Published on: Thursday, June 10, 2021

In Borden v. United States, No. 19-5410 (June 10, 2021), a divided United States Supreme Court held that a criminal offense with a mens rea of recklessness does not quality as a "violent felony" under the Armed Career Criminal Act's (ACCA) element's clause.  An offense qualifies as a violent felony under ACCA's elements clause if it necessarily involves "the use, attempted use, or threatened use of physical force against the person of another." 18 U. S. C. SS924(e)(2)(B)(i). Whether reckless offenses would satisfy ACCA's elements clause was a question left open by in Leocal v. Ashcroft, 543 U.S. 1 (2004) and Vosine v. United States, 579 U.S. 686 (2016).  The Court's opinion in Borden, based on statutory construction, further narrows the definition of violent felonies that qualify for ACCA's 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a "violent felony."  Although the Court did not address the retroactivity of it's decision in Borden (it seldom speaks about retroactivtyin direct appeal decisions), the fact the Court's decision turns on statutory constuction supports the conclusion it is retroactive to cases on collateral review. See, e.g., Welch v. United States, 578 U.S. 120 (2016) (making Johnson v. United States, 576 U.S. 591 (2015) retroactive). 

Justice Kagan announced the opinion of the Court, joined by Justices Breyer, Sotomayor, and Gorsuch.  Justice Thomas filed an opinion concurring in the judgement.  Justice Kavanaugh filed a dissenting opinion, joined by Chief Justice Roberts and Justices Alita and Barrett.

Petitioner Charles Borden, Jr., pleaded guilty to a felon-in-possession charge, and the Government sought an enhanced sentence under ACCA. One of the three convictions alleged as predicates was for reckless aggravated assault in violation of Tennessee law. Borden argued that this offense is not a violent felony under ACCA's elements clause because a mental state of recklessness suffices for conviction. In his view, only purposeful or knowing conduct satisfies the clause's demand for the use of force "against the person of another." The District Court disagreed and sentenced Mr. Borden as an armed career criminal.  The Sixth Circuit affirmed.  The Supreme Court reversed.

Merits briefing is available on the Supreme Court's website here.  The oral argument is availbale here.  The Training Division provides sentencing resources that will help you argue for the best possible sentence for your clients.