            Case: 17-10473   Date Filed: 04/04/2019   Page: 1 of 14


                                                                      [PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 17-10473
                         ________________________

                D.C. Docket No. 4:16-cr-00154-WTM-GRS-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

versus

TERIN MOSS,

                                                         Defendant - Appellant.

                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                       ________________________

                               (April 4, 2019)

Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

WILSON, Circuit Judge:
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        Terin Moss pleaded guilty to being a felon in possession of ammunition, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on his prior Georgia

convictions for aggravated assault, possession of cocaine with intent to distribute,

and felony obstruction of a law enforcement officer, Moss was sentenced under the

Armed Career Criminal Act (ACCA) to serve 180 months in prison. On appeal,

Moss argues that his sentence was erroneously enhanced because his prior Georgia

conviction for aggravated assault does not qualify as a predicate “crime of

violence” under the ACCA or the Sentencing Guidelines.1 When based on a

simple assault under O.C.G.A. § 16-5-20(a)(2), Georgia’s aggravated assault

statute, O.C.G.A. § 16-5-21(a)(2), can be satisfied by a mens rea of recklessness.

When this is the case, we hold that it does not qualify as a violent felony under the

ACCA. We therefore vacate and remand for resentencing.

                       I.   Factual and Procedural Background

       On October 8, 2015, officers from the Savannah-Chatham Metropolitan

Police Department responded to a request for assistance to recover a missing

vehicle. Upon locating the missing vehicle, the officers found Moss asleep in the

driver’s seat. The officers woke Moss, who was largely incoherent, and removed



1
  Moss argues that Georgia’s aggravated assault statute does not qualify as a crime of violence
under U.S.S.G. § 4B1.2’s enumerated offenses clause. That was not the basis, however, for his
enhanced base offense level. Instead, Moss received an enhanced base offense level under the
elements clause of the ACCA, pursuant to § 4B1.4(b)(3)(B). Accordingly, we do not address
Moss’s arguments under the Guidelines.
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him from the car. The officers recovered a loaded firearm from the driver’s seat

and a concealed carry holster from inside Moss’s waistband. An officer on the

scene was familiar with Moss and knew he was a convicted felon. Moss was

arrested. Once at the detention center, the officers recovered additional

ammunition from the pocket of Moss’s pants.

         Moss was charged with being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One), and being a felon in

possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

(Count Two). Moss pleaded guilty to Count Two pursuant to a written plea

agreement.2

         According to the Presentence Investigation Report (PSI), Moss had been

convicted of two prior violent felony offenses and one felony drug offense. His

felony drug conviction was for possession of less than one ounce of marijuana and

possession with intent to distribute cocaine, in violation of O.C.G.A. § 16-13-30.

His two prior violent felony offenses included two counts of aggravated assault on

a police officer, in violation of O.C.G.A. § 16-5-21(a)(2), and one count of felony

obstruction of an officer, in violation of O.C.G.A § 16-10-24(b). The facts

underlying Moss’s aggravated assault conviction involved Moss fleeing from state




2
    In return for Moss’s guilty plea, the government agreed to dismiss Count One.
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police after being found in possession of an unknown substance and a set of scales.

Moss assaulted the officers by biting them, drawing blood from the bite location.

      Because Moss had three prior convictions for a violent felony or felony drug

offense, the U.S. Probation Officer concluded that Moss qualified as an armed

career criminal under 18 U.S.C. § 924(e). Moss’s armed career criminal status

resulted in a base offense level of 33 under U.S.S.G. § 4B1.4. Moss received a

three-level reduction under §§ 3E1.1(a) and (b) for acceptance of responsibility.

Based on a total offense level of 30 and a criminal history category of VI, the

resulting Guideline range was 168 to 210 months’ imprisonment. But because

Moss qualified as an armed career criminal, the ACCA mandated a 15-year

minimum sentence. Accordingly, the Guideline range was 180 to 210 months.

      Moss objected to his status as an armed career criminal, arguing that his

conviction for aggravated assault did not qualify as a predicate crime of violence

under the ACCA or U.S.S.G. § 4B1.4. He asserted that his prior aggravated

assault conviction failed to meet the generic definition of an aggravated assault and

failed to satisfy the ACCA’s “use of force” requirement for a crime of violence.

      The Probation Officer responded that, according to the state indictment,

Moss was charged with two counts of knowingly assaulting a police officer with

his mouth, an “instrument which, when used offensively against a person, is likely

to result or does result in serious bodily injury.” O.C.G.A. § 16-5-21(a)(2). Thus,

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Moss’s aggravated assault conviction had as an element the attempted use or

threatened use of physical force against the person of another, which met the

ACCA’s definition of violent felony. See 18 U.S.C. § 924(e)(2)(B).

      The district court rejected Moss’s objections to his armed career criminal

status. Moss was sentenced to 180 months’ imprisonment, to be served concurrent

with Moss’s revoked probation terms, followed by 5 years’ supervised release.

This appeal followed.

                                  II.   Discussion

      Moss challenges the district court’s determination that his prior Georgia

aggravated assault conviction qualifies as a predicate violent felony under the

elements clause of the ACCA. He argues that Georgia’s statute (1) does not

require a mens rea of specific intent and (2) its definition of “deadly weapon” is

overbroad and unconstitutionally vague. His challenge ultimately contests the

ACCA enhancement.

      We review de novo a district court’s determination that a prior conviction

qualifies as a violent felony under the ACCA. United States v. Howard, 742 F.3d

1334, 1341 (11th Cir. 2014).

                            A. The ACCA Enhancement

      The ACCA mandates a 15-year minimum sentence for a defendant who

commits an offense in violation of 18 U.S.C. § 922(g) and has three prior

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convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1).

The ACCA defines the term “violent felony” as any crime punishable by a term of

imprisonment 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). This case involves only the first part of that definition,

§ 924(e)(2)(B)(i), known as the elements clause. United States v. Owens, 672 F.3d

966, 968 (11th Cir. 2012).

      To determine whether a prior conviction qualifies as a violent felony under

the elements clause, we employ a “categorical approach.” United States v. Davis,

875 F.3d 592, 597 (11th Cir. 2017). In cases where the statute of conviction is

“divisible” in that it “list[s] elements in the alternative, and thereby define[s]

multiple crimes,” we employ the “modified categorical approach.” Mathis v.

United States, 136 S. Ct. 2243, 2249 (2016). The modified categorical approach

“allows us to look at ‘a limited class of documents’—known as Shepard

documents and including such items as the indictment, jury instructions, and plea

agreement—‘to determine what crime, with what elements, a defendant was

convicted of.’” United States v. Morales-Alonso, 878 F.3d 1311, 1316 (11th Cir.

2018) (quoting Mathis, 136 S. Ct. at 2249). Once we determine which divisible
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portion of the statute a defendant was convicted under, we then apply the

categorical approach to that statutory phrase. Davis, 875 F.3d at 598 (“If we can

tell which statutory phrase the defendant was necessarily convicted under [using

the modified categorical approach], we return to the categorical approach and

apply it to that statutory phrase.” (internal quotation marks and citations omitted)).

      In applying the categorical approach, we look only at the statutory definition

of the prior offense and not the facts underlying the conviction. Howard, 742 F.3d

at 1342; see also Davis, 875 F.3d at 597 (“All that counts . . . are the elements of

the statute of conviction, not the specific conduct of a particular offender.”

(quotation marks omitted)). Because an examination of the state conviction does

not involve an analysis of the facts underlying the case, we must presume that the

conviction rested upon the “least of the acts criminalized.” Moncrieffe v. Holder,

569 U.S. 184, 190–91 (2013). If the “least of the acts criminalized” in the statutory

phrase has an element requiring “the use, attempted use, or threatened use of

physical force against the person of another,” then the offense categorically

qualifies as a violent felony under the elements clause. See Davis, 875 F.3d at

597–98; 18 U.S.C. § 924(e)(2)(B)(i).

      Under the elements clause, “use” requires active employment of physical

force. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). “[T]he phrase ‘physical force’

means violent force—that is, force capable of causing physical pain or injury to

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another person.” Johnson v. United States, 559 U.S. 133, 140 (2010). But active

employment of physical force “most naturally suggests a higher degree of intent

than negligent or merely accidental conduct.” Leocal, 543 U.S. at 9. In Leocal,

the Supreme Court made clear that crimes of violence must be volitional, but also

repeatedly emphasized that such crimes cannot be “accidental.” See id. at 8–10.

Following Leocal’s reasoning, we held that “a conviction predicated on a mens rea

of recklessness does not satisfy the ‘use of physical force’ requirement.” United

States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). Rather, for a

conviction to qualify as a predicate crime of violence under the elements clause, it

must require “the intentional use of force.” Id. Although Palomino Garcia’s

holding addressed Sentencing Guideline § 2L1.2’s elements clause, it compels the

conclusion that the ACCA’s elements clause likewise requires the intentional use

of force. See United States v. Green, 873 F.3d 846, 869 (11th Cir. 2017)

(determining that a § 2L1.2 case “compels a conclusion that [the same] statute

likewise constitutes a violent felony under the elements clause of the ACCA”);

United States v. Vail-Bailon, 868 F.3d 1293, 1298 n.8 (11th Cir. 2017) (“The

elements clause of the ACCA is identical to the elements clause of § 2L1.2. Cases

construing the ACCA’s elements clause are thus relevant to our inquiry here.”).

      Of course, reckless conduct, as generally defined, is not intentional. See

Black’s Law Dictionary (10th ed. 2014) (defining recklessness as “[c]onduct

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whereby the actor does not desire harmful consequences but nonetheless foresees

the possibility and consciously disregards the risk” (emphasis added)). Nor is

reckless conduct, as defined by Georgia law, intentional. See O.C.G.A. § 16-5-60

(defining reckless conduct as “consciously disregarding a substantial and

unjustifiable risk that [the defendant’s] act or omission will cause harm or

endanger the safety of the other person”). Because Georgia law defines

recklessness as nothing more than the conscious disregard of a substantial and

unjustifiable risk, this is more akin to accidental conduct and cannot be said to

require intent.

      With this framework in mind, we now consider whether a conviction for

aggravated assault under Georgia law qualifies as a crime of violence under the

elements clause of the ACCA.

                      B. Georgia’s Aggravated Assault Statute

        i.   Divisibility of Georgia’s Simple and Aggravated Assault Statutes

      At the time of Moss’s conviction, Georgia’s aggravated assault statute

provided that a person commits the offense of aggravated assault when he commits

a simple assault:

             (1) With intent to murder, rape, or to rob; or

             (2) With a deadly weapon or with any object, device, or
             instrument which, when used offensively against a person,
             is likely to or actually does result in serious bodily injury.

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O.C.G.A. § 16-5-21(a) (2000). Georgia’s aggravated assault statute therefore has

two essential elements: (a) a simple assault as defined under O.C.G.A. §§ 16-5-

20(a)(1) or (2), and (b) that the assault was aggravated by either (1) an intention to

murder, rape or rob, or (2) the use of a deadly weapon. See Smith v. Hardrick, 464

S.E.2d 198, 200 (Ga. 1995). We have previously held that Georgia’s aggravated

assault statute, O.C.G.A. § 16-5-21(a), is divisible as to the aggravator component

of the statute, Morales-Alonso, 878 F.3d at 1316, but we have not addressed

whether Georgia’s simple assault statute, O.C.G.A. § 16-5-20(a), is divisible.

      At the time of Moss’s conviction, Georgia’s simple assault statute provided

that a person commits the offense of simple assault when he either:

             (1) Attempts to commit a violent injury to the person of
             another; or

             (2) Commits an act which places another person in
             reasonable apprehension of immediately receiving a
             violent injury.

O.C.G.A. § 16-5-20(a) (2000). Georgia’s simple assault statute is divisible. The

face of the statute lists two separate crimes: (1) an attempt to commit a violent

injury to another person and (2) an act placing another in reasonable apprehension

of receiving a violent injury. See Davis, 875 F.3d at 598 (finding a statute divisible

on its face because it clearly listed two distinct crimes). As a result, we apply the

modified categorical approach to determine which version of simple assault Moss

was convicted of committing. Id. In making this determination, we may look only
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to the indictment, jury instructions, and plea agreement. See Shepard v. United

States, 544 U.S. 13, 26 (2005).

      Because the Shepard documents do not indicate the portion of Georgia’s

simple assault statute under which Moss was convicted, we assume that he was

convicted under the “least of the acts criminalized” by the statute—here, § 16-5-

20(a)(2). See Johnson, 559 U.S. at 137 (considering the least culpable prong of a

divisible statute where Shepard documents did not make clear under which version

the defendant was convicted).

      Similarly, Georgia’s aggravated assault statute is divisible. See Morales-

Alonso, 878 F.3d at 1316. Review of the permitted Shepard documents is

therefore necessary to determine which of the multiple crimes listed in the

aggravated assault statute Moss was convicted under. See Davis, 875 F.3d at 597.

The state indictment indicates that Moss was convicted of aggravated assault under

O.C.G.A. § 16-5-21(a)(2), which criminalizes an assault “[w]ith a deadly weapon

or with any object, device, or instrument which, when used offensively against a

person, is likely to or actually does result in serious bodily injury.” O.C.G.A. § 16-

5-21(a)(2) (2000).

      Accordingly, our analysis is limited an aggravated assault under O.C.G.A.

§ 16-5-21(a)(2), which was predicated upon a simple assault under O.C.G.A. § 16-

5-20(a)(2).

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                             ii.     Mens Rea Requirement

      To qualify as a violent felony under the elements clause, a conviction must

be predicated on the intentional use of physical force. See Palomino Garcia, 606

F.3d at 1334–36. Georgia law holds that recklessness is a sufficient mens rea for

aggravated assault under O.C.G.A. § 16-5-21(a)(2), when based upon simple

assault under O.C.G.A. § 16-5-20(a)(2). See Patterson v. State, 789 S.E.2d 175,

176–78 (Ga. 2016). Therefore, a Georgia aggravated assault conviction cannot

qualify as a violent felony under the elements clause of the ACCA when based on

simple assault under O.C.G.A. § 16-5-20(a)(2).

      The government incorrectly contends that our decision in Turner v. Warden

Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), should control here. In

Turner, we held that a conviction under Florida’s aggravated assault statute, which

incorporates a similar simple assault statute, categorically qualified as a violent

felony under the ACCA. Id. at 1337–38. We reasoned that an aggravated assault

conviction under Florida law necessarily included a simple assault, which was the

“intentional, unlawful threat by word or act to do violence to the person of another,

coupled with an apparent ability to do so.” Id. at 1338 (quoting Fla. Stat.

§ 784.011(1)). Florida’s assault statutes are distinguishable, however, from

Georgia’s assault statutes. Simply put, Florida requires the “intentional, unlawful

threat by word or act to do violence,” Fla. Stat. § 784.011(1) (emphasis added),

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while Georgia unequivocally does not require such intent under § 16-5-20(a)(2).

Turner therefore does not apply here.

      The Supreme Court of Georgia addressed the culpable mental state required

under Georgia’s simple assault and aggravated assault statutes in Patterson v.

State, 789 S.E.2d 175 (Ga. 2016). In Patterson, the court concluded that “the

crime of simple assault as set forth in O.C.G.A. § 16-5-20(a)(2), does not require

proof of specific intent.” Id. at 177. All that is required is that the assailant intends

to commit the act which in fact places another in reasonable apprehension of

injury, not a specific intent to cause such apprehension. Id. “[T]his conclusion

regarding the requirements of O.C.G.A. § 16-5-20(a)(2) is demanded by the simple

fact that no requirement of a specific intent is set forth in O.C.G.A. § 16-5-

20(a)(2).” Id.

      Nor does a Georgia conviction for aggravated assault with a deadly weapon,

O.C.G.A. § 16-5-21(a)(2), require an intent to injure or an intent to place the victim

in reasonable apprehension of injury when the underlying simple assault was based

on § 16-5-20(a)(2). Patterson, 789 S.E.2d at 178. Rather, a conviction under

Georgia’s aggravated assault statute can be predicated on a mens rea of

recklessness. See id. at 176–78 (explaining that trial court did not err by refusing

to give jury instruction on a lesser included offense of reckless driving because the

charged crime of aggravated assault required the same mens rea as the lesser

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included offense). Patterson is the law of Georgia, and Patterson must therefore

control here. See Davis, 875 F.3d at 597 (noting that we apply “federal law in

interpreting the ACCA, but state law in determining the elements of state offenses,

keeping in mind that state law is what the state supreme court says it is.”

(emphasis added)). Because Georgia’s aggravated assault statute, O.C.G.A. § 16-

5-21(a)(2) (2000), can be satisfied by a mens rea of recklessness when based on

simple assault under § 16-5-20(a)(2), it cannot qualify as a crime of violence under

the elements clause of the ACCA. See Palomino Garcia, 606 F.3d at 1336

(holding that crimes involving the reckless use of force cannot qualify as crimes of

violence under the elements clause).

                                 III.   Conclusion

      For the reasons stated, we hold that the district court erroneously applied an

ACCA enhancement because Moss’s prior aggravated assault conviction does not

qualify as a “crime of violence” under the elements clause of the ACCA. We

vacate his sentence and remand for resentencing consistent with this opinion.

      VACATED AND REMANDED FOR RESENTENCING.




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