from the United States District Court for the Western
District of Tennessee at Memphis. Nos. 2:07-cr-20243-1;
2:14-cv-02021-Samuel H. Mays, Jr., District Judge.
PETITION FOR REHEARING EN BANC:
Valentine Darker, DARKER & ASSOCIATES, Memphis,
Tennessee, for Appellee.
G. Ritz, Dean DeCandia, UNITED STATES ATTORNEY'S OFFICE,
Memphis, Tennessee, for Appellant.
BEFORE: ROGERS, STRANCH, and THAPAR, Circuit Judges.
panel issued an order denying the petition for rehearing en
banc. KETHLEDGE, J. (pp. 3-5), delivered a separate opinion
dissenting from the denial of rehearing en banc, in which
MOORE, STRANCH, and WHITE, JJ., joined. STRANCH J. (pg. 6),
delivered a separate dissenting opinion, in which MOORE, J.,
court received a petition for rehearing en banc. The original
panel has reviewed the petition and concludes that the issues
raised in the petition were fully considered upon the
original submission and decision. The petition was then
circulated to the full court. Less than a majority of the
judges voted in favor of rehearing en banc.
the petition is denied.
KETHLEDGE, Circuit Judge, dissenting from the denial of
rehearing en banc. Sometimes we should correct our own
mistakes. The question here is whether a defendant
"use[s] . . . physical force against the person of
another"-as that phrase is used in 18 U.S.C. §
924(e)(2)(B)(i) and various other provisions of the criminal
code, as well as in the Sentencing Guidelines-when the
defendant is indifferent (which is to say reckless) as to
whether his force in fact applies to another person. Prior to
2016, the circuit courts uniformly answered no-that crimes
involving the reckless use of force are not violent felonies
(or, depending on the provision, crimes of violence) as
defined by these provisions. See United States v.
Harper, 875 F.3d 329, 332 (6th Cir. 2017) (collecting
cases). In 2016, however, the Supreme Court decided
Voisine v. United States, 136 S.Ct. 2272 (2016),
which interpreted an altogether different provision, namely
the definition of "misdemeanor crime of domestic
violence" as defined in 18 U.S.C. § 921(a)(33)(A).
That provision, unlike the one here, requires only a
"use . . . of physical force" period,
rather than a use of force "against the person of
another." The Court in Voisine expressly
limited its inquiry to the meaning of a single word in §
921(a)(33)(A)(ii)-"use"-which the Court interpreted
to require a "volitional" application of force, as
opposed to an accidental one. 136 S.Ct. at 2279. And the
Court reasoned that, so long as the defendant's
application of force is volitional, the word "use"
is "indifferent as to whether the actor has the mental
state of intention, knowledge, or recklessness with respect
to the harmful consequences of his volitional conduct."
Id. Thus, the Court held, crimes in which the
defendant employs force recklessly may satisfy the "use
of force" element of § 921(a)(33)(A)(ii). See
id. at 2276.
courts have since extended Voisine to abrogate the
pre-2016 consensus and hold that crimes involving the
reckless use of force are violent felonies or crimes of
violence as defined by § 924(e)(2)(B)(i) and its various
counterparts. Unlike the provision at issue in
Voisine, however, § 924(e)(2)(B)(i) does
require the "use . . . of physical force against the
person of another." That difference in text yields
a difference in meaning. As a unanimous panel of our court
explained in Harper: "The italicized language
is a restrictive phrase that describes the particular type of
'use of physical force' necessary to satisfy
[U.S.S.G. § 4B1.2, which is a Guidelines counterpart of
§ 924(e)(2)(B)(i)]. Specifically, § 4B1.2 requires
not merely a volitional application of force, but a
volitional application 'against the person of
another.'" 875 F.3d at 331 (citation omitted). And
that means "the force's application to another
person must be volitional or deliberate." Id.
Thus, "understood the way the English language is
ordinarily understood," the phrase "use . . . of
physical force against the person of another" requires
"not merely recklessness as to the consequences of
one's force, but knowledge or intent that the force apply
to another person." See id. at 331-32.
law as described in Harper is not the law of our
circuit, because by chance a conflicting decision, namely
United States v. Verwiebe, 872 F.3d 408 (6th Cir.),
amended, 874 F.3d 258 (6th Cir. 2017), was published
days before Harper was. Verwiebe asserted
that § 4B1.2(a) "define[s] crimes of violence
nearly identically to [18 U.S.C.] §
921(a)(33)(A)(ii)"- which was the provision at issue in
Voisine. See Verwiebe, 874 F.3d at 262;
see also United States v. Haight, 892 F.3d 1271,
1281 (D.C. Cir. 2018) (likewise characterizing these
provisions as "nearly identical"). Respectfully,
however, that assertion was mistaken, because §
4B1.2-unlike § 921(a)(33)(A)(ii)-requires the use of
physical force "against the person of another." In
the work of textual exegesis, the presence of a restrictive
phrase in one provision but not another does not leave them
nearly identical. And from that mistaken premise
Verwiebe mistakenly held that § 4B1.2 requires
only recklessness as to whether the defendant's force
would apply to the person of another. See Verwiebe,
874 F.3d at 264.
fairness, though, Verwiebe followed a trail already
blazed by three other circuits. But none of the cases on
which Verwiebe relied-namely United States v.
Pam, 867 F.3d 1191, 1207-08 (10th Cir. 2017); United
States v. Mendez-Henriquez, 847 F.3d 214, 221-22 (5th
Cir. 2017); and United States v. Fogg, 836 F.3d 951,
956 (8th Cir. 2016)-even acknowledged, much less addressed,
the possibility that the restrictive phrase "against the
person of another" could affect the mens rea
required by § 4B1.2(a) and its various counterparts.
Those cases therefore do not represent a reasoned consensus
as to what that phrase means. Indeed they do not even purport
to explain what it means. Instead they illustrate a dynamic
that sometimes arises in the lower courts: "Loose
language in one case hardens into a holding in another, and
other cases follow suit. Eventually the ...