
punished “only for the fact that the present offense was
carried out in a manner that warrants increased punishment.”
Id. (quoting Witte v. United States, 515 U.S. 389, 401
(1995)). Accordingly, this is not a circumstance to which
the right to a jury would typically attach, nor is it a
circumstance requiring that the other felony offense be
proved beyond a reasonable doubt, and thus, neither
Apprendi nor Alleyne apply.
Second, Barlow has not shown a constitutional violation
as a result of insufficient notice of the basis for the
sentencing enhancement. He fails to cite any authority
which requires that another offense giving rise to a
sentencing enhancement be identified in the charging
indictment or at arraignment, and we are aware of no such
authority. Rather, the Guidelines make clear that finding
“another felony offense” for purposes of U.S.S.G.
§ 2K2.1(b)(6)(B) does not require a criminal charge be
brought or a conviction obtained. See United States v. Bare,
806 F.3d 1011, 1016 (9th Cir. 2015). Barlow received all
the notice that is required for the sentencing enhancement.
He has not shown that the district court violated his rights
under the Fifth and Sixth Amendments.
USA V. BARLOW 13
B. Sufficiency of the Evidence Supporting “Use of a
Weapon”
Barlow also argues that the district court erred in
applying the enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
because there was insufficient evidence to support the
district court’s finding that he used or possessed a firearm in
connection with another felony offense. We “review the
district court’s interpretation of the Sentencing Guidelines
de novo, its application of the Guidelines to the facts of the
case for abuse of discretion, and its factual findings for clear
error.” United States v. Kirilyuk, 29 F.4th 1128, 1133 (9th
Cir. 2022) (citing United States v. Gasca-Ruiz, 852 F.3d
1167, 1170 (9th Cir. 2017) (en banc)). On a sufficiency of
the evidence challenge, “[i]f the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, [we] may not reverse it …. Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Anderson v.
City of Bessemer City, 470 U.S. 564, 573–74 (1985)
(citations omitted). An even greater deference is due where,
as here, the district court weighs the credibility of a witness.
Id. at 575.
The district court found that Barlow used or possessed a
firearm in connection with the felony of assault with a
weapon under Mont. Code Ann. § 45-5-213(1)(b), which
provides that a person commits that offense if the person
purposely or knowingly causes “reasonable apprehension of
serious bodily injury in another by use of a weapon or what
reasonably appears to be a weapon.” Mont. Code Ann. § 45-
5-213(1)(b) (emphasis added). In making that finding, the
district court considered the testimony of what it determined
to be a credible first-hand witness, Benson, as well as
documentary evidence including photographs taken by
14 USA V. BARLOW
Benson during the incident, a surveillance video, and a
recording of the 911 call.
Barlow contends that the surveillance video and
recording of the 911 call undermine, and in some cases
contradict, Benson’s testimony, and therefore her testimony
cannot be used to support the finding. For example,
according to Barlow, the video does not show Barlow
touching the firearm or raising his shirt to display the
firearm, as Benson alleged in her testimony. Without her
testimony, Barlow asserts that the Government presented no
evidence that he ever “used” the firearm, as required to prove
the offense under Montana law.
We disagree. We conclude that the district court’s
account of the evidence is plausible in light of the record
viewed in its entirety. Benson testified that Barlow
confronted and yelled at her and Eickert, acting irrationally,
while repeatedly placing his hand on a holstered firearm on
his hip. She testified that she felt threatened and feared for
her life. The photographs offered to the court showed a
holstered firearm on Barlow’s hip. The surveillance video,
although admittedly very blurry, confirmed that Barlow
appeared to angrily confront the couple. The 911 call
reflected Eickert’s recollection of the incident, and he
reported that Barlow pulled a gun out of his belt. While
Barlow is correct that there was no evidence that he ever
fired the gun, pointed the gun, or made a direct verbal threat,
such evidence is not required to establish assault with a
weapon under Montana law. See State v. Smith, 95 P.3d 137,
143 (Mont. 2004) (explaining that the victim need not even
see the weapon to sustain a conviction based on “reasonable
apprehension”). To the extent the district court discounted
any alleged contradictions between the surveillance video
and 911 call and Ms. Benson’s testimony, this was not clear
USA V. BARLOW 15
error. Barlow has not shown that there was insufficient
evidence to support the district court’s finding that he used
or possessed a firearm in connection with another felony
offense for purposes of applying the enhancement under
U.S.S.G. § 2K2.1(b)(6)(B).
C. Increased Base Offense Level for a “Crime of
Violence”
We review de novo whether a defendant’s prior
conviction qualifies as a “crime of violence” under the
Guidelines. See Gasca-Ruiz, 852 F.3d at 1174. For
violations of 18 U.S.C. § 922(g)(1), felon in possession of a
firearm, courts apply U.S.S.G. § 2K2.1. Section
2K2.1(A)(4)(A) provides a base offense level of 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.” The
district court concluded that Barlow’s prior conviction for
two counts of aggravated assault under Georgia law qualifies
as a crime of violence and applied an increased base offense
level in determining Barlow’s sentence.
We begin (and end) our inquiry with the first definition
set forth in U.S.S.G. § 4B1.2—the “elements clause” (also
known as the “force clause”). 4 Under that definition, a crime
4
The term “crime of violence” as used in this section is defined in
U.S.S.G. § 4B1.2(a), as either an 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 any one of several enumerated
offenses, including “aggravated assault.” U.S.S.G. § 4B1.2(a); U.S.S.G.
§ 2K2.1, cmt. n.1. The district court did not articulate which of the two
definitions it relied on when it concluded that Barlow’s prior conviction
qualified as a “crime of violence.” Although the enumerated offense
clause is another avenue for determining whether a prior conviction is a
16 USA V. BARLOW
of violence “means any offense under federal or state law . . .
that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). To determine whether the
prior offense qualifies pursuant to the elements clause, we
only ask “whether the prior offense does in fact have one of
those elements” —we do not compare the elements of the
crime of conviction with the elements of the generic federal
crime. United States v. Alvarez, 60 F.4th 554, 559 (9th Cir.
2023).
Here, the district court properly used the modified
categorical approach to determine that Barlow’s prior
conviction for aggravated assault qualified as a crime of
violence. United States v. Door, 917 F.3d 1146, 1152 (9th
Cir. 2019) (citing Mathis v. United States, 579 U.S. 500, 505
(2016)); see also United States v. Moss, 920 F.3d 752, 757–
58 (11th Cir. 2019), opinion reinstated, 4 F.4th 1292 (11th
Cir. 2021) (en banc) (holding that Georgia’s aggravated
assault statute is divisible as to both the aggravator element,
and the type of simple assault committed). Under the
modified categorical approach, we may consult Shepard
documents, a limited class of documents, including the
indictment, jury instructions, or plea agreement, to
determine which specific crime a defendant was convicted
of committing.5 Door, 917 F.3d at 1151–52; Shepard v.
“crime of violence” under the Guidelines, we need not discuss it here
given our conclusion that the elements clause applies.
5
The Partial Dissent attempts to demonstrate that our opinion evidences
a departure from precedent by arguing that it is somehow at odds with
the recent decision in United States v. Castro. But Castro did not apply
the modified categorical approach at all because the statute at issue there
was not divisible, and thus the framework it applied has no impact on
our analysis. 71 F.4th 735, 738 n.3 (9th Cir. 2023).
USA V. BARLOW 17
United States, 544 U.S. 13, 26 (2005). We then apply the
elements clause to the specific crime of conviction to
determine whether it qualifies as a “crime of violence.”
Door, 917 F.3d at 1152.
In 2013, Barlow was convicted of two counts of
aggravated assault. Aggravated assault under Georgia law
has two elements: “(1) commission of a simple assault as
defined by [O.C.G.A. §] 16-5-20(a) and (2) the presence of
one [] statutory aggravator[]” under O.C.G.A. § 16-5-21(b).
Patterson v. State, 299 Ga. 491, 492 (2016) (quotations and
citations omitted). Simple assault can be committed in one
of two ways: “(1) [a]ttempt[ing] to commit a violent injury
to the person of another; or (2) [c]ommit[ting] an act which
places another in reasonable apprehension of immediately
receiving a violent injury.” O.C.G.A. § 16-5-20(a).
The key Shepard document in the record is the
indictment, which confirms on the cover page that Barlow
pled guilty to the offense charged. The indictment contains
two counts. Count One charged Barlow:
with the offense of AGGRAVATED
ASSAULT for that the said accused . . . did
unlawfully make an assault upon the person
of Crushon Person, with a handgun, the same
being a firearm, a deadly weapon and an
object which, when used offensively against
a person, is likely to and actually does result
in serious bodily injury, by striking said
Crushon Person with said handgun . . . .
18 USA V. BARLOW
(emphasis added). Count Two charged Barlow:
with the offense of AGGRAVATED
ASSAULT for that the said accused . . . did
unlawfully make an assault upon the person
of Crushon Person, with a handgun, the same
being a firearm, a deadly weapon and an
object which, when used offensively against
a person, is likely to and actually does result
in serious bodily injury, by shooting said
Crushon Person with said handgun . . . .
(emphasis added).
Barlow concedes that the indictment establishes that he
was convicted of committing the version of aggravated
assault found in O.C.G.A. § 16-5-21(a)(2) (known as the
aggravator element)—simple assault committed with a
deadly weapon. But he argues that the indictment does not
indicate which type of simple assault formed the basis for his
conviction—attempting to commit a violent injury under
O.C.G.A. § 16-5-20(a)(1) or placing another in reasonable
apprehension of receiving a violent injury under § 16-5-
20(a)(2). Accordingly, Barlow asserts that we must presume
that his conviction rested upon the least of the acts
criminalized by the statute (here § 16-5-20(a)(2), placing
another in apprehension of receiving a violent injury), see
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013). He
contends this does not qualify as a “crime of violence” under
the elements clause. See Moss, 920 F.3d at 757–58; United
States v. Carter, 7 F.4th 1039, 1043 (11th Cir. 2021).
Barlow reasons that the Supreme Court of Georgia has
held the “reasonable apprehension” form of simple assault
may be committed with a mens rea of recklessness because
USA V. BARLOW 19
it “does not require proof of specific intent.” Patterson, 299
Ga. at 493. Relying on the Eleventh Circuit’s holdings in
Moss and Carter, 6 Barlow argues that recklessness is an
insufficient mens rea for a “crime of violence” under Borden
v. United States. 7 141 S. Ct. 1817, 1821–22 (2021) (holding
that an offense is not a “violent felony”—and thus, not a
“crime of violence”—“if it requires only a mens rea of
recklessness—a less culpable mental state than purpose or
knowledge”); see also Moss, 920 F.3d at 758; Carter, 7 F.4th
at 1043.
Barlow’s approach may be logical, but we need not
decide whether a reasonable apprehension form of simple
assault constitutes a “crime of violence” because Barlow’s
indictment confirms that he committed the assault “by
striking [the victim] with said handgun” and “by shooting
6
Moss held that “[b]ecause Georgia’s aggravated assault statute,
O.C.G.A. § 16-5-21(a)(2) . . . 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 Moss, 920 F.3d at 759. Carter similarly held that the
defendant’s aggravated assault conviction could not support his
classification as an armed career criminal. Carter, 7 F.4th at 1041. Both
cases so held because the Shepard documents did not indicate the portion
of Georgia’s simple assault statute under which the defendants were
convicted, thus the courts assumed that the convictions arose under the
“least of the acts criminalized” by the statute, that is, the “reasonable
apprehension” form of simple assault.
7
Borden concerned the definition of “violent felony” in the Armed
Career Criminal Act (“ACCA”), id. at 1821–22, but also governs our
court’s interpretation of “crime of violence” in the U.S.S.G., which “is
defined identically to the phrase ‘violent felony’ in the ACCA.” United
States v. Walker, 953 F.3d 577, 579 (9th Cir. 2020).
20 USA V. BARLOW
[the victim] with said handgun,” 8 not by placing the victim
in reasonable apprehension of receiving a violent injury. 9
The charges against Barlow could only aver an attempted
battery form of simple assault under O.C.G.A. § 16-5-
20(a)(1)—that is, that Barlow “attempt[ed] to commit a
violent injury to the person of another.”
Barlow’s attempt to analogize this case to the facts
presented in Moss and Carter is unpersuasive. The Eleventh
Circuit in Moss and Carter did not provide its reasoning for
concluding that the qualifying language in each indictment
did not foreclose the averment of a “reasonable
apprehension” form of simple assault. Moss, 920 F.3d at
758; Carter, 7 F.4th at 1043. But the indictment in Moss
charged the defendant for assaulting the victim “with his
mouth,” Moss, 920 F.3d at 755, while the indictment in
Carter charged the defendant for assaulting the victim by
“shooting at” (rather than “shooting”) him, Carter, 7 F.4th
at 1044. 10 Georgia case law establishes that these charges
8
Because the two counts in Barlow’s indictment were not separately
sentenced, they are not treated as separate qualifying predicates, and we
may affirm if we conclude that either of the counts constitute a “crime
of violence.” See U.S.S.G. § 4A1.2(a)(2).
9
Therefore, resolution of whether a reasonable apprehension form of
simple assault under Georgia law constitutes a “crime of violence” under
the Guidelines is not necessary to the disposition in this case and we do
not reach it. See Yu v. Idaho State Univ., 15 F.4th 1236, 1244–45 (9th
Cir. 2021).
10
Contrary to the Partial Dissent’s argument, to reach our decision we
have not looked to the facts underlying the conviction, but rather to the
language contained in the indictment to discern the predicate conviction,
as authorized by Door. 917 F.3d at 1151–52. The qualifying language
in the indictment (that Barlow committed the assault “by striking [the
victim] with said handgun” and “by shooting [the victim] with said
handgun”) is not only relevant to the aggravator element of an
USA V. BARLOW 21
can aver a reasonable apprehension assault, see, e.g., Jordan
v. State, 744 S.E.2d 447, 451 (Ga. App. 2013) (considering
“by shooting at” language in indictment), whereas
aggravated assault committed “by striking” and “by
shooting” the victim cannot, see, e.g., State v. Thomas, 830
S.E.2d 296, 299–300 (Ga. App. 2019) (considering “by
shooting” language in indictment). Although this distinction
may seem technical, it is nevertheless meaningful to our
analysis, particularly because under Georgia law, the
attempted battery form of simple assault under O.C.G.A.
§ 16-5-20(a)(1) is properly charged when, as here, the
battery is completed (for example, the indictment confirms
Barlow was charged with committing aggravated assault by
“shooting” and “striking” the victim rather than merely
“shooting at” the victim). See Scott v. State, 234 S.E.2d 685,
686–87 (Ga. App. 1977).
Barlow cites three Georgia Supreme Court decisions,
which he argues establish that an indictment alleging
aggravated assault “by striking” or “by shooting” could be
proven under the reasonable apprehension form of simple
assault. See Johnson v. State, 637 S.E.2d 393 (Ga. 2006);
Chase v. State, 592 S.E.2d 656 (Ga. 2004); Simpson v. State,
589 S.E.2d 90 (Ga. 2003). But these cases do not support
his assertion. Rather, what Johnson and Simpson suggest is
that while a jury may be given an instruction which defines
both methods of committing simple assault, to convict a
defendant of aggravated assault “by striking” or “by
shooting,” it remains “necessary that the evidence show
beyond a reasonable doubt that the defendant attempted to
aggravated assault conviction but is also relevant to the simple assault
element because the indictment states in various separate places that
Barlow used a gun in committing the crime.
22 USA V. BARLOW
cause a violent injury to the alleged victim.” 11 Johnson, 637
S.E.2d at 395 (considering an indictment which charged the
defendant with assaulting the victim by striking her with a
gun); Simpson, 589 S.E.2d at 92–93 (considering an
indictment which charged the defendant with assaulting the
victim by shooting him with a gun); see also Chase, 592
S.E.2d at 658 (noting “[w]hile there was no question that
appellant fired a gun through the floor, striking his wife in
the room below in the top of her head, there was no evidence
from which the jury could find the victim had been placed in
reasonable apprehension of immediately receiving a violent
injury.”).
We disagree with the Partial Dissent’s characterization
of the holdings in Simpson and Johnson as commanding a
different result here. In both of those cases, the defendants
argued that the trial court violated their right to due process
by instructing the juries that they could convict for
aggravated assault in a manner not alleged in the indictment,
“by striking” in Johnson and “by shooting” in Simpson. The
Georgia Supreme Court in both cases rejected the arguments
and clarified that the jury instructions provided did not alter
the alleged method of committing aggravated assault as
stated in the indictments by “simply defin[ing] both methods
of committing simple assault.” Simpson, 589 S.E.2d at 93;
11
The Partial Dissent quarrels with our reading of Johnson. But our
quote is not “selective.” In Johnson, the Georgia Supreme Court
expressly stated that “the trial court properly instructed the jury with
respect to aggravated assault, stating unequivocally that in order to
convict the defendant of [the] offense alleged [in the indictment
(aggravated assault “by striking [the victim]”)], it was ‘necessary [to] . .
. show beyond a reasonable doubt that the defendant attempted to cause
a violent injury to the alleged victim,’”—that is, the attempted battery
form of simple assault. Johnson, 637 S.E.2d at 395.
USA V. BARLOW 23
Johnson, 637 S.E.2d at 395. Neither case stands for the
proposition that the language contained in Barlow’s
indictment makes it impossible to determine which specific
form of simple assault Barlow pled guilty to committing.
We therefore hold that Barlow’s conviction for
aggravated assault necessarily has as an element the use,
attempted use, or threatened use of physical force against the
person of another, and therefore qualifies as a “crime of
violence” under the elements clause. 12
III.
In conclusion, we affirm because Barlow has not shown
that the district court erred in calculating his sentence under
the Guidelines. Barlow has not shown that applying the
four-level enhancement violated his rights under the Fifth or
Sixth Amendments. He has not shown that the district
court’s factual finding that Barlow possessed the firearm in
connection with his commission of assault with a weapon
under Montana law is erroneous. Finally, the district court
correctly determined that Barlow’s prior Georgia conviction
for aggravated assault was a “crime of violence.”
AFFIRMED.
12
Because we conclude that the prior conviction qualifies as a “crime of
violence” under the elements clause definition under U.S.S.G.
§ 4B1.2(a)(1), we need not reach Barlow’s arguments regarding whether
his prior aggravated assault conviction also qualifies as a “crime of
violence” under the Guidelines’ alternative definition in the “enumerated
offense clause” under U.S.S.G. § 4B1.2(a)(2).
24 USA V. BARLOW
BEA, Circuit Judge, concurring in part, dissenting in part,
and dissenting in the judgment:
I agree that the district court properly found that, for
sentencing purposes, Defendant-Appellant John Barlow
used or possessed a firearm in connection with a felony
offense under Montana law. See U.S.S.G. § 2K2.1(b)(6)(B);
United States v. Watts, 519 U.S. 148 (1997). But I disagree
that Barlow’s Georgia conviction for aggravated assault, see
O.C.G.A. § 16-5-21(a)(2), is categorically a “crime of
violence” under the Sentencing Guidelines, see U.S.S.G.
§§ 2K2.1(a), 4B1.2(a). In concluding that Barlow’s
conviction is a crime of violence, the district court here
professedly applied its “common sense,” rather than the
categorical approach. The majority similarly affirms. But
because the categorical approach demands a contrary result,
I would vacate Barlow’s sentence and remand for
resentencing.
I respectfully dissent.
I.
A “crime of violence” is one that has “as an element, the
use, attempted use, or threatened use of physical force
against the person of another.” U.S.S.G. § 4B1.2(a)(1). To
determine whether Barlow’s aggravated assault conviction
meets that definition, we must apply the “categorical
approach,” which we recently have summarized as follows:
To determine whether a conviction is a crime
of violence, we do not look to the facts
underlying the conviction. Instead, the
Supreme Court requires us to employ a
categorical approach that looks to the
statutory definition of the offense and the fact
USA V. BARLOW 25
of conviction itself. If the statute criminalizes
conduct beyond that covered by the
Guidelines—regardless of the defendant’s
actual conduct—the conviction is not a crime
of violence. Where a statute describes
conduct on both sides of the line, we must
determine whether it is divisible. If the statute
describes different ways to prove a single set
of elements, it is indivisible. In contrast, a
statute is divisible if it lists alternative
elements and thereby describes alternative
crimes.
United States v. Tagatac, 36 F.4th 1000, 1004 (9th Cir.
2022) (cleaned up).
The “central feature” of the categorical approach is that
sentencing judges must “focus on the elements, rather than
the facts, of a crime.” Descamps v. United States, 570 U.S.
254, 263 (2013). That rule reflects the constitutional
principle that juries—not judges—are responsible for
finding the predicate facts on which any criminal sentence
rests. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
In this way, “juries in our constitutional order exercise
supervisory authority over the judicial function by limiting
the judge's power to punish.” United States v. Haymond, 139
S. Ct. 2369, 2376 (2019). “A judge's authority to issue a
sentence derives from, and is limited by, the jury's factual
findings of criminal conduct.” Id.
The Supreme Court thus developed the categorical
approach to keep judges out of the facts in sentencing
proceedings. See Taylor v. United States, 495 U.S. 600–02
(1990). As the Court recognized, when a crime covers a
range of conduct, it is often impossible to decipher the
26 USA V. BARLOW
precise facts which the jury found proven beyond a
reasonable doubt. See id. And judges are not authorized to
determine those facts for themselves. Thus, a sentencing
court assessing the “fact of a prior conviction” may infer
only the minimal conduct—based on the elements of the
crime—that was necessary for the prosecution to obtain the
conviction. See Apprendi, 530 U.S. at 490. 1 The categorical
approach, then, respects the role of the jury by vesting
sentencing power in the judge only if the elements of the
crime “necessarily impl[y]” that the jury found the defendant
guilty of conduct that satisfies a statutory enhancement.
Taylor, 495 U.S. at 599; see United States v. Marcia-Acosta,
780 F.3d 1244, 1255–56 (9th Cir. 2015) (reasoning that a
sentencing judge can ask whether a defendant was
“convicted” of a crime but not whether he “committed the
crime”).
In Shepard v. United States, the Supreme Court made
this point clear. 544 U.S. 13, 25–26 (2005). There, the Court
explained that engaging in a factual approach—rather than a
categorical approach—to increase a sentence based on a
prior guilty plea could very well violate a defendant’s Sixth
Amendment rights:
The sentencing judge considering the
enhancement would make a disputed finding
of fact about what the defendant and state
judge must have understood as the factual
basis of the prior plea, and the dispute raises
1
In Apprendi, the Supreme Court remarked that the “the fact of a prior
conviction” supplies a rare exception to the Sixth Amendment rule in
criminal cases that “any fact that increases the penalty for a crime …
must be submitted to a jury, and proved beyond a reasonable doubt.” 530
U.S. at 490.
USA V. BARLOW 27
the concern underlying Jones and Apprendi:
the Sixth and Fourteenth Amendments
guarantee a jury standing between a
defendant and the power of the State, and
they guarantee a jury's finding of any
disputed fact essential to increase the ceiling
of a potential sentence. While the disputed
fact here can be described as a fact about a
prior conviction, it is too far removed from
the conclusive significance of a prior judicial
record, and too much like the findings subject
to Jones and Apprendi, to say that [a judge is]
clearly authorize[d] … to resolve the dispute.
544 U.S. 13, 25–26 (2005) (cleaned up).
Put in other terms, notwithstanding the actual facts
underlying the conviction, the Sixth Amendment requires
the sentencing judge to “presume that the conviction rested
upon nothing more than the least of the acts criminalized.”
See Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013)
(cleaned up).
To be sure, faithfully applying this required categorical
approach sometimes yields odd results. For instance, in
Borden v. United States, the Supreme Court held that a
Tennessee conviction for aggravated assault did not
constitute a “violent felony” under the Armed Career
Criminal Act (“ACCA”). 141 S. Ct. 1817, 1821 (2021).
Another example comes from United States v. Castro, in
which we recently held that a Montana conviction for
Partner or Family Member Assault (“PFMA”) is not a
“crime of violence” under the Sentencing Guidelines. 71
28 USA V. BARLOW
F.4th 735, 744 (9th Cir. 2023). 2 There, we noted that “federal
courts hate the categorical approach” because “[i]t
frequently produces absurd results.” Id. at 738 n.2.
As I explain below, this case is yet another in which
following the categorical approach produces the admittedly
counterintuitive result that a type of assault is not a crime of
violence. Yet no matter how much we may “hate” this
analytical framework, see Oral Arg. at 1:25, Supreme Court
precedent demands it, see Taylor, 495 U.S. at 600–02, and
we must obey, see United States v. Werle, 35 F.4th 1195,
1201 (9th Cir. 2022).
II.
Start by examining the elements of the predicate crime.
Georgia’s aggravated assault statute requires proof of simple
assault that was committed in a manner that satisfies a
statutory enhancement. O.C.G.A. § 16-5-21(a). Simple
assault, in turn, may be committed either by: (1) attempting
to injure the victim; or (2) placing the victim in a reasonable
apprehension of injury. O.C.G.A. § 16-5-20(a). I shall refer
to these separate offenses as ‘attempt-to-injure’ and
‘reasonable-apprehension’ assault, respectively.
The parties appear to agree that attempt-to-injure
aggravated assault qualifies as a crime of violence. That
makes sense. An “[a]ttempt[] to commit violent injury to the
person of another,” O.C.G.A. § 16-5-20(a)(1), matches with
an “attempted use . . . of physical force against the person of
another,” U.S.S.G. § 4B1.2(a)(1). But the parties dispute:
(A) whether Barlow was convicted of reasonable-
2
We reached this result even though the defendant had “grabbed the
victim by the neck and then threw her to the ground and hit her face into
a glass door.” Castro, 71 F.4th at 738 n.2 (cleaned up).
USA V. BARLOW 29
apprehension assault instead of attempt-to-injure assault;
and (B) whether reasonable-apprehension aggravated assault
qualifies as a crime of violence. I address each issue in turn.
A.
To ascertain the elements for Barlow’s crime of
conviction, we must first determine whether Georgia’s
assault statutes are “divisible.” See Descamps, 570 U.S. at
257. Because all agree that they are divisible, Maj. Op. at
16, 3 we apply the modified categorial approach. See
Tagatac, 36 F.4th at 1004. Under that approach, we examine
the Shepard documents in the record to determine what type
of simple assault formed the basis for Barlow’s aggravated
assault conviction. See Shepard, 544 U.S. at 26.
Importantly, reviewing the Shepard documents does
“not permit courts to substitute a facts-based inquiry for an
elements-based one.” United States v. Sahagun-Gallegos,
782 F.3d 1094, 1101 (9th Cir. 2015) (citation and internal
quotation omitted); see Descamps, 570 U.S. at 263 (“The
3
A criminal statute is divisible if it “lists alternative elements and thereby
describes alternative crimes.” Tagatac, 36 F. 4th at 1004; see Descamps,
570 U.S. at 257. Georgia’s aggravated assault statute is divisible because
either form of simple assault—attempt-to-injure assault or reasonable-
apprehension assault—can satisfy one of the elements of the crime. See
Simpson v. State, 589 S.E.2d 90, 93 (Ga. 2003) (explaining that a
defendant can be “convicted for aggravated assault if he committed a
simple assault in either manner contained in the simple assault statute”).
In other words, a defendant can commit either form of aggravated assault
without committing the other form of aggravated assault. The aggravated
assault statute therefore “describes alternative crimes” and is divisible.
Tagatac, 36 F.4th at 1004; see United States v. Moss, 920 F.3d 752, 757
(11th Cir. 2019), opinion reinstated, 4 F.4th 1292 (11th Cir. 2021)
(holding Georgia’s aggravated assault statute is divisible because the
simple assault statute “lists two separate crimes”).
30 USA V. BARLOW
modified approach thus acts not as an exception, but a
tool.”). Rather, in the case of a guilty plea, we use the
documents for the limited purpose of ascertaining whether
the defendant “necessarily admitted [the] elements” of a
specific statutory alternative. Shepard, 544 U.S. at 26
(emphasis added). If the documents are ambiguous, we do
not then look to the facts; we “presume that the conviction
rested upon nothing more than the least of the acts
criminalized.” Moncrieffe, 569 U.S. at 190–91 (cleaned up). 4
The lone Shepard document in the record—the
indictment—does not clarify which type of simple assault—
attempt-to-injure or reasonable-apprehension—formed the
basis for Barlow’s aggravated assault conviction. The
indictment alleges only that: (1) Barlow “did unlawfully
make an assault upon the person of [the victim], with a
handgun . . . by striking [the victim] with said handgun,” and
(2) Barlow “did unlawfully make an assault upon the person
of [the victim], with a handgun . . . by shooting [the victim]
with said handgun.”
While “striking” and “shooting” someone with a gun
certainly qualifies as ‘violence,’ I reiterate that in employing
the required categorical approach, “we do not look to the
facts underlying the conviction.” Tagatac, 36 F.4th at 1004.
That is the most fundamental rule underlying the categorical
approach. Taylor, 495 U.S. at 600 (creating the categorical
approach and explaining that it forbids examination of “facts
4
This principle is particularly salient here because Barlow’s conviction
could have been the result of a plea bargain. As the Supreme Court has
explained, “if a guilty plea to a lesser … offense was the result of a plea
bargain, it would seem unfair to impose a sentence enhancement as if the
defendant had pleaded guilty” to a greater offense. Taylor, 495 U.S. at
601–02.
USA V. BARLOW 31
underlying the prior convictions”). Instead of analyzing
whether the conduct alleged in the indictment might strike
an observer as ‘violent,’ we must use the indictment to
determine only what elements the State was required to
prove—those that Barlow necessarily admitted—to obtain
the predicate conviction. See Pereida v. Wilkinson, 141 S.
Ct. 754, 764–65 (2021); Shepard, 544 U.S. at 26. And on
that question, Barlow’s indictment is silent. It does not
clarify whether he was alleged to have committed attempt-
to-injure or reasonable-apprehension assault. Because the
indictment provides no clarity, we must assume Barlow’s
conviction rested upon the less-culpable conduct:
reasonable-apprehension assault. Borden, 141 S. Ct. at 1822;
Moncrieffe, 569 U.S. at 190–91; see Sahagun-Gallegos, 782
F.3d at 1099-1100 (assuming the defendant was convicted
of the lesser form of aggravated assault because the Shepard
documents did not “cite[] a specific subsection” or “quote[]
the elements of a specific subsection” of the simple assault
statute).
This is where the majority’s analysis parts from mine.
The majority concludes that the indictment could be read as
alleging only attempt-to-injure assault because the
indictment uses the words “striking” and “shooting.” Maj.
Op. at 20. In other words, according to the majority, the
allegations in Barlow’s indictment would not authorize a
jury to convict for reasonable-apprehension aggravated
assault. Maj. Op. at 20. The problem for the acceptance of
the majority’s reading is that the Georgia Supreme Court has
expressly held otherwise—twice. And, after all, we are
dealing with a Georgia state conviction. 5
5
We are bound by the Georgia Supreme Court’s interpretation of
Georgia statutes. See, e.g., Johnson v. United States, 559 U.S. 133, 138
32 USA V. BARLOW
In Simpson v. State, the indictment alleged that Simpson
“assaulted [the victim] by shooting him with a gun . . . .” 589
S.E.2d at 92 (emphasis added). Simpson argued that the trial
court erroneously instructed the jury that it could convict
him of either reasonable-apprehension assault or attempt-to-
injure assault. Id. The Georgia Supreme Court disagreed,
holding that an allegation of assaulting a victim “by shooting
him with a gun” “defined both methods of committing
simple assault . . . .” Id. at 93 (emphasis added). The court
upheld the conviction because a defendant can “be convicted
for aggravated assault if he committed a simple assault in
either manner contained in the simple assault statute, so
long as the State proved that he did so by use of a gun.” Id.
(emphasis added). And it made clear that the “indictment did
not and need not . . . specify the manner in which the
defendant committed the simple assault.” Id. Rather,
instructing the jury on reasonable-apprehension assault
based on an allegation of “shooting [the victim] with a
gun . . . did not authorize a conviction in a manner other than
that alleged the indictment.” Id. at 92–93.
Similarly, in Johnson v. State, “[t]he indictment alleged
that Johnson assaulted [the victim] by striking her with a
gun, and that he assaulted [another victim] by shooting her
with a gun.” 637 S.E.2d 393, 394 (Ga. 2006) (emphases
added). Again, Johnson argued that the trial court
erroneously instructed the jury that it could convict him of
either attempt-to-injure assault or reasonable-apprehension
assault. Id. And—again—the Georgia Supreme Court
(2010); Johnson v. Fankell, 520 U.S. 911, 916 (1997) (“Neither this
Court nor any other federal tribunal has any authority to place a
construction on a state statute different from the one rendered by the
highest court of the State.”).
USA V. BARLOW 33
disagreed. It concluded that an indictment alleging assault
“by striking [the victim] with a gun” adequately alleged both
types of simple assault. Id. at 395. 6
The “shooting” and “striking” “with a gun” allegations
in Simpson and Johnson are identical to those in Barlow’s
indictment. We therefore must conclude that Barlow’s
“indictment did not . . . specify the manner in which
[Barlow] committed the simple assault.” Simpson, 589
S.E.2d at 93. Because the indictment does not specify, we
must assume Barlow’s “conviction rested upon nothing more
than the least of the acts criminalized,” Moncrieffe, 569 U.S.
6
The majority misreads Simpson and Johnson as holding that an
aggravated assault conviction for ‘shooting’ or ‘striking’ requires
proving “the defendant attempted to cause a violent injury to the alleged
victim.” Maj. Op. at 21–22 (quoting Johnson, 687 S.E.2d at 395). That
selective quote of a jury instruction in Johnson shows only that the
defendant there was, in fact, convicted of attempt-to-injure assault.
Barlow, however, pleaded guilty and so no such instruction was given.
And Simpson—which did not qualify its holding as the majority
claims—makes clear that an allegation of shooting “authorize[s] a
conviction” for reasonable-apprehension aggravated assault, so long as
the State “allege[s] the aggravating aspect of the simple assault”—here,
the use of a gun. 589 S.E.2d at 93; see O.C.G.A. § 16-5-21(a)(2) (“A
person commits the offense of aggravated assault when he or she
assaults . . . with a deadly weapon . . . .”). Thus, contrary to the
majority’s conclusion, Georgia case law establishes that allegations of
“shooting” and “striking” can charge reasonable-apprehension assault.
But see Maj. Op. at 21.
34 USA V. BARLOW
at 190–91 (cleaned up) (emphasis added), 7 which here is
reasonable-apprehension aggravated assault. 8
B.
The majority’s reading of Barlow’s indictment also parts
with the Eleventh Circuit, which reached the opposite
conclusion on an indistinguishable set of facts. Indeed, the
Eleventh Circuit’s interpretation of Georgia’s aggravated
assault statute should be persuasive because the Eleventh
Circuit, after all, encompasses Georgia and is therefore more
familiar with its statutes. Cf. Factors Etc. Inc. v. Pro Arts,
Inc., 652 F.2d 278, 281–84 (2nd Cir. 1981).
In United States v. Carter, the Eleventh Circuit
employed the modified categorical approach to determine
whether an indictment for “shooting at” a victim constituted
attempt-to-injure assault or reasonable-apprehension assault
7
The majority flips this presumption on its head. It claims that it is
“meaningful” that attempt-to-injure assault “is properly charged” based
on Barlow’s indictment. Maj. Op. at 21. That is the precisely the wrong
way to frame the issue. The modified categorical approach requires us to
ask whether the lesser crime—not the greater crime—is properly
charged by the indictment. Moncrieffe, 569 U.S. at 190–91. If it would
be proper for a jury to convict for either crime, we must presume that the
lesser crime is the crime of conviction. See Marcia-Acosta, 780 F.3d at
1252–53 & n.8 (citing Moncrieffe, 569 U.S. at 190–91) (explaining that
we are “required to assume” the lesser crime was the crime of conviction
whenever the defendant “was not required to admit” that he committed
the greater crime).
8
Even if there were any “lingering ambiguity” about whether Barlow’s
indictment alleged reasonable-apprehension assault, we must resolve
such ambiguity in Barlow’s favor. Pereida, 141 S. Ct. at 765 (“We have
observed that these [Shepard] materials will not in every case speak
plainly, and that any lingering ambiguity about them can mean the
government will fail to carry its burden of proof in a criminal case.”
(internal quotation marks omitted)).
USA V. BARLOW 35
under Georgia’s aggravated assault statute. 7 F.4th 1039,
1044 (11th Cir. 2021). The court concluded the allegation of
“shooting at” a victim did “not reveal which version of
simple assault was the basis for Carter’s conviction.” Id. It
thus assumed the defendant was convicted of the least of the
acts criminalized: reasonable-apprehension assault. Id.
The majority tries to distinguish Carter based on the sole
presence of that lone preposition: “at.” Maj. Op. at 20–21. It
reasons that Carter is distinguishable because the indictment
in that case alleged that the defendant committed assault by
“shooting at” the victim, 7 F.4th at 1044 (emphasis added),
while Barlow’s indictment alleges assault by “shooting” and
“striking” the victim. According to the majority, Georgia
law permits a reasonable-apprehension assault conviction
for “shooting at” a victim but not for “shooting” or “striking”
a victim. Maj. Op. at 20–21. The majority is incorrect to
draw this distinction.
First, it might be preferable to be shot at rather than shot,
but only because—as a factual matter—being “shot” implies
that the bullet struck home, whereas being “shot at” suggests
the bullet missed its mark. Indeed, as the majority sees it, it
is “meaningful” that the “battery [was] completed.” Maj. Op.
at 21. But Barlow was not convicted of the crime of
battery—he was convicted of the crime of aggravated
assault. And in Georgia, completing a battery is not an
element of aggravated assault. In relying on this observation,
the majority thus ignores “the categorical approach’s central
feature: a focus on the elements, rather than the facts, of a
crime.” See Descamps, 570 U.S. at 263 (emphasis added);
Marcia-Acosta, 780 F.3d at 1250 (“Consideration of only
‘the elements of the crime of conviction’ is the pivotal
concept in applying the modified categorical analysis.”). It
mistakenly “look[s] to the facts underlying the conviction”
36 USA V. BARLOW
to give weight to an element—contact—that is not an
element of Barlow’s crime of conviction. Tagatac, 36 F.4th
at 1004. 9 Under the categorical approach, the shooting
allegation in Barlow’s indictment is relevant only because
the use of a gun is an aggravating element of simple assault
under Georgia law, and thus determines his crime of
conviction. Pereida, 141 S. Ct. at 764–65. 10
Second, the majority’s reasoning cannot be squared with
the Georgia Supreme Court’s decisions in Simpson and
Johnson. The indictments in those cases did not modify
“shooting” or “striking” allegations with the preposition ‘at.’
See Simpson, 589 S.E.2d at 92–93; Johnson, 637 S.E.2d at
9
The majority is incorrect to claim that Door authorizes its approach.
Maj. Op. at 20 n.10 (citing Door, 917 F.3d at 1151–52). In Door, we did
not evaluate language in an indictment, because the defendant was
convicted under a specific subsection that categorically constituted a
crime of violence. 917 F.3d at 1152–53. Ultimately, the majority offers
no precedent that supports reading an indictment for anything other than
determining whether a defendant “necessarily admitted [the] elements”
of the crime. See Sahagun-Gallegos, 782 F.3d at 1098 (quoting Shepard,
544 U.S. at 26) (emphasis added).
10
For similar reasons, I cannot agree with the majority’s assertion that
the qualifying language in the indictment “is also relevant to the simple
assault element because the indictment states in various separate places
that Barlow used a gun in committing the crime.” Maj Op. at 19 n.11. A
person can commit reasonable-apprehension assault using a gun by, for
example, pointing a gun at a person without any desire to shoot, or by
shooting a gun to scare a victim rather than to make contact. The claim
that the use of a gun implicates attempt-to-injure simple assault involves
a factual determination—not compelled by the allegations in the
indictment—that Barlow used the gun in an attempt to injure his victim.
That factual inference is precisely what the categorical approach forbids.
See Taylor, 495 U.S. at 600; Sahagun-Gallegos, 782 F.3d at 1100–01.
USA V. BARLOW 37
394–95. We are bound by Simpson and Johnson, so the
majority’s attempt to distinguish Carter is misplaced. 11
Third, even assuming we could look to the facts
underlying Barlow’s conviction (we cannot), and assuming
further that Simpson and Johnson were not binding (they
are), the majority’s ‘shooting at’ distinction actually
strengthens the persuasive force of Carter. By alleging that
the defendant shot “at” the victim, 7 F.4th at 1044, the
indictment in Carter alleged that the defendant “direct[ed]”
or “aim[ed]” his shots at the victim. 12 Indeed, in Borden, the
Supreme Court held that a crime of violence is one where the
“perpetrator direct[s] his action at . . . another individual.”
141 S. Ct. at 1825 (emphasis added). Yet Carter still: (1)
held that the “shooting at” allegation did “not reveal which
version of simple assault was the basis for Carter’s
conviction,” 7 F.4th at 1044; and (2) “assume[d] that he was
convicted under the least of the acts criminalized by the
statute—here . . . placing another in apprehension of
receiving a violent injury.” Id. at 1044–45 (cleaned up). Why
would a different result follow from the “shooting” and
“striking” allegations in Barlow’s indictment, when those
allegations are less suggestive of attempt to injure? After all,
one could ‘shoot’ or ‘strike’ someone unintentionally (e.g.,
an inadvertent pull of the trigger), while one would tend to
11
I reiterate: (1) Simpson and Johnson are binding, supra note 5; (2) the
allegations in the Simpson and Johnson indictments are identical to those
in Barlow’s indictment; and (3) Simpson and Johnson hold that such
indictments permissibly allege reasonable-apprehension assault. From
these three indisputable premises, it follows that Barlow’s indictment
alleges reasonable-apprehension aggravated assault.
12
Webster’s II New Riverside Dictionary at 44 (Rev. Ed. 1996)
(explaining that “at” is “[u]sed to indicate direction or aim,” as in “[she]
smiled at him”).
38 USA V. BARLOW
shoot ‘at’ a victim only with purpose. The majority does not
explain this point.
Nor can it. The majority’s attempted distinction is a part
of its overall departure from our precedent applying the
categorical approach. For example, in Castro, a panel of our
Circuit deferred to the Montana Supreme Court’s
interpretation of Montana’s PFMA statute. 71 F.4th at 742–
43. Here, the majority ignores the Georgia Supreme Court’s
decisions in Simpson and Johnson. Maj. Op. at 21–23. And
in Castro, we presumed that the defendant’s conviction
rested upon the lesser of the acts criminalized. 71 F.4th at
739. Again, here, the majority assumes that Barlow’s
conviction rested upon the greater. Maj. Op. at 21–23.
Reading Castro and the majority opinion together, one might
overlook that both were decided by the same Circuit,
purported to apply the same legal framework, and were
decided within mere months of one another.
Respectfully, I am surprised by the majority’s claim that
Castro has “no impact on our analysis” because the court
there “did not apply the modified categorical approach at all
because the statute at issue there was not divisible.” Maj. Op.
at 16 n.5. That distinction is irrelevant. As the Supreme
Court has made clear, the modified categorical approach
does not act “as an exception.” Descamps, 570 U.S. at 263.
Under either the categorical approach or the modified
categorical approach, we must always refrain from
evaluating the facts and we must always presume that the
conviction rested upon the least of the acts criminalized—
which is precisely what we did in Castro. See 71 F.4th at 739
(citing Moncrieffe, 569 U.S. at 190–91).
The majority’s attempt to elude Moncrieffe and Castro
merely because this case involves the modified categorical
USA V. BARLOW 39
approach runs headfirst into this Circuit’s decision in
Marcia-Acosta, 780 F.3d at 1247–56. There, we considered
whether the defendant’s conviction for aggravated assault in
Arizona constituted a crime of violence. Id. at 1247.
Arizona’s aggravated assault statute was divisible because it
included, as alternative elements, intentional, knowing, or
reckless simple assault. Id. at 1247–48. At the defendant’s
plea colloquy, the defendant’s counsel stated that the
defendant had “grabbed a metal bar … hit the victim on the
head, and … caused an injury to the victim’s skull …
intentionally.” Id. at 1247. Relying on that factual-basis
statement, the district court held that the defendant’s
conviction necessarily entailed intentional aggravated
assault, a crime of violence. Id. at 1248.
We vacated the defendant’s sentence and remanded for
resentencing. Id. at 1255–56. Applying the modified
categorical approach, we presumed that the defendant’s
conviction rested upon the least of the acts criminalized:
reckless assault. Id. We disregarded the facts in the Shepard
documents because the defendant was not “required to admit
he acted knowingly or intentionally” to give effect to his
guilty plea. Id. at 1253 (emphasis added). Rather, the
conviction “could have been supported by a finding of
recklessness.” Id. at 1252 (emphasis added). “Thus, in
applying the modified categorical approach, we would be
required to assume that Marcia–Acosta's conviction was for
reckless assault.” Id. at 1252 n.8 (citing Moncrieffe, 569 U.S.
at 190–91) (emphasis added).
The panel concluded:
At bottom, the Shepard documents in this
case at most suggest that Marcia–Acosta
committed the crime of intentional
40 USA V. BARLOW
aggravated assault. They do not show that
Marcia–Acosta was convicted of that crime.
On the contrary, from this record we cannot
say whether he was convicted of the crime of
intentional aggravated assault, the crime of
knowing aggravated assault, or the crime of
reckless aggravated assault.
…
We can say for sure only that the Shepard
documents do not prove that Marcia–Acosta
was convicted of the crime of intentional (or
knowing) aggravated assault, and so the
modified categorical approach is not
satisfied.
Id. at 1255–56 (emphases in original).
And in Sahagun-Gallegos, another case applying the
modified categorical approach to an aggravated assault
conviction, a panel of our Circuit did the same. 782 F.3d at
1098–1100. There, we assumed that the defendant
committed the lowest form of simple assault because the
Shepard documents did not “cite[] a specific subsection” or
“quote[] the elements of a specific subsection” of the simple
assault statute. Id. at 1099. The government claimed that was
irrelevant because the Shepard documents showed that the
defendant “could only have violated” the subsection that
involved a crime of violence. Id. at 1100. We flatly rejected
that argument: “[T]he Government's argument asks us to
adopt an approach that Descamps expressly forbids, namely,
to discover what [the defendant] actually did, and then use
the facts, as opposed to the elements, of his prior conviction
USA V. BARLOW 41
to determine whether he committed a crime of violence.” Id.
(cleaned up).
Therefore, contrary to the majority’s assertion, the
modified categorical approach does not relieve this Court of
its duty—as articulated in Castro—to refrain from
evaluating any facts beyond those required for the
prosecution to obtain the conviction. See id. Where, as here,
Barlow’s conviction “could have been supported by a
finding of [reasonable-apprehension assault],” we are
“required to assume that [Barlow’s] conviction was for
[reasonable-apprehension assault].” See Marcia-Acosta, 780
F.3d at 1252–53 & n.8 (emphases added). The majority’s
refusal to apply the framework in Castro rests on a
meaningless factual distinction that is flatly contradicted by
our precedent.
With respect, I believe the majority today oversteps its
role. It mistakenly asks whether Barlow “committed”
attempt-to-injure assault, rather than whether he was
“convicted” of attempt-to-injure assault. See id. at 1255. The
only thing we can say for sure is that the form of simple
assault underlying Barlow’s conviction is uncertain. A
faithful application of the categorical approach thus compels
us to presume that Barlow’s conviction constituted
reasonable-apprehension assault. I would follow our Circuit
and the Eleventh Circuit’s precedent in so holding.
III.
The majority, concluding that Barlow’s indictment
necessarily alleged attempt-to-injure assault, declines to
decide whether the elements for reasonable-apprehension
aggravated assault are encompassed by the Sentencing
Guidelines’ definition of a crime of violence. Maj. Op. at
19–20 & n.9; Moncrieffe, 569 U.S. at 190–91. Were the
42 USA V. BARLOW
majority to reach the issue, binding precedent would again
tie its hands—Borden answers, “No.”
Recall that the Sentencing Guidelines define a crime of
violence as one that has “as an element, the use, attempted
use, or threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). In Borden, the Supreme
Court clarified the mens rea requirement applicable to a
defendant’s “use, attempted use, or threatened use” of force.
141 S. Ct. at 1821–23. It held that a predicate crime cannot
qualify as a crime of violence unless it requires proof that the
defendant “knowingly” or “purposefully” used, attempted to
use, or threatened to use force. Id. In other words, “a reckless
offense cannot so qualify.” Id. That is because the “‘use of
force’ denotes volitional conduct” of the defendant, and the
use of such force “against” another person “expresses a kind
of directedness or targeting.” Id. at 1825–27. Applying that
reasoning, Borden concluded that Tennessee’s statutory
aggravated assault is not categorically a violent felony
because such an assault can be committed recklessly. Id. at
1821–22.
So too here. To convict Barlow of reasonable-
apprehension aggravated assault, the State of Georgia was
required to prove: (1) an intentional act, which (2) in fact
placed the victim in reasonable apprehension of harm.
Patterson v. State, 789 S.E.2d 175, 175–76 (Ga. 2016) (“All
that is required is that the assailant intend to commit the act
which in fact places another in reasonable apprehension of
injury, not a specific intent to cause such apprehension.”
(cleaned up)). Georgia law imposes no mental culpability
requirement be proven as to the defendant’s actions with
respect of the element of placing a victim in reasonable
apprehension of harm. Id. Reasonable-apprehension
aggravated assault “is a general intent crime, meaning that
USA V. BARLOW 43
the State need not prove that the accused intended to place
another in reasonable apprehension of receiving immediate
bodily injury.” Cruz v. State, 874 S.E.2d 136, 139 (Ga. Ct.
App. 2022).
[P]ursuant to the express language of
[O.C.G.A. § 16-5-20](a)(2), an assault under
that subsection looks to the victim’s state of
mind, rather than the accused’s, to establish
the elements of an assault. There is an intent
of the accused that must be shown, but it is
only the criminal intent to commit the acts
which caused the victim to be reasonably
apprehensive of receiving a violent injury,
not any underlying intent of the accused in
assaulting the victim.
Dunagan v. State, 502 S.E.2d 726, 730 (Ga. 1998) (cleaned
up) (emphases added), overruled on other grounds as
recognized by Holmes v. State, 529 S.E.2d 879, 882 (Ga.
2000). 13 Because reasonable-apprehension aggravated
13
As summarized by a Georgia treatise:
Where the defendant is charged with the reasonable
apprehension type of deadly weapon aggravated
assault, . . . a general intent to injure is not an element
of the offense. Proof of the defendant’s use of a deadly
or offensive weapon which placed the victim in
reasonable apprehension of immediately receiving a
violent injury would be sufficient for conviction. In
this type of deadly or offensive weapon aggravated
assault, the state must show the intention to commit
the act of using the deadly or offensive weapon, not
the intention to make the victims apprehensive.
44 USA V. BARLOW
assault does not require proof of the defendant’s knowing or
purposeful use, attempted use, or threatened use of force,
Borden establishes that such reasonable-apprehension
aggravated assault is not a crime of violence.
To be sure, Georgia adheres to the common law
distinction between “general intent” and “specific intent”
crimes, while Borden instead uses the Model Penal Code’s
culpability standards. See United States v. Bailey, 444 U.S.
394, 404 (1980) (explaining the difference between the
common law and the Model Penal Code approaches for
defining the mental component of criminal culpability);
Borden, 141 S. Ct. at 1823 (citing Bailey, 444 U.S. at 404)
(applying the Model Penal Code approach). In other words,
Borden drew the line at the Model Penal Code’s formulation
of “recklessness.” 141 S. Ct. at 1823. So, applying Borden
requires us to translate the Model Penal Code’s
“recklessness” into Georgia’s common law framework.
Fortunately, Section 2.02 of the Model Penal Code
translates “the common law requirement of ‘general intent’”
into the Model Penal Code’s mental culpability framework.
Model Penal Code § 2.02, Comment 5. According to that
translation, when “the culpability sufficient to establish a
material element of an offense is not prescribed by law, such
element is established if a person acts purposely, knowingly
or recklessly with respect thereto.” Model Penal Code
§ 2.02(3) (emphasis added). Because Georgia law does not
prescribe a mental culpability requirement for the element of
placing the victim in apprehension of harm, Patterson, 789
S.E.2d at 175–76; Dunagan, 502 S.E.2d at 730; Cruz, 874
S.E.2d at 139, the Model Penal Code is clear that that
Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Ga., A58
(2022 ed.) (footnotes omitted) (emphases added).
USA V. BARLOW 45
element can be satisfied through proof of recklessness,
Model Penal Code § 2.02(3). Reasonable-apprehension
aggravated assault can therefore be committed recklessly,
and so is not a crime of violence. Borden, 141 S. Ct. at 1821–
23.
Indeed, the Eleventh Circuit has twice held that a
Georgia conviction for reasonable-apprehension aggravated
assault “cannot qualify as a crime of violence” for this
precise reason. Moss, 920 F.3d at 759; Carter, 7 F.4th at
1043. And Borden cited Moss with approval, 141 S. Ct. at
1823 n.2.
I would therefore join the Eleventh Circuit in concluding
that reasonable-apprehension aggravated assault under
Georgia law is not a crime of violence.
***
As this case demonstrates, the categorical approach can
sometimes produce results which at first appear absurd. But
we are bound by it. And applying it here, Barlow’s Georgia
conviction for aggravated assault must be deemed
reasonable-apprehension assault, which is not a crime of
violence, and which should not have been treated as a crime
of violence by the sentencing court. For this reason, I would
vacate Barlow’s sentence and remand for resentencing.