                           NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 14a0599n.06

                                                  No. 13-6339                                         FILED
                                                                                               Aug 05, 2014
                                                                                           DEBORAH S. HUNT, Clerk
                             UNITED STATES COURTS OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                                          )
                                                                  )
        Plaintiff-Appellee,                                       )
                                                                  )
v.                                                                )        ON APPEAL FROM THE
                                                                  )        UNITED STATES DISTRICT
TERRENCE BELL                                                     )        COURT FOR THE WESTERN
                                                                  )        DISTRICT OF TENNESSEE
        Defendant-Appellant.                                      )
                                                                  )
                                                                  )



BEFORE:          MOORE and ROGERS, Circuit Judges; and NIXON, District Judge.*

        JOHN T. NIXON, District Judge.                   Terrence Bell pled guilty to being a felon in

possession of a firearm and to possessing cocaine with intent to distribute. The government

argued Bell should be sentenced as an armed career criminal based on three previous

convictions: one aggravated robbery and two aggravated assaults in Tennessee. Bell argued that

one of his convictions for aggravated assault under Tennessee law did not qualify as a violent

felony. The district court agreed with the government and sentenced Bell as an armed career

criminal to 180 months in prison. For the following reasons, we AFFIRM the district court’s

sentence.




*
 The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by
designation.
No. 13-6339
Bell v. United States
                                         BACKGROUND

       On December 14, 2012, a federal Grand Jury indicted Bell on one count of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g), and one count of possession of

cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On March 13, 2013, Bell

entered a guilty plea to both counts without a written plea agreement.

       On May 14, 2013, the United States Probation Office prepared a Presentence

Investigation Report (“PSR”), which deemed Bell an armed career criminal under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on having three previous convictions

for violent felonies. The three convictions were one aggravated robbery and two aggravated

assaults. Based on the PSR, Bell’s advisory guideline range for both counts was 188 to 235

months; however, the firearm charge also carried a statutory minimum of 180 months (15 years)

based on Bell’s designation as an armed career criminal under the ACCA. See 18 U.S.C.

924(e)(1) (2012).

       On July 30, 2013, Bell filed a Position on the PSR, challenging only the designation of

one of his convictions for aggravated assault as a violent felony under the ACCA. In particular,

one conviction was predicated on violation of Tenn. Code Ann. § 39-13-102(c), which Bell

contended encompasses both simple assaults and crimes committed recklessly and is therefore

outside the scope of the ACCA’s definition of violent felony.                 On August 4, 2013, the

government filed its own Position on the PSR, arguing Bell’s aggravated assault conviction

qualified as a violent felony under the ACCA. Specifically, the government submitted that § 39-

13-102(c) does not encompass recklessness and further that any violation of § 39-13-102(c)

presents sufficient risk of physical injury to qualify as a violent felony.



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No. 13-6339
Bell v. United States
        On October 7, 2013, the district court conducted a sentencing hearing with oral argument

from Bell and the government. Both essentially reiterated the arguments in their respective

Positions. Ultimately, the district court rejected Bell’s objections, concluding the statute could

not be violated by merely reckless conduct and that the risk of violence created by a violation of

§ 39-13-102(c) presented sufficient risk of physical injury to qualify as a violent felony given

that § 39-13-102(c) requires the crime to be committed in violation of a restraining order. The

district court then sentenced Bell to 180 months in prison. This appeal followed.

                                                 DISCUSSION

I.      Standard of Review

        We review de novo a district court’s determination of law that a defendant’s prior

conviction is a violent felony under the ACCA. United States v. Mitchell, 743 F.3d 1054, 1058

(6th Cir. 2014).

II.     Analysis

        At the time of Bell’s conviction in 2006, Tenn. Code Ann. § 39-13-102(c)1 provided

        A person commits aggravated assault who, after having been enjoined or
        restrained by an order, diversion or probation agreement of a court of competent
        jurisdiction from in any way causing or attempting to cause bodily injury or in
        any way committing or attempting to commit an assault against an individual or
        individuals, intentionally or knowingly attempts to cause or causes bodily injury
        or commits or attempts to commit an assault against such individual or
        individuals.

“Assault” was then further defined as

        (1) Intentionally, knowingly or recklessly causes bodily injury to another;
        (2) Intentionally or knowingly causes another to reasonably fear imminent bodily
            injury; or



1
  The current version of the statute is essentially identical to the 2006 version. See Tenn. Code Ann. § 39-13-102(c)
(2014).
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No. 13-6339
Bell v. United States
         (3) Intentionally or knowingly causes physical contact with another and a
             reasonable person would regard the contact as extremely offensive or
             provocative.

Tenn. Code Ann. § 39-13-101(a) (2006). For purposes of both of these sections, “bodily injury”

was defined as “a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary

illness or impairment of the function of a bodily member, organ, or mental faculty.” Tenn. Code

Ann. § 39-11-106(a)(2) (2006).               Further, “in determining the meaning or the scope of

[aggravated assault], we are bound by the Tennessee Supreme Court’s interpretation, including

its guidance on the elements of the crime.” Mitchell, 743 F.3d at 1059.

         Under the ACCA, a person convicted of being a felon in possession of a firearm under

18 U.S.C. § 922(g), with three previous convictions under § 922(g)(1) for violent felonies, shall

serve a minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1) (2012). “Violent felony” is

defined as

         any crime punishable by imprisonment for a term exceeding one year . . . that
         (i) has as an element the use, attempted use, or threatened use of physical force
         against the person of another; or (ii) is burglary, arson, or extortion, involves use
         of explosives, or otherwise involves conduct that presents a serious potential risk
         of physical injury to another.

Id. § 924(e)(2)(B). Accordingly, there are three ways in which a crime may qualify as a violent

felony: (1) as an enumerated offense (burglary, arson, extortion, use of explosives); (2) under the

“use of physical force” clause, 18 U.S.C. § 924(e)(2)(B)(i); or (3) under the “otherwise,” or

residual, clause, 18 U.S.C. § 924(e)(2)(B)(ii). See United States v. McMurray, 653 F.3d 367,

373 (6th Cir. 2011). Additionally, this Court analyzes a “violent felony” under the ACCA in the

same way as a “crime of violence” under § 4B1.2(a) of the United States Sentencing Guidelines2


2
  Under this section of the guidelines, a “crime of violence” is defined as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or
threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion,
                                                          4
No. 13-6339
Bell v. United States
and thus relies equally on cases interpreting either term. United States v. Denson, 728 F.3d 603,

607 (6th Cir. 2013).

         We apply a “categorical” approach in determining the nature of a prior conviction,

meaning that the Court “look[s] at the statutory definition of the crime of conviction, not the

facts underlying that conviction, to determine the nature of the crime.” United States v. Johnson,

675 F.3d 1013, 1016 (6th Cir. 2012) (quoting United States v. Ford, 560 F.3d 420, 421–22 (6th

Cir. 2009)). “Courts use ‘a variant of this method—labeled (not very inventively) the “modified

categorical approach”—when a prior conviction is for violating a so-called “divisible statute,”’

which ‘sets out one or more elements of the offense in the alternative.’” Denson, 728 F.3d at

608 (quoting Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)).                              This modified

categorical approach is applicable only where the statute at issue “‘could be violated in a way

that would constitute a [violent felony] and in a way that would not.’” Id. (quoting United States

v. Rede-Mendez, 680 F.3d 552, 556 (6th Cir. 2012)).

         As aggravated assault is not an enumerated offense, it can be deemed a “violent felony”

only under either the “use of force” clause or the residual clause. However, the government has

conceded that aggravated assault, as defined in the Tennessee Code, does not categorically meet

the “use of force” clause requirements. Accordingly, we analyze the crime at issue only under

the residual clause. Additionally, because we determine that violation of Tenn. Code Ann. § 39-

13-102(c) is categorically a violent felony under the residual clause, we need not apply the

modified categorical approach.




involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to
another.” U.S. Sentencing Guidelines Manual § 4B1.2(a) (2014).
                                                          5
No. 13-6339
Bell v. United States
           a. The “Residual Clause” of the ACCA

       To qualify as a violent felony under the residual clause of the ACCA, a crime must

“involve[] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii). While this provision’s “language is broad, the residual clause is not intended

as a catch-all provision and covers only crimes similar to the four enumerated offenses that

textually precede it.” Denson, 728 F.3d at 609 (internal quotation marks omitted). As this Court

noted in United States v. Covington, 738 F.3d 759, 765 (6th Cir. 2014), the Supreme Court has

decided two recent cases under the residual clause, each using a different analysis. First, in

Begay v. United States, 553 U.S. 137 (2008), the Court focused on “whether the statute insists on

‘purposeful, violent, and aggressive conduct,’” thus making it similar to the enumerated offenses.

Covington, 738 F.3d at 765 (quoting Begay, 553 U.S. at 145). However, in Sykes v. United

States, 131 S. Ct. 2267 (2011), the Court explained that “‘levels of risk divide crimes that qualify

[as violent felonies] from those that do not,’” such that the appropriate analysis “is whether ‘the

risk posed by [the crime in question] is comparable to that posed by its closest analog among the

enumerated offenses.’” Covington, 738 F.3d at 765 (alteration in original) (quoting Sykes, 131 S.

Ct. at 2273, 2275 (internal quotation marks omitted)).

       This Court has not conclusively determined the effect of Sykes on Begay’s “purposeful,

violent, and aggressive” test. See Mitchell, 743 F.3d at 1062 (applying the Begay test but noting

“strict adherence to the ‘purposeful violent, and aggressive’ rubric is not definitively required,

and . . . its future is in question”). However, “[t]his Court . . . has reasoned that the two analyses

are more supplementary than distinct.” Covington, 738 F.3d at 765 (citing Denson, 728 F.3d at

610 (“As the language in Sykes limiting Begay is not mandatory, we have continued to apply the

two-part test in some residual-clause cases, and have chosen to exclude the Begay question in

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No. 13-6339
Bell v. United States
others.”)); see also Sykes, 131 S. Ct. at 2289 n.1 (Kagan, J., dissenting) (interpreting the

majority’s opinion as not limiting the “purposeful, aggressive, and violent” standard to strict

liability, negligence, and recklessness crimes, as such “would . . . eliminate the test’s focus on

‘violence’ and ‘aggression.’ And it would collide with Chambers v. United States, 555 U.S. 122

(2009)—a decision the majority cites approvingly—which applied the test to an intentional

crime”). But see United States v. Evans, 699 F.3d 858, 865 (6th Cir. 2012) (“In Sykes . . . the

Supreme Court limited the application of Begay’s ‘purposeful, violent, and aggressive’ standard

. . . to crimes premised on strict liability, negligence, or recklessness.”)

         Accordingly, while the “purposeful, aggressive, and violent” standard may still be

applied by this Court, the first question to be addressed under the residual clause is whether the

violation of the underlying statute presents a level of risk of physical harm that is similar to one

of the enumerated offenses.

                       i. Level of Risk of Physical Injury

         Three elements are necessary for a conviction under the crime of aggravated assault

under Tenn. Code Ann. § 39-13-102(c): (1) the violator must be subject to some form of

restraining order,3 (2) the restraining order must prohibit the violator from “in any way causing

or attempting to cause bodily injury or in any way committing or attempting to commit an

assault” against a specific person or persons, and (3) the violator must “intentionally or

knowingly attempt[] to cause or cause[] bodily injury or commit[] or attempt[] to commit an

assault against” the same person or persons named in the restraining order. Accordingly, the

underlying action taken by the defendant must be either an assault against or bodily injury to the


3
  The exact language of the statute provides the violator must “hav[e] been enjoined or restrained by an order,
diversion or probation agreement of a court of competent jurisdiction,” without specific reference to a particular type
of restraining order. Tenn. Code Ann. § 39-13-102(c).
                                                          7
No. 13-6339
Bell v. United States
victim, or attempt, in combination with the preconditions set forth by the first two elements.

Therefore, based on the categorical approach we are required to utilize, we analyze both whether

causing or attempting to cause bodily injury, and whether attempting to or committing an assault

under these circumstances, present a level of risk similar to an enumerated crime under the

ACCA.

       As previously explained, the term “bodily injury” is defined by statute in Tennessee to

mean “a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or

impairment of the function of a bodily member, organ, or mental faculty.” Tenn. Code Ann.

§ 39-11-106(a)(2). Additionally, the “assault” element of § 39-13-102(c) requires only that the

person commit or attempt to commit an “assault” and does not require any particular form of

assault to give rise to a violation. “Assault” under § 39-13-101(a) encompasses three different

forms of assault: (1) causing bodily injury, (2) “causing another to reasonably fear imminent

bodily injury,” or (3) “physical contact with another [that] a reasonable person would regard . . .

as extremely offensive or provocative.”

       The government has analogized to the crime of generic burglary under the ACCA in

arguing that violation of § 39-13-102(c) presents a sufficient level of risk to qualify as a violent

felony. As explained by the Supreme Court in James v. United States, 550 U.S. 192, 203 (2007),

“[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto

another’s property, but rather from the possibility of a face-to-face confrontation between the

burglar and a third party . . . who comes to investigate.” We find this explanation of the level of

risk present in an enumerated crime—burglary—demonstrates why the crime at issue in this

case—aggravated assault—presents the requisite level of risk of physical injury.



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No. 13-6339
Bell v. United States
       There is little question that the commission of an aggravated assault under § 39-13-102(c)

by way of causing “bodily injury” to the victim presents a level of risk equivalent to an

enumerated crime in the ACCA. As this Court has previously noted, where a crime requires the

perpetrator to purposefully cause or attempt to cause serious physical injury, such crime presents

a serious potential risk of physical injury to another, “[b]y its plain terms.” United States v.

Perry, 703 F.3d 906, 910 (6th Cir. 2013); see also Mitchell, 743 F.3d at 1060–61 (explaining that

because the robbery crime at issue “require[d] violence actually [be] dispensed, or put[] the

victim in fear from violence offered or impending,” such crime clearly presented the requisite

level of risk under the ACCA). Further, as opposed to the mere possibility of a confrontation in

generic burglary that could lead to physical injury, causing bodily injury to another almost

certainly requires a confrontation and without question requires physical injury.

       With regard to the potential for violation of § 39-13-102(c) based on commission of

assault, the statutory definition of “assault” in Tennessee reaches a wider range of activities that

we must consider. As the first form of assault is causing bodily injury, see Tenn. Code Ann.

§ 39-13-101(a)(1), it is covered by our above analysis.

       As to the second type of assault, “causing another to reasonably fear imminent bodily

injury,” id. § 39-13-101(a)(2), this is largely analogous to our decision in Mitchell. The Mitchell

Court dealt with determining whether robbery under Tennessee law constituted a violent felony,

particularly where that crime could be accomplished by “‘putting the [victim] in fear.’” 743 F.3d

at 1058 (quoting Tenn. Code Ann. § 39-13-401). Relying on decisions from the Tennessee

Supreme Court, Mitchell explained that such “fear” must be “‘a fear of bodily injury and of

present personal peril from violence offered or impending.’” Id. at 1059 (quoting State v.

Taylor, 771 S.W.2d 387, 398 (Tenn. 1989)). Because of the nature of the fear required to

                                                 9
No. 13-6339
Bell v. United States
constitute robbery by fear, the Court held that it was sufficient to find the crime a violent felony.

Id. at 1060. While it is true the discussion of fear focused on the “use of force” clause of the

ACCA, the Court also found the crime of robbery by fear to be a violent felony under the

residual clause, id. at 1060–63, and that reasoning is relevant to our analysis of aggravated

assault under the residual clause. First, the “fear” at issue under the assault statute similarly

requires, based on the statutory language, that the victim fear “bodily injury” that is “imminent.”

Tenn. Code Ann. § 39-13-101(a)(2). Second, like robbery by fear in Mitchell but unlike generic

burglary, assault by fear essentially requires a confrontation between victim and perpetrator, thus

increasing the risk of physical injury. See Mitchell, 743 F.3d at 1062. Additionally, as we

explain below, the additional elements of § 39-13-102(c) require that the confrontation occur

after a court has already restrained the perpetrator from engaging in this conduct with the victim,

which would seem to only heighten the likelihood of violent confrontation or escalation given

the circumstances that led to the restraining order in the first place. The reasoning of Mitchell

thus extends to the present case, and violation of § 39-13-102(c) by commission of assault by

fear presents the requisite level of risk of physical injury to qualify as a violent felony.

       The statute’s third form of assault, committed by “caus[ing] physical contact with another

[that] a reasonable person would regard . . . as extremely offensive or provocative,” Tenn. Code

Ann. § 39-13-101(a)(3), presents the most difficulty. The Tennessee Supreme Court has defined

“extremely offensive or provocative” contact to include such acts as “kissing without one’s

consent, cutting one’s hair without consent, or spitting in one’s face.” State v. Smiley, 38 S.W.3d

521, 525 (Tenn. 2001). Additionally, “§ 39-13-101(a)(3) applies only to that physical contact

which does not involve physical bodily injury.” Id. While the definition does not include

physical injury as an element of the completed offense, the relevant consideration under the

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No. 13-6339
Bell v. United States
residual clause is whether the conduct ‘“presents a serious potential risk of physical injury,’” not

whether the crime requires physical injury in order to be completed. James, 550 U.S. at 203

(emphasis added) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). In this regard, this Court’s prior

decision in United States v. Johnson, 707 F.3d 655 (6th Cir. 2013), is instructive. In Johnson,

the Court analyzed whether a conviction for first-degree stalking in Kentucky qualified as a

violent felony. Id. at 658. The Court determined that first-degree stalking could be predicated

on making a threat of sexual contact, with sexual contact including “‘any touching of the sexual

or other intimate parts of a person for the purpose of gratifying the sexual desire of either party.’”

Id. at 662 (ellipsis omitted) (quoting Ky. Rev. Stat. Ann. § 510.010(7)). The Court noted “the

slightest touch to a sexual or intimate part of another” was covered under the statute. Id.

However, the Court also explained that the statute required a “course of conduct,” meaning two

or more instances of similar behavior against a victim; thus, a person who commits first-degree

stalking has committed such conduct at least twice. Id. at 664. Additionally, the statute at issue

in Johnson required the violator to meet one of the following additional requirements: be subject

to a protective order as to the victim, currently have a criminal complaint pending by the same

victim, have pled guilty to certain crimes against the same victim within the past five years, or

have committed the act of stalking with a deadly weapon. Id. at 659–60 (citing Ky. Rev. Stat.

Ann. § 508.140). In light of both the “course of conduct” and protective order elements, the

Court held that such circumstances created a situation where “even the most innocuous sexual

contact could elicit an intensified response that might result in violent confrontation.” Id. at 664.

Accordingly, the Court held the crime of first-degree stalking under the relevant Kentucky

statute was a violent felony. Id. at 665.



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No. 13-6339
Bell v. United States
        The statute at issue here encompasses analogous behaviors. While a violation could

similarly be predicated on slight touch, such action would nonetheless have to be “extremely

offensive and provocative” and have to occur in violation of a restraining order explicitly

protecting the victim from such contact by the perpetrator. Additionally, while there is no

explicit “course of conduct” requirement under Tenn. Code Ann. § 39-13-102(c), the fact that

action must be taken in violation of some form of restraining order illustrates that there is prior

underlying conduct from the perpetrator serving as the basis for the restraining order in the first

instance.4 Accordingly, violation of Tenn. Code Ann. § 39-13-102(c) premised upon “extremely

offensive or provocative” contact assault presents a “serious potential risk of physical injury”

based on our reasoning in Johnson.

        Lastly, as violation of Tenn. Code Ann. § 39-13-102(c) may be based on attempt crimes,

we address whether an attempt to cause bodily injury or attempt to assault presents a sufficient

level of risk to qualify as a violent felony under the ACCA’s residual clause. As the Supreme

Court explained in James, attempt crimes are not excluded from the reach of the residual clause

of the ACCA; instead, they are simply subject to the same analysis as completed crimes.

550 U.S. at 198–201. In fact, James explained that there may be certain crimes where an attempt

actually involves a greater risk of physical injury than a completed crime, as a preventative,

confrontational intervention by the police, a bystander, or the potential victim often results. Id.


4
  While not explicitly referenced in Tenn. Code Ann. § 39-13-102(c), the statutory framework for obtaining a
restraining order in Tennessee further supports this contention. Under Tenn. Code Ann. § 36-3-605, in order to
obtain a protection order, the person requesting the order must “prove[ an] allegation of domestic abuse, stalking or
sexual assault by a preponderance of the evidence” in a hearing before a court. See also Cable v. Clemmons,
36 S.W.3d 39, 41–42 (Tenn. 2001) (explaining the general process for obtaining an order of protection). We
recognize that the language of § 39-13-102(c) appears to encompass a range of court orders and other agreements
broader than those provided by § 36-3-605. However, we are satisfied that, based on § 39-13-102(c)’s underlying
requirement of some form of order or agreement prohibiting what is clearly already illegal conduct, in “the ordinary
case” violation of this statute presents a heightened risk of violent confrontation based on past behavior, thus
establishing a “serious potential risk of physical injury to another.” See James, 550 U.S. at 208.
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Bell v. United States
at 204. Additionally, the Supreme Court found salient whether the law at issue requires an

“‘overt act’” towards the completion of the crime, beyond “[m]ere preparation.” Id. at 202

(quoting Jones v. State, 608 So.2d 797, 799 (Fla. 1992)).

       Tennessee requires for attempt culpability “conduct [that] constitutes a substantial step

toward the commission of the offense,” Tenn. Code Ann. § 39-12-101(a)(3), which involves

something more than preparation, albeit perhaps less than an “overt act,” see State v. Reeves,

916 S.W.2d 909, 910–14 (Tenn. 1996); see also Tenn. Code Ann. § 39-12-101 Tennessee

Sentencing Commission cmts. (“Subdivision (a)(3) provides that the point of attempt

responsibility, beyond mere preparation but short of the completed offense, is reached when an

individual’s intentional acts constitute a ‘substantial step toward the commission of the

offense.’” (emphasis added)). In light of our analysis of the elements of § 39-13-102(c), and

Tennessee’s requirement that a “substantial step” be taken towards completion for attempt

crimes, attempting to either (1) cause bodily injury or (2) assault a person under the additional

circumstances required by § 39-13-102(c) presents a similar risk of physical injury as the

completed crimes; thus, the risk of physical injury for violation of § 39-13-102(c) based on

attempt is sufficiently similar to an enumerated offense under the ACCA.

       As each potential form of violation of Tenn. Code Ann. § 39-13-102(c) presents a level

of risk similar to an enumerated offense, namely burglary, we now analyze, to the extent it may

be necessary, whether such violations involve “purposeful, violent, and aggressive” conduct.

                   ii. “Purposeful, Violent, and Aggressive” Conduct

       Where a crime has a “stringent mens rea requirement,” such as requiring intentional or

knowing conduct, the crime is generally sufficiently “purposeful.” Sykes, 131 S. Ct. at 2275–76.



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Bell v. United States
“Aggressive, violent acts are ‘aimed at other persons or property where persons might be located

and thereby injured.’” Mitchell, 743 F.3d at 1062 (quoting Vanhook, 640 F.3d at 714).

       As to the purposeful requirement, it is clear that the statute at issue requires that the

perpetrator commit the underlying conduct—cause or attempt to cause bodily harm, or assault or

attempt to assault—either knowingly or intentionally. As this Court has repeatedly explained,

“[a] fundamental canon of statutory construction is that when interpreting statutes, the language

of the statute is the starting point for interpretation, and it should also be the ending point if the

plain meaning of the language is clear.” United States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011)

(internal quotation marks omitted). Despite Bell’s protests to the contrary, the statute’s language

stating that the perpetrator must “intentionally or knowingly attempt[] to cause or cause[] bodily

injury or commit[] or attempt[] to commit an assault,” clearly presents a mens rea requirement of

intentional or knowing for both causing bodily harm and committing assault. Additionally,

Bell’s argument that the statutory language of § 39-13-102(c) requiring an intentional or

knowing crime may still encompass recklessness misreads applicable Tennessee law, which

provides that “[w]hen recklessness suffices to establish an element, that element is also

established if a person acts intentionally or knowingly.” Tenn. Code Ann. § 39-11-301(a)(2)

(2006). As one Tennessee court explained: “The statutory scheme creates a hierarchy, and,

while each of the four mental elements are unique, the lesser levels of culpability are included

within the greater,” thus, “[t]he state cannot prove that an offense was committed ‘knowingly’

without proving that it was committed ‘recklessly.’” State v. Crowe, 914 S.W.2d 933, 937

(Tenn. Ct. Crim. App. 1995). However, under this statutory scheme—and as a general rule for

mens rea—“[t]he converse . . . is not true. A ‘reckless’ act is not necessarily done ‘knowingly.’”

Id. at 937 n.2. Bell points to language in Crowe that explains Tennessee courts may properly

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Bell v. United States
instruct a jury on “recklessness” where the defendant has been charged with a “knowing”

violation. Id. at 937. However, in Crowe, the defendant conceded that he had been charged

under a section of the aggravated assault statute that provides for culpability based on

intentional, knowing, or reckless conduct, and his objection to the jury instruction arose solely

because the language of the indictment against him used only the word “knowingly,” and thus,

he unsuccessfully argued, he was only on notice to prepare a defense against knowing conduct.

Id. at 936.   Therefore, while knowing or intentional conduct will always suffice to prove

recklessness, it does not follow, as Bell argues, that proving an act was committed recklessly

suffices to prove it was committed knowingly or intentionally. Accordingly, as Tenn. Code Ann.

§ 39-13-102(c) contains a “stringent mens rea requirement” of knowing or intentional action, the

conduct covered is sufficiently “purposeful” to constitute a violent felony. See Sykes, 131 S. Ct.

at 2275–76.

       With regard to aggressiveness and violence, to the extent they are still required after

Sykes, violations of Tenn. Code Ann. § 39-13-102(c) are also violent and aggressive. Any

violation of § 39-13-102(c) must be necessarily be “aimed at” a specific person or persons, such

that the “crime . . . occurs not only where a person might be located, but where the presence of

another is assured with absolute certainty.” See Mitchell, 743 F.3d at 1062 (internal quotation

marks and brackets omitted) (emphasis added). Further, as we have explained above in our

analysis of level of risk, all violations of § 39-13-102(c) will involve conduct that may “thereby

injure[]” another person. See id. Accordingly, aggravated assault under Tenn. Code Ann. § 39-

13-102(c) requires sufficiently “violent” and “aggressive” conduct to constitute a violent felony.




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Bell v. United States
                                      CONCLUSION

       In conclusion, because the crime of aggravated assault under Tenn. Code Ann. § 39-13-

102(c) categorically presents a “serious potential risk of physical injury to another” that is

“roughly similar, in kind as well as in degree posed” to the enumerated offenses, Begay,

553 U.S. at 142–43, violations of Tenn. Code Ann. § 39-13-102(c) are categorically violent

felonies under the ACCA.       Accordingly, the sentence imposed by the district court is

AFFIRMED.




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