                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 18a0030p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 DARYL LYNN HIGDON,                                       ┐
                                  Petitioner-Appellant,   │
                                                          │
                                                           >      No. 17-5027
        v.                                                │
                                                          │
                                                          │
 UNITED STATES OF AMERICA,                                │
                                 Respondent-Appellee.     │
                                                          ┘

                            Appeal from the United States District Court
                        for the Eastern District of Tennessee at Greeneville.
             Nos. 2:12-cr-00104-1; 2:16-cv-00246—Robert Leon Jordan, District Judge.

                                   Argued: December 7, 2017

                              Decided and Filed: February 13, 2018

                   Before: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.

                                       _________________

                                           COUNSEL

ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Rosana
E. Brown, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville,
Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee.
                                       _________________

                                            OPINION
                                       _________________

       KETHLEDGE, Circuit Judge. Daryl Higdon was sentenced as an armed career criminal
based in part on a North Carolina conviction for discharging a firearm into an occupied structure.
 No. 17-5027                         Higdon v. United States                               Page 2


The question here is whether that offense—which requires an application of force to an occupied
structure, but not to the occupants themselves—nonetheless counts as an offense that involves
the use “of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). We hold
it does not and reverse the district court’s decision to the contrary.

       Higdon pled guilty in 2012 to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The district court determined that Higdon was subject to a 15-year
mandatory-minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1),
based in part on Higdon’s 1984 conviction for discharging a firearm into an occupied structure in
violation of N.C. Gen. Stat. § 14-34.1 (1981). The court thus sentenced Higdon to 15 years’
imprisonment. Higdon did not appeal. About two years later, however, the Supreme Court
invalidated the so-called residual clause of the ACCA. See Johnson v. United States, 135 S. Ct.
2551 (2015). Higdon then moved to set aside his sentence under 28 U.S.C. § 2255, arguing that
the North Carolina offense for which he was convicted was not a “violent felony” under the
remaining provisions of the ACCA. The district court denied the motion, holding that the North
Carolina offense did “involve the use of force against the person of another[.]” Op. at 6. We
review that decision de novo. Braden v. United States, 817 F.3d 926, 929-30 (6th Cir. 2016).

       An offense counts as a “violent felony” under the ACCA if (among other things) it “has
as an element the use, attempted use, or threatened use of physical force against the person of
another[.]” 18 U.S.C. § 924(e)(2)(B)(i). Here, the relevant North Carolina offense is defined as
follows:

       Any person who willfully or wantonly discharges or attempts to discharge:

           (1) Any barreled weapon capable of discharging shot, bullets, pellets, or other
               missiles at a muzzle velocity of at least 600 feet per second; or
           (2) A firearm

       into any building, structure, vehicle, aircraft, watercraft, or other conveyance,
       device, equipment, erection, or enclosure while it is occupied is guilty of a Class
       H felony.

N.C. Gen. Stat. § 14-34.1 (1981). As interpreted by the North Carolina courts, “[t]he elements of
this offense are (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it
 No. 17-5027                        Higdon v. United States                                Page 3


is occupied.” State v. Rambert, 459 S.E.2d 510, 512 (N.C. 1995). As a judicial gloss, the North
Carolina courts have added a fifth element, namely that the defendant know or have “reasonable
grounds to believe” that the property (which we refer to here as a “structure”) might be occupied.
State v. James, 466 S.E.2d 710, 715 (N.C. 1996).

       Here, the district court did not hold, and the government has not presented any developed
argument, that these elements involve the “attempted” or “threatened” use of physical force
against the person of another. Indeed the government all but disavowed any such theory at oral
argument. Thus the question here is simply whether these elements, taken separately or together,
require the “use . . . of physical force against the person of another[.]” Plainly they do not: the
North Carolina offense requires the use of force (in the form of discharging a firearm) against a
structure, not “against the person of another.” The projectile can miss the structure’s occupants
altogether—with no physical force applied to the person of anyone—and yet the shooting can
satisfy all the elements of the North Carolina offense. Thus, discharging a firearm into an
occupied structure in violation of N.C. Gen. Stat. § 14-34.1 is not a “violent felony” under the
ACCA, at least on a “use” theory. Accord United States v. Parral-Dominguez, 794 F.3d 440,
445 (4th Cir. 2015) (same).

       In arguing the contrary, the government confuses the mens rea requirements of
§ 924(e)(2)(B)(i) with that subsection’s more tangible requirements. The subsection’s definition
of “violent felony” includes four requirements, to wit: (1) conduct giving rise to force (e.g.,
pulling a trigger on a gun); (2) certain consequences from that conduct (i.e., the application of
“physical force against the person of another”); and two types of mens rea, namely that (3) the
conduct giving rise to the force be “volitional” rather than accidental, see Voisine v. United
States, 136 S. Ct. 2272, 2278-79 (2016), and that (4) the defendant be at least reckless as to the
consequences of that conduct. See United States v. Verwiebe, 874 F.3d 258, 264 (6th Cir. 2017);
but see United States v. Harper, 875 F.3d 329, 330-33 (6th Cir. 2017) (interpreting the relevant
text to mean that the defendant must act intentionally or knowingly as to those consequences).
Here, the government argues throughout its brief (and, respectfully, the district court held) that
the North Carolina offense meets the second requirement (i.e., the consequences requirement)
simply because it meets the fourth one (i.e., the necessary mens rea as to those consequences).
 No. 17-5027                          Higdon v. United States                                  Page 4


For example, as the district court put it, “‘[e]ven if no one was actually struck, the defendant
fired a bullet toward a location where he knew or believed another person to be.’” Op. at 8
(quoting Parral-Dominguez, 794 F.3d at 452 (Wilkinson, J., dissenting)). That description might
well satisfy the requirement that the defendant act recklessly, but that requirement is separate
from the one that the force be used “against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i)
(emphasis added). And as to that requirement it matters very much whether the person was
“actually struck.” (Indeed, by the government’s logic, a defendant who intentionally fired a gun
at someone would be guilty of murder even if he missed.) Nor, for similar reasons, does the
plate-throwing hypothetical from Voisine do the government any good here; for there, unlike
here, some of the shards actually struck the victim. 136 S. Ct. at 2279.

       The government also seems implicitly to adopt a meaning of “against” that is implausible
in the context of § 924(e)(2)(B)(i). By way of background, the government repeatedly asserts
that a defendant uses force against the person of another if the defendant merely shoots in the
person’s “direction”—even without hitting him. In so asserting, the government seems to use
“against” in the sense of “[i]n hostile opposition or resistance to[,]” which is indeed one of the
word’s definitions. American Heritage Dictionary 32 (3d ed. 1992). Yet the usage example for
that definition is “struggle against fate,” id., which illustrates that this meaning is too abstract for
a phrase as concrete as “physical force against the person of another.” Instead a better fit comes
with an alternative definition: “[s]o as to come into forcible contact with[,]” for which the
example is “dashing waves against the shore.” Id. That definition involves physical contact with
the (physical) object of the preposition, which makes the definition the more natural one for
“against” as used in “physical force against the person of another.” Indeed the very point of
including the words “the person of” in the statutory text—as opposed to saying simply, “force
against another”—is to emphasize that the force must be applied to the victim’s “person.” The
offense here lacked that requirement, and thus Higdon lacks the predicate convictions to be
sentenced as an armed career criminal.

       The district court’s January 3, 2017 judgment is reversed, and the case remanded for
proceedings consistent with this opinion.
