Borden v. U.S.
No. 19-5410
Decided on June 10, 2021
Issue:
Armed Career Criminal Act and Past Violent Convictions
Whether 1) a defendant is subject to the enhanced sentence under the Armed Career Criminal Act (ACCA) where one of three past convictions has the mens rea of recklessness, and whether 2) that conviction constitutes a “violent felony” under the elements clause 18 USC § 924(C)(3)(A) which qualifies a felony as violent when it “has as an element the use, attempted use, or threatened use of physical violence against the person of another.”
Holding:
‘Violent’ Requires Purposeful and Knowing Conduct, Excludes Recklessness
The Supreme Court held that 1) a defendant is not subject to the ACCA enhanced sentence where one of three past convictions had the mens rea of recklessness, and 2) that a “violent felony” requires purposeful and knowing conduct for the use of force “against the person of another.”
Facts:
Charles Borden Jr. pled guilty to a felon-in-possession charge and the Government sought an enhanced sentence under ACCA. One of Borden’s past three convictions was for reckless aggravated assault. Borden argued that this offense was not a violent felony under ACCA’s elements clause because a mental state of recklessness suffices for conviction, and that only purposeful and knowing conduct satisfies the clauses’s demand for the use of force “against the person of another.” The District Court disagreed and sentenced Borden as a career offender under ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.”
Analysis:
ACCA Elements Clause
The Supreme Court held that the ACCA penalty enhancement kicks in only when three or more past offenses meet the statute’s definition of “violent felony.” An offense qualifies as violent under the elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Borden argued that the word “against” introduces a conscious object (not the mere recipient) of the force, while the Government argued that “against” instead means “making contact with” and therefore introduces the mere recipient of force rather than its “intended target.” Indeed, dictionaries offer both meanings, “in opposition to” and “in contact with,” depending on context.
The Court held that Borden’s view of the word was correct, as “against another” modifies the “use of force,” which demands that the perpetrator direct his action at, or target, another individual in behavior that is knowing or purposeful. Reckless conduct is not aimed in that prescribed manner, and to treat reckless offenses as “violent felonies” would impose large sentencing enhancements on individuals (such as a reckless driver) far afield from the “armed career criminals” who the ACCA addresses.
Purposeful and Knowing Conduct and the Four Mens Rea
The ACCA elements clause, then, excludes reckless conduct but covers conduct that is knowing and purposeful. Of the four mens rea that give rise to criminal liability (purpose, knowledge, recklessness, and negligence), purpose and knowledge are the most culpable levels in criminal law’s mental-state hierarchy. (U.S. v. Bailey, 444 U.S. 394, 404 (1980)). A person acts purposely when he “consciously desires” a particular result. A person acts knowingly when “he is aware that a result is practically certain to follow from his conduct,” what his affirmative desire.
For example, a person driving his car straight at a reviled neighbored has, in the statute’s language, “Used physical force against the person of another” in a purposeful way. A getaway driver who sees a pedestrian in his path but plows ahead anyway has likewise “used physical force against the person of another.”
Recklessness and negligence are less culpable mental states because they instead involve insufficient concern with a risk of injury. A person acts recklessly when he “consciously disregards a substantial and unjustifiable risk” (Model Penal Code § 2.202(2)(c); see Voisine v. U.S., 579 U.S. 686 (2018)).
For example, a reckless or negligent driver who, late to work, decides to run a red light and hits a pedestrian whom he did not see has not “used physical force against the person of another,” rather, he has consciously disregarded a real risk, thus endangering others. He did not train his car at the pedestrian understanding he will run him over. The reckless driver does not, therefore, come within the elements clause.
Leocal v. Ashcroft
In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme Court held that offenses requiring only a negligent mens rea fell outside a statutory definition relevantly identical to ACCA’s elements clause. That definition, codified at 18 U.S.C. § 16(a) is for the term “crime of violence.” Section 16(a) states that a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
The Court explained in Leocal that a “crime of violence” suggests a category of “violent, active crimes that cannot be said naturally to include negligent offenses.” That when read against the words “use of force,” the “against” phrase (which the Court held as a “critical aspect” of the definition) “suggests a higher degree of intent” than (at least) negligence” (Id. at 9).
The Court’s logic likewise applies in this case regarding recklessness. It is the pairing of volitional action with the word “against” that produces its oppositional or directed meaning and excludes recklessness from the statute.
Context and Purpose
Furthermore, the Court held that context and purpose remove any doubts regarding the elements clause’s meaning. In Leocal and Johnson v. U.S. the Court’s decisions construed the definitions of “crime of violence” and “violent felony” to mark out a narrow category of violent, active crimes. Those 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” such as murder and rape as opposed to drunk driving.
The classification of reckless crimes as “violent felonies” does not comport with ACCA’s purpose. ACCA sets out to identify and address “the sort of offender who, when armed, might deliberately point the gun and pull the trigger” (Begay, 553 U.S. at 146). The Act discharges that goal by looking to a person’s criminal history. An offender who has repeatedly committed “purposeful, violent, and aggressive” crimes poses an uncommon danger of “using a gun deliberately to harm a victim. (Id. at 145.) However blameworthy, reckless or negligent conduct is “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms” (Id. at 147). The Supreme Court therefore reversed the judgment, and remanded the case for further proceedings.