Petition for Writ of Certiorari — John Lee Barlow, Petitioner v. United States

Supreme Court briefApr 4, 2024

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APPENDIX A

United States v. Barlow,

83 F.4th 773 (9th Cir. 2023)

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

83 F.4th 773

United States Court of Appeals, Ninth Circuit.

UNITED STATES of

America, Plaintiff-Appellee,

John Lee BARLOW, Defendant-Appellant.

No.22-30030

Argued and Submitted June

6, 2023 Seattle, Washington

Filed October 4, 2023

Synopsis

Background: Defendant pled guilty in the

United States District Court for the District of

Montana, Donald W. Molloy, J., to possessing

a firearm as a felon, and was sentenced to 77

months in prison followed by three years of

supervised release. Defendant appealed.

Holdings: The Court of Appeals, Callahan,

Circuit Judge, held that:

lack of jury determination of sentencing

enhancement for possessing firearm in

connection with another felony did not violate

Sixth Amendment or due process;

evidence supported sentencing enhancement

for using or possessing firearm in connection

with another felony; and

prior Georgia conviction for aggravated assault

was a crime of violence warranting increase in

base offense level.

Affirmed.

Bea, Senior Circuit Judge, filed opinion

concurring in part, dissenting in part, and

dissenting in judgment.

Procedural Posture(s): Appellate Review;

Sentencing or Penalty Phase Motion or

Objection.

*776 Appeal from the United States District

Court for the District of Montana, Donald W.

Molloy, District Judge, Presiding, D.C. No.

9:21-cr-00040-DWM-1

Attorneys and Law Firms

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.

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

OPINION

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and

Alleyne v. United States, 570 U.S. 99, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013). Second,

Barlow asserts that the application of a fourlevel enhancement was clear error because the

finding that Barlow used or possessed a 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.

*777 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 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

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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 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, semiautomatic pistol in his bedroom matching the

description of *778 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. 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

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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 fourlevel 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-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 *779 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 district court

further found that Barlow's base offense level

should be reduced by two levels for acceptance

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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.

United States v. Hunt, 656 F.3d 906, 911

(9th Cir. 2011). The Guidelines provide for a

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

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. at 466, 120 S.Ct.

2348, and Alleyne, 570 U.S. at 99, 133 S.Ct.

2151; (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.

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.

*780 See

United States v. Lonich, 23

F.4th 881, 910 (9th Cir. 2022); see also

Rita v. United States, 551 U.S. 338, 352,

127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

Moreover, there is no basis for extending the

reasoning of

Apprendi and

Alleyne to

Barlow's circumstance. Specifically, there is

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

no mandatory 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, 117 S.Ct. 633, 136

L.Ed.2d 554 (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, 115 S.Ct. 2199, 132 L.Ed.2d 351

(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

nor

Apprendi

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.

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. GascaRuiz, 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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)

(citations omitted). An even greater deference

is due where, as here, the district court weighs

the credibility of a witness.

S.Ct. 1504.

Id. at 575, 105

The district court found that Barlow used or

possessed a firearm in connection with the

felony of assault with a weapon *781 under

Mont. Code Ann. § 45-5-213(1)(b), which

provides that a person commits that offense

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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 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, 322 Mont. 206, 95 P.3d 137, 143

(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 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

(B).

U.S.S.G. § 2K2.1(b)(6)

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

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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” *782 (also known as

the “force clause”). 4 Under that definition, a

crime 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, 136 S.Ct. 2243,

195 L.Ed.2d 604 (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. United States, 544 U.S. 13, 26,

125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We

then apply the elements clause to the specific

crime of conviction to determine whether it

qualifies as a “crime of violence.”

F.3d at 1152.

Door, 917

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, 789 S.E.2d

175 (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.”

16-5-20(a).

O.C.G.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:

*783 with the offense of

AGGRAVATED ASSAULT

for that the said accused ...

did unlawfully make an

assault upon the person

of Crushon Person, with a

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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 ....

type of simple assault formed the basis for

his conviction—attempting to commit a violent

(emphasis added). Count Two charged Barlow:

Moncrieffe v. Holder, 569 U.S. 184, 190–

91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013).

He contends this does not qualify as a “crime

of violence” under the elements clause. See

with

the

offense

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

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

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

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 it “does not require proof of specific

intent.”

Patterson, 299 Ga. at 493, 789

S.E.2d 175. 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 ––– U.S. ––––,

141 S. Ct. 1817, 1821–22, 210 L.Ed.2d 63

(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

F.3d at 758;

Moss, 920

Carter, 7 F.4th at 1043.

*784 Barlow's approach may be logical, but

we need not decide whether a reasonable

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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

said handgun,” 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

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 can

aver a reasonable apprehension assault, see,

e.g., Jordan v. State, 322 Ga.App. 252, 744

S.E.2d 447, 451 (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, 350 Ga.App. 763, 830

S.E.2d 296, 299–300 (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, 141 Ga.App. 848, 234 S.E.2d

685, 686–87 (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, 281

Ga. 229, 637 S.E.2d 393 (2006); Chase v.

State, 277 Ga. 636, 592 S.E.2d 656 (2004);

Simpson v. State, 277 Ga. 356, 589 S.E.2d

90 (2003). But these cases do not support

his assertion. Rather, what *785 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 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,

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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;

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 fourlevel 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 *786 prior Georgia conviction for

aggravated assault was a “crime of violence.”

AFFIRMED.

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, DefendantAppellant 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,

117 S.Ct. 633, 136 L.Ed.2d 554 (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

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

affirms. But because the categorical approach

demands a contrary result, I would vacate

Barlow's sentence and remand for resentencing.

I respectfully dissent.

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 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, 133 S.Ct. 2276, 186

L.Ed.2d 438 (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,

120 S.Ct. 2348, 147 L.Ed.2d 435 (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, ––– U.S.

––––, 139 S. Ct. 2369, 2376, 204 L.Ed.2d 897

(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, 110 S.Ct.

2143, 109 L.Ed.2d 607 (1990). As the Court

recognized, when a crime covers a range of

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

conduct, it is often impossible to decipher

the precise facts which the jury found proven

beyond a reasonable doubt. *787 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, 120 S.Ct. 2348. 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, 110 S.Ct. 2143; 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”).

factual basis of the prior

plea, and the dispute raises

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.

Shepard v. United States, the Supreme

Court made this point clear. 544 U.S. 13, 25–

26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (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

544 U.S. 13, 25–26, 125 S.Ct. 1254, 161

L.Ed.2d 205 (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, 133 S.Ct. 1678, 185 L.Ed.2d

727 (2013) (cleaned up).

To be sure, faithfully applying this required

categorical approach sometimes yields odd

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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”). ––– U.S.

––––, 141 S. Ct. 1817, 1821, 210 L.Ed.2d 63

(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 F.4th 735, 744 (9th Cir.

2023). There, we noted that “federal courts

hate the categorical *788 approach” because

“[i]t frequently produces absurd results.”

at 738 n.2.

Id.

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, 110 S.Ct. 2143,

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 ‘reasonableapprehension’ assault, respectively.

The parties appear to agree that attempt-toinjure 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 reasonableapprehension assault instead of attempt-toinjure assault; and (B) whether reasonableapprehension aggravated assault qualifies as a

crime of violence. I address each issue in turn.

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, 133 S.Ct. 2276.

Because all agree that they are divisible, Maj.

Op. at 782, 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

544 U.S. at 26, 125 S.Ct. 1254.

Shepard,

Importantly, reviewing the

Shepard

documents does “not permit courts to substitute

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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, 133 S.Ct. 2276

(“The modified approach thus acts not as an

exception, but a tool.”). Rather, in the case

of a guilty plea, we use *789 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, 125 S.Ct. 1254

(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, 133 S.Ct. 1678 (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, 110 S.Ct. 2143 (creating

the categorical approach and explaining that

it forbids examination of “facts 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, ––– U.S. ––––, 141

S. Ct. 754, 764–65, 209 L.Ed.2d 47 (2021);

Shepard, 544 U.S. at 26, 125 S.Ct. 1254.

And on that question, Barlow's indictment

is silent. It does not clarify whether he

was alleged to have committed attemptto-injure or reasonable-apprehension assault.

Because the indictment provides no clarity,

we must assume Barlow's conviction rested

upon the less-culpable conduct: reasonableapprehension assault.

at 1822;

Borden, 141 S. Ct.

Moncrieffe, 569 U.S. at 190–91,

133 S.Ct. 1678; 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 784. In other words,

according to the majority, the allegations in

Barlow's indictment would not authorize a

jury to convict for reasonable-apprehension

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

aggravated assault. Maj. Op. at 784. 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

*790 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 attemptto-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 reasonableapprehension 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.”

393, 394 (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 reasonableapprehension assault. Id. And—again—the

Georgia Supreme Court 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. at 190–91, 133

S.Ct. 1678 (cleaned up) (emphasis added), 7

which here is reasonable-apprehension *791

aggravated assault. 8

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.

281 Ga. 229, 637 S.E.2d

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

Inc. v. Pro Arts, Inc., 652 F.2d 278, 281–84 (2nd

Cir. 1981).

United States v. Carter, the Eleventh

Circuit employed the modified categorical

approach to determine whether an indictment

for “shooting at” a victim constituted attemptto-injure assault or reasonable-apprehension

assault 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 784-85. 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 784-85. 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 784-85. 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,

133 S.Ct. 2276 (emphasis added); MarciaAcosta, 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” to give

weight to an element—contact—that is not

an element of Barlow's crime of conviction.

*792 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.

141 S. Ct. at 764–65.

Pereida,

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

92–93;

Simpson, 589 S.E.2d at

Johnson, 637 S.E.2d at 394–95. We

are bound by

Simpson and Johnson, so the

majority's attempt to distinguish

misplaced. 11

Carter is

Third, even assuming we could look to the facts

underlying Barlow's conviction (we cannot),

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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

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

shoot ‘at’ *793 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 784-86.

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 784-86. 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 782 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, 133 S.Ct. 2276.

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

F.4th at 739 (citing Moncrieffe, 569 U.S. at

190–91, 133 S.Ct. 1678).

The majority's attempt to elude

Moncrieffe

and

Castro merely because this case

involves the modified categorical approach

runs headfirst into this Circuit's decision

Marcia-Acosta, 780 F.3d at 1247–56.

There, we considered whether the defendant's

conviction for aggravated assault in Arizona

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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, 133 S.Ct. 1678) (emphasis

added).

The panel concluded:

At bottom, the

Shepard documents in

this case at most suggest that Marcia–

Acosta committed the crime of intentional

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 *794 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

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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 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 [reasonableapprehension 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-toinjure 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 783-84 & n.9;

Moncrieffe, 569 U.S. at 190–91, 133 S.Ct.

1678. Were the 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” *795

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

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

violent felony because such an assault can be

committed recklessly.

Id. at 1821–22.

So too here. To convict Barlow of reasonableapprehension 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, 299 Ga. 491, 789 S.E.2d

175, 175–76 (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 the

State need not prove that the accused intended

to place another in reasonable apprehension

of receiving immediate bodily injury.” Cruz v.

State, 364 Ga.App. 96, 874 S.E.2d 136, 139

(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, 269 Ga. 590, 502 S.E.2d

726, 730 (1998) (cleaned up) (emphases

added), overruled on other grounds as

recognized by

Holmes v. State, 272 Ga.

517, 529 S.E.2d 879, 882 (2000). 13 Because

reasonable-apprehension aggravated 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, 100 S.Ct. 624, 62 L.Ed.2d

575 (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, 100

S.Ct. 624) (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, *796

applying

Borden requires us to translate

the Model Penal Code's “recklessness” into

Georgia's common law framework.

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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 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.

S. Ct. at 1821–23.

Borden, 141

Indeed, the Eleventh Circuit has twice held

that a Georgia conviction for reasonableapprehension aggravated assault “cannot

qualify as a crime of violence” for this precise

reason.

Moss, 920 F.3d at 759;

F.4th at 1043. And

approval,

Borden cited

Carter, 7

Moss with

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.

All Citations

83 F.4th 773, 2023 Daily Journal D.A.R. 10,082

Footnotes

The PSR also identified two prior felony convictions in New Jersey related to

possession and distribution of cocaine. The district court's 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.

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

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

firearm fall out of the truck onto the ground. Barlow's counsel represents, without a

record cite, that this second firearm was ultimately determined to be a pellet gun.

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.

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 “crime of violence” under

the Guidelines, we need not discuss it here given our conclusion that the elements

clause applies.

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.

Cir. 2023).

71 F.4th 735, 738 n.3 (9th

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.

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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).

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

(2).

U.S.S.G. § 4A1.2(a)

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).

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 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.

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.

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).

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

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, 120 S.Ct. 2348.

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.”

71 F.4th at 738 n.2 (cleaned up).

Castro,

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,

133 S.Ct. 2276. 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, 277 Ga.

356, 589 S.E.2d 90, 93 (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”).

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, 110 S.Ct. 2143.

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, 130 S.Ct. 1265, 176

L.Ed.2d 1 (2010); Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138

L.Ed.2d 108 (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.”).

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 785 – ––––

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

(quoting Johnson, 637 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 attemptto-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 reasonableapprehension 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

784-85.

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 784-85. 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,

133 S.Ct. 1678. 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, 133 S.Ct. 1678)

(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).

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)).

The majority is incorrect to claim that

Door authorizes its approach. Maj. Op. at 784

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”

United States v. Barlow, 83 F.4th 773 (2023)

2023 Daily Journal D.A.R. 10,082

of the crime. See Sahagun-Gallegos, 782 F.3d at 1098 (quoting

U.S. at 26, 125 S.Ct. 1254) (emphasis added).

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 reasonableapprehension 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

110 S.Ct. 2143;

Shepard, 544

I reiterate: (1)

in the

Taylor, 495 U.S. at 600,

Sahagun-Gallegos, 782 F.3d at 1100–01.

Simpson and Johnson are binding, supra note 5; (2) the allegations

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.

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”).

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.

Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Ga., A58 (2022 ed.)

(footnotes omitted) (emphases added).

End of Document

APPENDIX B

United States v. Barlow,

CA 22-30030, Order Denying Petition for Rehearing En Banc

Case: 22-30030, 01/05/2024, ID: 12844655, DktEntry: 49, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

JAN 5 2024

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

22-30030

D.C. No.

9:21-cr-00040-DWM-1

District of Montana,

Missoula

JOHN LEE BARLOW,

ORDER

Defendant-Appellant.

Before: SCHROEDER, CALLAHAN, and BEA, Circuit Judges.

Judge Callahan votes to deny the petition for rehearing en banc and Judge

Schroeder recommends denial. Judge Bea recommends granting the petition for

rehearing en banc. The full court has been advised of the petition for rehearing en

banc and no judge has requested a vote on whether to rehear the matter en banc.

Fed. R. App, P. 35. The petition for rehearing en banc is denied.

APPENDIX C

Amendment V, United States Constitution

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use, without just

compensation.

APPENDIX D

Amendment VI, United States Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his defence.

APPENDIX E

United States Sentencing Guidelines § 4B1.2

§ 4B1.2. Definitions of Terms Used in Section 4B1.1, FSG § 4B1.2

United States Code Annotated

Federal Sentencing Guidelines (Refs & Annos)

Chapter Four. Criminal History and Criminal Livelihood (Refs & Annos)

Part B. Career Offenders and Criminal Livelihood

USSG, § 4B1.2, 18 U.S.C.A.

§ 4B1.2. Definitions of Terms Used in Section 4B1.1

Currentness

(a) Crime of Violence.--The term “crime of violence” means any offense under federal or state

law, punishable by imprisonment for a term exceeding one year, that-(1) has as an element the use, attempted use, or threatened use of physical force against the

person of another; or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense,

robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C.

§ 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

(b) Controlled Substance Offense.--The term “controlled substance offense” means an offense

under federal or state law, punishable by imprisonment for a term exceeding one year, that-(1) prohibits the manufacture, import, export, distribution, or dispensing of a controlled

substance (or a counterfeit substance) or the possession of a controlled substance (or a

counterfeit substance) with intent to manufacture, import, export, distribute, or dispense; or

(2) is an offense described in 46 U.S.C. § 70503(a) or § 70506(b).

defendant committed the instant offense of conviction subsequent to sustaining at least two felony

convictions of either a crime of violence or a controlled substance offense (i.e., two felony

convictions of a crime of violence, two felony convictions of a controlled substance offense, or

§ 4B1.2. Definitions of Terms Used in Section 4B1.1, FSG § 4B1.2

one felony conviction of a crime of violence and one felony conviction of a controlled substance

offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted

separately under the provisions of § 4A1.1(a), (b), or (c). The date that a defendant sustained a

conviction shall be the date that the guilt of the defendant has been established, whether by guilty

plea, trial, or plea of nolo contendere.

(d) Inchoate Offenses Included.--The terms “crime of violence” and “controlled substance

offense” include the offenses of aiding and abetting, attempting to commit, or conspiring to commit

any such offense.

(e) Additional Definitions.-(1) Forcible Sex Offense.--“Forcible sex offense” includes where consent to the conduct is not

given or is not legally valid, such as where consent to the conduct is involuntary, incompetent,

or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the

sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. 2241(c)

or (B) an offense under state law that would have been an offense under section 2241(c) if the

offense had occurred within the special maritime and territorial jurisdiction of the United States.

(2) Extortion.--“Extortion” is obtaining something of value from another by the wrongful use

of (A) force, (B) fear of physical injury, or (C) threat of physical injury.

(3) Robbery.--“Robbery” is the unlawful taking or obtaining of personal property from the

person or in the presence of another, against his will, by means of actual or threatened force,

or violence, or fear of injury, immediate or future, to his person or property, or property in his

custody or possession, or the person or property of a relative or member of his family or of

anyone in his company at the time of the taking or obtaining. The phrase ‘actual or threatened

force’ refers to force that is sufficient to overcome a victim's resistance.

(4) Prior Felony Conviction.--“Prior felony conviction” means a prior adult federal or state

conviction for an offense punishable by death or imprisonment for a term exceeding one year,

regardless of whether such offense is specifically designated as a felony and regardless of the

actual sentence imposed. A conviction for an offense committed at age eighteen or older is

an adult conviction. A conviction for an offense committed prior to age eighteen is an adult

conviction if it is classified as an adult conviction under the laws of the jurisdiction in which

the defendant was convicted (e.g., a federal conviction for an offense committed prior to the

§ 4B1.2. Definitions of Terms Used in Section 4B1.1, FSG § 4B1.2

defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded

against as an adult).

CREDIT(S)

(Effective November 1, 1987; amended effective January 15, 1988; November 1, 1989;

November 1, 1991; November 1, 1992; November 1, 1995; November 1, 1997; November 1, 2000;

November 1, 2002; November 1, 2004; November 1, 2007; November 1, 2009; November 1, 2015;

August 1, 2016; November 1, 2023.)

COMMENTARY

<1. Further Considerations Regarding “Crime of Violence” and “Controlled

Substance Offense”.--For purposes of this guideline-- >

<Unlawfully possessing a listed chemical with intent to manufacture a controlled

substance (21 U.S.C. § 841(c)(1)) is a “controlled substance offense.”>

<Unlawfully possessing a prohibited flask or equipment with intent to manufacture a

controlled substance (21 U.S.C. § 843(a)(6)) is a “controlled substance offense.”>

<Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. §

856) is a “controlled substance offense” if the offense of conviction established that the

underlying offense (the offense facilitated) was a “controlled substance offense.”>

<Using a communications facility in committing, causing, or facilitating a drug offense

(21 U.S.C. § 843(b)) is a “controlled substance offense” if the offense of conviction

established that the underlying offense (the offense committed, caused, or facilitated)

was a “controlled substance offense.”>

<A violation of 18 U.S.C. § 924(c) or § 929(a) is a “crime of violence” or a “controlled

substance offense” if the offense of conviction established that the underlying offense

was a “crime of violence” or a “controlled substance offense”. (Note that in the case of

a prior 18 U.S.C. § 924(c) or § 929(a) conviction, if the defendant also was convicted

of the underlying offense, the sentences for the two prior convictions will be treated as

a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal

History).)>

§ 4B1.2. Definitions of Terms Used in Section 4B1.1, FSG § 4B1.2

<2. Offense of Conviction as Focus of Inquiry.--Section 4B1.1 (Career Offender)

expressly provides that the instant and prior offenses must be crimes of violence or

controlled substance offenses of which the defendant was convicted. Therefore, in

determining whether an offense is a crime of violence or controlled substance for the

purposes of § 4B1.1 (Career Offender), the offense of conviction (i.e., the conduct of

which the defendant was convicted) is the focus of inquiry.>

<3. Applicability of § 4A1.2.--The provisions of § 4A1.2 (Definitions and Instructions

for Computing Criminal History) are applicable to the counting of convictions under §

4B1.1.>

<4. Upward Departure for Burglary Involving Violence.--There may be cases in

which a burglary involves violence, but does not qualify as a “crime of violence”

as defined in § 4B1.2(a) and, as a result, the defendant does not receive a higher

offense level or higher Criminal History Category that would have applied if the

burglary qualified as a “crime of violence.” In such a case, an upward departure may

be appropriate.>

Notes of Decisions (781)

Federal Sentencing Guidelines, § 4B1.2, 18 U.S.C.A., FSG § 4B1.2

As amended to 3-15-22.

End of Document

APPENDIX F

Official Code of Georgia, §16-5-20

§ 16-5-20. Simple assault, GA ST § 16-5-20

West's Code of Georgia Annotated

Title 16. Crimes and Offenses (Refs & Annos)

Chapter 5. Crimes Against the Person (Refs & Annos)

Article 2. Assault and Battery (Refs & Annos)

Ga. Code Ann., § 16-5-20

§ 16-5-20. Simple assault

Effective: July 1, 2021

Currentness

(a) A person commits the offense of simple assault when he or she either:

(1) Attempts to commit a violent injury to the person of another; or

(2) Commits an act which places another in reasonable apprehension of immediately receiving

a violent injury.

(b) Except as provided in subsections (c) through (h) of this Code section, a person who commits

the offense of simple assault shall be guilty of a misdemeanor.

shall, upon conviction thereof, be punished for a misdemeanor of a high and aggravated nature.

For purposes of this Code section, “public transit vehicle” means a bus, van, or rail car used for

the transportation of passengers within a system which receives a subsidy from tax revenues or is

operated under a franchise contract with a county or municipality of this state.

(d) If the offense of simple assault is committed between past or present spouses, persons who are

parents of the same child, parents and children, stepparents and stepchildren, foster parents and

foster children, or other persons excluding siblings living or formerly living in the same household,

the defendant shall be punished for a misdemeanor of a high and aggravated nature. In no event

shall this subsection be applicable to corporal punishment administered by a parent or guardian to

a child or administered by a person acting in loco parentis.

§ 16-5-20. Simple assault, GA ST § 16-5-20

(e) Reserved.

(f) Any person who commits the offense of simple assault against an employee of a public school

system of this state while such employee is engaged in official duties or on school property shall,

upon conviction of such offense, be punished for a misdemeanor of a high and aggravated nature.

For purposes of this Code section, “school property” shall include public school buses and stops

for public school buses as designated by local school boards of education.

(g) Any person who commits the offense of simple assault against a female who is pregnant at

the time of the offense shall, upon conviction thereof, be punished for a misdemeanor of a high

and aggravated nature.

(h) Nothing in this Code section shall be construed to permit the prosecution of:

(1) Any person for conduct relating to an abortion for which the consent of the pregnant woman,

or person authorized by law to act on her behalf, has been obtained or for which such consent

is implied by law;

(2) Any person for any medical treatment of the pregnant woman or her unborn child; or

(3) Any woman with respect to her unborn child.

For the purposes of this subsection, the term “unborn child” means a member of the species homo

sapiens at any stage of development who is carried in the womb.

Credits

Laws 1833, Cobb's 1851 Digest, p. 787; Laws 1968, p. 1249, § 1; Laws 1991, p. 971, §§ 1, 2;

Laws 1999, p. 381, § 2; Laws 1999, p. 562, § 2; Laws 2004, Act 560, § 1, eff. July 1, 2004; Laws

2005, Act 19, § 16, eff. April 7, 2005; Laws 2006, Act 654, § 1, eff. July 1, 2006; Laws 2021,

Act 190, § 1, eff. July 1, 2021.

§ 16-5-20. Simple assault, GA ST § 16-5-20

Formerly Code 1863, §§ 4256, 4257; Code 1868, §§ 4291, 4292; Code 1873, §§ 4357, 4358;

Code 1882, §§ 4357, 4358; Penal Code 1895, §§ 95, 96; Penal Code 1910, §§ 95, 96; Code 1933,

§§ 26-1401, 26-1402; Code 1933, § 26-1301.

Notes of Decisions (292)

Ga. Code Ann., § 16-5-20, GA ST § 16-5-20

The statutes and Constitution are current through legislation passed at the 2023 Regular Session

of the Georgia General Assembly. Some sections may be more current, see credits for details. The

statutes are subject to changes by the Georgia Code Commission.

End of Document

APPENDIX G

Official Code of Georgia, § 16-5-21

§ 16-5-21. Aggravated assault, GA ST § 16-5-21

West's Code of Georgia Annotated

Title 16. Crimes and Offenses (Refs & Annos)

Chapter 5. Crimes Against the Person (Refs & Annos)

Article 2. Assault and Battery (Refs & Annos)

Ga. Code Ann., § 16-5-21

§ 16-5-21. Aggravated assault

Effective: July 1, 2023

Currentness

(a) A person commits the offense of aggravated assault when he or she assaults:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively

against a person, is likely to or actually does result in serious bodily injury;

(3) With any object, device, or instrument which, when used offensively against a person, is

likely to or actually does result in strangulation; or

(4) A person or persons without legal justification by discharging a firearm from within a motor

vehicle toward a person or persons.

(b) Except as provided in subsections (c) through (l) of this Code section, a person convicted of

the offense of aggravated assault shall be punished by imprisonment for not less than one nor more

than 20 years.

(c)(1) A person who knowingly commits the offense of aggravated assault upon a public safety

officer while he or she is engaged in, or on account of the performance of, his or her official duties

shall, upon conviction thereof, be punished as follows:

§ 16-5-21. Aggravated assault, GA ST § 16-5-21

(A) When such assault occurs by the discharge of a firearm by a person who is at least 17 years

of age, such person shall be punished by imprisonment for not less than ten nor more than 20

years and shall be sentenced to a mandatory minimum term of imprisonment of ten years and

no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated,

deferred, or withheld by the sentencing court; provided, however, that in the court's discretion,

the court may depart from such mandatory minimum sentence when the prosecuting attorney

and defendant have agreed to a sentence that is below such mandatory minimum;

(B) When such assault does not involve the discharge of a firearm by a person who is at

least 17 years of age, and does not involve only the use of the person's body, such person

shall be punished by imprisonment for not less than five nor more than 20 years and, for

persons who are at least 17 years of age, shall be sentenced to a mandatory minimum term

of imprisonment of three years and no portion of the mandatory minimum sentence imposed

shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; provided,

however, that in the court's discretion, the court may depart from such mandatory minimum

sentence when the prosecuting attorney and defendant have agreed to a sentence that is below

such mandatory minimum; or

for not less than five nor more than 20 years.

(2) A person convicted under this subsection shall be punished, in addition to any term of

imprisonment imposed, by a fine as provided by law which shall be at least $2,000.00. With

respect to $2,000.00 of the fine imposed, after distributing the surcharges and deductions

required by Chapter 21 of Title 15, Code Sections 36-15-9 and 42-8-34, and Title 47, it

shall be earmarked for the Georgia State Indemnification Fund for purposes of payment of

indemnification for death or disability as provided for in Part 1 of Article 5 of Chapter 9 of

Title 45.

(3) As used in this subsection, the term “firearm” means any handgun, rifle, shotgun, or similar

device or weapon which will or can be converted to expel a projectile by the action of an

explosive or electrical charge.

(d) Any person who commits the offense of aggravated assault against a person who is 65 years of

age or older shall, upon conviction thereof, be punished by imprisonment for not less than three

nor more than 20 years.

§ 16-5-21. Aggravated assault, GA ST § 16-5-21

(e) Any person who commits the offense of aggravated assault in a public transit vehicle or station

shall, upon conviction thereof, be punished by imprisonment for not less than three nor more than

20 years.

(f) Any person who commits the offense of aggravated assault upon a person in the course of

violating Code Section 16-8-2 where the property that was the subject of the theft was a vehicle

engaged in commercial transportation of cargo or any appurtenance thereto, including without

limitation any such trailer, semitrailer, container, or other associated equipment, or the cargo being

transported therein or thereon, shall upon conviction be punished by imprisonment for not less

than five nor more than 20 years, a fine not less than $50,000.00 nor more than $200,000.00, or

both such fine and imprisonment. For purposes of this subsection, the term “vehicle” includes

without limitation any railcar.

(g) Except as provided in subsection (c) of this Code section, a person convicted of an offense

described in paragraph (4) of subsection (a) of this Code section shall be punished by imprisonment

for not less than five nor more than 20 years.

(h) Any person who commits the offense of aggravated assault involving the use of a firearm

upon a student or teacher or other school personnel within a school safety zone as defined in Code

Section 16-11-127.1 shall, upon conviction thereof, be punished by imprisonment for not less than

five nor more than 20 years.

(i) If the offense of aggravated assault is committed between past or present spouses, persons who

are parents of the same child, parents and children, stepparents and stepchildren, foster parents and

foster children, or other persons excluding siblings living or formerly living in the same household,

the defendant shall be punished by imprisonment for not less than three nor more than 20 years.

(j)(1) Any person who commits the offense of aggravated assault with intent to rape against a child

under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than

50 years.

(2)(A) As used in this paragraph, the term “sexual felony” shall mean a felony conviction of:

§ 16-5-21. Aggravated assault, GA ST § 16-5-21

(i) Aggravated assault with the intent to rape in violation of subsection (a) of this Code

section;

(ii) Kidnapping in violation of Code Section 16-5-40 which involves a victim who is under

14 years of age, except by a parent;

(iii) Trafficking an individual for sexual servitude in violation of Code Section 16-5-46;

(iv) Rape in violation of Code Section 16-6-1;

(v) Aggravated sodomy in violation of Code Section 16-6-2;

(vi) Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the

offense is 21 years of age or older;

(vii) Child molestation in violation of Code Section 16-6-4;

(viii) Aggravated child molestation in violation of Code Section 16-6-4;

(ix) Enticing a child for indecent purposes in violation of Code Section 16-6-5;

(x) Improper sexual contact by employee or agent in the first or second degree or improper

sexual contact by a foster parent in the first or second degree in violation of Code Section

16-6-5.1, unless the punishment imposed was not subject to Code Section 17-10-6.2;

(xi) Incest in violation of Code Section 16-6-22;

(xii) Aggravated sexual battery in violation of Code Section 16-6-22.2; or

(xiii) Sexual exploitation of children in violation of Code Section 16-12-100.

§ 16-5-21. Aggravated assault, GA ST § 16-5-21

(B) Any person having been previously convicted of a sexual felony who is convicted of the

offense of aggravated assault with the intent to rape shall be punished by imprisonment for

life or a split sentence that is a term of imprisonment followed by probation for life. As a

condition of probation, the court shall impose the requirement of electronic monitoring as

set forth in paragraph (14) of subsection (a) of Code Section 42-8-35. Any person convicted

under this paragraph shall, in addition, be subject to the sentencing and punishment provisions

of Code Section 17-10-6.2.

(k) A person who knowingly commits the offense of aggravated assault upon an officer of the

court while such officer is engaged in, or on account of the performance of, his or her official

duties shall, upon conviction thereof, be punished by imprisonment for not less than five nor more

than 20 years.

(l) A person who commits the offense of aggravated assault upon an emergency health worker

or healthcare worker while such worker is on a hospital campus, as such term is defined in

Code Section 31-54-1, to perform official duties shall, upon conviction thereof, be punished by

imprisonment for not less than three nor more than 20 years.

Credits

Laws 1833, Cobb's 1851 Digest, pp. 787-789; Laws 1840, Cobb's 1851 Digest, p. 788; Laws 1866,

p. 151, § 1; Laws 1968, p. 1249, § 1; Laws 1976, p. 543, § 1; Laws 1982, p. 1242, § 2; Laws 1984,

p. 900, § 1; Laws 1985, p. 628, § 1; Laws 1991, p. 971, §§ 3, 4; Laws 1994, p. 1012, § 8; Laws

1994, p. 1920, §§ 1, 2; Laws 1996, p. 988, § 1; Laws 1997, p. 1453, § 1; Laws 1999, p. 381, § 3;

Laws 2000, p. 1626, § 1; Laws 2003, Act 9, § 16, eff. May 14, 2003; Laws 2004, Act 793, § 1,

eff. July 1, 2004; Laws 2006, Act 571, § 4, eff. July 1, 2006; Laws 2010, Act 646, § 1, eff. July

1, 2010; Laws 2011, Act 245, § 16, eff. May 13, 2011; Laws 2014, Act 575, § 2-2, eff. July 1,

2014; Laws 2014, Act 576, § 1, eff. July 1, 2014; Laws 2014, Act 604, § 3-1, eff. July 1, 2014;

Laws 2015, Act 73, § 5-19, eff. July 1, 2015; Laws 2016, Act 492, § 1, eff. July 1, 2016; Laws

2017, Act 198, § 3-2, eff. July 1, 2017; Laws 2023, Act 224, § 3, eff. July 1, 2023; Laws 2023,

Act 347, § 3-1, eff. May 4, 2023.

Formerly Code 1863, §§ 4250, 4258, 4259, 4260; Code 1868, §§ 4285, 4293, 4294, 4295; Code

1873, §§ 4351, 4359, 4360, 4361; Code 1882, §§ 4351, 4359, 4360, 4361; Penal Code 1895, §§

97, 98, 99, 100; Penal Code 1910, §§ 97, 98, 99, 100; Code 1933, §§ 26-1403, 26-1404, 26-1405,

26-1406; Code 1933, § 26-1302.

§ 16-5-21. Aggravated assault, GA ST § 16-5-21

Notes of Decisions (1947)

Ga. Code Ann., § 16-5-21, GA ST § 16-5-21

The statutes and Constitution are current through legislation passed at the 2023 Regular Session

of the Georgia General Assembly. Some sections may be more current, see credits for details. The

statutes are subject to changes by the Georgia Code Commission.

End of Document

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.