     Case: 17-60452   Document: 00515263565        Page: 1   Date Filed: 01/08/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 17-60452                    January 8, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


             Plaintiff - Appellee

v.

LEONARD GRIFFIN,

             Defendant - Appellant



                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PER CURIAM:
      The question is whether Mississippi aggravated assault, MISS. CODE
ANN. § 97-3-7(2) (West 1997), is a violent felony under the Armed Career
Criminal Act, 18 U.S.C. § 924(e). We conclude that it is.
                                         I.
      The Armed Career Criminal Act (ACCA) imposes a fifteen-year
minimum sentence on a defendant who is convicted of being a felon in
possession of a firearm and has three previous convictions for “violent
felon[ies]” or “serious drug offense[s].” 18 U.S.C. § 924(e)(1). Absent those
prior convictions, the punishment range for the felon-in-possession offense is
much lower—between zero and ten years. Id. §§ 922(g), 924(a)(2).
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                                   No. 17-60452
      The Act defines “violent felony” as a crime punishable by more than a
year of imprisonment that (1) “has as an element the use, attempted use, or
threatened use of physical force against the person of another” (the elements
clause); (2) is burglary, arson, extortion, or involves the use of explosives (the
enumerated offenses clause); or (3) “otherwise involves conduct that presents
a serious potential risk of physical injury to another” (the residual clause). 18
U.S.C. § 924(e)(2)(B); United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir.
2017). Johnson v. United States, 135 S. Ct. 2551 (2015), held that the last of
these definitions, the residual clause, is unconstitutionally vague. Id. at 2563.
Soon after, the Supreme Court announced that Johnson retroactively applies
to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265
(2016).
      Leonard Griffin invokes Johnson in this collateral challenge to his 2008
conviction for being a felon in possession of a firearm. The district court
sentenced him as an armed career criminal after finding that he had three
convictions for violent felonies. Two of his convictions were for Mississippi
strong arm robbery. His third was for Mississippi aggravated assault. The
court thus imposed the ACCA’s fifteen-year minimum sentence.
      Within a year of Johnson, Griffin filed a successive section 2255 petition
challenging his sentence. See 28 U.S.C. § 2255(f)(3). After we authorized
Griffin to file the petition, the district court denied it on the merits. The district
court ruled that Griffin’s three predicate offenses still constituted violent
felonies under the ACCA’s elements clause, which Johnson did not affect.
Although Griffin sought permission to appeal the classification of all three
predicates as violent felonies, we granted him a certificate of appealability on
only one issue: “whether the district court erred by denying [his] § 2255 motion
based on its determination that Mississippi aggravated assault constitutes a
violent felony post-Johnson.”
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                                        No. 17-60452
                                               II.
       In ruling on the motion for postconviction relief, the district court
recognized that it relied on the residual clause at Griffin’s 2008 sentencing.
Accordingly, there is jurisdiction to consider this successive habeas
application. United States v. Clay, 921 F.3d 550, 559 (5th Cir. 2019).
       But reliance on the residual clause was harmless if Griffin’s three
convictions also satisfied the other, still-valid definitions of “violent felony.”
The certificate of appealability limits our review to Griffin’s aggravated assault
conviction.     Because the ACCA does not list aggravated assault in its
enumerated offense clause, Griffin’s petition turns on whether Mississippi
aggravated assault is a violent felony under the elements clause. 1
       When Griffin was convicted of aggravated assault, the Mississippi
statute read as follows:
             A person is guilty of aggravated assault if he (a) attempts to
       cause serious bodily injury to another, or causes such injury
       purposely, knowingly or recklessly under circumstances
       manifesting extreme indifference to the value of human life; or (b)
       attempts to cause or purposely or knowingly causes bodily injury
       to another with a deadly weapon or other means likely to produce
       death or serious bodily harm . . . .

MISS. CODE. ANN. § 97-3-7(2) (West 1997).
       The statute is divisible. See Mason v. State, 867 So. 2d 1058, 1059 (Miss.
Ct. App. 2004). We thus apply the modified categorical approach to evaluate
whether the offense is a violent felony. See United States v. Lerma, 877 F.3d
628, 631 (5th Cir. 2017), cert. denied, 138 S. Ct. 2585 (2018). Under that


       1 Although Griffin waived the right to collaterally attack his conviction in his plea
agreement, the government forfeited the right to invoke Griffin’s waiver by failing to assert
waiver in the district court. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006); see
also United States v. Wiese, 896 F.3d 720, 722 n.1 (5th Cir. 2018), cert. denied, 139 S. Ct. 1328
(2019).

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                                  No. 17-60452
approach, we “look[] to a limited class of documents (for example the
indictment, jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of.” Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). If our inquiry narrows the offense
to a particular section of the statute, we then assess whether that crime
satisfies the elements clause. It does if one of its elements “include[s] the use,
attempted use, or threatened use of physical force against the person of
another.” Lerma, 877 F.3d at 631.
      Griffin’s aggravated assault indictment charged him with violating
subsection (a) of the Mississippi statute. He argues that section 97-3-7(2)(a)
does not require the use of physical force because it allows conviction only on
causing “serious bodily injury.” That injury can be caused, Griffin contends,
from nonviolent acts like poisoning.
      Our recent en banc decision in United States v. Reyes-Contreras, 910 F.3d
169 (5th Cir. 2018) (en banc), defeats Griffin’s argument. We held that both
direct force (using destructive or violent force against someone) and indirect
force (causing bodily injury through actions that are not themselves violent)
constitute “physical force.” Reyes-Contreras, 910 F.3d at 181–82. We also held
that causing injury necessarily involves the use of physical force. See id. at
183–84. Finally, with respect to mens rea, we held that “use of force” includes
knowing and reckless conduct in addition to intentional conduct. Id. at 183.
      After Reyes-Contreras, an offense satisfies the elements clause if the
proscribed conduct “(1) is committed intentionally, knowingly, or recklessly;
and (2) ‘employs a force capable of causing physical pain or injury’; (3) against




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                                     No. 17-60452
the person of another.” United States v. Gracia-Cantu, 920 F.3d 252, 254 (5th
Cir. 2019) (per curiam) (quoting Reyes-Contreras, 910 F.3d at 185). 2
       Mississippi aggravated assault is a violent felony under this rubric. The
offense conduct must be committed “purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human life.”
MISS. CODE ANN. § 97-3-7(2)(a) (West 1997); see also Gracia-Cantu, 920 F.3d
at 254. And the conduct must cause “serious bodily injury to another,” MISS.
CODE ANN. § 97-3-7(2)(a) (West 1997), which Reyes-Contreras explained
“necessarily requires the use of physical force,” United States v. Burris, 920
F.3d 942, 952 (5th Cir. 2019).
      We have previously recognized, albeit in an unpublished opinion, that
our en banc elimination of the distinction between indirect and direct force
means that Mississippi aggravated assault is a violent felony under the
elements clause. United States v. Liddell, 776 F. App’x 258 (5th Cir. 2019).
Further supporting that conclusion is another recent decision holding that the
similarly worded Texas aggravated assault offense satisfies the elements
clause. See United States v. Gomez Gomez, 917 F.3d 332, 333–34 (5th Cir.
2019); see also United States v. Combs, 772 F. App’x 108, 109–10 (5th Cir.
2019). Compare TEX. PENAL CODE ANN. § 22.02(a)(1), with MISS. CODE ANN.
§ 97-3-7(2)(a) (West 1997).
                                          ***
       We AFFIRM the denial of Griffin’s section 2255 petition.




       2 Although Reyes-Contreras and Gracia-Cantu dealt with the definition of “crime of
violence” under 18 U.S.C. § 16, we construe the elements clauses of section 16 and the ACCA
congruently. See Reyes-Contreras, 910 F.3d at 174 n.6.
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