Somers v. United States
Citation | 15 F.4th 1049 |
Decision Date | 28 September 2021 |
Docket Number | No. 19-11484,19-11484 |
Parties | Fred SOMERS, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Randolph Patterson Murrell, Federal Public Defender's Office, Tallahassee, FL, Megan Saillant, Federal Public Defender's Office, Gainesville, FL, for Petitioner-Appellant.
Jordane E. Learn, Michael J. Harwin, U.S. Attorney's Office, Tallahassee, FL, Robert G. Davies, U.S. Attorney, U.S. Attorney's Office, Northern District of Florida, Pensacola, FL, Karen E. Rhew-Miller, Law Office of Karen E. Rhew-Miller, Fernandina Beach, FL, for Respondent-Appellee.
Before JILL PRYOR, ANDERSON and MARCUS, Circuit Judges.
ON PETITION FOR REHEARING
In Somers v. United States, 799 F. App'x 691 (11th Cir. 2020) (" Somers I"), issued on January 14, 2020, we affirmed the district court's denial of appellant Fred Somers's 28 U.S.C. § 2255 motion to vacate his sentence. We held that Somers's Florida aggravated assault conviction, see Fla. Stat. § 784.021, qualified as a violent felony under the Armed Career Criminal Act's ("ACCA") elements clause, 18 U.S.C. § 924(e)(2)(B)(i). After Somers filed a petition for rehearing, we held issuance of the mandate in abeyance pending the Supreme Court's decision in Borden v. United States, ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). After Borden was decided, we asked the parties for further briefing about its effect on Somers I and on the precedent on which we relied, Turner v. Warden Coleman FCI, 709 F.3d 1328, 1337–38 (11th Cir. 2013), abrogated on other grounds by Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In supplemental briefing, Somers claims that the ACCA's elements clause applies only to specific-intent crimes, and that Florida aggravated assault is not a specific-intent crime. Though the Florida aggravated assault statute does not use the phrase "specific intent," the government in substance argues that the specific intent to threaten another is an element of Florida aggravated assault. To facilitate full consideration of these questions, we grant the petition for rehearing, vacate our previous opinion and judgment in Somers I, substitute this opinion in its place, and certify to the Florida Supreme Court two related questions about the nature of the Florida assault statutes.
Because the facts and procedural setting have not changed since our initial opinion in this case, we reproduce the portions describing them in their entirety:
Somers I, 799 F. App'x at 692–93. In Somers I, we followed Turner and Golden to hold that Florida aggravated assault was a violent felony under the ACCA elements clause and, therefore, we affirmed the district court's decision to rely on this conviction as one of three necessary violent felony predicates to support the application of the ACCA's fifteen-year mandatory minimum to Somers's sentence. Id. at 693. According to the Presentence Investigation Report in this case, without the ACCA mandatory minimum, Somers's sentencing guidelines range would have been 130 to 162 months.
Recently, in Borden, the Supreme Court clarified the meaning of the phrase "against the person of another" as used in the ACCA elements clause. We've described Borden this way:
In Borden, the Supreme Court held that the phrase "use ... against the person of another" in the ACCA's elements clause "sets out a mens rea requirement -- of purposeful or knowing conduct." Borden, 141 S. Ct. at 1828, 1829 n.6 (plurality opinion). The elements clause "demands that the perpetrator direct his action at, or target, another individual." Id. at 1825. A crime that can be committed with a mens rea of mere recklessness therefore cannot qualify as a crime of violence under the elements clause -- "[r]eckless conduct is not aimed in [the] prescribed manner." Id.; see also id. at 1833 (citation omitted).
United States v. Carter, 7 F.4th 1039, 1045 (11th Cir. 2021). Borden held that Tennessee reckless aggravated assault, which can be accomplished with a mens rea of recklessness, was not a violent felony under the elements clause. 141 S. Ct. at 1822, 1825.
In supplemental briefing, Somers characterizes Borden as having held that to meet the elements clause definition of violent felony, an offense must require more than general intent in the sense of a mere "intent to commit the act." See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e) (3d ed. Oct. 2020 update) . According to Somers, Borden holds that the elements clause requires specific intent. Specific intent is most commonly understood as "designat[ing] a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime." LaFave, supra, § 5.2(e).
Notably, the Borden plurality did not use the phrase "specific intent," as Somers suggests. Rather, the Borden plurality held that the elements-clause phrase "against the person of another" requires that the subject of the verb that phrase is modifying -- either the "use, attempted use, or threatened use of force" -- not only use, attempt, or threaten force volitionally, but also "direct his action at, or target, another individual." 141 S. Ct. at 1825 ; see also 18 U.S.C. § 924(e)(2)(B)(i) ( ). Put another way, the elements clause requires both the general intent to volitionally take the action of using, attempting to use, or threating to use force and something more: that the defendant direct the action at a target, namely another person. Specific...
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