911 F.3d 504
8th Cir.2018Background
- A panel opinion (filed Sept. 28, 2018) concluded that aggravated assault in North Dakota — which can encompass reckless driving causing injury — is not a "crime of violence" under USSG § 4B1.2(a).
- After the panel opinion, a judge in regular active service requested en banc rehearing; the court polled and the vote was split 5–5, with one judge disqualified. The suggestion to rehear en banc was therefore denied.
- Five judges (Chief Judge Smith, Judges Wollman, Loken, Colloton, and Gruender) would have granted rehearing en banc; Judge Erickson did not participate.
- The dissenting judge would rehear en banc to reconsider whether an offense that involves reckless conduct causing injury necessarily involves the "use...of physical force" under the Guidelines.
- The dissent argues the panel misapplied precedent (notably Ossana, Fields, and Schneider), misunderstands the text of the Guidelines’ force clause, and conflicts with Supreme Court and other circuit authority holding that causing bodily injury involves physical force and that reckless conduct can constitute a "use" of force.
- The dissent warns the panel approach has broad circuit-wide consequences for sentencing and ACCA classification, potentially excluding many assault/battery convictions from "crime of violence"/"violent felony" status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aggravated assault (including reckless driving causing injury) is a "crime of violence" under USSG §4B1.2(a) | Panel/majority: Reckless-driving-causing-injury does not require "physical force" and thus is not a crime of violence | Dissent: Injury requires physical force and reckless application of force counts as "use" — so it is a crime of violence | En banc rehearing denied; panel decision remains (split vote) |
| Whether circuit precedents (Ossana, Fields, Schneider) correctly interpret the Guidelines’ "force" clause | Precedent limits the clause and reads in a purposeful/violent/aggressive requirement | Dissent: Those decisions misread the text, conflate the residual clause, and were undermined by later authority | Court declined en banc review; precedents remain controlling in the circuit |
| Whether a reckless application of force qualifies as a "use" of physical force | Panel: Implicitly treated reckless conduct as outside the "use" of force | Dissent: Voisine and subsequent authority hold reckless application is a "use" | En banc rehearing denied; disagreement remains unresolved en banc |
| Circuit-wide impact on sentencing and ACCA classifications | Panel approach excludes many assault/battery offenses from "crime of violence"/"violent felony" status | Dissent: That exclusion is legally erroneous and has significant adverse consequences, so merits en banc review | Rehearing denied, so effects of panel holdings stay operative absent further review |
Key Cases Cited
- United States v. Schneider, 965 F.3d 1088 (8th Cir. 2018) (panel held reckless-driving-causing-injury not a crime of violence under §4B1.2)
- United States v. Winston, 845 F.3d 876 (8th Cir.) (defines "physical force" in context of force clause)
- Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" as force capable of causing pain or injury)
- United States v. Castleman, 572 U.S. 157 (2014) (holding it is impossible to cause bodily injury without using force)
- United States v. Ossana, 638 F.3d 895 (8th Cir. 2011) (circuit precedent limiting the scope of the force clause)
- United States v. Fields, 863 F.3d 1012 (8th Cir. 2017) (applied restrictive reading of assault offenses under force clause)
- United States v. Mann, 899 F.3d 898 (10th Cir. 2018) (rejected Fields and held text of force clause does not exclude reckless-causing-injury offenses)