United States v. Adarius Harper, 875 F.3d 329

In 2012 Harper shot his brother and pled guilty in Tennessee to reckless aggravated assault (Tenn. Code Ann. § 39-13-102(a)(1)(B)), an offense requiring only recklessness as to whether the conduct injures another.
In 2015 Harper was prosecuted federally for being a felon in possession of a firearm (18 U.S.C. § 922(g)) and at sentencing the government sought an enhanced Guidelines range under U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(a) by treating the Tennessee assault conviction as a prior “crime of violence.”
The district court declined to treat the prior Tennessee reckless-aggravated-assault conviction as a § 4B1.2(a) crime of violence and imposed a lower Guidelines sentence.
The government appealed, arguing that Voisine v. United States changed the law so that offenses requiring only recklessness can qualify as a "use of physical force" under § 4B1.2(a).
A recently published Sixth Circuit decision, United States v. Verwiebe, held that post-Voisine reckless offenses can qualify under § 4B1.2(a); the panel here concluded it was bound by Verwiebe and therefore reversed and remanded for resentencing.
The panel nevertheless wrote to explain why, in its view, Verwiebe was wrongly decided: § 4B1.2’s phrase "against the person of another" requires a mens rea (intent or knowledge) that recklessness does not supply.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Tennessee reckless aggravated-assault conviction qualifies as a § 4B1.2(a) "crime of violence" because it requires only recklessness	Voisine means "use of physical force" includes reckless uses; thus the prior conviction qualifies	Recklessness does not satisfy § 4B1.2's additional phrase "against the person of another," which requires intentional or knowing application of force	Bound by Verwiebe, the panel reverses district court and treats the prior conviction as a crime of violence for Guidelines purposes; but explains Verwiebe was likely mistaken because § 4B1.2 requires a mens rea as to force applied "against the person of another"

Voisine v. United States, 136 S. Ct. 2272 (2016) (Supreme Court holds reckless assaults can constitute the "use... of physical force" for the misdemeanor-domestic-violence statute)
United States v. Verwiebe, 872 F.3d 408 (6th Cir. 2017) (Sixth Circuit held post-Voisine that reckless offenses can be crimes of violence under § 4B1.2)
United States v. McFalls, 592 F.3d 707 (6th Cir. 2010) (prior Sixth Circuit precedent holding that recklessness is insufficient for § 4B1.2)
United States v. Walli, 785 F.3d 1080 (6th Cir. 2015) (discusses mens rea inference: knowledge can substitute for intent where result is practically certain)
Leocal v. Ashcroft, 543 U.S. 1 (2004) (Supreme Court interpretation focused on meaning of "use" of force in a different statutory context)