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Walker v. United States

United States Court of Appeals, Sixth Circuit

July 23, 2019

James Walker, Petitioner-Appellee,
v.
United States of America, Respondent-Appellant. United States of America, Plaintiff-Appellant,
v.
James Walker, Defendant-Appellee.

          Appeal 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.

         ON PETITION FOR REHEARING EN BANC:

          Valentine Darker, DARKER & ASSOCIATES, Memphis, Tennessee, for Appellee.

         ON RESPONSE:

          Kevin G. Ritz, Dean DeCandia, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellant.

          BEFORE: ROGERS, STRANCH, and THAPAR, Circuit Judges.

          The 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., joined.

          ORDER

         The 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.[1] Less than a majority of the judges voted in favor of rehearing en banc.

         Therefore, the petition is denied.

         DISSENT

          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.

         Several 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.

         Yet the 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.

         In 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 ยง 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 ...


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