We don’t often feature unpublished opinions, but this one is too good to pass up. Congratulations to Leigh Ann Webster for her victory in US v. Benjamin Smith, 2023 WL 1860518 (11th Cir. Feb. 9, 2023) (unpublished), where she convinced the panel to knock out three of Mr. Smith’s five potential ACCA predicates. On re-sentencing, Mr. Smith will no longer be subject to the ACCA enhancement. And remember, although this unpublished opinion is not binding on a district court, see 11th Cir. R. 36-2, a judge may (and should) view it as “persuasive authority.”
A crime is only an ACCA predicate under the elements clause if it categorically has an element of use, attempted use, or threatened use of physical force. “Use” means there must be active employment of physical force and that physical force must be “violent,” that is, force capable of causing physical pain or injury to another. And the use must be intentional, not reckless.
Aggravated assault with intent to rob (Georgia)
The aggravated assault statute is divisible, as is the simple assault statute. A simple assault can be committed by (1) attempt[ing] to commit a violent injury to the person of another or (2) commit[ing] an act which places another in reasonable apprehension of immediately receiving violent injury. O.C.G.A. § 16-5-20(a).
An aggravated assault based on an (a)(2) simple assault (which does not involve the requisite “use” of force) is not a violent felony unless the aggravating factor itself meets the ACCA definition. Here, the government did not prove whether the prior conviction was based on an (a)(1) or (a)(2) simple assault, so Mr. Smith cleared the first hurdle in challenging the prior conviction.
The aggravator here was aggravated assault with intent to rob, per O.C.G.A. § 16-5-21(a)(1). We must then look to the robbery statute, which is divisible. The crime of robbery by sudden snatching, O.C.G.A. § 16-8-40(a)(3), is the least-culpable variety criminalized by the statute, and it is not a violent felony. The government did not introduce any Shepard documents to prove what kind of robbery Mr. Smith was charged with having the intent to commit during the assault, so the panel rightly presumed it was robbery by sudden snatching. The conviction, then, did not count as an ACCA predicate. The outcome might (or might not) have been different if the government had introduced Shepard documents, so do your homework!
Aggravated Assault with a Deadly Weapon (Georgia)
Mr. Smith’s 1999 aggravated assault with a deadly weapon, under O.C.G.A. § 16-5-21(a)(2), also did not count because that crime can be committed (categorically, remember) with a mens rea of recklessness. This has been true in our circuit since US v. Moss, 920 F.3d 752, 756 (11th Cir. 2019), opinion reinstated, 4 F.4th 1292 (11th Cir. 2021). This is a great reminder to revisit old precedent on ACCA predicates that were issued pre-Borden v. US ,141 S. Ct. 1817, 1834 (2021), to see if a challenge to the mens rea element could knock out a prior that precedent says should count.
Criminal attempt to commit armed robbery (Georgia)
Criminal attempt to commit armed robbery requires proof that the person (1) intended to rob, that is, to take property of another from a person or their immediate presence by use of a weapon . . . and (2) took a substantial step toward that objective. Because robbery can be completed by the threat of force, an attempt can be committed by an attempted threat. After US v. Taylor, 142 S. Ct. 2015 (2022), such an attempt cannot be a violent felony. Accordingly, Georgia criminal attempt to commit armed robbery does not count as an ACCA violent felony.
David D. Marshall (404) 213-1358 ________________________________