Borden v. United States (U.S. Supreme Court, June 2021)

The Federal Docket

June 11, 2021

Sentencing/ACCA – A prior conviction for an offense that requires only a mens rea of “recklessness” cannot serve as the predicate prior offense that triggers a higher mandatory minimum sentence under the elements clause of the ACCA.

Charles Borden, Jr. was convicted of being a felon in possession of a firearm. At sentencing, he received a 15-year mandatory minimum under the Armed Career Criminal Act (ACCA), 18 USC 924(e), because the court found he had prior convictions that had, as an element, “the use, attempted use, or threatened use of physical force against the person of another.” He appealed all the way to the Supreme Court, arguing that an offense that requires only a mens rea of “recklessness” does not satisfy the elements of a violent felony under the ACCA.

The Supreme Court agreed. The Court reasoned that the phrase “against the person of another” modified the “use of force” language in the elements clause, meaning that the perpetrator must “direct” their force at another to constitute a violent felony. Since reckless conduct “is not aimed in that prescribed manner,” that means a perpetrator must be acting intentionally. The Court added that violent crimes are generally thought of as intentional, reflecting a “deliberate choice of wreaking harm on another, rather than mere indifference to risk,” and that Congress had not intended to cover non-intentional conduct in the definition.

Justice Thomas concurred, arguing that the phrase “use of physical force” was understood to mean only intentional acts. Justice Thomas added that he thought the offense would fall under the “residual clause” of the ACCA that was struck down in Johnson v. United States, which he considers wrongly decided.

Justice Kavanaugh dissented, arguing that recklessness is included under the ACCA’s use of force clause since there can be reckless assault and reckless homicide, and he cited the “alarming statistics” regarding recidivism of violent offenders.

Certiorari to the Sixth Circuit
Opinion by Kagan, joined by Breyer, Sotomayor, and Gorsuch
Concurrence by Thomas
Dissent by Kavanaugh, joined by Roberts, Alito, and Barrett

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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