                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 19a0163p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



                          17-5782                          ┐
                                                           │
  JAMES WALKER,
                                                           │
                                    Petitioner-Appellee,   │
         v.                                                │
                                                           >     Nos. 17-5782/5783
  UNITED STATES OF AMERICA,                                │
                               Respondent-Appellant.       │
                                                           │
                                                           │
                          17-5783                          │
  UNITED STATES OF AMERICA,                                │
                                    Plaintiff-Appellant,   │
                                                           │
         v.                                                │
  JAMES WALKER,                                            │
                                                           │
                                  Defendant-Appellee.      │
                                                           ┘

                            Appeal from the United States District Court
                         for the Western District of Tennessee at Memphis.
          Nos. 2:07-cr-20243-1; 2:14-cv-02021—Samuel H. Mays, Jr., District Judge.

                               Decided and Filed: July 23, 2019

               BEFORE: ROGERS, STRANCH, and THAPAR, Circuit Judges.

                                       _________________

                                            COUNSEL

ON PETITION FOR REHEARING EN BANC:                   Valentine Darker, DARKER
& ASSOCIATES, Memphis, Tennessee, for Appellee. ON RESPONSE: Kevin G. Ritz, Dean
DeCandia, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellant.

        The panel issued an order denying the petition for rehearing en banc. KETHLEDGE, J.
(pp. 3–5), delivered a separate opinion dissenting from the denial of rehearing en banc, in which
MOORE, STRANCH, and WHITE, JJ., joined. STRANCH J. (pg. 6), delivered a separate
dissenting opinion, in which MOORE, J., joined.
  Nos. 17-5782/5783                          Walker v. United States                        Page 2


                                             _________________

                                                     ORDER
                                             _________________

       The court received a petition for rehearing en banc. The original panel has reviewed the
petition and concludes that the issues raised in the petition were fully considered upon the original
submission and decision. The petition was then circulated to the full court.1 Less than a majority
of the judges voted in favor of rehearing en banc.

       Therefore, the petition is denied.




       1Judge   Donald recused herself from participation in this decision.
  Nos. 17-5782/5783                     Walker v. United States                               Page 3


                                        _________________

                                             DISSENT
                                        _________________

       KETHLEDGE, Circuit Judge, dissenting from the denial of rehearing en banc. Sometimes
we should correct our own mistakes. The question here is whether a defendant “use[s] . . . physical
force against the person of another”—as that phrase is used in 18 U.S.C. § 924(e)(2)(B)(i) and
various other provisions of the criminal code, as well as in the Sentencing Guidelines—when the
defendant is indifferent (which is to say reckless) as to whether his force in fact applies to another
person. Prior to 2016, the circuit courts uniformly answered no—that crimes involving the
reckless use of force are not violent felonies (or, depending on the provision, crimes of violence)
as defined by these provisions. See United States v. Harper, 875 F.3d 329, 332 (6th Cir. 2017)
(collecting cases). In 2016, however, the Supreme Court decided Voisine v. United States, 136
S.Ct. 2272 (2016), which interpreted an altogether different provision, namely the definition of
“misdemeanor crime of domestic violence” as defined in 18 U.S.C. § 921(a)(33)(A). That
provision, unlike the one here, requires only a “use . . . of physical force” period, rather than a use
of force “against the person of another.” The Court in Voisine expressly limited its inquiry to the
meaning of a single word in § 921(a)(33)(A)(ii)—“use”—which the Court interpreted to require a
“volitional” application of force, as opposed to an accidental one. 136 S.Ct. at 2279. And the
Court reasoned that, so long as the defendant’s application of force is volitional, the word “use” is
“indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness
with respect to the harmful consequences of his volitional conduct.” Id. Thus, the Court held,
crimes in which the defendant employs force recklessly may satisfy the “use of force” element of
§ 921(a)(33)(A)(ii). See id. at 2276.

       Several courts have since extended Voisine to abrogate the pre-2016 consensus and hold
that crimes involving the reckless use of force are violent felonies or crimes of violence as defined
by § 924(e)(2)(B)(i) and its various counterparts. Unlike the provision at issue in Voisine,
however, § 924(e)(2)(B)(i) does require the “use . . . of physical force against the person of
another.” That difference in text yields a difference in meaning. As a unanimous panel of our
court explained in Harper: “The italicized language is a restrictive phrase that describes the
particular type of ‘use of physical force’ necessary to satisfy [U.S.S.G. § 4B1.2, which is a
Guidelines counterpart of § 924(e)(2)(B)(i)]. Specifically, § 4B1.2 requires not merely a volitional
  Nos. 17-5782/5783                    Walker v. United States                             Page 4


application of force, but a volitional application ‘against the person of another.’” 875 F.3d at 331
(citation omitted). And that means “the force’s application to another person must be volitional
or deliberate.” Id. Thus, “understood the way the English language is ordinarily understood,” the
phrase “use . . . of physical force against the person of another” requires “not merely recklessness
as to the consequences of one’s force, but knowledge or intent that the force apply to another
person.” See id. at 331-32.

       Yet the law as described in Harper is not the law of our circuit, because by chance a
conflicting decision, namely United States v. Verwiebe, 872 F.3d 408 (6th Cir.), amended,
874 F.3d 258 (6th Cir. 2017), was published days before Harper was. Verwiebe asserted that
§ 4B1.2(a) “define[s] crimes of violence nearly identically to [18 U.S.C.] § 921(a)(33)(A)(ii)”—
which was the provision at issue in Voisine. See Verwiebe, 874 F.3d at 262; see also United States
v. Haight, 892 F.3d 1271, 1281 (D.C. Cir. 2018) (likewise characterizing these provisions as
“nearly identical”). Respectfully, however, that assertion was mistaken, because § 4B1.2—unlike
§ 921(a)(33)(A)(ii)—requires the use of physical force “against the person of another.” In the
work of textual exegesis, the presence of a restrictive phrase in one provision but not another does
not leave them nearly identical. And from that mistaken premise Verwiebe mistakenly held that
§ 4B1.2 requires only recklessness as to whether the defendant’s force would apply to the person
of another. See Verwiebe, 874 F.3d at 264.

       In fairness, though, Verwiebe followed a trail already blazed by three other circuits. But
none of the cases on which Verwiebe relied—namely United States v. Pam, 867 F.3d 1191, 1207-
08 (10th Cir. 2017); United States v. Mendez-Henriquez, 847 F.3d 214, 221-22 (5th Cir. 2017);
and United States v. Fogg, 836 F.3d 951, 956 (8th Cir. 2016)—even acknowledged, much less
addressed, the possibility that the restrictive phrase “against the person of another” could affect
the mens rea required by § 4B1.2(a) and its various counterparts. Those cases therefore do not
represent a reasoned consensus as to what that phrase means. Indeed they do not even purport to
explain what it means. Instead they illustrate a dynamic that sometimes arises in the lower courts:
“Loose language in one case hardens into a holding in another, and other cases follow suit.
Eventually the caselaw takes on a life of its own, often lived at variance with the rules laid down
in the statute itself.” DeLuca v. Blue Cross Blue Shield of Michigan, 628 F.3d 743, 752 (6th Cir.
2010) (dissenting opinion).
  Nos. 17-5782/5783                     Walker v. United States                              Page 5


        We should have reheard this case. The issue here recurs frequently and typically doubles
a defendant’s sentence; and the opinion that bound us in Harper is seriously open to question.
Moreover, any concerns about our ability to apply the rule in Harper are belied by the fact that,
pre-Voisine, the lower courts had uniformly applied that same rule for more than a decade. Nor is
there any merit to the assertion that §§ 921(a)(33)(A)(ii) and 924(e)(2)(B)(i) require the same mens
rea (which, per Voisine, would be recklessness) because § 921(a)(33)(A)(ii) requires a “victim.”
That requirement, the argument goes, serves as the equivalent of the phrase “against the person of
another” as used in § 924(e)(2)(B)(i). But again this is rough-cut textualism. True, the definition
of “misdemeanor crime of domestic violence” in § 921(a)(33)(A)(ii) requires that there be a
domestic “victim” in addition to a “use of physical force[.]” Hence that provision implicitly
requires that the defendant’s “use of physical force” in fact harm another person. But there are
legions of victims harmed by force applied recklessly.              And nothing in the text of
§ 921(a)(33)(A)(ii) requires that the defendant act knowingly or intentionally with respect to that
harm. Meanwhile, as shown above, § 924(e)(2)(B)(i) does include language to that effect:
“against the person of another.” Finally, though the decision whether to rehear a case en banc
depends primarily on jurisprudential concerns, it bears mention that—by our inaction—we send
back to prison, quite wrongly in my view, a 65-year-old man whose crime was possession of a
dozen bullets and who had already served the sentence (88 months) that the district court thought
sufficient.

        “In sum, Voisine tells us what ‘use’ means, not what ‘against the person of another’ means.”
Harper, 875 F.3d at 333; see also Voisine, 136 S.Ct. at 2278 (observing that “‘use[,]’” in that case,
“is the only statutory language either party thinks relevant” in § 921(a)(33)(A)(ii)). That phrase
on its face restricts the scope of one of the more important definitions in all of federal criminal
law. Indeed the Supreme Court has said that “[t]he critical aspect” of the text at issue here “is that
a crime of violence is one involving the ‘use . . . of physical force against the person or property
of another.’” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (emphasis and ellipses in original). Yet our
court has chosen to read that phrase—that “critical aspect”—to mean precisely nothing. And by
denying rehearing we have rendered more intractable what has become a deep circuit split.

        I respectfully dissent from the denial of rehearing en banc.
  Nos. 17-5782/5783                     Walker v. United States                              Page 6


                                       _________________

                                             DISSENT
                                       _________________

       JANE B. STRANCH, Circuit Judge, dissenting from the denial of rehearing en banc. I join
fully in Judge Kethledge’s dissent from the denial of rehearing en banc. And while I recognize
that our change of sides would not resolve the existing circuit split, I believe our newly constituted
court would have found value in seeking to answer this question together and would have provided
value in speaking to the defendants and families impacted by our decision.

       I write separately because there is another reason we should take up the question of whether
crimes that have a mens rea of recklessness necessarily involve the “use . . . of physical force
against the person of another,” as required by the ACCA’s use-of-force clause. 18 U.S.C.
§ 924(e)(2)(B)(i). The Supreme Court has explicitly left open the possibility that the term “use of
physical force” should be given “divergent readings” in § 921(a)(33)(A) and the ACCA “in light
of differences in [the statutes’] contexts and purposes.” Voisine v. United States, 136 S. Ct. 2272,
2280 n.4 (2016). Though § 921(a)(33)(A) deals with misdemeanor crimes of domestic violence,
the ACCA’s scope is restricted to violent felonies. And the Court found that the “common-law
meaning of force” is a “comical misfit” with the “ACCA’s definition of a violent felony,” yet
concluded that the “common-law meaning of force fits perfectly” in the context of misdemeanor
crimes of domestic violence. United States v. Castleman, 572 U.S. 157, 163 (2014) (citation and
internal quotation marks omitted). Indeed, the Court noted that “[t]he very reasons we gave for
rejecting that meaning in defining a ‘violent felony’ are reasons to embrace it in defining a
‘misdemeanor crime of domestic violence.’”             Id.; see also id. at 164–65 (discussing
§ 921(a)(33)(A)’s context and purpose). Analysis of this issue thus also should include recognition
that the statutes’ divergent “contexts and purposes” provide a substantial basis to conclude that the
ACCA’s requirement of the use of physical force against the person of another is more stringent
than § 921(a)(33)(A)’s requirement of the use of physical force period.

                                               ENTERED BY ORDER OF THE COURT



                                               ___________________________________
                                               Deborah S. Hunt, Clerk
