United States v. James Walker
931 F.3d 467
6th Cir.2019Background
- This order denies a petition for rehearing en banc concerning whether the ACCA’s "use . . . of physical force against the person of another" requires a mens rea greater than recklessness.
- The panel majority denied rehearing en banc because fewer than a majority of judges voted to rehear; separate dissents were filed by Judges Kethledge and Stranch (joined by others).
- Judge Kethledge argues the pre-2016 consensus required that the force be intentionally or knowingly directed at another person (not merely recklessly applied), citing this Court’s earlier decision in United States v. Harper.
- The Supreme Court’s decision in Voisine v. United States interpreted a different statutory provision (§ 921(a)(33)(A)(ii)) to allow recklessness for the “use” element, but Kethledge and Stranch contend Voisine did not and should not control the ACCA provision because ACCA includes the restrictive phrase "against the person of another."
- Kethledge emphasizes a circuit split created by United States v. Verwiebe and several other circuits that extended Voisine to ACCA-like provisions; he would have granted rehearing en banc to revisit that question and correct the conflict.
- Stranch adds that the differing statutory contexts and purposes (ACCA’s focus on violent felonies versus § 921’s domestic-violence context) support treating the ACCA phrase more stringently than § 921(a)(33)(A)(ii).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ACCA phrase “use . . . of physical force against the person of another” is satisfied when the defendant acts recklessly (indifferent whether force hits a person) | Government: Voisine shows that “use” can be satisfied by volitional but reckless application of force, so recklessness suffices for ACCA | Defendant (and dissenters): Text requires force to be volitional and directed "against the person of another," implying knowledge/intent that force apply to another, not mere recklessness | Denial of rehearing en banc; the court declined to revisit the issue en banc. Judges Kethledge and Stranch dissented and would have granted rehearing to adopt the more stringent mens rea requirement. |
Key Cases Cited
- United States v. Harper, 875 F.3d 329 (6th Cir. 2017) (interprets "against the person of another" to require deliberate/volitional application to another)
- United States v. Verwiebe, 874 F.3d 258 (6th Cir. 2017) (applied Voisine to conclude recklessness can satisfy ACCA-like force clause)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (Supreme Court: "use" of force can be satisfied by volitional reckless conduct under § 921(a)(33)(A)(ii))
- United States v. Pam, 867 F.3d 1191 (10th Cir. 2017) (applied Voisine to ACCA-type analysis)
- United States v. Mendez-Henriquez, 847 F.3d 214 (5th Cir. 2017) (applied Voisine to allow recklessness for force element)
- United States v. Fogg, 836 F.3d 951 (8th Cir. 2016) (applied Voisine reasoning)
- United States v. Castleman, 572 U.S. 157 (2014) (discusses common-law meaning of force and statutory context differences)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (explains importance of the phrase "use . . . of physical force against the person or property of another" in defining crimes of violence)