Reply Brief — Charles Borden, Jr., Petitioner v. United States

No. 19-5410

In the Supreme Court of the United States

CHARLES BORDEN, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

KANNON K. SHANMUGAM

JESSICA A. MORTON

STACIE M. FAHSEL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

NICHOLAS A. HANDLER

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

ERIN P. RUST

Counsel of Record

JENNIFER NILES COFFIN

FEDERAL DEFENDER

SERVICES OF EASTERN

TENNESSEE, INC.

835 Georgia Avenue,

Suite 600

Chattanooga, TN 37402

(423) 756-4349

erin_rust@fd.org

TABLE OF CONTENTS

Page

A. Under the plain meaning of the ACCA’s force

clause, a predicate offense that can be committed

recklessly does not qualify as a ‘violent felony’....................3

B. This Court’s decision in Voisine does not support

the contrary interpretation .....................................................7

C. The ACCA’s context, structure, and history also

support the conclusion that reckless offenses do not

qualify as ‘violent felonies’ ....................................................10

D. The government’s interpretation, not petitioner’s,

would distort the ACCA’s reach ..........................................16

E. The rule of lenity requires interpreting the ACCA’s

force clause to exclude predicate offenses that can be

committed recklessly .............................................................21

Appendix ........................................................................................1a

TABLE OF AUTHORITIES

Cases:

Begay v. United States, 553 U.S. 137 (2008) ............. passim

Johnson v. United States, 559 U.S. 134 (2010) .................. 10

Leocal v. Ashcroft, 543 U.S. 1 (2004) .......................... passim

Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005) ...... 10, 19

Schad v. Arizona, 501 U.S. 624 (1991) ................................ 15

Stokeling v. United States, 139 S. Ct. 544 (2019)............... 14

Sykes v. United States, 564 U.S. 1 (2011) .......................... 11

Taylor v. United States, 495 U.S. 575 (1990) ............... 13, 14

United States v. Castleman, 572 U.S. 157 (2014) ............ 8, 9

United States v. Doe, 960 F.2d 221 (1st Cir. 1992) ............ 10

United States v. Harper, 875 F.3d 329 (6th Cir. 2017),

cert. denied, 139 S. Ct. 53 (2018) ....................................... 6

United States v. Kozminski, 487 U.S. 931 (1988) ............. 21

United States v. Middleton,

883 F.3d 485 (4th Cir. 2018) ........................................... 17

(I)

II

Page

Cases—continued:

United States v. Schneider,

905 F.3d 1088 (8th Cir. 2018) .................................... 14, 18

United States v. Stevens, 559 U.S. 460 (2010) ................... 17

United States v. Stitt, 139 S. Ct. 399 (2018)........................ 14

Voisine v. United States, 136 S. Ct. 2272 (2016) ....... passim

Statutes:

Armed Career Criminal Act:

18 U.S.C. 924(e) ........................................................ passim

18 U.S.C. 924(e)(2)(B)(i) ............................................... 5, 13

18 U.S.C. 924(e)(2)(B)(ii) .................................................. 11

Immigration and Nationality Act, 8 U.S.C. 1101-1537 ..... 19

8 U.S.C. 1101(h)................................................................. 19

8 U.S.C. 1227(a)(2)(E)(i)................................................... 20

Omnibus Consolidated Appropriations Act of 1997,

Pub. L. No. 104-208, §§ 350, 658,

110 Stat. 3009-371, 3009-640 ............................................ 20

18 U.S.C. 16 ....................................................................... 19, 20

18 U.S.C. 16(a) ............................................................... passim

18 U.S.C. 113(a)(3) ................................................................. 19

18 U.S.C. 922(g) ........................................................................ 9

18 U.S.C. 922(g)(9) ..................................................... 7, 8, 9, 20

18 U.S.C. 924(c) ...................................................................... 20

18 U.S.C. App. 1202(c)(8) (Supp. II 1984) ........................... 11

18 U.S.C. App. 1202(c)(9) (Supp. II 1984) ........................... 11

Alaska Stat. § 11.81.610(b) (1983) ........................................ 15

Ark. Code Ann. § 5-22-230(a) (1976) .................................... 15

Tenn. Code Ann. § 39-13-102(a) (2003).................................. 7

Tenn. Code Ann. § 39-13-102(a)(2) (2003) ........................... 11

Va. Code Ann. § 46.2-862 (2019) ........................................... 19

Miscellaneous:

William Blackstone,

Commentaries on the Laws of England (1769) ............ 15

William L. Clark & William L. Marshall,

A Treatise on the Law of Crimes

(Herschel Bouton Lazell ed., 2d ed. 1905) ..................... 14

III

Page

Miscellaneous—continued:

H. Rep. No. 849, 99th Cong., 2d Sess. (1986) ..................... 12

H. Rep. No. 1073, 98th Cong., 2d Sess. (1984) ................... 12

Wayne R. LaFave,

Substantive Criminal Law (3d ed. 2018) ................. 6, 15

Model Penal Code (1985) .................................................. 6, 12

William Oldnall Russell, A Treatise on Crimes and

Indictable Misdemeanors (2d ed. 1828) ........................ 14

S. Rep. No. 307, 97th Cong., 1st Sess. (1981) ..................... 12

U.S. Sentencing Commission,

Mandatory Minimum Penalties for Firearm

Offenses in the Federal Criminal Justice System

(Mar. 2018) <tinyurl.com/mandatorymins> ................ 18

In the Supreme Court of the United States

No. 19-5410

CHARLES BORDEN, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

The government’s construction of the ACCA’s force

clause is inconsistent with the statutory text and would

work a dramatic and unwarranted expansion of the

ACCA’s reach. Remarkably, the government does not

even get to the relevant statutory text until page 23 of its

brief. But the text resolves this case. The critical phrase

in the force clause, “against the person of another,” modifies and limits the phrase “the use * * * of physical

force”: it restricts the use of force to one that is “against,”

or intentionally or knowingly aimed at, another person.

The government contends that the “against” phrase

merely indicates that the object of the force must be a person, rather than property. That contention is foreclosed

(1)

2

by Leocal v. Ashcroft, 543 U.S. 1 (2004), where the Court

made clear that such a phrase does not merely define the

object of the force but establishes the “degree of intent”

that the use of force requires. The government would effectively read the critical “against” phrase out of the force

clause and expand the ACCA’s scope beyond the small

subset of defendants who can fairly be called career criminals.

The government bases its expansive interpretation almost entirely on an improper application of Voisine v.

United States, 136 S. Ct. 2272 (2016), to the ACCA. But

in Voisine, the Court addressed distinct statutory

language in a fundamentally different context. The statute at issue did not contain the key phrase “against the

person of another.” The Court left open the question presented here and, at the government’s behest, took pains

to highlight the distinct features of the domestic-violence

firearms ban. Unlike the statute in Voisine, the ACCA

was intended to impose a severe 15-year mandatory minimum sentence only on the worst offenders. Petitioner’s

interpretation is the only one that accounts for those crucial differences in text and context.

Beyond its reliance on Voisine, the government has

little to say. The government relies on the legislative history of the 1986 amendments to the ACCA, but nowhere

in the legislative history did Congress say it intended to

cover reckless offenses. In fact, the legislative history indicates the opposite. The government’s interpretation

would give the force clause a dramatically broader scope

than Congress intended, by sweeping in a host of unintentional and nonviolent offenses. Petitioner’s interpretation, by contrast, covers only those offenses that demonstrate a likelihood that the defendant will deliberately

point a gun at someone in the future.

3

At a minimum, given that the courts of appeals had for

many years uniformly interpreted the force clause not to

include reckless offenses (without weakening the ACCA

or rendering it ineffective), the government cannot seriously dispute that the force clause is ambiguous and

therefore subject to the rule of lenity. It was only after

Voisine that some courts of appeals, led astray by the government, began to adopt the government’s interpretation.

The Court should correct that erroneous reading of

Voisine and restore the preexisting understanding of the

scope of the force clause. The judgment of the court of

appeals should be reversed.

A. Under The Plain Meaning Of The ACCA’s Force

Clause, A Predicate Offense That Can Be Committed

Recklessly Does Not Qualify As A ‘Violent Felony’

As this Court has recognized in interpreting a materially identical provision, the “critical” and “key” phrase in

the force clause is “against the person * * * of another.” Leocal, 543 U.S. at 9. As a matter of basic grammar, that prepositional phrase modifies the phrase “the

use * * * of physical force.” It thereby defines how the

physical force is used: the force must be used “against,”

or targeted at, another person. That limitation compels

the conclusion that offenses that can be committed recklessly are not covered: a person who has committed a

reckless offense has not directed his use of force at another person.

The government resists that straightforward logic

(Br. 23-26), but its contrary arguments lack merit.

1. The government contends that the phrase “against

the person of another” would be an “exceedingly oblique”

and “roundabout” way for Congress to “limit” the force

clause to intentional or knowing conduct. Br. 23, 26. But

that argument runs headlong into Leocal. There, the

4

Court described the corresponding language as the “critical” and “key” phrase that “most naturally suggests a

higher degree of intent than negligent or merely accidental conduct.” 543 U.S. at 9. The government thus cannot be correct that the “against” phrase has no bearing on

the necessary mens rea, or else Leocal would not have

come out the way it did.

2. The government recognizes that the phrase

“against the person of another” “limits the scope” of the

force clause, but it proceeds to eliminate all meaning from

that limitation. Specifically, it contends that the phrase

merely “exclud[es] many property crimes” and thereby

leaves covered “crimes involving force applied to another

person.” Br. 23.

Leocal squarely forecloses that argument too. The

statute in Leocal differs in one respect from the ACCA’s

force clause: it covers “an offense that has as an element

the use * * * of physical force against the person or

property of another.” 18 U.S.C. 16(a) (emphasis added).

Under the government’s interpretation, the “against”

phrase would denote that Section 16(a) reaches crimes

where the object of the force is either a person or property. But there is no plausible object of force other than

a person or property. On the government’s view, the

“against” phrase was superfluous and could have been

omitted from the statute altogether. Far from giving the

phrase that empty meaning, the Court emphasized that it

was the “critical” and “key” phrase defining the “degree

of intent” that the statute required. Leocal, 543 U.S. at 9.

So too here. In arguing that the phrase “against the

person of another” merely indicates that the object of the

force must be a person as opposed to property, the government focuses narrowly on the single word “against.”

Acknowledging that “against” can “in some contexts

mean ‘opposition,’ ” the government says it merely means

5

“make[] contact with” in the context of “one thing applying force ‘against’ another.” Br. 23.

But that is not the context here. As the government

seemingly acknowledges (Br. 23), the prepositional

phrase “against the person of another” modifies “the use

* * * of physical force.” 18 U.S.C. 924(e)(2)(B)(i) (emphasis added). And “use of force” means the “active employment of force,” Voisine, 136 S. Ct. at 2279—not the

more passive “application” of force that the government

contemplates. Accordingly, the entire phrase “use

* * * of physical force against the person of another”

most naturally refers to the active employment of force

that is directed or aimed at another person. Put another

way, the phrase “against the person of another” introduces the target of “the use * * * of physical force,” and

not merely the object of the force.

The government’s chosen examples illustrate the fatal

flaw with its interpretation. Both of those examples—

waves crashing against the shore and a baseball hitting

against the fence (Br. 23)—involve two objects making

contact with each other without any specified “active employment of force” by an individual. The force clause, by

contrast, reaches “violent, active crimes” in which one

person “use[s] * * * force against” another person.

Leocal, 543 U.S. at 11. It thus plainly contemplates the

directing or aiming of force at another.

3. The sole question that this Court left open in

Leocal is precisely what mens rea the “against” phrase requires—i.e., whether mere recklessness is enough. It is

not, because the “against” phrase requires an actor to target his use of force in a particular way (i.e., to use force

intentionally or knowingly) and thereby excludes uses of

force where the actor is indifferent to the consequences.

6

The government contends (Br. 26) that petitioner’s interpretation would exclude knowing offenses. That is incorrect. When a person acts with knowledge that his conduct will cause a particular result, the law imputes to that

person the intent to cause that result. See 1 Wayne R.

LaFave, Substantive Criminal Law § 5.2(a), at 457 (3d

ed. 2018) (LaFave). While the government correctly

notes that a person can be deemed to have knowledge if

he is “practically certain” of the consequences of his action

(Br. 26), that merely reflects the reality that a person

“cannot of course ‘know’ infallibly that a certain result will

follow from engaging in conduct.” Model Penal Code

§ 2.02 cmt. 3, at 236-237 n.13 (1985). Such a person can be

said to have aimed or directed his action in a way that a

person who is merely reckless (i.e., indifferent to the consequences of his action) cannot.

For that reason, and contrary to the government’s repeated suggestions (Br. 8, 15), the line between recklessness and intent or knowledge is far more “salient” than

the line between recklessness and criminal negligence. As

any first-year law student knows, that distinction is “one

of the more familiar in criminal law.” United States v.

Harper, 875 F.3d 329, 333 (6th Cir. 2017) (Kethledge, J.),

cert. denied, 139 S. Ct. 53 (2018). The Model Penal Code

itself describes that distinction as an “important” one.

Model Penal Code § 2.02 cmt. 3, at 236. An action that an

actor intends or knows will cause harm is different in kind

from an action that merely involves a substantial risk of

harm.

For evidence of that proposition, one need look no further than the assault statutes cited in the government’s

brief (Br. 20 n.4): many of those statutes, including the

Tennessee statute at issue here, group together intentional and knowing assault and define reckless assault as

a distinct and lesser offense subject to lower penalties.

7

See, e.g., Tenn. Code Ann. § 39-13-102(a) (2003). And, as

the government itself recognizes, certain States even

“defin[e] criminal negligence in recklessness terms.” Br.

20 n.5. It is far more intuitive, as well as more consistent

with the statutory text, to distinguish between intentional

or knowing offenses, on the one hand, and reckless or negligent offenses, on the other.

B. This Court’s Decision In Voisine Does Not Support The

Contrary Interpretation

Rather than engaging with the statutory text, the government relies almost entirely on Voisine. See Br. 11-16,

29-31. The Court there expressly left open the question

whether a reckless offense can qualify as a predicate offense under 18 U.S.C. 16(a), the provision at issue in

Leocal (and materially identical to the provision at issue

here). See 136 S. Ct. at 2280 n.4. More broadly, as the

Court recognized, the statute in Voisine differs from the

ACCA’s force clause in numerous critical respects.

1. The provision at issue in Voisine, 18 U.S.C.

922(g)(9), prohibits persons with misdemeanor domesticviolence convictions from possessing firearms. That provision contains the phrase “use * * * of physical force,”

but without the qualifying “against” phrase found in Section 16(a) (and the ACCA’s force clause). Accordingly,

while recognizing that Section 16(a) was “similar[]” to

Section 922(g)(9), the Court took pains to note that it was

interpreting the word “use”—“the only statutory language either party thinks relevant.” 136 S. Ct. at 2278,

2280 n.4.

Nothing in Voisine addressed the “critical” and “key”

phrase in the force clause—“against the person of another”—which modifies and constrains “use of physical

force.” Leocal, 543 U.S. at 9. As a result, in Voisine, the

Court simply did not answer the question presented

8

here—as the Court itself recognized. See 136 S. Ct. at

2280 n.4. Although the “use * * * of physical force”

may encompass volitional conduct where “the actor has

the mental state of * * * recklessness with respect to

the harmful consequences of his volitional conduct,” id. at

2279, the Court made clear in Leocal that the “use * * *

of physical force against the person of another” means

something different.

While the government previously acknowledged that

“important textual difference,” U.S. Br. at 35, Voisine, supra (No. 14-10154); see U.S. Br. at 31, United States v.

Castleman, 572 U.S. 157 (2014) (No. 12-1371), it elides it

now—without acknowledging, much less explaining, its

expedient change in position. The government even accuses the Court of “treat[ing] the statute in [Voisine] as if

it contained a prepositional phrase similar to the

ACCA’s”—quoting the use of the word “against” in the

Court’s opinion. Br. 24 (quoting 136 S. Ct. at 2282). But

the Court did no such thing, not least because it would

have run directly into the reasoning of Leocal. See p. 4,

supra. To the contrary, the Court precisely focused on

the language of the provision at issue and held that it did

not exclude reckless offenses. See Voisine, 136 S. Ct. at

2279.

2. The government does not come to grips with the

different contexts and purposes of Section 922(g)(9) and

the ACCA’s force clause—differences that the Voisine

Court acknowledged could support divergent interpretations. See 136 S. Ct. at 2280 n.4.

As the Court has explained, Section 922(g)(9) was enacted “to ‘close a dangerous loophole’ in the gun control

laws.” Voisine, 136 S. Ct. at 2276 (quoting Castleman, 572

U.S. at 160) (alteration omitted). Recognizing that “the

presence of a firearm increases the likelihood that [domestic violence] will escalate to homicide,” Congress

9

sought to prevent domestic abusers from having the

means of escalation at hand. Castleman, 572 U.S. at 160.

As this Court made clear in construing the two statutes differently in Castleman, however, the ACCA serves

a very different purpose. Although the Court saw “no

anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with the others

whom [Section] 922(g) disqualifies from gun ownership,”

it has “hesitated * * * to apply the Armed Career

Criminal Act to ‘crimes which, though dangerous, are not

typically committed by those whom one normally labels

“armed career criminals” ’ ” and for whom the result is a

dramatically harsher punishment. 572 U.S. at 167 (quoting Begay v. United States, 553 U.S. 137, 146 (2008)).

While excluding reckless domestic-violence offenses from

Section 922(g) would have allowed domestic abusers to

own guns in much of the Nation, see Voisine, 136 S. Ct. at

2275, there is no analogous concern in the context of the

ACCA: individuals who commit felonies are still prohibited from owning guns under Section 922(g), and the only

question is which of those individuals is subject to the

ACCA’s more severe penalties.

The government ignores the foregoing differences in

context, arguing only that it is “unnecessary” to limit the

force clause to intentional and knowing offenses in order

to differentiate “violent felonies” under the ACCA from

“misdemeanor crimes of domestic violence” under Section

922(g)(9). Br. 31. But the different statutory purposes

compel a divergent interpretation—especially given the

different statutory language. Indeed, in order to serve

the statutory purpose of identifying the narrow group of

offenders with an “increased likelihood” of deliberately

pointing a gun at someone in the future, this Court has

already construed the ACCA’s residual clause to reach

10

only offenders who have committed crimes involving “intentional or purposeful conduct” and not those whose

crimes merely “reveal a degree of callousness toward

risk” (such as drunk drivers). Begay, 553 U.S. at 146. Despite the government’s efforts to sweep Begay (like

Leocal) under the carpet, that reasoning applies equally

to the force clause here.

C. The ACCA’s Context, Structure, And History Also Support The Conclusion That Reckless Offenses Do Not

Qualify As ‘Violent Felonies’

The context, structure, and history of the ACCA confirm that the force clause reaches only intentional and

knowing offenses. The government’s contrary arguments

(Br. 16-22, 27-29) lack merit.

1. The ACCA’s context supports petitioner’s interpretation. As the government appears to acknowledge

(Br. 17), the fact that the force clause is situated within “a

statutory definition of ‘violent felony’ ” is critical to the

analysis. Johnson v. United States, 559 U.S. 133, 140

(2010). While the government suggests that the phrase

“violent felony” refers only to the degree of force used by

a defendant (Br. 31), the Court has taken a broader view,

explaining that the phrase “calls to mind a tradition of

crimes that involve the possibility of more closely related,

active violence.” Johnson, 559 U.S. at 141 (quoting

United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992)

(Breyer, C.J.)). As then-Judge Alito explained, “[t]he

quintessential violent crimes * * * involve the intentional use of * * * force,” and crimes that “require[]

only recklessness” do not fall within the “ordinary meaning of the term ‘violent’ crime.” Oyebanji v. Gonzales, 418

F.3d 260, 264 (3d Cir. 2005).

2. The ACCA’s structure points in the same direction. As noted above, in Begay, the Court construed the

11

now-defunct residual clause to reach only offenders who

have committed crimes involving “intentional or purposeful conduct.” See pp. 9-10. It would be incongruous for an

assault offense such as Tennessee’s—which punishes

“[r]ecklessly * * * [c]aus[ing] serious bodily injury to

another,” Tenn. Code Ann. § 39-13-102(a)(2) (2003)—to

satisfy the ACCA’s force clause when it could not have

satisfied a clause encompassing conduct that “presents a

serious potential risk of physical injury to another.” 18

U.S.C. 924(e)(2)(B)(ii).

The government’s contrary argument—that Begay

was concerned only with strict-liability crimes, Br. 28—is

wrong. As the Court has noted, “Begay involved a crime

akin to strict-liability, negligence, and recklessness

crimes.” Sykes v. United States, 564 U.S. 1, 13 (2011).

And as the Court made clear in Begay itself, the ACCA

distinguishes between “purposeful, violent, and aggressive” conduct on the one hand, and conduct that “need not

be purposeful or deliberate” on the other. 553 U.S. at 145.

Perhaps recognizing that its interpretation cannot be

squared with Begay, the government suggests that Congress “could” have intended to impose a lower mentalstate requirement under the force clause than the residual

clause (Br. 28). But that makes little sense, given that the

whole point of the residual clause was to serve as a broad

catch-all.

3. Contrary to the government’s contention (Br. 2829), the ACCA’s history also supports petitioner’s interpretation. The original version of the ACCA, enacted in

1984, expressly defined its predicate offenses—robbery

and burglary—to include intentional conduct. See 18

U.S.C. App. 1202(c)(8)-(9) (Supp. II 1984).

Rather than confronting those definitions head-on, the

government complains (Br. 29) that the evidence of Congress’s intention to limit ACCA predicates to intentional

12

conduct was contained in a 1983 Senate Report addressing an earlier version of the ACCA and that the omnibus

crime bill was not enacted. But that is beside the point:

the incorporated report makes clear that Congress intended to require at least a “knowing” mens rea for the

ACCA’s original predicate crimes. See S. Rep. No. 307,

97th Cong., 1st Sess. 672 (1981). In any event, even if the

1983 Senate Report were discounted, a 1984 House Report affirmed Congress’s desire to cover offenses that

were “deliberately directed against innocent individuals.”

H. Rep. No. 1073, 98th Cong., 2d Sess. 3 (1984) (emphasis

added). The government points to nothing else in the legislative history of the original ACCA that directly addresses the required mens rea.

The government contends that the legislative history

of the original ACCA is not “nearly as illuminating” as the

legislative history from 1986, when Congress amended

the ACCA to its current form. Br. 29. But nothing indicates that Congress’s understanding of the required mens

rea changed when it amended the ACCA. To be sure, the

1986 amendments aimed to expand the qualifying predicate offenses to avoid the incongruity that bank robbery

counted but serious offenses such as “murder [or] rape”

did not. H. Rep. No. 849, 99th Cong., 2d Sess. 3 (1986).

But it does not follow that Congress intended to expand

the ACCA’s scope to include reckless offenses.

The government attempts to insert a recklessness requirement into the ACCA by citing a provision in the

Model Penal Code indicating that recklessness should be

the default mens rea for criminal offenses that do not

specify one. See Br. 15. But Congress did not incorporate

the Model Penal Code into the ACCA. The government

cannot point to any legislative history suggesting that

Congress had that intention, and in fact other materials

13

show that Congress intended the ACCA to apply only to

deliberate offenses. See p. 12, supra.

4. Relying on the history of the ACCA’s amendments, the government contends (Br. 16-22) that, because

members of Congress stated a desire to cover offenses

such as murder, rape, robbery, and felony assault in the

amended version of the ACCA, Congress must have intended to sweep in every variant of those offenses, including variants that can be committed recklessly. That contention is multiply flawed.

a. As a preliminary matter, in the force clause, Congress did not enumerate particular offenses that would

qualify as ACCA predicates, as it did in a neighboring

clause. Instead, Congress covered all “violent felon[ies]”

“having [a] certain common characteristic[],” Taylor v.

United States, 495 U.S. 575, 589 (1990), and it directed

courts to consider whether the offense at issue contained

a particular element: viz., “the use, attempted use, or

threatened use of physical force against the person of another.” 18 U.S.C. 924(e)(2)(B)(i). Congress thus focused

on intentional and knowing violent offenses, thereby addressing those offenders most likely to pull the trigger of

a gun deliberately—the worst of the worst.

b. In addition, the vast majority of States had murder, robbery, and felony-assault offenses at the time of the

1986 amendments that would be covered by the force

clause under petitioner’s interpretation.

i. As to robbery and assault: the government asserts

(Br. 18-20) that “many” States defined robbery and assault to encompass reckless conduct, pointing to 10 States

that had at least one robbery offense and 24 States that

had at least one felony-assault offense that encompassed

reckless conduct. See Br. 18 & n.3, 20 n.4. But that would

not be enough to qualify reckless robbery and assault as

14

violent felonies even if robbery and assault were enumerated offenses. See United States v. Stitt, 139 S. Ct. 399,

406 (2018); United States v. Schneider, 905 F.3d 1088,

1095 (8th Cir. 2018).

More importantly, most States had other robbery and

felony-assault offenses for which intent or knowledge was

required. As to robbery, of the 10 States cited by the government, at least six had discrete robbery offenses that

could be committed intentionally or knowingly. See App.

1a, infra. As to felony assault, at least 35 States had discrete offenses or variants that could be committed intentionally or knowingly. See id. at 1a-4a. And Congress

could well have believed that, even as to the minority of

States that listed a reckless mental state in the same subsection as intentional or knowing mental states, offenders

who committed those offenses intentionally or knowingly

would still be subject to the ACCA. Cf. Taylor, 495 U.S.

at 602 (subsequently adopting the categorical approach).

To the extent the government relies on the common

law of robbery as evidence of what Congress intended to

cover in the force clause, that too provides little support.

The government contends (Br. 17-18) that, at common

law, any theft that resulted in injury constituted a robbery, regardless of the robber’s intent to use force. Common-law robbery consisted of the taking of property with

felonious intent by means of “force” or “violence.” Stokeling v. United States, 139 S. Ct. 544, 550 (2019). As the

government’s own sources make clear, however, the use

of force or violence was not incidental; it was itself an intentional component of the broader intentional act of taking property, and the distinguishing feature between robbery and other larcenies. See William L. Clark & William

L. Marshall, A Treatise on the Law of Crimes 554 (Herschel Bouton Lazell ed., 2d ed. 1905); 2 William Oldnall

15

Russell, A Treatise on Crimes and Indictable Misdemeanors 64 (2d ed. 1828); 4 William Blackstone, Commentaries on the Laws of England 239, 242 (1769).

ii. As to murder: the government again resorts to the

common law. See Br. 21-22. But that has little relevance

here, because American jurisdictions had long since

“modified the common law by legislation classifying murder by degrees.” Schad v. Arizona, 501 U.S. 624, 640

(1991). In most States, the primary distinguishing factor

between the degrees of murder is the defendant’s mens

rea (with first-degree murder typically requiring intent

plus premeditation). 2 LaFave § 14.7, at 648-649.

To the extent States had murder statutes with a mens

rea lower than intent or knowledge, see Br. 21 & n.7, most

of those States defined that variation of murder as a distinct and lesser offense and had separate intentional-murder offenses. See App. 4a-6a, infra. And as the government acknowledges, nearly all of those States required

“extreme” or “depraved indifference” recklessness. Br.

21. This case does not present the question whether that

mens rea is sufficient under the ACCA’s force clause; as

the government itself recently told the Court in a case involving second-degree murder, that mens rea is “not identical” to ordinary recklessness. See Br. in Opp. at 12-13,

Thompson v. United States, No. 19-7217 (Apr. 10, 2020).

iii. The government further notes (Br. 16 n.2) that, at

the time of the 1986 amendments, 16 States had established recklessness as the “default” mens rea for criminal

liability. That is beside the point. Those “default” rules

apply to criminal offenses that lack a statutorily specified

mens rea requirement—typically misdemeanors and nonviolent felonies. See, e.g., Alaska Stat. § 11.81.610(b)

(1983); Ark. Code Ann. § 5-22-230(a) (1976). They usually

do not apply to the small number of “violent felonies” with

which Congress was concerned in the ACCA’s force

16

clause; those offenses ordinarily have specified mens rea

requirements. See p. 14, supra. To the extent that States

have reckless variants of offenses such as robbery and assault, the government offers no reason to believe that

Congress intended to sweep those less serious variants

into the force clause.

D. The Government’s Interpretation, Not Petitioner’s,

Would Distort The ACCA’s Reach

The government advances an expansive interpretation

of the ACCA (Br. 32-45) that would sweep a variety of minor crimes into the ACCA. The government’s efforts to

defend that interpretation, and to identify anomalies with

petitioner’s interpretation, are unavailing.

1. The government’s interpretation of the ACCA

would sweep in reckless drivers, petty thieves, and many

others who cannot plausibly be “label[ed] ‘armed career

criminals’ ” and whose prior convictions do not demonstrate an “increased likelihood” that “the offender is the

kind of person who might deliberately point the gun and

pull the trigger.” Begay, 553 U.S. at 146. Although the

government derides them as “putatively sympathetic corner cases” (Br. 43), petitioner and his amici have identified

a slew of commonplace offenses that would indisputably

qualify as ACCA predicates under the government’s interpretation. See Pet. Br. 37-42; NACDL Br. 6-9; FAMM

Br. 7-17.

In particular, the government’s interpretation would

cover offenses that involve reckless driving resulting in

injury. Beyond noting that reckless driving can sometimes give rise to murder charges, but see p. 15, supra,

the government primarily asserts that “[a]ll but the most

serious reckless drivers” are typically charged with misdemeanors, rather than felonies such as aggravated assault. Br. 39. That assertion is incorrect, as demonstrated

17

by the many cases cited by petitioner and his amici (which

the government mostly ignores). See Pet. Br. 37-42;

FAMM Br. 7-10. But more broadly, this Court has never

credited that sort of “just trust us” argument emanating

from the government, and it should not start now. See,

e.g., United States v. Stevens, 559 U.S. 460, 480 (2010).

Whether an offender receives a 15-year mandatory minimum sentence should not turn on the government’s unsubstantiated assurance that charging decisions, in every

jurisdiction, tend toward leniency.

As for the many other examples of offenses that would

unjustly qualify as ACCA predicates under the government’s interpretation, the government gives them only

cursory consideration, merely suggesting that some

plainly unintentional acts “could” be described as “violent

and aggressive” crimes. Br. 44. But many others cannot.

The government cannot seriously dispute that its interpretation would sweep many “run-of-the-mill criminals”

into the ACCA. United States v. Middleton, 883 F.3d 485,

499 n.3 (4th Cir. 2018) (Floyd, J., joined by Harris, J., concurring).

2. The government contends (Br. 32-35) that petitioner’s interpretation would be underinclusive because it

would exclude certain robbery and assault offenses (and

“possibly” certain murder offenses) from the scope of the

force clause. That policy argument is merely a warmedover version of the government’s legislative-history argument, and it fails for largely the same reason: there is no

support for the premise that Congress intended to cover

every variant of those offenses, including variants that can

be committed recklessly. See pp. 11-12, supra.

At the time of the 1986 amendments, only a subset of

robbery and felony-assault offenses could be committed

recklessly; today, the vast majority of States have discrete intentional or knowing robbery and felony-assault

18

variants or offenses. See App. 6a-11a, infra. Indeed,

courts of appeals applying the categorical approach under

the Sentencing Guidelines have determined—based on

the offenses of a majority of States—that recklessness

does not satisfy the mental-state requirement for generic

“aggravated assault.” See, e.g., Schneider, 905 F.3d at

1095. There is no reason to believe that petitioner’s interpretation will exclude a significant proportion of assault

and robbery offenses.

The best evidence for that? In the decade between

Leocal and Voisine, petitioner’s interpretation of the

force clause was adopted as the uniform rule from coast

to coast. See Pet. Br. 28-29. Yet there is no evidence that

significant categories of offenses were excluded from the

ACCA’s reach during that period; to the contrary, the evidence indicates that courts were imposing ACCA sentences at a consistent rate during that period (and at a

higher rate than in the preceding decade). See U.S. Sentencing Commission, Mandatory Minimum Penalties for

Firearm Offenses in the Federal Criminal Justice System 36 fig. 25 (Mar. 2018) <tinyurl.com/mandatorymins>.

In a related vein, the government suggests (Br. 34)

that it would be “anomalous[]” for the ACCA to cover

threats or attempts to commit injury, while excluding conduct that results in injury. By its terms, however, the

ACCA was concerned not with the fact of injury, but rather with the defendant’s culpability. Again, as this Court

has put it, the ACCA was concerned with identifying the

type of person “who might deliberately point [a] gun and

pull the trigger.” Begay, 553 U.S. at 146. Someone who

threatens or attempts an act of violence is precisely the

kind of person who falls into that category. By contrast,

someone who uses force without an intent to injure, even

if it in fact results in injury, is not engaged in the sort of

19

conduct “typically committed by those whom one normally labels ‘armed career criminals.’ ” Id. at 146, 148.

3. In addition, the government’s interpretation of the

ACCA’s force clause cannot readily be reconciled with

other statutes, whereas petitioner’s can.

a. For purposes of one of its admissibility provisions,

the Immigration and Nationality Act (INA) defines “serious criminal offense” to include both a “crime of violence”

(as defined in Section 16) and “any crime of reckless driving or of driving while intoxicated or under the influence

of alcohol * * * if such crime involves personal injury

to another.” 8 U.S.C. 1101(h). As this Court explained in

Leocal, interpreting Section 16 to include driving-underthe-influence offenses would leave the INA’s separate

enumeration of such offenses “practically devoid of significance.” 543 U.S. at 12; see Oyebanji, 418 F.3d at 264

(Alito, J.). That reasoning applies with equal force here—

even if the government can point to a single State whose

supposed “reckless driving” statute does not in fact require recklessness. See Br. 42 (citing Va. Code Ann.

§ 46.2-862 (2019)).

b. The government contends that the force clause in

Section 16(a) must reach reckless offenses because its legislative history indicates Congress intended to cover the

crimes of threatened or attempted assault and battery in

federal jurisdiction, and petitioner’s interpretation would

exclude the “plainly more serious” crime of assault causing serious bodily injury. Br. 35-36. Again, however,

there is nothing anomalous about that result, because

someone who threatens or attempts assault is more culpable than someone who uses force without an intent to injure. See p. 18, supra. And petitioner’s interpretation

would continue to cover a number of other assaults in federal jurisdiction, such as assault with a dangerous

weapon. See, e.g., 18 U.S.C. 113(a)(3).

20

The government claims (Br. 36) that interpreting the

force clause in Section 16(a) not to include reckless offenses would subvert another INA provision, 8 U.S.C.

1227(a)(2)(E)(i), which renders an alien removable if the

alien is convicted of a Section 16 “crime of violence”

against a person with whom he or she is in a specified domestic relationship. But as explained above, Section 922(g)(9) was a prophylactic measure designed to

keep guns out of the hands of domestic abusers. See pp.

8-9. The government cites no authority indicating that

Section 1227(a)(2)(E)(i)—which can trigger the severe

penalty of removal—was intended to serve a similar purpose or to apply with similar breadth. To the contrary,

Congress enacted both Section 1227(a)(2)(E)(i) and Section 922(g)(9) in the same legislation, and it chose to adopt

Section 16(a)’s “crime of violence” definition for the former but not the latter. See Pub. L. No. 104-208, §§ 350,

658, 110 Stat. 3009-371, 3009-640 (1996).

Finally, the government contends (Br. 36-37) that petitioner’s interpretation would remove federal second-degree murder as a predicate offense from the materially

identical force clause in 18 U.S.C. 924(c), which prohibits

using a firearm in connection with certain offenses. But

the government acknowledges that federal second-degree

murder requires “depraved heart” recklessness, Br. 37,

and that mens rea may be covered by the force clause even

if ordinary recklessness is not. See p. 15, supra. And even

if Congress intended to include second-degree murder

within the scope of Section 924(c), it does not follow that it

also intended to include the many other offenses that can

be committed with the less culpable mental state of ordinary recklessness. It is the government’s interpretation

of the force clause that leads to multiple anomalies and is

untenably overbroad.

21

E. The Rule Of Lenity Requires Interpreting The ACCA’s

Force Clause To Exclude Predicate Offenses That Can

Be Committed Recklessly

Contrary to the government’s contention (Br. 45-46),

the ACCA’s force clause is at a minimum ambiguous. This

Court has already held that the materially identical force

clause in Section 16(a) excludes negligent offenses—with

the Court noting that, if Section 16(a) were ambiguous,

the rule of lenity would require the ambiguity to be resolved in favor of a narrower interpretation. See Leocal,

543 U.S. at 11 n.8. While the government correctly notes

(Br. 46) that the mere existence of a circuit conflict does

not compel application of the rule of lenity, the courts of

appeals had until recently uniformly interpreted the

force clause not to include reckless offenses. The government counters that Voisine not only “corrected [those

courts’] misreading” of the force clause but eliminated any

ambiguity. Br. 46. But that is a singularly odd contention

given that the Court left open the question presented

here. See 136 S. Ct. at 2280 n.4.

Even if, as the government suggests, almost every

court of appeals in this country got it wrong, it is hardly

reasonable to imagine that the average criminal defendant was on fair notice that those courts were all mistaken—particularly given the textual difference between

the statutes at issue in Leocal and Voisine. At a minimum,

therefore, this case should be governed by the “time-honored interpretive guideline” that “uncertainty concerning

the ambit of criminal statutes should be resolved in favor

of lenity.” United States v. Kozminski, 487 U.S. 931, 952

(1988).

*

*

*

*

*

The judgment of the court of appeals should be reversed.

22

Respectfully submitted.

KANNON K. SHANMUGAM

JESSICA A. MORTON

STACIE M. FAHSEL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

NICHOLAS A. HANDLER

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

JULY 2020

ERIN P. RUST

JENNIFER NILES COFFIN

FEDERAL DEFENDER

SERVICES OF EASTERN

TENNESSEE, INC.

835 Georgia Avenue,

Suite 600

Chattanooga, TN 37402

(423) 756-4349

erin_rust@fd.org

APPENDIX

APPENDIX

STATE STATUTES

1. Discrete intentional or knowing robbery offenses

in effect in 1986 in States with reckless robbery offenses:

Hawaii: Haw. Rev. Stat. §§ 708-841(1)(a), (b); Haw.

Laws 2006, ch. 230, § 42 (Westlaw 2006).

Maine: Me. Rev. Stat. Ann. tit. 17-A, § 651(1)(B), (C),

(D) (West 1983).

Montana: Mont. Code Ann. § 45-5-401(1)(b); Mont.

Laws 1995, ch. 482, § 7 (Westlaw 1995).

Pennsylvania:

(1983).

Texas:

1983).

18 Pa. Cons. Stat. § 3701(a)(1)(ii)

Tex. Penal Code Ann. § 29.02(a)(2) (West

Vermont: Vt. Stat. Ann. tit. 13, § 608(a) (1974); see

State v. Powell, 608 A.2d 45, 46 (Vt. 1992).

2. Discrete intentional or knowing felony-assault offenses in effect in 1986:

Alabama: Ala. Code §§ 13A-6-20(a)(1), (2), 13A-621(a)(1), (2) (1982).

Alaska:

Alaska

11.41.210(a)(1) (1983).

Stat.

(1a)

§§ 11.41.200(a)(2),

2a

Arizona: Ariz. Rev. Stat. Ann. §§ 13-1203(A)(2), 131204 (1986).

Colorado: Colo. Rev. Stat. §§ 18-3-202(1)(a), (b), 18-3203(1)(b), (c), (g) (1986).

Connecticut: Conn. Gen. Stat. §§ 53a-59(a)(1), (2),

53a-60(a) (1984); Conn. Legis. Serv. P.A. 92-87, § 1

(Westlaw 1992); Conn. Legis. Serv. P.A. 93-246, § 3

(Westlaw 1992).

Delaware: Del. Code Ann. tit. 11 §§ 612 (1), (2), (4),

(5), 613(1), (2), (5), (6) (1986).

Florida: Fla. Stat. Ann. §§ 784.011(1), 784.021(1)

(1985); see State v. Shorette, 404 So. 2d 816, 817 (Fla. Dist.

Ct. App. 1981).

Georgia: Ga. Code. Ann. § 16-5-21(a)(1); see Rhodes

v. State, 359 S.E.2d 670, 672 (Ga. 1987).

Hawaii: Haw. Rev. Stat. § 707-710(1).

Idaho: Idaho Code §§ 18-901, 18-905 (1979).

Iowa: Iowa Code Ann. § 708.4 (1985).

Kansas: Kan. Stat. Ann. §§ 21-3408, 21-3410(c) (1970).

Kentucky: Ky. Rev. Stat. Ann. §§ 508.010(1)(a),

508.020(1)(a), (b) (1986).

Michigan: Mich. Comp. Law Ann. § 750.82 (1993); see

People v. Johnson, 284 N.W.2d 718, 718-719 (Mich. 1979).

3a

Minnesota: Minn. Stat. Ann. §§ 609.221, 609.222

(1986); Johnson v. State, 421 N.W.2d 327, 330 (Minn. Ct.

App. 1988); State v. Spencer, 298 Minn. 456, 216 N.W.2d

131, 132 (1974).

Mississippi: Miss. Code Ann. § 97-3-7(2)(b) (1986).

Missouri: Mo. Ann. Stat. §§ 565.050(1), 565.052(1),

(2); 2014 Mo. Legis. Serv. S.B. 491, § A.

Montana: Mont. Code Ann. § 45-5-202(1), (2) (1985).

Nebraska: Neb. Rev. Stat. §§ 28-308(1), 28-309(1)(a)

(1985).

New Hampshire: N.H. Rev. Stat. Ann. §§ 631:1(I),

(II), 631:2(IV) (1986).

New Jersey: N.J. Stat. Ann. § 2C:12-1(b)(2) (1985).

New York: N.Y. Penal Law §§ 120.05(1),(2), 120.10(1),

(2) (West 1975).

North Carolina: N.C. Gen. Stat. Ann. § 14-32(a), (c)

(1986).

North Dakota: N.D. Cent. Code § 12.1-17-02(2) (LexisNexis 1991).

Ohio: Ohio Rev. Code Ann. § 2903.12 (1993).

Oregon:

Or. Rev. Stat. §§ 163.175(1)(a), (b),

163.185(1) (1985).

Pennsylvania: Pa. Cons. Stat. Ann. § 2702(a)(3), (4),

(5) (1983).

4a

South Dakota: S.D. Codified Laws § 22-18-1.1(2)-(4)

(1988).

Tennessee: Tenn. Code Ann. § 39-601(b)(2) (Supp.

1980).

Texas: Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)

(West 1986).

Utah: Utah Code Ann. § 76-5-103(1)(a) (1978).

Vermont: Vt. Stat. Ann. tit. 13, § 1024(a)(2); 2005 Vt.

Laws P.A. 83, § 6.

Washington:

Wash. Rev. Code §§ 9A.36.011(1),

9A.36.021(1) (Supp. 1986).

West Virginia: W. Va. Code § 61-2-9; State v. Combs,

280 S.E.2d 809, 810 (W. Va. 1986); see State v. Barrow, 359

S.E.2d 844, 849 (W. Va. 1987).

Wyoming: Wyo. Stat. Ann. § 6-2-502(a)(ii), (iii) (1986).

3. Discrete intentional and reckless murder offenses

in effect in 1986:

Alabama: Ala. Code § 13A-6-2(a)(1), (2) (1982).

Alaska:

Alaska

11.41.110(a)(1), (2) (1983).

Stat.

§§ 11.41.100(a)(1),

Arizona: Ariz. Rev. Stat. Ann. §§ 13-1104(A)(1), (2),

(3), 13-1105(A)(1) (1985).

Colorado: Colo. Rev. Stat. §§ 18-3-102(1)(a), (d), 183-103(1)(a) (1986).

5a

Delaware: Del. Code Ann. tit. 11, § 635(1) (1972); 59

Del. Laws, ch. 203, § 35 (1973); Del. Code Ann. tit. 11,

§ 636(1), (4) (1974); 63 Del. Laws, ch. 354, § 1 (1982).

Florida: Fla. Stat. Ann. § 782.04(1)(a)(1) (1985).

Illinois: 2 Ill. Rev. Stat. ch. 38, § 9-1(a)(1), (2) (1985).

Kentucky: Ky. Rev. Stat. Ann. § 507.020(1)(a), (b)

(1986).

Maine: Me. Rev. Stat. Ann. tit. 17-A, § 201(1)(A), (B)

(Supp. 1986).

Michigan: Mich. Comp. Law §§ 750.316(a), 750.31.

Minnesota: Minn. Stat. §§ 609.195, 609.185(1), (3),

609.19(1), (2) (1986).

Mississippi:

(1983).

Miss. Code Ann. § 97-3-19(1)(a), (b)

Montana: Mont. Code Ann. § 45-5-102(1)(a) (1979);

1981 Mont. Law, ch. 513, § 1.

New Hampshire: N.H. Rev. Stat. §§ 630:1(I), 630:1a(I)(a), 630:1-b(I)(a), (b); State v. Kilgus, 519 A.2d 231, 235

(N.H. 1986); State v. Glidden, 459 A.2d 1136, 11391140 (N.H. 1983).

New Mexico:

(1980).

N.M. Stat. Ann. § 30-2-1(A)(1), (3)

New York: N.Y. Penal Law §§ 125.25(2), 125.27(1)

(1974); People v. Register, 457 N.E. 704, 709-710 (N.Y.

1983), overruled by People v. Feingold, 852 N.E.2d 1163

(N.Y. 2006).

6a

North Dakota:

01(1)(a), (b) (1985).

N.D. Cent. Code Ann. § 12.1-16-

Oklahoma: Okla. Stat. tit. 21, §§ 701.7(A), 701.8(1).

Pennsylvania: 18 Pa. Con. Stat. § 2502(a) (1983).

South Dakota: S.D. Cod. Laws §§ 22-16-7 (1980).

Tennessee: Tenn. Code Ann. § 39-2-201 (1982).

Utah: Utah Code Ann. §§ 76-5-202, 76-5-203(1)(a)-(c)

(1986).

Washington:

Wash.

Rev.

Code

§§ 9A.32.030(1)(a), (b), 9A.32.050(1)(a) (1985).

Ann.

Wisconsin: Wis. Stat. Ann. §§ 940.01(1), 940.02(1)

(1986).

4. Discrete intentional or knowing felony-assault offenses under current law:

Alabama: Ala. Code §§ 13A-6-20(a)(1), (2), 13A-621(a)(1), (2).

Alaska:

Alaska Stat. Ann. §§ 11.41.200(a)(2),

11.41.210(a)(1), 11.41.220(a)(2).

Arizona: Ariz. Rev. Stat. Ann. § 13-1204(B)(1).

Colorado: Colo. Rev. Stat. §§ 18-3-202(1)(a), (b), 183-203(1)(b), (c), (g).

Connecticut: Conn. Gen. Stat. §§ 53a-59(a)(1), (2), (5),

53a-60(a)(1), (2).

7a

Delaware: Del. Code Ann. tit. 11, § 613(a)(1), (2).

Florida: Fla. Stat. Ann. §§ 784.011(1), 784.021(b).

Georgia:

21(a)(1).

Ga. Code Ann. §§ 16-5-20(A)(1), 16-5-

Hawaii: Haw. Rev. Stat. § 707-710(1).

Idaho: Ida. Code §§ 18-901, 18-905; see State v. Larson, 158 Idaho 130, 135-137 (Ct. App. 2014).

Iowa: Iowa Code Ann. § 708.1(2); see State v. Benson,

919 N.W.2d 237, 245 (Iowa 2018).

Kansas: Kan. Stat. Ann. § 21-5412.

Kentucky: Ky. Rev. Stat. Ann. §§ 508.010(1)(a),

508.020(1)(a), (b).

Maryland: Md. Code Ann., Crim. Law § 3-202(a)(1).

Massachusetts: Mass. Gen. Laws ch. 265, § 13A; see

Commonwealth v. Porro, 939 N.E.2d 1157, 1162 (Mass.

2010).

Michigan: Mich. Comp. Law Ann. § 750.82; see People v. Bosca, 871 N.W.2d 307, 325 (Mich. Ct. App. 2015).

Minnesota: Minn. Stat. Ann. §§ 609.02, subd. 10(2),

609.221, 609.222, 609.223; see State v. Fleck, 810 N.W.2d

303, 309 (Minn. 2012).

Mississippi: Miss. Code Ann. § 97-3-7(2)(a)(ii).

Missouri:

Mo. Ann. Stat. §§ 565.050(1)(1),

565.052(1)(1), (2), 565.054(1).

8a

Montana: Mont. Code Ann. § 45-5-202(1).

Nebraska: Neb. Rev. Stat. §§ 28-308(1), 28-309(1)(a).

Nevada: Nev. Rev. Stat. §200.471(1)(a).

New Hampshire: N.H. Rev. Stat. Ann. §§ 631:1(I)(a)(c), 631:2(I)(d), (f).

New Jersey: N.J. Stat. Ann. § 2C:12-1(b)(2).

New Mexico: N.M. Stat. Ann. §§ 30-3-1(A), 30-3-2.

New York:

(2), 120.10(1), (2).

N.Y.

Penal

Law

§§ 120.05(1),

North Carolina: N.C. Gen. Stat. Ann. § 14-32(a), (c).

(c).

North Dakota: N.D. Cent. Code § 12.1-17-02(1)(b),

Ohio: Ohio Rev. Code Ann. § 2903.13(A).

Oregon:

Or. Rev. Stat. §§ 163.165(1)(e), (h),

163.175(1)(a), (b), 163.185(a), (b).

Pennsylvania: 18 Pa. Cons. Stat. § 2702(a)(3)-(5).

South Dakota: S.D. Codified Laws § 22-18-1.1(2), (4).

Tennessee: Tenn. Code Ann. § 39-13-102(a)(1)(A).

(2).

Texas: Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(1),

Vermont: Vt. Stat. Ann. tit. 13, § 1024(a)(2), (3)

Washington: Wash. Rev. Code Ann § 9A.36.011.

9a

West Virginia: W. Va. Code § 61-2-9(a); see State v.

Barrow, 359 S.E.2d 844, 849 (W. Va. 1987).

Wyoming: Wyo. Stat. Ann. § 6-2-502(a)(ii).

5. Discrete intentional or knowing robbery offenses

under current law:

Alabama: Ala. Code § 13A-8-43.

Alaska: Alaska Stat. § 11.41.510.

Arizona: Ariz. Rev. Stat. Ann. § 13-1902.

Arkansas: Ark. Code Ann. § 5-12-102.

California: Cal. Penal Code § 211; see People v. Jackson, 376 P.3d 528, 583 (Cal. 2016).

Colorado: Colo. Rev. Stat. § 18-4-301; see People v.

DeGreat, 428 P.3d 541, 545-556 (Colo. 2018).

Connecticut: Conn. Gen. Stat. Ann. § 53a-133.

Delaware: Del. Code Ann. tit. 11, § 831.

Florida: Fla. Stat. Ann. § 812.13; see Perkins v. State,

814 So.2d 1177, 1178 (Fla. Dist. Ct. App. 2002).

Hawaii: Haw. Rev. Stat. §§ 708-840(1)(a)-(c), 708841(1)(a), (b).

Idaho: Idaho Code § 18-6501; see State v. Martinez,

988 P.2d 710, 713 (Ida. 1999).

Illinois: Ill. Rev. Stat. ch. 38, para. 18-1.

10a

Iowa: Iowa Code § 711.1.

Kentucky: Ky. Rev. Stat. Ann. § 515.030.

Maine: Me. Rev. Stat. Ann. tit. 17-A, § 651(1)(B).

Maryland: Md. Code Ann., Crim. Law § 3-401; see

Fetrow v. State, 847 A.2d 1249, 1257 (Md. Ct. Spec. App.

2004).

Minnesota: Minn. Stat. § 609.24.

Mississippi: Miss. Code Ann. § 97-3-73.

Missouri: Mo. Rev. Stat. §§ 570.023, 570.025; see id.

§ 562.021(3).

Montana: Mont. Code Ann. § 45-5-401(1)(b).

Nebraska: Neb. Rev. Stat. § 28-324.

Nevada: Nev. Rev. Stat. Ann. § 200.380.

New Hampshire: N.H. Rev. Stat. Ann. § 636:1(I)(b).

New Jersey: N.J. Stat. Ann. § 2C:15-1; see id. § 2C:22(c).

New York: N.Y. Penal Law § 160.00.

Oklahoma: Okla. Stat. tit. 21, § 792.

Oregon: Or. Rev. Stat. § 164.395.

Pennsylvania: Pa. Cons. Stat. § 3701(a)(1)(ii).

Tennessee: Tenn. Code Ann. § 39-13-401; see State v.

Owens, 20 S.W.3d 634, 638 (Tenn. 2000).

11a

Texas: Tex. Penal Code Ann. § 29.02(a)(2).

Utah: Utah Code Ann. § 76-6-301.

Vermont: Vt. Stat. Ann. tit. 13, § 608; State v. Powell,

608 A.2d 45, 46 (Vt. 1992).

Virginia: Va. Code Ann. § 18.2-58.

Washington: Wash. Rev. Code § 9A.56.190.

West Virginia: W. Va. Code § 61-2-12; see State v.

Harless, 285 S.E.2d 461, 463 (1981).

Wisconsin: Wis. Stat. Ann. § 943.32.

Wyoming: Wyo. Stat. § 6-2-401(a)(ii).