7 F.4th 1039
11th Cir.2021Background
- In 1992 Carter shot at Kenneth Gibbons and pleaded guilty to Georgia aggravated assault (O.C.G.A. § 16-5-21) based on a deadly weapon; he received a three-year sentence.
- Carter later had two drug convictions (sale and conspiracy) and in 2013 sold a firearm, leading to a federal § 922(g)(1) indictment; he pleaded guilty to one count.
- The PSR treated Carter as an Armed Career Criminal under the ACCA (18 U.S.C. § 924(e)) based on three prior convictions (aggravated assault plus two drug offenses), producing a 15‑year mandatory minimum.
- The district court initially varied downward from the ACCA minimum, but after appellate proceedings the court on remand applied the ACCA and imposed the 15‑year mandatory sentence.
- The Eleventh Circuit stayed the appeal pending en banc consideration of United States v. Moss and the Supreme Court’s decision in Borden; after Borden the en banc Court reinstated Moss, which held the relevant Georgia aggravated assault can be committed recklessly and thus is not an ACCA elements‑clause violent felony.
- The Eleventh Circuit vacated Carter’s ACCA sentence and remanded for resentencing because the Georgia aggravated assault conviction cannot serve as an ACCA predicate under Borden and Moss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Carter’s Georgia aggravated assault conviction (O.C.G.A. § 16-5-21(a)(2) based on § 16-5-20(a)(2)) qualifies as a “violent felony” under the ACCA elements clause | Carter: the Georgia offense can be committed with mere recklessness, so it lacks the purposeful/knowing mens rea required by the elements clause | Government: the conviction involved a deadly weapon and shooting and therefore qualifies as a violent felony under the elements clause | The court held the conviction does not qualify; Borden and Moss show the elements clause requires purposeful/knowing conduct and excludes reckless offenses; vacated sentence and remanded |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (Supreme Court: ACCA elements clause requires purposeful or knowing conduct; excludes reckless crimes)
- United States v. Moss, 920 F.3d 752 (11th Cir. 2019) (Eleventh Circuit en banc: GA aggravated assault under § 16-5-21(a)(2) based on § 16-5-20(a)(2) can be reckless and is not an ACCA elements‑clause violent felony)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach and treatment of divisible statutes)
- Shepard v. United States, 544 U.S. 13 (2005) (limited documents may be consulted to identify which alternative element supported a conviction for divisible statutes)
- Johnson v. United States, 576 U.S. 591 (2015) (residual clause of ACCA is unconstitutionally vague)
- Patterson v. State, 789 S.E.2d 175 (Ga. 2016) (Georgia Supreme Court: § 16-5-20(a)(2) simple assault does not require specific intent and may be satisfied by reckless conduct)