Firearm Offenses/ACCA – A prior conviction under Georgia’s aggravated assault statute is not a “crime of violence” under the ACCA or the Federal Sentencing Guidelines when the conviction is based on a simple assault with a mens rea of recklessness.
Terin Moss was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and 924(a)(2). Probation asserted that Moss was an armed career offender under the ACCA based on Moss’s three prior felony convictions under Georgia law, which included a drug offense and two convictions for aggravated assault on a police officer and obstruction of an officer. The aggravated assault charges were based on Moss biting a police officer, drawing blood, after initially fleeing from the officer.
Moss appealed his mandatory minimum sentence under the ACCA, specifically arguing that his conviction for aggravated assault was not a predicate “crime of violence” under the ACCA or U.S.S.G. § 4B1.4, as his offense did not fit the generic definition of aggravated assault or have “use of force” as an element.
The Court vacated Moss’s sentence. The Court determined that Georgia’s aggravated assault statute was divisible and applied the modified categorical approach, looking at the underlying court documents to determine which provision of the statute Moss was convicted under, and whether that provision fit the generic definition of an aggravated assault.
Under Georgia law, one commits an aggravated assault when they commit a simple assault, defined as 1) an attempt to commit a violent injury to another or 2) an act which places another in reasonable apprehension of immediately receiving a violent injury, while using a deadly weapon or with an intent to murder, rope, or rape.
Since the Shepard documents were inconclusive, the Court held that Moss was convicted under the second prong of the simple assault statute, and the state indictment had charged that the assault was aggravated since Moss’s mouth constituted a deadly weapon likely to result in serious bodily injury.
Citing Supreme Court decisions holding that prior convictions cannot be “crimes of violence” under the ACCA unless they are predicated on “the intentional use of force,” the Court held that Moss’s aggravated assault was not a predicate crime of violence. Under Georgia law, recklessness is a sufficient to prove the mens rea under the second prong of the simple assault statute and an aggravated assault based on that second prong, even where it is aggravated due to a deadly weapon.
Appeal from the Southern District of Georgia
Opinion by Wilson, joined by Branch and Anderson