                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4548
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Reuben Stewart

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                           Submitted: December 11, 2017
                             Filed: February 21, 2018
                                  [Unpublished]
                                  ____________

Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
                             ____________

PER CURIAM.

      Reuben Stewart appeals the district court’s1 determination that his Florida
conviction for aggravated assault qualifies as a violent felony under the Armed Career

      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
Criminal Act (ACCA), 18 U.S.C. § 924(e). He argues that the mens rea element of
Florida aggravated assault is not enough to qualify as “use” of physical force. We
review the district court’s application of the ACCA de novo. United States v. Walker,
840 F.3d 477, 489 (8th Cir. 2016).

       A previous conviction qualifies as a “violent felony” under the ACCA if 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). To determine whether Florida
aggravated assault is a “violent felony” under the ACCA, we use “the formal
categorical approach and look only to the fact of conviction and the statutory
definition of the prior offense.” United States v. Fogg, 836 F.3d 951, 954 (8th Cir.
2016) (quoting United States v. Schaffer, 818 F.3d 796, 797 (8th Cir. 2016)).

       Florida law defines aggravated assault as “an assault (a) [w]ith a deadly
weapon without an intent to kill; or (b) [w]ith an intent to commit a felony.” Fla. Stat.
§ 784.021(1).2 “An ‘assault’ is an intentional, unlawful threat by word or act to do
violence to the person of another, coupled with an apparent ability to do so, and doing
some act which creates a well-founded fear in such other person that such violence
is imminent.” Fla. Stat. § 784.011(1). The Florida courts have held that the state can
satisfy the mens rea element of aggravated assault by proving that the defendant acted
with “culpable negligence,” which means:

      [C]onduct of a gross and flagrant character, evincing reckless disregard
      of human life or the safety of persons exposed to its dangerous effects;
      or that entire want of care which would raise the presumption of
      indifference to consequences; or such wantonness or recklessness or
      grossly careless disregard of the safety and welfare of the public, or that
      reckless indifference to the rights of others, which is equivalent to an


      2
          Aggravated assault is a third-degree felony in Florida. Fla. Stat. § 784.021(2).


                                            -2-
      intentional violation of them. Momentary inattention or a mistake of
      judgment does not constitute culpable negligence.

DuPree v. State, 310 So. 2d 396, 398 (Fla. Dist. Ct. App. 1975) (citations omitted).

       Stewart argues only that Florida aggravated assault cannot be a violent felony
because it requires mere negligence. While “merely accidental or negligent conduct”
might not be a violent felony, see Leocal v. Ashcroft, 543 U.S. 1, 11 (2004), reckless
conduct can, in certain circumstances, be a “use” of physical force. United States v.
Fields, 863 F.3d 1012, 1015 (8th Cir. 2017); see also Fogg, 836 F.3d at 956. And
although the Florida courts describe the mens rea element of aggravated assault as
including “culpable negligence,” the definition of that phrase makes clear that they
are really talking about recklessness. DuPree, 310 So. 2d at 398 (requiring “reckless
disregard,” “indifference to consequences,” or “reckless indifference to the rights of
others”).

      We affirm the judgment of the district court.3
                      ______________________________




      3
       Because we reject Stewart’s argument using the categorical approach, we need
not reach the district court’s alternative use of the modified categorical approach.


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