3 F.4th 305
6th Cir.2021Background
- Kristen Brenner pleaded guilty in 2018 to being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g).
- The Presentence Report identified three prior Tennessee felony convictions (aggravated assault 2005; aggravated assault while acting in concert 2014; reckless aggravated assault 2014) and recommended ACCA enhancement.
- The district court held Brenner’s 2014 reckless aggravated assault conviction could not qualify as an ACCA "violent felony" under the elements (use-of-force) clause and imposed a within-Guidelines 110-month sentence instead of the ACCA 15-year mandatory minimum.
- The Government appealed, and this court held the appeal in abeyance pending the Supreme Court’s decision in Borden v. United States.
- The Supreme Court in Borden held the ACCA elements clause does not encompass offenses that criminalize reckless conduct; Tennessee reckless aggravated assault requires recklessness.
- After Borden, the Government moved to dismiss its appeal; the Sixth Circuit granted the motion and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tennessee reckless aggravated assault qualifies as an ACCA "violent felony" under the elements clause | Brenner: No—offense is based on recklessness, not the purposeful or knowing use of force | Government: Initially argued it could qualify, but after Borden withdrew and moved to dismiss | Court: Borden controls; reckless offenses fall outside the ACCA elements clause; Government’s dismissal granted |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (plurality and controlling guidance that ACCA elements clause excludes reckless conduct)
- Henderson v. United States, 568 U.S. 266 (2013) (lower courts apply current law when sentencing and reviewing)
- United States v. Amos, 501 F.3d 524 (6th Cir. 2007) (ACCA three-prior-convictions framework)
- Township of Benton v. County of Berrien, 570 F.2d 114 (6th Cir. 1978) (Rule 42(b) dismissal practice)
- State v. Cross, 362 S.W.3d 512 (Tenn. 2012) (discusses theory of using a vehicle as a deadly weapon in Tennessee DUI-related assault prosecutions)