United States v. Mann

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 10, 2018

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 17-2117

CLAY O’BRIEN MANN,

Defendant - Appellee.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:14-CR-03092-JAP-1)
_________________________________

Finnuala K. Tessier, Attorney, Appellate Section, Criminal Division, United States
Department of Justice, Washington, D.C. (Kenneth A. Blanco, previous Acting Assistant
Attorney General, and Trevor N. McFadden, previous Deputy Assistant Attorney
General, United States Department of Justice, Washington, D.C., with her on the opening
brief; John P. Cronan, Acting Assistant Attorney General, United States Department of
Justice, Washington, D.C., with her on the reply brief; James D. Tierney, Acting United
States Attorney, Paige Messec, Assistant United States Attorney, and James R. W. Braun,
Appellate Chief, District of New Mexico, Albuquerque, New Mexico, with her on the
opening and reply briefs), for Plaintiff - Appellant.

Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant - Appellee.
_________________________________

Before MATHESON, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________
 This case forces us to decide whether assault resulting in serious bodily injury, 18

U.S.C. § 113(a)(6), is a crime of violence under 18 U.S.C. § 924(c)(3)(A). We hold that it

is. Because the district court concluded otherwise, we reverse its judgment and remand

for further proceedings consistent with this opinion.

BACKGROUND

We have previously described the events precipitating this prosecution. See United

States v. Mann, 786 F.3d 1244, 1246–48 (10th Cir. 2015). In brief, Clay O’Brien Mann’s

neighbors invited about a dozen friends to join them late one summer evening for a

bonfire at their undeveloped property on an Indian reservation. These occasional

gatherings irritated Mr. Mann. And when this particular soirée continued into the early

morning, Mr. Mann, who had been drinking, hurled a lit artillery-shell firework in the

direction of the partygoers. The firework exploded, chaos ensued, and his neighbors and

their guests ran away screaming. Three of them unwittingly retreated in the direction of

Mr. Mann. He then fired nine shots with a semiautomatic rifle, killing one person and

wounding two others. Mr. Mann thereafter patrolled the fence line separating the

properties while shouting profanities and threats at other partygoers. He eventually drove

away and was apprehended later that morning.

Mr. Mann, who is an enrolled member of the Navajo Nation and Indian Tribe, was

indicted on eight counts, and a jury convicted as to five of them. The district court

vacated one of those convictions1 and sentenced Mr. Mann, all told, to just over fourteen

1
Mr. Mann was ultimately convicted of one count of involuntary
manslaughter, in violation of 18 U.S.C. §§ 1153 and 1112(a); two counts of assault
2
years in prison. Mr. Mann appealed, and we affirmed. In the course of affirming, we

noted that but for a “careless error” by the government, Mr. Mann might well have

received an additional twenty-five years on his sentence for a second § 924(c) conviction.

Id. at 1249 n.6; see 18 U.S.C. § 924(c)(1)(C)(i); Deal v. United States, 508 U.S. 129,

131–37 (1993). That error lay in Count 8 of the original indictment, which charged Mr.

Mann with “knowingly discharg[ing] and carry[ing] a firearm . . . during and in relation

to a crime of violence, . . . namely, assault resulting in serious bodily injury as charged in

Count 6 herein,” in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Indictment at 3–4, United

States v. Mann, No. 11-cr-01528-JAP (D.N.M. June 7, 2011), ECF No. 33. The problem

was that the indictment charged “assault resulting in serious bodily injury” in Count 7,

not in Count 6. Id. at 3. After realizing the government’s mistake, the district court

dismissed Count 8 without prejudice, allowing the government to present a corrected

§ 924(c)(1)(A)(iii) charge to another grand jury if it desired. Mann, 786 F.3d at 1249 n.6;

Transcript of Jury Trial at 6–7, Mann, No. 11-cr-01528-JAP, ECF No. 125. The

government elected to do so.

By the time we decided Mann, a second grand jury had already re-indicted Mr.

Mann on a corrected § 924(c)(1)(A)(iii) charge. That charge went to trial, but the district

court declared a mistrial after the jury was unable to reach a unanimous verdict. Before a

third trial was set to begin, Mr. Mann moved to dismiss the indictment, arguing that

resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6);
and one count of discharging a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

3
assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), is not a crime of violence

under § 924(c)(1)(A). The district court agreed. United States v. Mann, No. CR 14-3092

JAP, 2017 WL 3052521 (D.N.M. June 16, 2017). Relying on a line of precedent from

this court holding that recklessness is an insufficient mens rea to constitute a crime of

violence—and concluding that proof of recklessness would suffice to convict under

§ 113(a)(6)—the district court held that § 113(a)(6) is not a crime of violence for

purposes of § 924(c)(3). Id. at *2–5. The district court dismissed the indictment, and the

government timely brought this appeal.

DISCUSSION

We generally review the dismissal of an indictment for abuse of discretion. United

States v. Pauler, 857 F.3d 1073, 1075 (10th Cir. 2017). But where, as here, the district

court’s judgment rests on a question of law, our review is de novo. Id.; United States v.

Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009) (“We review the district court’s legal

conclusion that a particular offense constitutes a crime of violence de novo.”).

The operative indictment charged Mr. Mann with discharging a firearm during and

in relation to a crime of violence, namely, assault resulting in serious bodily injury, in

violation of 18 U.S.C. § 924(c)(1)(A)(iii). By enacting § 924(c)(1), Congress imposed

various “increased penalties” for use of a firearm in relation to certain crimes. Welch v.

United States, 136 S. Ct. 1257, 1267 (2016). As relevant here, § 924(c)(1)(A) provides

that “any person who, during and in relation to any crime of violence . . . uses or carries a

firearm” shall be subject to some additional punishment. On a second or subsequent

4
conviction, a defendant is to be sentenced to a term of imprisonment of not less than

twenty-five years. Id. § 924(c)(1)(C)(i).

Crimes of violence are defined at § 924(c)(3). That subsection offers two

independent definitions. Under the first definition, a crime of violence means any offense

that is a felony and “has as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” Id. § 924(c)(3)(A). Under the

second definition, a crime of violence means any offense that is a felony and “that by its

nature, involves a substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.” Id. § 924(c)(3)(B). In this

appeal the government argues that assault resulting in serious bodily injury, § 113(a)(6),

qualifies under either definition. But in light of our recent holding that § 924(c)(3)(B) is

unconstitutionally vague, United States v. Salas, 889 F.3d 681, 683 (10th Cir. 2018), our

analysis will begin and end with § 924(c)(3)(A).

In determining whether a § 113(a)(6) offense “has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another,” § 924(c)(3)(A), we apply a “categorical approach.” United States v. Pam, 867

F.3d 1191, 1203 (10th Cir. 2017). In other words, we look only to the elements that must

be proven to convict a person under § 113(a)(6) in the abstract, “and not to the particular

facts underlying” Mr. Mann’s actual conviction for that offense. Id. (internal quotation

marks omitted).

To convict Mr. Mann of assault resulting in serious bodily injury, the government

needed to prove (1) the defendant assaulted a victim and (2) the victim suffered serious

5
bodily injury. 18 U.S.C. § 113(a)(6); see id. § 1153(a) (providing that “[a]ny Indian” who

commits “a felony assault under section 113,” “within the Indian country, shall be subject

to the same laws and penalties as all other persons committing [such offense], within the

exclusive jurisdiction of the United States”); United States v. Zunie, 444 F.3d 1230, 1233

(10th Cir. 2006). Every conviction under § 113(a)(6) requires an assault. “To determine if

every violation of [§ 113(a)(6)] is a crime of violence, then, we need only determine

whether . . . an assault that causes [serious] bodily injury” necessarily involves the use,

attempted use, or threatened use of physical force against the person or property of

another. See United States v. Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017) (holding that

18 U.S.C. § 111(b) is a crime of violence under U.S.S.G. § 4B1.2), cert. denied, 138 S.

Ct. 1582. As another federal court of appeals recently put it, the “question . . . answers

itself.” See United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017) (“How would it

be possible to suffer serious bodily injury without force capable of producing such

injury?”). We reiterate here that “[a]n assault that causes [serious] bodily injury by

definition involves the use of physical force.” Kendall, 876 F.3d at 1270.

Yet the district court in this case concluded that § 113(a)(6) is not a crime of

violence under the categorical approach because it is possible to violate that statute with a

mens rea of recklessness. The district court was partially correct: recklessness is indeed

sufficient2 to support a conviction under § 113(a)(6). Zunie, 444 F.3d at 1235. The district

2
Zunie’s facts are illustrative of how § 113(a)(6) may be applied to defendants
less culpable than Mr. Mann. The defendant in Zunie, “dangerously drunk and
recklessly out of control, drove his truck into the opposite lane of traffic and collided
head-on with a smaller vehicle,” leaving a four-year old boy permanently and
6
court was incorrect, however, to hold that § 113(a)(6) is therefore not a crime of violence.

To see why § 113(a)(6) “has as an element the use, attempted use, or threatened use of

physical force against the person or property of another,” § 924(c)(3)(A), notwithstanding

that it can be violated by defendants with a mens rea of recklessness, we turn to a line of

cases beginning with Leocal v. Ashcroft, 543 U.S. 1 (2004).

In Leocal, the Supreme Court considered whether a conviction under a Florida

statute criminalizing drunken driving counted as a crime of violence for purposes of 18

U.S.C. § 16.3 The Florida statute required no mens rea at all, reaching “negligent or

merely accidental conduct” just as much as purposeful or reckless conduct. Id. at 9. A

crime of violence, meanwhile, must involve “the ‘use . . . of physical force against the

person or property of another.’” Id. (quoting § 16(a)). Such a “use,” the Court reasoned,

“requires active employment.” Id. (“While one may, in theory, actively employ

something in an accidental manner, it is much less natural to say that a person actively

employs physical force against another person by accident.”). Because the Florida statute

reaches negligent or merely accidental conduct, it can be violated without the use of

physical force against the person or property of another and so, the Court held, it is not a

severely disabled. 444 F.3d at 1232. The serious-bodily-injury element was clearly
established. But we also held the evidence was sufficient to prove the defendant had
committed an assault. In so holding we drew a line between “mere negligence,”
which we suggested would not be enough to support a conviction under § 113(a)(6),
and recklessness, which is. Id. at 1235 & n.2.
3
The term “crime of violence” appears in several federal statutes. For present
purposes, the definitions in §§ 924(c)(3)(A) and 16(a) are substantially identical. The
only textual difference is that a crime of violence must be a felony to satisfy
§ 924(c)(3)(A), while some misdemeanors will suffice to satisfy § 16(a).

7
crime of violence. Id. at 9–10. As the unanimous Court was careful to note, that case did

not present “the question whether a state or federal offense that requires proof of the

reckless use of force against a person or property of another qualifies as a crime of

violence,” id. at 13, and it declined to hazard any guidance in dicta.

In United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008), we considered

whether a conviction under a Texas statute for assaulting a public servant counted as a

crime of violence for purposes of a sentencing guideline.4 We first determined that, under

Texas law, proof of recklessness was sufficient to convict. Id. at 1122 (citing Johnson v.

State, 172 S.W.3d 6, 10 (Tex. App. 2005)). From there, we asked “whether a mens rea

component of recklessness may satisfy” the “use of physical force requirement” found in

the applicable crime-of-violence definition. Id. at 1122–23. We held that it may not. Id. at

1123. We explained that our conclusion was “guided by three factors.” Id. The first was

the Supreme Court’s holding in Leocal, the second was “a survey of our own precedent,”

and the third was “the persuasive reasoning of our sister circuits.” Id. As we have already

discussed, Leocal is inconclusive. As for our own (pre-Leocal) precedent, we had

suggested in dicta that “a crime with a mens rea of recklessness could qualify as a crime

of violence.” Id. (citing Zunie, 444 F.3d at 1235 n.2). But, persuaded by out-of-circuit

case law, we abandoned our dicta in Zunie and concluded that “recklessness falls into the

category of accidental conduct that the Leocal Court described as failing to satisfy the use

4
The term “crime of violence” also appears more than once in the United States
Sentencing Guidelines. Under U.S.S.G. § 2L1.2, a crime of violence means (among other
things) any felony under state or federal law that “has as an element the use, attempted
use, or threatened use of physical force against the person of another.” United States v.
Zuniga-Soto, 527 F.3d 1110, 1115 (10th Cir. 2008).
8
of physical force requirement.” Id. at 1124. “We therefore h[e]ld that a mens rea of

recklessness does not satisfy [the] use of physical force requirement under § 2L1.2’s

definition of ‘crime of violence.’” Id.

In the years following Zuniga-Soto we extended its reasoning to new contexts.

See, e.g., United States v. Duran, 696 F.3d 1089, 1095 (10th Cir. 2012) (holding that

aggravated assault under Texas law could be committed with a reckless state of mind and

is therefore not a crime of violence under U.S.S.G. § 4B1.2); United States v. Armijo, 651

F.3d 1226, 1237 (10th Cir. 2011) (holding that Colorado’s version of manslaughter

involving only reckless conduct is not a crime of violence under U.S.S.G. § 4B1.2).

In Voisine v. United States, 136 S. Ct. 2272 (2016), however, the Supreme Court

declined to extend Leocal’s reasoning to convictions for reckless assault—at least for

purposes of 18 U.S.C. § 922(g)(9), a federal statute prohibiting persons convicted of a

“misdemeanor crime of domestic violence” from possessing a firearm. The petitioners in

that case were originally convicted under a section of the Maine Criminal Code which

makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury

or offensive physical contact to another person.” Id. at 2277 (quoting Me. Stat. tit. 17–A,

§ 207(1)(A)). They argued they were not persons convicted of a misdemeanor crime of

domestic violence under § 922(g)(9) because their Maine convictions “could have been

based on reckless, rather than knowing or intentional, conduct.” Id.

Section 922(g)(9) takes its crime-of-violence definition from § 921(a)(33)(A),

which in relevant part defines “misdemeanor crime of domestic violence” as a

misdemeanor that “has, as an element, the use or attempted use of physical force.” The

9
parties and the Court zeroed in on the word “use.” Id. at 2278 (noting that “the word ‘use’

. . . is the only statutory language either party thinks relevant”). Turning to dictionary

definitions of the noun “use,” the Court concluded that “the force involved in a qualifying

assault must be volitional,” as opposed to some sort of “involuntary motion,” which

would not count as “an active employment of force.” Id. at 2278–79. And because the

reckless use of force is a volitional use of force, the Court concluded that “[a] person who

assaults another recklessly ‘use[s]’ force, no less than one who carries out that same

action knowingly or intentionally.” Id. at 2280. Thus § 922(a)(33)(A)’s definition of a

misdemeanor crime of violence “contains no exclusion for convictions based on reckless

behavior.” Id.

Turning to Leocal, the Voisine Court saw “nothing” in the earlier case to

“suggest[ ] . . . that ‘use’ marks a dividing line between reckless and knowing conduct.”

Id. at 2279. Rather, the Leocal Court’s exclusion of “merely accidental” conduct from

crimes of violence under 18 U.S.C. § 16 “fully accords” with the Voisine Court’s

exclusion of involuntary conduct from misdemeanor crimes of violence under 18 U.S.C.

§ 921(a)(33)(A). Id. at 2279 & 2280 n.4.

Since Voisine was decided, we have repeatedly questioned the continuing vitality

of Zuniga-Soto and its progeny. In United States v. Hammons, 862 F.3d 1052, 1054 (10th

Cir. 2017), we held that a violation of Oklahoma’s drive-by shooting statute qualifies as a

violent felony under the federal Armed Career Criminal Act (“ACCA”).5 In so holding,

5
The ACCA yields yet another example of a federal statute employing a “use of
force” definition similar to the one found in 18 U.S.C. § 924(c)(3)(A). See 18 U.S.C.
10
we rejected the defendant’s reliance on Zuniga-Soto. Id. at 1055. After Voisine, we

observed, a proper categorical approach focuses on whether the requisite force “is

‘volitional’ or instead ‘involuntary’—it makes no difference whether the person applying

the force had the specific intention of causing harm or instead merely acted recklessly.”

Id. at 1056. But we left “for another day” the question whether Voisine abrogated Zuniga-

Soto, id. at 1056 n.4, because we determined the Oklahoma drive-by-shooting offense at

issue in that case required the deliberate use of physical force, not mere recklessness, id.

at 1055–56.

About a month later, we held that a violation of New Mexico’s drive-by-shooting

statute likewise qualifies as a violent felony under the ACCA. Pam, 867 F.3d at 1208–11.

We again rejected the defendant’s reliance on Zuniga-Soto, adopting instead Voisine’s

reasoning to conclude that, under the ACCA, “a statute requiring proof only that the

defendant acted willfully and with reckless disregard for the risk posed by that act to

another person may categorically involve the use of physical force.” Id. at 1208. And we

again found it unnecessary to address whether Voisine abrogated Zuniga-Soto, as our

prior precedent did not purport to construe the ACCA clause at issue in Pam. Id. at 1207

n.5.

The government now urges us to apply Voisine’s reasoning to § 924(c)(3)(A),

much as earlier panels applied Voisine’s reasoning to the ACCA. Mr. Mann responds

with various arguments. First, he enumerates six reasons why Voisine “left intact

§ 924(e)(2)(B)(i) (defining “violent felony” as “any crime punishable by imprisonment
for a term exceeding one year . . . that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of another” (emphasis added)).
11
precedent holding that 18 U.S.C. § 16 does not encompass an offense with a recklessness

mens rea.” Appellee’s Br. at 14–24 (arguing that Voisine “does not require this court to

abandon its relevant recklessness precedent” (emphasis added)). We need not belabor

these arguments. In this case, we construe § 924(c)(3)(A)—not § 16 or § 921(a)(33)(A).

We may assume without deciding that Voisine does not require us to rule in favor of the

government.6 But neither does our prior precedent require us to rule in favor of Mr.

Mann.

Indeed, this court has already extended Voisine’s reasoning to the ACCA. Pam,

867 F.3d at 1207; Hammons, 862 F.3d at 1056. In Voisine, the Court reasoned that harm

caused by reckless conduct—“acts undertaken with awareness of their substantial risk of

causing injury”—is “the result of a deliberate decision to endanger another.” 136 S. Ct. at

2279. And reckless conduct is therefore both “the [volitional] use . . . of physical force”

for purposes of 18 U.S.C. § 921(a)(33)(A), see id. at 2279–80, and “the [volitional] use

. . . of physical force against the person of another” for purposes of 18 U.S.C.

§ 924(e)(2)(B)(i), Pam, 867 F.3d at 1207–08. We hold today that Voisine’s reasoning

extends to § 924(c)(3)(A) as well: reckless conduct is no less “the [volitional] use . . . of

physical force against the person or property of another,” for purposes of 18 U.S.C.

§ 924(c)(3)(A).

6
The government argues that Voisine abrogated Zuniga-Soto, Armijo, and Duran.
But none of those cases construed § 924(c)(3)(A), and so once more we decline to
address whether their holdings survive Voisine. United States v. Pam, 867 F.3d 1191,
1207 n.15 (10th Cir. 2017); United States v. Hammons, 862 F.3d 1052, 1056 n.4 (10th
Cir. 2017).

12
 Mr. Mann’s arguments to the contrary are not persuasive. For instance, he argues

that the drive-by-shooting offenses at issue in Hammons and Pam both “include[ ] as an

element willful conduct as well as a reckless element.” Appellee’s Br. at 29. Because

§ 113(a)(6) can be violated by reckless driving, Zunie, 444 F.3d at 1232–36, it

criminalizes “pure recklessness,” Appellee’s Br. at 30, which he argues ought not be

treated as a crime of violence. Mr. Mann appears to suggest that we join the Eighth

Circuit in carving out an exception for, at least, offenses that encompass reckless driving.

Appellee’s Br. at 30 (citing United States v. Fields, 863 F.3d 1012, 1014–16 (8th Cir.

2017)). We decline to do so. Over Judge Loken’s dissent, the Fields court adhered to pre-

Voisine Eighth Circuit precedent, explaining that it “remain[ed] dispositive of the present

appeal.” Fields, 863 F.3d at 1015. We are not burdened by such precedent in this circuit,

and we see no reason to treat reckless driving as categorically different than other forms

of reckless conduct. We note also that nothing in Voisine suggests a distinction between

“recklessness” and “pure recklessness,” as Mr. Mann distinguishes those terms.

In addition, the nature of a § 113(a)(6) violation requires that the actor’s use of

force be directed at the person of another. To violate § 113(a)(6), Mr. Mann must have

committed an assault and that assault must have resulted in serious bodily injury. Because

§ 113 nowhere defines “assault,” in United States v. Gauvin, we adopted the general

practice of giving common law meaning to common law terms used by a federal criminal

statute that does not otherwise define the term, and we concluded that assault as used in

§ 113 means “an attempted battery” or “placing another in reasonable apprehension of a

battery.” 173 F.3d 798, 802 (10th Cir. 1999) (quoting Wayne R. LaFave & Austin W.

13
Scott, Jr., Substantive Criminal Law, § 7.16 (1986)). In turn, Mr. Mann must have acted

with at least recklessness in committing the assault resulting in serious bodily injury. To

act recklessly “is to take . . . action with a certain state of mind (or mens rea)—in the

dominant formulation, to ‘consciously disregard[ ]’ a substantial risk that the conduct will

cause harm to another.” Voisine, 136 S. Ct. at 2278 (quoting ALI, Model Penal Code

§ 2.02(2)(c) (1962)); see Farmer v. Brennan, 511 U.S. 825, 836–37 (1994) (“The

criminal law . . . generally permits a finding of recklessness only when a person

disregards a risk of harm of which he is aware.” (emphasis added)). We have, moreover,

repeatedly held that § 113(a)(6) is a general intent crime, Zunie, 444 F.3d at 1233; United

States v. Benally, 146 F.3d 1232, 1237 (10th Cir. 1998), by which we mean a criminal

“act [must be] done voluntarily and intentionally, and not because of mistake or

accident,” Zunie, 444 F.3d at 1234 (quotation marks omitted). Contrary to Mr. Mann’s

argument, a defendant convicted of § 113(a)(6) has necessarily committed a “purposeful

act,” Appellee’s Br. at 30, and exhibited “willful conduct,” id. at 29. And that purposeful

act or willful conduct can take many forms: it could be the pulling of the trigger of a gun

or the mere driving of a car (“pure recklessness,” as Mr. Mann calls it). The underlying

action does not much matter. What matters instead is whether the act was done with (at

least) conscious disregard of a substantial risk that the behavior will cause harm to

another. If it was, then the act will support a § 113(a)(6) conviction, and, in turn, an

increased penalty under § 924(c)(3)(A).

Mr. Mann also argues there are “meaningful differences” between the ACCA and

§ 924(c)(3)(A), such that even if Voisine’s reasoning is properly extended to the former,

14
it is not properly extended to the latter. Appellee’s Br. at 32. But the only difference he

identifies is that the ACCA definition applies only to force used “against the person of

another,” while § 924(c)(3)(A) refers to force used “against the person or property of

another.” These “against” clauses distinguish the ACCA and § 924(c)(3)(A) definitions

from the § 921(a)(33)(A) definition at issue in Voisine, which contains no comparable

clause. See Bennett v. United States, 868 F.3d 1, 19 (1st Cir. 2017) (noting the canon

against surplusage “at least suggest[s] that the follow-on ‘against’ phrase . . . must be

conveying something that the phrase ‘use . . . of physical force’ does not”), opinion

withdrawn and vacated, 870 F.3d 34 (1st Cir. 2017), reasoning adopted by United States

v. Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017). And a panel of the Sixth Circuit found

that distinction significant when interpreting similar language in the Sentencing

Guidelines:

[T]he definition in § 4B1.2 includes language that the definition in Voisine
did not. There, § 921(a)(33)(A) required only “the use . . . of physical
force” simpliciter (so far as the “use of force” element was concerned);
here, in contrast, § 4B1.2 requires “the use . . . of physical force against the
person of another[.]” (Emphasis added.) The italicized language is a
restrictive phrase that describes the particular type of “use of physical
force” necessary to satisfy § 4B1.2. See generally Shertzer, The Elements of
Grammar 7 (1986). Specifically, § 4B1.2 requires not merely a volitional
application of force, but a volitional application “against the person of
another.”

United States v. Harper, 875 F.3d 329, 331 (6th Cir. 2017), petition for cert. filed (U.S.

Jan. 30, 2018) (No. 17-7613); cf. Voisine, 136 S. Ct. at 2278 (noting that “the word ‘use’

. . . is the only statutory language either party thinks relevant”). Harper went on to

explain that Voisine’s reasoning should not be extended to a provision of the Sentencing

15
Guidelines that included the language “against the person of another.” See 875 F.3d at

332 (“That phrase is not meaningless, but restrictive. And understood the way the English

language is ordinarily understood, it narrows the scope of the phrase ‘use of force’ to

require not merely recklessness as to the consequences of one’s force, but knowledge or

intent that the force apply to another person.”).

Harper is in tension with our opinion in Pam, as Harper itself noted.7 See id. at

332 (observing that Pam did not “acknowledge, much less analyze, the language that

§ 4B1.2 has but that the provision in Voisine did not: namely, ‘against the person of

another’”). We are bound by our prior panel opinions in Pam and Hammons, and Mr.

Mann does not ask us to overrule them. But he does ask us to refrain from extending

them beyond their specific holdings. He argues that by including a broader “against”

clause in § 924(c)(3)(A)—one that reaches harm to property as well as persons—

Congress meant to limit crimes of violence to those crimes which were necessarily

committed by a person specifically aiming to use force against a person or property. See

Appellee’s Br. at 32 (arguing that, with respect to § 924(c)(3), “the ‘against’ phrase

cannot be explained away as just a means to clarify that only harm to a person is

relevant”).

We are not persuaded that the presence of the words “or property” in

§ 924(c)(3)(A) can support the weight Mr. Mann would have us place on them. The

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Harper’s reasoning is also at odds with its own circuit’s binding precedent.
In Harper, the unanimous three-judge panel explained it was reluctantly following
United States v. Verwiebe, 874 F.3d 258 (6th Cir. 2017), which had already held that
a violation of 18 U.S.C. § 113(a)(6), the very statute at issue in this case, is a crime
of violence under U.S.S.G. § 4B1.2(a).
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better reading, we think, is simply that § 924(c)(3)(A) reaches property crimes and the

ACCA does not. We do not believe that Congress, by expanding the reach of

§ 924(c)(3)(A) relative to the ACCA in an obvious textual sense, simultaneously intended

to restrict its reach by surreptitiously adding a heightened mens rea requirement. Were

we to accept Mr. Mann’s account, we would need to construe the “ACCA’s follow-on

‘against’ phrase [as serving] a wholly distinct narrowing function from the one that its

similarly worded counterpart in [§ 924(c)(3)(A)] performs.” Bennett, 868 F.3d at 19 n.15.

That would be the wrong result. As the Sixth Circuit observed in a related context, “[a]ll

that is going on is that the category of victims is larger with today’s statute.” Verwiebe,

874 F.3d at 263. “That one statute requires a victim of the ‘use of force’ in one way, and

the other statute requires a victim in another way, does not offer a meaningful basis for [a

mens rea] distinction.” Id.

Mr. Mann also invokes the rule of lenity. “But ‘the rule of lenity only applies if,

after considering text, structure, history, and purpose, there remains a grievous ambiguity

or uncertainty in the statute, such that the Court must simply guess as to what Congress

intended.’” United States v. Castleman, 572 U.S. 157, 134 S. Ct. 1405, 1416 (2014)

(quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). Where, as here, “the customary

tools of statutory interpretation convince the court of a specific meaning for statutory

language,” the rule of lenity is inapplicable. United States v. Alexander, 802 F.3d 1134,

1141 (10th Cir. 2015).

One question remains: if § 113(a)(6) could ever be violated by a defendant with a

mens rea less than recklessness—say, negligence—then § 113(a)(6) may not be a crime

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of violence. See Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) (“Because we

examine what the [ ] conviction necessarily involved, not the facts underlying the case,

we must presume that the conviction rested upon nothing more than the least of the acts

criminalized.” (internal quotation marks and brackets omitted)). But Mr. Mann has

conceded that “[t]he least of the acts criminalized by § 113(a)(6) is the reckless causing

of serious bodily injury.” Appellee’s Br. at 26; see Zunie, 444 F.3d at 1235 n.2

(suggesting as much in dicta). We accept his concession and conclude that § 113(a)(6) is

categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A). Because the district

court ruled otherwise in dismissing the government’s indictment, its judgment cannot

stand.

CONCLUSION

For the reasons stated, the district court’s judgment is REVERSED. We

REMAND this matter for further proceedings consistent with this opinion.

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