85 F.4th 153
4th Cir.2023Background
- Garfield Redd was convicted in 2008 of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); the district court applied the ACCA enhancement based on four prior convictions (including two Maryland first-degree-assault convictions) and sentenced him to 240 months.
- On direct appeal this Court upheld the ACCA designation; Redd later filed successive § 2255 relief after Johnson v. United States struck down ACCA’s residual clause.
- Redd argued Maryland first-degree assault is not a violent felony under ACCA’s force clause because the statute is indivisible and one modality (assault with a firearm) can be committed recklessly.
- The district court denied relief, relying in part on the prior unpublished opinion; the Fourth Circuit granted a COA limited to whether Maryland first-degree assault is a violent felony under the force clause.
- The Fourth Circuit held Maryland first-degree assault is an indivisible statute, that the firearm modality can be committed with recklessness, and that recklessness does not meet ACCA’s force-clause requirement — therefore the convictions cannot serve as ACCA predicates; the court reversed, vacated Redd’s ACCA sentence, and remanded.
Issues
| Issue | Redd's Argument | Government's Argument | Held |
|---|---|---|---|
| Divisibility of Md. first‑degree assault (Art. 27 § 12A‑1) | Statute is indivisible (alternatives = means); must apply categorical approach to entire statute | Statute is divisible (modalities are alternative elements; prosecutor/state can charge/select) | Indivisible — Maryland practice, charging/Instructions, and case law show juries need not unanimously pick a modality, so alternatives are means not elements |
| Mens rea for the firearm modality | Assault-with-firearm can be satisfied by reckless/unintentional conduct (criminal negligence) | The firearm wording implies intent to cause harm; courts may infer intent from use/pointing of a gun | Firearm modality can be committed recklessly; Maryland common-law/second-degree assault and pattern jury instructions confirm reckless physical contact can suffice for the firearm modality |
| ACCA force‑clause applicability | Because the statute covers reckless conduct, it does not meet ACCA’s force clause (force must be intentional/violent) | Maryland first‑degree assault is a violent felony under the force clause | Not a violent felony under the force clause; therefore the first‑degree‑assault convictions cannot serve as ACCA predicates and the ACCA sentence is invalid |
| Preclusive effect of the prior unpublished decision | Subsequent Supreme Court decisions (e.g., Borden) changed the legal landscape; prior unpublished opinion does not bar reconsideration | Prior unpublished decision foreclosed the argument | Prior unpublished Fourth Circuit opinion did not preclude reconsideration in light of intervening Supreme Court precedent; court addressed the merits |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause)
- Borden v. United States, 141 S. Ct. 1817 (2021) (recklessness insufficient for ACCA force clause)
- Mathis v. United States, 579 U.S. 500 (2016) (elements v. means/divisibility test)
- Descamps v. United States, 570 U.S. 254 (2013) (limits on modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to prior convictions)
- Shepard v. United States, 544 U.S. 13 (2005) (proper records for modified-categorical inquiry)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability test for state application)
- United States v. Proctor, 28 F.4th 538 (4th Cir. 2022) (de novo review and application of categorical approach)
- United States v. Allred, 942 F.3d 641 (4th Cir. 2019) (discussion of ACCA sentencing consequences)