Borden v. United States

Citation210 L.Ed.2d 63,141 S.Ct. 1817
Decision Date10 June 2021
Docket NumberNo. 19-5410,19-5410
Parties Charles BORDEN, Jr., Petitioner v. UNITED STATES
CourtUnited States Supreme Court

Kannon K. Shanmugam, Washington, DC, for the petitioner.

Deputy Solicitor General Eric J. Feigin, Washington, DC, for the respondent.

Kannon K. Shanmugam, Jessica A. Morton, Stacie M. Fahsel, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Nicholas A. Handler, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Erin P. Rust, Counsel of Record, Jennifer Niles Coffin, Federal Defender, Services of Eastern, Tennessee, Inc., Chattanooga, TN, for petitioner.

Noel J. Francisco, Solicitor General, Counsel of Record, Brian A. Benczkowski, Assistant Attorney General, Eric J. Feigin, Deputy Solicitor General, Morgan L. Ratner, Assistant to the Solicitor General, Finnuala K. Tessier, Attorney, Department of Justice, Washington, D.C. 20530-0001, for respondent.

Justice KAGAN announced the judgment of the Court and delivered an opinion, in which Justice BREYER, Justice SOTOMAYOR, and Justice GORSUCH join.

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a "violent felony." The question here is whether a criminal offense can count as a "violent felony" if it requires only a mens rea of recklessness—a less culpable mental state than purpose or knowledge. We hold that a reckless offense cannot so qualify.


Congress enacted ACCA, as its full name makes clear, to address the "special danger" associated with "armed career criminals." Begay v. United States , 553 U.S. 137, 146, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). A "small percentage of repeat offenders," Congress found, commit a "large percentage" of all violent crimes. Taylor v. United States , 495 U.S. 575, 581, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (quoting H. R. Rep. No. 98–1073, p. 1 (1984)). And when such a habitual violent offender carries a gun, he poses a serious risk of wreaking harm. As his prior convictions reveal, he is "the kind of person who," when armed, "might deliberately point the gun and pull the trigger." Begay , 553 U.S., at 146, 128 S.Ct. 1581.

To allay that danger, ACCA enhances the sentence of anyone convicted under 18 U.S.C. § 922(g) of being a felon in possession of a firearm if he has three or more prior convictions (whether state or federal) for a "violent felony." The increase in penalty is severe: A 10-year maximum sentence turns into a 15-year minimum one. See § 924(a)(2), (e)(1). And because that is so, the scope of the statute is closely confined. See Begay , 553 U.S., at 146, 128 S.Ct. 1581 (Congress did not provide for "a 15-year mandatory prison term where th[e] increased likelihood [of gun violence] does not exist"). The penalty enhancement kicks in only when a defendant has committed no fewer than three offenses meeting the statute's definition of "violent felony." That definition, in addition to ticking off several specific crimes (for example, burglary and arson), includes the so-called elements clause, relevant here. An offense qualifies as a violent felony under that clause if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i).

To decide whether an offense satisfies the elements clause, courts use the categorical approach. See Stokeling v. United States , 586 U. S. ––––, ––––, 139 S.Ct. 544, 555, 202 L.Ed.2d 512 (2019). Under that by-now-familiar method, applicable in several statutory contexts, the facts of a given case are irrelevant. The focus is instead on whether the elements of the statute of conviction meet the federal standard. Here, that means asking whether a state offense necessarily involves the defendant's "use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i) ; see Shular v. United States , 589 U. S. ––––, –––– – ––––, 140 S.Ct. 779, 783–84, 206 L.Ed.2d 81 (2020). If any—even the least culpable—of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard, and so cannot serve as an ACCA predicate. See Johnson v. United States , 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

In this case, petitioner Charles Borden, Jr., pleaded guilty to a felon-in-possession charge, and the Government sought an enhanced sentence under ACCA. One of the three convictions alleged as predicates was for reckless aggravated assault in violation of Tennessee law. The relevant statute defines that crime as "[r]ecklessly commit[ting] an assault" and either "caus[ing] serious bodily injury to another" or "us[ing] or display[ing] a deadly weapon." Tenn. Code Ann. § 39–13–102(a)(2) (2003); see § 39–13–101(a)(1). Borden argued that this offense is not a violent felony under ACCA's elements clause because a mental state of recklessness suffices for conviction. In his view, only purposeful or knowing conduct satisfies the clause's demand for the use of force "against the person of another." The District Court disagreed, holding that reckless offenses qualify as violent felonies and sentencing Borden as a career offender. The Court of Appeals for the Sixth Circuit affirmed that decision based on circuit precedent—though noting that Borden was "not alone" in viewing the precedent as "wrongly decided." 769 Fed.Appx. 266, 268 (2019) (citing United States v. Verwiebe , 874 F.3d 258 (CA6 2017) ).

The circuit courts have indeed differed in addressing the question Borden raises. Some have held, as in this case, that a statute covering reckless conduct qualifies as a violent felony under ACCA.1 Others have concluded that only a statute confined to purposeful or knowing conduct can count as such a felony.2 The dispute turns on the definition of "violent felony" in ACCA's elements clause—more specifically, on how different mental states map onto the clause's demand that an offense entail the "use ... of physical force against the person of another." § 924(e)(2)(B)(i). We granted certiorari to resolve the issue. 589 U. S. ––––, 140 S.Ct. 1262, 206 L.Ed.2d 253 (2020).


Two pieces of background should ease the way. We begin by setting out four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence. We then discuss two prior decisions of this Court addressing questions similar to the one here. In each, the Court considered how a certain mental state relates to a statutory definition marking out a category of crimes. One of those definitions is almost identical to the elements clause; the other appropriates only the clause's first half. The Court's analyses—about both the statute more like and the statute less like the elements clause—help frame today's decision.

Purpose and knowledge are the most culpable levels in the criminal law's mental-state "hierarchy." United States v. Bailey , 444 U.S. 394, 404, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). A person acts purposefully when he "consciously desires" a particular result. Ibid. (internal quotation marks omitted); see ALI, Model Penal Code § 2.02(2)(a) (1985). He acts knowingly when "he is aware that [a] result is practically certain to follow from his conduct," whatever his affirmative desire. Bailey , 444 U.S., at 404, 100 S.Ct. 624 (internal quotation marks omitted); see Model Penal Code § 2.02(2)(b)(ii). We have characterized the distinction between the two as "limited," explaining that it "has not been considered important" for many crimes. Bailey , 444 U.S., at 404, 100 S.Ct. 624 (internal quotation marks omitted); see Model Penal Code, Comment 2, pp. 233–234 (calling the distinction "narrow" and often "inconsequential"). A person who injures another knowingly, even though not affirmatively wanting the result, still makes a deliberate choice with full awareness of consequent harm. See Bailey , 444 U.S., at 403–404, 100 S.Ct. 624.3

Recklessness and negligence are less culpable mental states because they instead involve insufficient concern with a risk of injury. A person acts recklessly, in the most common formulation, when he "consciously disregards a substantial and unjustifiable risk" attached to his conduct, in "gross deviation" from accepted standards. Model Penal Code § 2.02(2)(c) ; see Voisine v. United States , 579 U. S. 686, ––––, 136 S.Ct. 2272, 2277, 195 L.Ed.2d 736 (2016). That risk need not come anywhere close to a likelihood. Speeding through a crowded area may count as reckless even though the motorist's "chances of hitting anyone are far less [than] 50%." 1 W. LaFave, Substantive Criminal Law § 5.4(f) (2018) (citing cases involving low-probability events). Similarly (though one more step down the mental-state hierarchy), a person acts negligently if he is not but "should be aware" of such a "substantial and unjustifiable risk," again in "gross deviation" from the norm. Model Penal Code § 2.02(2)(d). There, the fault lies in the person's simple "failure to perceive" the possible consequence of his behavior. Ibid.

In Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), this Court held that offenses requiring only a negligent mens rea fall outside a statutory definition relevantly identical to ACCA's elements clause. That definition, codified at 18 U.S.C. § 16(a), is for the term "crime of violence," which appears in many federal criminal and immigration laws. Section 16(a) states, in language that should by now sound familiar, that a "crime of violence" means "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." (In case you missed it, the sole difference between § 16(a) and the elements clause is the...

To continue reading

Request your trial
738 cases
  • McDonald v. City of Pompano Beach
    • United States
    • U.S. District Court — Southern District of Florida
    • 23 Agosto 2021
    ...Median Provision or ignore the plain meaning of its words—two things we aren't permitted to do. See Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 1829, 210 L.Ed.2d 63 (2021) ("[S]tatutory construction does not work that way: A court does not get to delete inconvenient language a......
  • Rudolph v. United States
    • United States
    • U.S. District Court — Northern District of Alabama
    • 29 Julio 2021
    ...(Motion to Vacate Sentence).2 This court stayed these proceedings, pending the Supreme Court's ruling in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021) : a case that raised the question of whether a defendant's prior conviction for an offense that required a......
  • Commonwealth v. Escobar
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 12 Agosto 2022
    ...against "demands that the perpetrator direct his [or her] action at, or target, another individual." Borden v. United States, ––– U.S. ––––, 141 S. Ct. 1817, 1825, 210 L.Ed.2d 63 (2021). "And the pairing of volitional action with the word ‘against’ supports that word's oppositional, or targ......
  • United States v. Abukhatallah
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 26 Julio 2022
    ...distinction between crimes against the person and crimes against property. Cf. Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 1839–40, 210 L.Ed.2d 63 (2021) (Kavanaugh, J., dissenting). Section 1363, he says, is "essentially a property crime" because it requires the "willful[ ] a......
  • Request a trial to view additional results
2 firm's commentaries
6 books & journal articles
    • United States
    • Albany Law Review Vol. 85 No. 1, March 2022
    • 22 Marzo 2022
    ...(237) See supra notes 1-14 and accompanying text. (238) See infra note 239-272 and accompanying text. (239) See Borden v. United States, 141 S. Ct. 1817, 1837 (2021) (Kavanaugh, J. dissenting); Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021) (Kavanaugh. J., dissenting); Van Buren v. Uni......
    • United States
    • Washington University Law Review Vol. 99 No. 5, June 2022
    • 1 Junio 2022
    ...for "a notice to appear" to require the government to deliver the required information in a single document); Borden v. United States, 141 S. Ct. 1817 (2021) (holding that 18 U.S.C. [section] 924(e)'s language ("[t]he phrase 'against another,' when modifying the 'use of force'") precluded c......
  • Sentencing
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 Agosto 2022
    ...consider charging instrument when determining underlying facts of defendant’s conviction), abrogated on other grounds by Borden v. U.S., 141 S. Ct. 1817 (2021); Lukaj v. U.S. Att’y Gen., 953 F.3d 1305, 1312 (11th Cir. 2020) (court may consider plea agreement, judgement, and indictment when ......
    • United States
    • University of Pennsylvania Law Review Vol. 171 No. 2, January 2023
    • 1 Enero 2023
    ...91 percent of the time in the past two terms); see also Nourse, supra note 13 (manuscript at 25). (72) Borden v. United States, 141 S. Ct. 1817, 1830 (2021) (Kagan, J.) (plurality opinion) (alterations and quotations (73) See, e.g., Trump v. New York, 141 S. Ct. 530, 543 (2020) (Breyer, J.,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT