United States v. Terin Moss
920 F.3d 752
| 11th Cir. | 2019Background
- Terin Moss pleaded guilty to being a felon in possession of ammunition under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
- The PSR listed three prior convictions: aggravated assault (two counts under O.C.G.A. § 16-5-21(a)(2)), possession with intent to distribute cocaine, and felony obstruction of an officer.
- The probation officer treated the aggravated assault conviction as a predicate "crime of violence" under the ACCA elements clause, triggering the Armed Career Criminal Act's 15-year minimum and raising Moss’s Guidelines range to 180–210 months.
- Moss objected, arguing Georgia aggravated assault (as applied) does not categorically qualify as a violent felony because it can be satisfied by recklessness and thus lacks the intentional use-of-force element.
- The district court overruled the objection, imposed 180 months, and Moss appealed; the Eleventh Circuit vacated and remanded for resentencing, holding the Georgia aggravated assault conviction (based on simple assault § 16-5-20(a)(2)) can be satisfied by recklessness and therefore does not meet the ACCA elements clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moss’s Georgia aggravated assault conviction qualifies as an ACCA "violent felony" under the elements clause | Moss: the conviction can be based on simple assault § 16-5-20(a)(2), which permits recklessness and therefore lacks the intentional use-of-force required by the ACCA | Government: the indictment shows Moss assaulted officers with an instrument likely to cause serious injury, satisfying the elements clause | The court held the conviction can be based on recklessness under Georgia law and therefore does not categorically qualify as a violent felony under the ACCA elements clause |
| Whether Georgia’s simple and aggravated assault statutes are divisible for the modified categorical approach | Moss: statute’s divisible text requires examining Shepard documents; if unclear, use least-culpable prong | Government: indictment shows aggravated assault under § 16-5-21(a)(2) with a deadly-weapon aggravator that meets ACCA | The court applied the modified categorical approach, found the relevant charging provision was § 16-5-21(a)(2) predicated on § 16-5-20(a)(2), and applied the least-culpable prong when Shepard documents were inconclusive |
| Whether a mens rea of recklessness satisfies the ACCA’s "use of physical force" requirement | Moss: Georgia law permits recklessness for § 16-5-21(a)(2) when based on § 16-5-20(a)(2), which is insufficient | Government: contended that aggravated assault necessarily involves intentional conduct resembling violent force | The court held recklessness does not satisfy the ACCA elements clause; the ACCA requires intentional use of force |
| Whether Turner (Florida law) compels a different result | Moss: Turner distinguishes Florida’s intentional requirement from Georgia’s recklessness standard | Government: argued Turner supports treating aggravated assault as categorical violent felony | The court distinguished Turner and declined to extend its reasoning to Georgia law |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (modified categorical approach for divisible statutes)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (presume conviction rests on least culpable conduct)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) ("use of physical force" requires volitional conduct)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force)
- United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010) (recklessness does not satisfy elements-clause force requirement)
- Patterson v. State, 789 S.E.2d 175 (Ga. 2016) (Georgia Supreme Court: § 16-5-20(a)(2) does not require specific intent; aggravated assault can be satisfied by recklessness)
- United States v. Davis, 875 F.3d 592 (11th Cir. 2017) (categorical approach framework and handling divisible statutes)
- Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013) (Florida aggravated assault held categorical violent felony; distinguished here)