Petition for Writ of Certiorari — Mario Delaine, Petitioner v. United States

No.

In the Supreme Court of the United States

MARIO DELAINE,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CONRAD B. KAHN

JENNIFER COFFIN

ERIN RUST

FEDERAL DEFENDER

SERVICES OF EASTERN

TENNESSEE, INC.

800 S. Gay Street,

Suite 2400

Knoxville, TN 37929

(865) 637-7979

LISA S. BLATT

Counsel of Record

CHARLES L. MCCLOUD

ANDREW T. GUIANG

WILLIAMS & CONNOLLY LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

QUESTION PRESENTED

Under the elements clause of the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), a crime

is a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force against

the person of another.” In Borden v. United States, 593

U.S. 420 (2021), this Court held that the elements clause

excludes crimes that can be committed with a mens rea of

recklessness. Id. at 423 (plurality opinion); see id. at 446

(Thomas, J., concurring in the judgment). Since Borden,

however, courts of appeals have split on whether the

ACCA’s mens rea requirement is satisfied by crimes that

merely require a knowing or intentional act, without any

requirement of knowledge or intent regarding injury to

“the person of another.”

The Ninth and Tenth Circuits hold that an offense

does not meet the elements clause unless it requires a defendant to cause physical pain or injury to another person

with a mens rea more culpable than recklessness. The

Seventh and Eleventh Circuits, by contrast, hold that the

elements clause is satisfied by any act committed with a

mens rea more culpable than recklessness—regardless of

whether the defendant intended to cause physical pain or

injury to another person or knew that such harm would

result. The Sixth Circuit adopted the same position in the

decision below.

The question presented is:

Whether an offense that requires an intentional act,

but no mens rea as to the resulting physical pain or injury,

qualifies as a “violent felony” under ACCA’s elements

clause.

(I)

II

PARTIES TO THE PROCEEDING

Petitioner Mario Delaine was the defendant in the

district court and the appellant in the Sixth Circuit. Respondent United States of America was the plaintiff in the

district court and the appellee in the Sixth Circuit.

III

RELATED PROCEEDINGS

This case arises from these proceedings:



United States v. Mario Delaine, No. 1:23-cr-69

(E.D. Tenn. May 15, 2025) (rejecting argument

that Petitioner’s conviction under Fla. Stat.

§ 784.041 does not qualify as a violent felony for

purposes of the Armed Career Criminal Act and

sentencing Petitioner to imprisonment of 188

months);



United States v. Mario Delaine, No. 25-5465 (6th

Cir. Apr. 2, 2026) (affirming judgment); and



United States v. Mario Delaine, No. 25-5465 (6th

Cir. May 22, 2026) (denying rehearing en banc)

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly related

to this case within the meaning of this Court’s Rule

14.1(b)(iii).

IV

TABLE OF CONTENTS

Page

OPINIONS BELOW ............................................................ 1

JURISDICTION................................................................... 1

STATUTORY PROVISIONS INVOLVED ..................... 2

STATEMENT ....................................................................... 3

A.

Legal Background............................................... 5

B.

Factual and Procedural History ....................... 8

REASONS FOR GRANTING THE PETITION.......... 10

I.

The Circuits Are Divided on the Question

Presented ................................................................. 11

II.

The Question Presented is Exceptionally

Important, Constantly Recurring, and Squarely

Presented ................................................................. 17

III.

The Decision Below Is Wrong ............................... 20

CONCLUSION ................................................................... 23

V

TABLE OF AUTHORITIES

Page

Cases:

Begay v. United States,

553 U.S. 137 (2008) .............................................. 5, 22, 23

Borden v. United States,

593 U.S. 420 (2021) .............................. 3, 5-15, 17, 19-23

Brown v. United States, 602 U.S. 101 (2024) ................... 17

Delligatti v. United States, 604 U.S. 423 (2025) ........ 6, 7, 9

Douglas v. United States,

858 F.3d 1069 (7th Cir. 2017) ................................. 13, 15

Erlinger v. United States, 602 U.S. 821 (2024) ............... 17

Johnson v. United States,

559 U.S. 133 (2010) ......................... 5-7, 9, 15, 18, 20, 22

Leocal v. Ashcroft, 543 U.S. 1 (2004) ...................... 8, 22, 23

Marks v. United States, 430 U.S. 188 (1977) ................... 15

People v. Williams, 29 P.3d 197 (Cal. 2001)............... 12, 13

Shular v. United States, 589 U.S. 154 (2020) .................. 17

State v. Dorn, 887 N.W.2d 826 (Minn. 2016).................... 19

State v. Hearns, 961 So. 2d 211 (Fla. 2007).................. 6, 18

Stokeling v. United States, 586 U.S. 73 (2019) .......... 5, 6, 7

United States v. Gomez,

165 F.4th 1199 (9th Cir. 2026) (en banc),

cert. denied,

No. 25-7193 (May 18, 2026) ........................ 11, 12, 13, 16

United States v. Howard,

2022 WL 10966513 (7th Cir. Oct. 19, 2022) ................ 14

United States v. Lopez,

--- F.4th ---, 2026 WL 2165840

(9th Cir. July 28, 2026) ............................................ 15, 16

United States v. Love, 7 F.4th 674 (7th Cir. 2021) .......... 13

United States v. Manzon,

2023 WL 7386866 (D. Idaho Nov. 8, 2023) ................. 13

VI

Page

Cases—continued:

United States v. Sheely,

--- F.4th ---, 2026 WL 2349505

(11th Cir. Aug. 13, 2026) ............................................... 14

United States v. Sjodin,

139 F.4th 1188 (10th Cir. 2025) .............................. 13, 16

United States v. Vail-Bailon,

868 F.3d 1293 (11th Cir. 2017) (en banc) ............. 14, 15

United States v. Vega,

2023 WL 4858148 (9th Cir. July 31, 2023) ...... 12, 15, 21

Voisine v. United States, 579 U.S. 686 (2016) ................... 7

Wooden v. United States, 595 U.S. 360 (2022)................. 17

Statutes:

18 U.S.C.

§ 16 ..................................................................................... 7

§ 922 ............................................................... 2, 5, 8, 17, 19

§ 924 ........................................................... 2, 5, 7, 8, 17, 20

Cal. Penal Code

§ 245 ........................................................................... 12, 13

§ 273.5 .............................................................................. 16

Fla. Stat.

§ 784.03.............................................................................. 6

§ 784.041........................................................ 2, 8, 9, 10, 14

Idaho Code

§ 18-907 ........................................................................... 13

§ 18-918 ........................................................................... 12

Ind. Code § 35-42-2-1 (2013)............................................... 13

Iowa Code

§ 708.1 .............................................................................. 19

§ 708.2 .............................................................................. 19

VII

Page

Statutes—continued:

Minn. Stat. § 609.221 ........................................................... 19

Tenn. Code

§ 39-13-101 ...................................................................... 19

§ 39-13-102 ...................................................................... 19

Other Authorities:

Fla. Dep’t of Law Enf’t, Criminal History

Reports, bit.ly/4vbd33c ................................................. 18

Model Penal Code § 2.02..................................................... 21

U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C.

§ 922(g) Firearms Offenses (2025),

bit.ly/4wrlaKk ................................................................ 17

U.S.S.G. § 4B1.2 ..................................................................... 7

In the Supreme Court of the United States

MARIO DELAINE,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner Mario Delaine respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at 171

F.4th 880 (6th Cir. 2026). Pet.App.2a-31a. The district

court’s bench decision at petitioner’s sentencing is unpublished but reproduced at Pet.App.45a-90a.

JURISDICTION

The judgment of the court of appeals was entered on

April 2, 2026. On May 22, 2026, the court denied rehearing

en banc. Pet.App.1a. This Court has jurisdiction under

28 U.S.C. § 1254(1).

(1)

2

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 922(g) states in relevant part:

It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one

year … to … possess in or affecting commerce, any firearm or ammunition….

18 U.S.C. § 924(e)(1) states:

In the case of a person who violates section 922(g) of

this title and has three previous convictions by any court

referred to in section 922(g)(1) of this title for a violent

felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be

fined under this title and imprisoned not less than fifteen

years, and, notwithstanding any other provision of law,

the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the

conviction under section 922(g).

18 U.S.C. § 924(e)(2)(B) states:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or

any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be

punishable by imprisonment for such term if committed

by an adult, that—

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of another….

Fla. Stat. § 784.041(1) states:

A person commits felony battery if he or she:

3

(a) Actually and intentionally touches or strikes another person against the will of the other; and

(b) Causes great bodily harm, permanent disability,

or permanent disfigurement.

STATEMENT

This case is an ideal vehicle to resolve a recurring and

important conflict regarding the Armed Career Criminal

Act (ACCA). ACCA mandates a 15-year minimum sentence for defendants with at least three previous convictions for a “violent felony.” To qualify as a violent felony

under ACCA’s elements clause, an offense must require a

minimum degree of force and a minimum degree of intent.

The requisite force is force capable of causing physical

pain or injury to another person. And the requisite intent,

as a plurality of the Court held in Borden v. United States,

593 U.S. 420 (2021), is a mens rea more culpable than

recklessness.

Since Borden, the circuits have split on what, exactly,

a defendant must intend to accomplish with a mens rea

more culpable than recklessness. In two circuits—the

Ninth and Tenth—the mens rea requirement attaches to

both the act and the resulting physical pain or injury to

another person. Thus, an offense does not fall within the

elements clause unless it requires the defendant to cause

physical pain or injury to another person with a mens rea

more culpable than recklessness. But three circuits reject

this rule. The Seventh and Eleventh Circuits, along with

the Sixth Circuit below, all hold that the elements clause

merely requires that any act be committed with a mens

rea more culpable than recklessness—regardless of

whether the defendant intended to use force capable of

causing physical pain or injury to another person, or knew

that such harm might result from the use of force.

4

These different rules yield starkly different results on

the same set of facts. This case is a perfect example. Petitioner has a prior conviction for Florida felony battery,

an offense which requires (1) an intentional act of simple

battery that (2) causes great bodily harm. The statute can

therefore be violated by a simple non-consensual touch

that results in accidental injury. A commuter who intentionally shoves past another rider to exit a crowded subway car, thereby knocking her into a metal pole and fracturing her wrist, has committed a “violent felony” and

faces a fifteen-year minimum in the Sixth Circuit. But in

the Ninth and Tenth Circuits, this offense is not a violent

felony. The government recognized as much below. It

urged the Sixth Circuit to reject those circuits’ rule, and

the Sixth Circuit did just that. Only this Court can resolve

this intractable division.

The conflict between the circuits is too important to

ignore. Whether ACCA applies carries enormous consequences: ACCA imposes one of the harshest mandatory

penalties in the Federal Criminal Code, turning a 15-year

statutory maximum into a statutory minimum. And the

question presented implicates a recurring statutory

structure across several States that pairs an intentional

act with a result-based injury enhancement requiring no

mens rea. Geography should not dictate whether someone spends an extra decade behind bars.

This case, in short, is an ideal candidate for review. It

presents a clean question of federal law on which the

courts of appeals are divided. That question is dispositive,

has substantial practical implications for all ACCA cases,

and arises often. The Court should grant the petition.

5

A. Legal Background

1. Congress enacted ACCA to address the “special

danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun.” Begay

v. United States, 553 U.S. 137, 146 (2008). To that end,

ACCA enhances sentences for felon-in-possession convictions under 18 U.S.C. § 922(g). A 15-year minimum sentence applies to any defendant with three or more previous convictions for a “violent felony.”

18 U.S.C.

§ 924(e)(1). And an offense qualifies as a “violent felony”

under the elements clause only if it “has as an element the

use, attempted use, or threatened use of physical force

against the person of another.” Id. § 924(e)(2)(B)(i).

The categorical approach determines whether an offense satisfies the elements clause. See, e.g., Stokeling v.

United States, 586 U.S. 73, 88 (2019). Under that method,

“the facts of a given case are irrelevant,” and the appropriate inquiry is whether the least culpable conduct criminalized by the statute meets the elements clause. Borden, 593 U.S. at 424 (plurality opinion). “[T]hat means

asking whether a state offense necessarily involves the

defendant’s ‘use, attempted use, or threatened use of

physical force against the person of another.’” Id. (quoting 18 U.S.C. § 924(e)(2)(B)(i)).

2. This Court has interpreted the elements clause to

require both a minimum degree of force and a minimum

degree of intent.

Start with force. In Johnson v. United States, 559

U.S. 133 (2010), this Court held that “in the context of a

statutory definition of ‘violent felony,’ the phrase ‘physical

force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140.

“Thus, although ‘the merest touching’ is not violent force,

6

any force that actually causes injury or death is.” Delligatti v. United States, 604 U.S. 423, 432 (2025) (quoting

Stokeling, 586 U.S. at 83).

This Court applied this framework to Florida’s simple

battery statute in Johnson. As the Court explained, a defendant commits simple battery by “actually and intentionally touch[ing] or strik[ing] another person against

the will of the other.” Johnson, 559 U.S. at 134 (alteration

adopted) (quoting Fla. Stat. § 784.03(1)(a)). And “the element of ‘actually and intentionally touching’ . . . is satisfied by any intentional physical contact, ‘no matter how

slight.’” Id. at 138 (quoting State v. Hearns, 961 So. 2d

211, 218 (Fla. 2007)). Such slight force, this Court held,

does not qualify as “violent force” under the elements

clause.

This Court later held that the elements clause requires not just force, but also intent. In Borden, a fractured Court held that an offense does not “count as a ‘violent felony’ if it requires only a mens rea of recklessness.”

593 U.S. at 423 (plurality opinion); see id. at 446 (Thomas,

J., concurring in the judgment).

The plurality grounded this holding in the statutory

phrase the “use of physical force against the person of another.” See id. at 430 (plurality opinion). The term “use

of force,” explained the plurality, “denotes volitional conduct.” Id. at 431. And the word “against” “introduc[es]

the conscious object (not the mere recipient) of the force.”

Id. at 430. It followed that “[t]he ‘against’ phrase indeed

sets out a mens rea requirement—of purposeful or knowing conduct.” Id. at 434.

“Were there any doubt about the elements clause’s

meaning,” the plurality continued, “context and purpose

would remove it.” Id. at 437. Quoting Johnson, the plurality observed that the term “violent felony” connotes “a

7

narrow ‘category of violent, active crimes.’” Id. at 438

(quoting 559 U.S. at 140). Such crimes “are best understood to involve not only a substantial degree of force, but

also a purposeful or knowing mental state—a deliberate

choice of wreaking harm on another, rather than mere indifference to risk.” Id. at 438.

Justice Thomas concurred in the judgment. He

“rest[ed] [his] analysis instead on a separate phrase: ‘use

of physical force.’” Id. at 446 (Thomas, J., concurring in

the judgment). That phrase, Justice Thomas explained,

“has a well-understood meaning applying only to intentional acts designed to cause harm.” Id. (quoting Voisine

v. United States, 579 U.S. 686 (2016) (Thomas, J., dissenting)). He thus concluded that “[t]he elements clause does

not encompass” a statute that “could be violated through

mere recklessness,” notwithstanding his view that such an

offense could still fall under ACCA’s residual clause. See

id. at 446-47.

3. This Court’s interpretation of ACCA’s elements

clause applies with equal force in other contexts. Indeed,

the categorical approach is a “by-now-familiar method,

applicable in several statutory contexts.” Id. at 424 (plurality opinion). Other statutes and the Sentencing Guidelines both employ definitions “almost identical to the elements clause” to “mark[] out a category of crimes” that

can lead to enhanced punishment. Id. at 426; see 18 U.S.C.

§ 16(a) (defining “crime of violence” under the Immigration and Nationality Act); 18 U.S.C. § 924(c)(3) (defining

“crime of violence” under firearms statute); U.S.S.G.

§ 4B1.2 (defining “crime of violence” for purposes of the

“career offender” enhancement under the Sentencing

Guidelines). When interpreting these provisions, this

Court has routinely looked to cases interpreting ACCA’s

elements clause. See, e.g., Delligatti, 604 U.S. at 431-32

(citing Stokeling, 586 U.S. at 83-84). The converse is also

8

true: cases addressing these identical definitions have informed this Court’s interpretation of ACCA’s elements

clause. See, e.g., Borden, 593 U.S. at 427-28 (plurality

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

B. Factual and Procedural History

1. In August 2023, the government indicted petitioner

for possessing a firearm as a felon in violation of 18 U.S.C.

§ 922(g)(1). Pet.App.4a; D.Ct. Dkt. 1. The government

sought an enhanced sentence under 18 U.S.C. § 924(e)(1)

based on three prior convictions: (1) Florida felony battery from 2009; (2) Florida aggravated assault with a firearm from 2012; and (3) Ohio domestic violence from 2019.

Pet.App.4a. Petitioner pleaded guilty to the firearm offense but preserved his right to challenge that his convictions qualified as “violent felonies” under ACCA.

Pet.App.4a.

2. Before the district court, as relevant here, petitioner contended that his Florida felony battery conviction was not a “violent felony” under the elements clause.

Pet.App.4a-5a. Under Florida law, “[a] person commits

felony battery if he or she: (a) Actually and intentionally

touches or strikes another person against the will of the

other; and (b) Causes great bodily harm, permanent disability, or permanent disfigurement.”

Fla. Stat.

§ 784.041(1). Petitioner argued that this statute does not

satisfy the elements clause under Borden because the

statute merely requires a volitional act, not that the defendant have a more-than-reckless mens rea that great

bodily harm will result. Pet.App.54a. Petitioner also argued that his two other convictions were not violent felonies, either. Pet.App.8a.

The district court rejected petitioner’s arguments as

to all three convictions. Pet.App.76a-77a. For Florida felony battery, the court reasoned that the offense “requires

9

an intent to use force” and thus falls within the elements

clause. Pet.App.76a. The court then applied ACCA’s 15year mandatory minimum, and ultimately sentenced petitioner to 188 months’ imprisonment. Pet.App.85a. Without ACCA, petitioner’s guidelines range would have been

41 to 51 months. Pet. C.A. Br. 7.

3. The Sixth Circuit affirmed. For Florida felony battery, the court recognized that the first element—simple

battery—falls short of Johnson’s requirement of force capable of causing physical pain or injury to another person.

Pet.App.19a. But the court reasoned that the second element “requires ‘great bodily harm, permanent disability,

or permanent disfigurement’ in every case,” and “‘any

force that actually causes injury’ qualifies as violent

force.”

Pet.App.19a (first quoting Fla. Stat.

§ 784.041(1)(b); then quoting Delligatti, 604 U.S. at 432).

The Sixth Circuit thus held that Florida felony battery

meets the force component of the elements clause.

Pet.App.19a.

The court then turned to the intent component. Petitioner again argued that “a mere volitional act doesn’t cut

it,” since “[t]he elements clause covers only crimes where

force is paired with a mens rea above ordinary recklessness.” Pet. C.A. Br. 33-34. Applying that rule to Florida

felony battery, petitioner contended that the intentional

act (the first element, simple battery) did not suffice under Borden—the statute would also need to require intent

as to the second element (causation of harm) to fall within

the elements clause. Pet. C.A. Br. 32-37.

The Sixth Circuit disagreed. Pet.App.20a. Because

the Florida statute “requires the defendant to ‘intentionally touch or strike’ the victim,” the court reasoned, “the

statute has more than ‘a mens rea of recklessness’ and

thus counts as a violent felony under the elements clause.”

Pet.App.19a-20a (alterations adopted) (first quoting Fla.

10

Stat. § 784.041(1)(a); then quoting Borden, 593 U.S. at 445

(plurality opinion)). The court thus held that a mere volitional act satisfied Borden, regardless of whether the defendant intended to use force capable of causing physical

pain or injury to another person. Pet.App.24a-25a.

The Sixth Circuit attempted to ground its holding in

both Borden’s plurality opinion and concurrence. Starting with the plurality, it concluded that “[n]owhere did the

opinion suggest that the defendant must also intend (or

know of) the injury that this force causes.” Pet.App.21a.

Then, turning to Justice Thomas’s concurrence, the court

conceded that it “suggested that the phrase ‘use of physical force’ alone had ‘a well-understood meaning applying

only to intentional acts designed to cause harm.’”

Pet.App.21a (quoting Borden, 593 U.S. at 446 (Thomas, J.,

concurring in the judgment)). The Sixth Circuit suggested, however, that because Justice Thomas in past

cases “seemingly had a more lenient understanding of

‘harm’ and ‘force’ than did the plurality,” “he would undoubtedly hold” that Florida’s felony battery qualifies as

a violent felony. Pet.App.22a, 24a.

4. The Sixth Circuit denied rehearing en banc on

May 22, 2026. Pet.App.1a.

REASONS FOR GRANTING THE PETITION

This case is the ideal vehicle for resolving a clear circuit split on an important and recurring question of federal criminal law that demands national uniformity. In

Borden, this Court held that the elements clause reaches

only offenses with a mens rea more culpable than recklessness. But the circuits have sharply divided on what

the object of that mens rea requirement must be. Two

circuits hold that the requisite mens rea attaches both to

the use of force and to the resulting harm. That means an

offense does not fall under the elements clause unless it

11

requires a defendant to cause harm to another person

with a mens rea more culpable than recklessness. Three

circuits disagree, including the Sixth Circuit below. They

employ a volitional-act rule, asking only whether an offense requires that any act be committed with a mens rea

more culpable than recklessness—regardless of whether

the defendant intended to cause physical pain or injury to

another person or knew that such harm might result. The

circuits are therefore split on the question presented:

whether an offense that requires an intentional act, but no

mens rea as to the resulting physical pain or injury, qualifies as a “violent felony” under ACCA’s elements clause.

That split was outcome determinative below, and it

resulted in petitioner receiving a mandatory minimum 15year sentence when his guidelines range was otherwise 41

to 51 months. And petitioner’s case is hardly unique. Only

this Court can resolve the split and prevent geographic

happenstance from dictating the length of a defendant’s

sentence.

I.

The Circuits Are Divided on the Question Presented

As the government acknowledged below, the circuits

are split on whether ACCA’s elements clause encompasses offenses that do not require the defendant to cause

physical pain or injury to another person with a mens rea

more culpable than recklessness.

1. The Ninth and Tenth Circuits hold that an offense

does not fall within ACCA’s elements clause unless it requires the defendant to intend to cause physical pain or

injury to another person or know that such a result may

follow from the application of force.

Start with the Ninth Circuit. In United States v.

Gomez, the Ninth Circuit held that, “[f]ollowing Borden,

the elements clause is satisfied only by crimes that require uses of force with a mens rea more culpable than

12

recklessness.” 165 F.4th 1199, 1208 (9th Cir. 2026) (en

banc), cert. denied on other grounds, No. 25-7193 (May 18,

2026). The court then applied that rule to a California conviction for assault with a deadly weapon other than a firearm. Id. at 1207 (addressing Cal. Penal Code § 245(a)(1)).

A conviction required only “[1] an intentional act and

[2] actual knowledge of those facts sufficient to establish

that the act by its nature will probably and directly result

in the application of physical force against another.” Id.

at 1208 (quoting People v. Williams, 29 P.3d 197, 204 (Cal.

2001)). But the standard “d[id] not require a subjective

awareness of the risk that an injury might occur.” Id. at

1210 (alteration adopted) (quoting Williams, 29 P.3d at

204). Therefore, the offense did not “require an intent to

apply force,” nor “an intent to cause harm; it merely require[d] an intent to do an act that results in harm.” Id.

at 1208-09 (citation omitted). The en banc court held that

this offense falls outside the elements clause in the Sentencing Guidelines, and “overrule[d] [its] pre-Borden decisions” to the contrary. Id. at 1210.

Gomez tracks the result the Ninth Circuit reached in

an earlier, unpublished decision. In United States v. Vega,

2023 WL 4858148 (9th Cir. July 31, 2023), the court confronted Idaho felony domestic battery with traumatic injury, which requires “[1] an unconsented intentional

touching that [2] happens to result in a minor physical injury.” Id. at *1 (addressing Idaho Code § 18-918(2)). For

this offense to fall within the Sentencing Guidelines’ elements clause, the Ninth Circuit reasoned, the mens rea

requirement would have to extend to not just the first element (simple battery), but also the second (resulting

physical injury). See id. But the offense did not “involve

at least some awareness that the use of force will cause

harm,” so the offense “lack[ed]” what Borden “requires.”

Id. And district courts got the message: “a result-oriented addition to simple battery” does not satisfy Borden.

13

See United States v. Manzon, 2023 WL 7386866, at *7 (D.

Idaho Nov. 8, 2023) (addressing Idaho Code § 18-907(a)).

The Tenth Circuit has adopted the same interpretation of Borden. In United States v. Sjodin, 139 F.4th 1188

(10th Cir. 2025), the court addressed a different section of

the same California assault statute that the Ninth Circuit

addressed in Gomez. See id. at 1202-04 (addressing Cal.

Penal Code § 245(a)(2)). “The least culpable conduct,” the

Tenth Circuit observed, “does not require an intent to apply force to another person,” and “a defendant can be

guilty … even when he lacks ‘a specific intent to cause injury or a subjective awareness of the risk that an injury

might occur.’” Id. at 1203 (quoting Williams, 29 P.3d at

204). That meant the “mens rea sweeps too broadly.” Id.

A conviction does not satisfy the elements clause if it

“merely requires an intent to do the act that results in

harm,” since “mere volition does not prove the intent to

apply force to another person.” See id.

2. Three other circuits—the Seventh and Eleventh,

plus the Sixth Circuit below—have confronted nearly

identical offenses. But they apply a diametrically different rule and reach diametrically different results.

The Seventh Circuit has twice addressed Indiana’s

felony battery statute, which requires only (1) “knowingly

or intentionally touch[ing] another person in a rude, insolent, or angry manner”; and (2) resulting “bodily injury”

to certain individuals. United States v. Love, 7 F.4th 674,

678-79 (7th Cir. 2021) (quoting Ind. Code § 35-42-21(a)(2)(A) (2013)). Before Borden, the court held that this

offense falls within the elements clause. Id. at 681. And

the court rejected arguments that “no state crime can be

a violent felony unless the person intends not only the use

of force but also the injury caused by that force.” Douglas

v. United States, 858 F.3d 1069, 1071 (7th Cir. 2017). After

14

Borden, the court refused to reconsider. In an unpublished decision, the court held that if a defendant “was

convicted of acting ‘knowingly or intentionally,’” the conviction “satisfie[s] the mental state that Borden demands,” “regardless of whether his objective was to inflict

serious bodily injury.” United States v. Howard, 2022 WL

10966513, at *2 (7th Cir. Oct. 19, 2022).

The same pattern played out in the Eleventh Circuit.

Twice, the court has addressed Florida felony battery,

which is functionally identical to Indiana and Idaho felony

battery: the offense requires only (1) an act of “[a]ctually

and intentionally touch[ing] or strik[ing] another person

against the will of the other” that (2) “[c]auses great bodily harm, permanent disability, or permanent disfigurement.” Fla. Stat. § 784.041(1). Before Borden, the Eleventh Circuit “h[eld] that Florida felony battery does categorically qualify as a crime of violence” under the elements clause in the Sentencing Guidelines. United States

v. Vail-Bailon, 868 F.3d 1293, 1295 (11th Cir. 2017) (en

banc). And the court recently “conclude[d] that Borden

did not abrogate” that holding. United States v. Sheely,

--- F.4th ---, 2026 WL 2349505, at *1 (11th Cir. Aug. 13,

2026). Because felony battery “requires an intentional act

to use physical force against the victim that is capable of

causing physical pain or injury,” the Eleventh Circuit reasoned, the offense poses no mens rea problem under Borden. Id. at *6. The court thus hewed to its pre-Borden

decision in Vail-Bailon, despite one judge recognizing

that “under Justice Thomas’s reasoning, Florida felony

battery would not qualify as a ‘crime of violence’ under the

Sentencing Guidelines, and Vail-Bailon would be abrogated,” id. (Rosenbaum, J., concurring) (emphasis added).

The Sixth Circuit deepened this split in the decision

below. For Florida felony battery, the court acknowledged that the mens rea requirement applies to only the

15

first element—actually and intentionally touching or

striking another person against their will, i.e., simple battery—which does not, standing alone, involve the requisite force under the elements clause. Pet.App.19a (citing

Johnson, 559 U.S. at 139). But the court rejected petitioner’s argument that, to meet the elements clause, the

mens rea requirement would need to extend to the second

element as well. Pet.App.20a. It was enough that the statute required some volitional act; it did not matter whether

any mental state was required with respect to the element

of causing bodily harm, permanent disability, or permanent disfigurement. Pet.App.24a-25a.

3. In light of the above disagreement, the government

twice urged the Sixth Circuit to reject the Ninth and

Tenth Circuits’ approach, claiming that “those out-of-circuit decisions incorporate the intent-to-harm view of Borden which this Court expressly rejected.” U.S. C.A. Br.

20; see C.A. Dkt. 29, at 1. The Sixth Circuit then acknowledged the direct conflict between its decision and the

Ninth Circuit’s decision in Vega. Pet.App.25a. And “if the

reasoning of neither [Borden] opinion control[led]” under

Marks v. United States, 430 U.S. 188 (1977), the Sixth Circuit added, “we would follow the decisions of the Seventh

and Eleventh Circuits that have already answered the

question.” Pet.App.24a (first citing Vail-Bailon, 868 F.3d

at 1299-1308; then citing Douglas, 858 F.3d at 1071-72).

The Ninth Circuit has similarly noted the tension between its approach and the Sixth Circuit’s. In a recent

decision, the court directly acknowledged the conflict between Vega and the decision below. United States v.

Lopez, --- F.4th ---, 2026 WL 2165840, at *4 n.5 (9th Cir.

July 28, 2026). And while the Ninth Circuit suggested it

had not “resolve[d] th[e] debate” over whether intent to

harm is required under Borden, id., the Ninth Circuit

16

made clear that “to qualify as a categorical ‘crime of violence,’ an offense must require a mens rea greater than

recklessness both as to the use of force sufficient to cause

pain or injury and to the fact that the use of force is directed at another person,” id. at *4 (emphasis added).

The court thus held that California Penal Code § 273.5

does not satisfy the elements clause because the statute

merely requires an intentional “assaultive act,” but no “intent to cause injury.” Id. at *6. Florida felony battery has

a similar defect: it does not categorically require “a mens

rea greater than recklessness … as to the use of force sufficient to cause pain.” Id. at *4. Petitioner’s conviction

would thus not be a “violent felony” in the Ninth Circuit.

The Sixth Circuit similarly tried to downplay the conflict with the Ninth Circuit’s approach. But the conflict

remains apparent. The Sixth Circuit claimed that its rule,

like Gomez, “require[s] the use of force to satisfy the applicable state-of-mind requirement.” Pet.App.25a. But

that observation states the courts’ respective rules at far

too high a level of generality. Gomez was clear that a statute would flunk the Ninth Circuit’s test if it “merely requires an intent to do an act that results in harm,” not “an

intent to cause harm” or “an intent to apply force.” See

165 F.4th at 1208-09. That description fits Florida felony

battery to a T. The result in the Tenth Circuit would be

equally straightforward: Florida felony battery would not

count because it “merely requires an intent to do the act

that results in harm,” and “mere volition does not prove

the intent to apply force to another person.” Sjodin, 139

F.4th at 1203. Perhaps for that reason, the Sixth Circuit’s

opinion did not even mention the Tenth Circuit, despite

both parties briefing the issue. Pet. C.A. Br. 36-37; U.S.

C.A. Br. 19-21.

17

In short, contrary to the Sixth Circuit’s claim, petitioner’s case manifestly would have turned out differently

in the Ninth and Tenth Circuits.

II. The Question Presented is Exceptionally Important, Constantly Recurring, and Squarely Presented

1. The question presented has profound consequences. Indeed, this Court frequently has granted certiorari to determine when ACCA’s sentencing enhancement applies. See, e.g., Shular v. United States, 589 U.S.

154 (2020); Borden v. United States, 593 U.S. 420 (2021);

Wooden v. United States, 595 U.S. 360 (2022); Brown v.

United States, 602 U.S. 101 (2024); Erlinger v. United

States, 602 U.S. 821 (2024). ACCA imposes one of the

harshest mandatory penalties in the Federal Criminal

Code. For a typical Section 922(g) felon-in-possession

conviction, a 15-year sentence is the statutory ceiling. See

18 U.S.C. §§ 922(g)(1), 924(a)(8). And the actual sentence

is often far lower: in 2025 the average sentence for offenders convicted of violating Section 922(g) but not sentenced

under ACCA was 70 months. U.S. Sent’g Comm’n, Quick

Facts: 18 U.S.C. § 922(g) Firearms Offenses (2025),

bit.ly/4wrlaKk. But when ACCA applies, fifteen years becomes the statutory floor. See 18 U.S.C. §§ 922(g)(1),

924(e)(1). And the average sentence imposed skyrockets

to 192 months—nearly three times as long as the average

sentence for offenders whose prior offenses do not fall under ACCA. U.S. Sent’g Comm’n, supra.

Petitioner’s own sentence demonstrates the high

stakes of the question presented. Had he been sentenced

in the Ninth or Tenth Circuits, his Florida felony battery

conviction would not have qualified as a “violent felony”

under ACCA, and his guidelines range would have been

41 to 51 months. Pet. C.A. Br. 7. But because he was sentenced in the Sixth Circuit, his felony battery conviction

18

qualified as an ACCA predicate, and he received a sentence of 188 months. Pet.App.85a. Absent this Court’s

intervention, petitioner will spend more than an extra decade in prison. And even after his release, the lasting label

of “armed career criminal” will jeopardize his ability to reintegrate into society.

2. Petitioner’s case is hardly an anomaly. The decision below risks imposing one of the harshest mandatory

penalties on a large class of defendants. Consider Florida

felony battery alone. Felony battery is one of the most

frequently charged offenses in Florida; the State reports

that over the past decade, there have been over 40,000

convictions. Fla. Dep’t of Law Enf’t, Criminal History

Reports, bit.ly/4vbd33c (spreadsheet for battery). Because the statute criminalizes someone who “[a]ctually

and intentionally touches” another so long as it results in

sufficient injury, it sweeps in a wide range of conduct—

even a “tap on the shoulder without consent” could “establish[] a violation” if it happens to result in sufficient injury. Johnson, 559 U.S. at 138 (alteration adopted) (quoting Hearns, 961 So. 2d at 219).

But the question presented does not simply ask this

Court to resolve a single State’s statutory quirk. The

question presented implicates a recurring statutory

structure. Just like Florida, several States have enacted

assault or battery statutes that pair (A) an intentional or

knowing act with (B) a result-based injury enhancement

that does not require proof that the defendant intended,

knew, or even consciously disregarded a risk of injury. In

other words, these statutes require a culpable mens rea

as to an action, but do not require any separate mens rea

as to the resulting injury. The California assault with a

deadly weapon statute, as well as the Idaho and Indiana

19

felony battery statutes, fit this same mold. Supra pp. 1213. So do other statutes in other states. 1

0F

This Court should clarify whether those sprawling offenses qualify under ACCA’s elements clause after Borden. If such offenses qualify as ACCA predicates in some

circuits but not others, the application of ACCA’s mandatory minimum will turn solely on where federal prosecutors bring a Section 922(g) charge. When the difference

is an extra decade in prison, geographic happenstance

should not be the deciding factor.

3. This case is the ideal vehicle to resolve this important and recurring issue. Petitioner cleanly presented

the question whether Borden’s mens rea requirement attaches to the resulting harm, or whether it is enough that

the defendant intentionally made the underlying contact.

Pet.App.54a; Pet. C.A. Br. 30-37. And both courts below

squarely rejected his argument. Pet.App.25a, 76a.

Those decisions were outcome determinative. The

government needed all three of petitioner’s prior convictions—including his Florida felony battery conviction—to

qualify as “violent felony” predicates to trigger ACCA’s

See Minn. Stat. § 609.221, subd. 1 (defining first-degree assault to

include “assault[ing] another and inflict[ing] great bodily harm”);

State v. Dorn, 887 N.W.2d 826, 830-31 (Minn. 2016) (observing that,

“[i]n Minnesota, the separate crime of battery has been incorporated

into the definition of assault” and holding that the assault statute requires “only an intent to do the prohibited physical act of committing

a battery,” not “the intent to do some amount of harm”); see also Iowa

Code §§ 708.1(2)(a), 708.2(5) (defining felony assault to include an act

“intended to result in physical contact which will be insulting or offensive to another” and that “causes serious injury” even “without the

intent to inflict serious injury”); Tenn. Code §§ 39-13-101(a)(3), 39-13102(a)(1)(A)(i) (defining aggravated assault to include “intentionally

or knowingly caus[ing] [extremely offensive or provocative] physical

contact” and that “[r]esults in serious bodily injury to another”).

1

20

mandatory minimum. The government did not dispute

that if the Sixth Circuit applied the Ninth and Tenth Circuits’ “intent-to-harm” understanding of Borden to Florida’s felony battery statute, petitioner would not qualify

for ACCA’s mandatory minimum sentence. See U.S. C.A.

Br. 1, 17-21. To prevent other circuits from repeating the

Sixth Circuit’s error when applying ACCA to various

state criminal statutes, this Court should address this exceptionally important question now.

III. The Decision Below Is Wrong

The Sixth Circuit’s volitional-act rule squarely conflicts with ACCA’s text and purpose. This Court should

not allow that serious misinterpretation to stand.

1. The plain text of ACCA’s elements clause encompasses only offenses that require a defendant to cause

physical pain or injury to another person with a mens rea

more culpable than recklessness. To qualify as a “violent

felony,” an offense must require “the use, attempted use,

or threatened use of physical force against the person of

another.” 18 U.S.C. § 924(e)(2)(B)(i). This Court has already held that “physical force” means “violent force—

that is, force capable of causing physical pain or injury to

another person,” Johnson, 559 U.S. at 140, and that

“[o]ffenses with a mens rea of recklessness do not qualify

as violent felonies under ACCA,” Borden, 593 U.S. at 445

(plurality opinion); see id. at 446 (Thomas, J., concurring

in the judgment). Read together, Johnson and Borden

require the relevant mens rea to attach not only to the antecedent physical act that later results in pain or injury,

but to the pain or injury itself.

The Borden plurality grounded its holding in the familiar hierarchy of mental states, in which the level of culpability turns on the defendant’s awareness that his conduct will bring about the relevant element of the crime—

21

here, harm. Id. at 426-27; see Model Penal Code § 2.02(2).

ACCA reaches only crimes that “involve not only a substantial degree of force, but also a purposeful or knowing

mental state—a deliberate choice of wreaking harm on

another, rather than mere indifference to risk.” Borden,

593 U.S. at 438 (plurality opinion) (emphasis added).

“Recklessness and negligence are less culpable mental

states because they instead involve insufficient concern

with a risk of injury.” Id. at 427. As the Ninth Circuit

recognized, “[r]unning through Borden, therefore, is the

assumption that someone who commits a violent felony

possesses some awareness that their action will harm another.” Vega, 2023 WL 4858148, at *2.

The Sixth Circuit tried to evade that reasoning by dismissing Borden’s requirement that an offense demand a

person act “with full awareness of consequent harm” as

mere background rather than binding interpretation.

Pet.App.20a-21a (quoting Borden, 593 U.S. at 426 (plurality opinion)). But the plurality’s discussion of mens rea

supplied the very foundation of its holding. The Court’s

examples make that plain: the driver who sees a pedestrian and “plows ahead” acts knowingly, while the driver

who blows through a red light without seeing anyone acts,

at most, recklessly. Borden, 593 U.S. at 432 (plurality

opinion). The distinction is not whether the driver’s movement was volitional. It is whether the driver was aware

that his force was directed at another person in a manner

capable of causing physical pain or injury.

The Sixth Circuit’s rule also fails under Justice

Thomas’s Borden concurrence. Supplying the fifth vote,

Justice Thomas concluded that the elements clause covers

only “intentional acts designed to cause harm.” Id. at 446

(Thomas, J., concurring in the judgment) (citation omitted). An intentional touch that happens to cause injury is

plainly not an act “designed to cause harm.”

22

Applying the Sixth Circuit’s rule to Florida felony

battery exposes the Sixth Circuit’s error. By assessing

mens rea solely with respect to the statute’s conduct element, the Sixth Circuit’s rule collapses the distinction between more-than-reckless contact and more-than-reckless violent force. This produces the very result that Borden forbids: punishing an offender for a “violent felony”

even though he lacked any awareness that his conduct

would inflict violent force on another person.

2. The Sixth Circuit’s rule also undermines the careful design of ACCA. “Were there any doubt about the elements clause’s meaning, context and purpose would remove it.” Id. at 437 (plurality opinion). As this Court has

repeatedly cautioned, “we cannot forget that we ultimately are determining the meaning of the term ‘crime of

violence.’” Leocal, 543 U.S. at 11; see Borden, 593 U.S. at

437-38 (plurality opinion) (same for “violent felony”);

Johnson, 559 U.S. at 140 (same). “Congress enacted

ACCA … to address the special danger created when a

particular type of offender—a violent criminal—possesses a gun.” Borden, 593 U.S. at 438 (plurality opinion)

(cleaned up). Consistent with that aim, this Court has

“construed the definitions at issue to mark out a narrow

‘category of violent, active crimes.’” Id. (quoting Johnson,

559 U.S. at 140).

The Sixth Circuit’s approach erases that limitation.

Under its rule, an offense qualifies as an ACCA predicate

regardless of the defendant’s awareness of the risk of

harm his conduct posed. That overbroad construction

sweeps in conduct “‘far removed’ from the ‘deliberate kind

of behavior associated with violent criminal use of firearms.’” Id. at 439 (quoting Begay, 553 U.S. at 147). Take,

for instance, a bar patron who pokes a stranger in the

chest. Unbeknownst to the patron, the stranger has a

heart device that is dislodged with the poke, and the

23

stranger ultimately suffers cardiac issues and permanent

disability. Or a park employee who intentionally grabs a

visitor’s arm to prevent entry into a prohibited area. The

visitor, who has osteoporosis, suffers a bone fracture. The

bar patron’s and park employee’s acts are intentional and

ultimately cause “great bodily harm,” thereby qualifying

as ACCA predicates under the Sixth Circuit’s rule. But

neither person acted “with full awareness of consequent

harm” that his application of force would inflict on another

person. See id. at 426. This conduct plainly bears no resemblance to the “special danger” created when a violent

criminal possesses a gun. See Begay, 553 U.S. at 146.

Allowing this misinterpretation of ACCA’s elements

clause to stand will “blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.” Leocal, 543 U.S. at

11. Review by this Court is the only means to address this

problem and ensure defendants are not subjected to enhanced sentences for offenses ACCA was never designed

to reach.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CONRAD B. KAHN

JENNIFER COFFIN

ERIN RUST

FEDERAL DEFENDER

SERVICES OF EASTERN

TENNESSEE, INC.

800 S. Gay Street,

Suite 2400

Knoxville, TN 37929

(865) 637-7979

AUGUST 20, 2026

LISA S. BLATT

Counsel of Record

CHARLES L. MCCLOUD

ANDREW T. GUIANG

WILLIAMS & CONNOLLY LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

lblatt@wc.com