U.S. v. Verwiebe, No. 16-2591 (SUTTON, Clay, Rogers) (Amended Opinion).

U.S. v. Verwiebe, No. 16-2591 (SUTTON, Clay, Rogers) (Amended Opinion).

This opinion amends the Court's September 17, 2017 opinion. In this amended opinion, the Court added to its discussion of whether assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), is a “crime of violence” for purposes of satisfying the career-offender enhancement of Sentencing Guidelines § 4B1.1. The defendant had argued that crimes that require only a showing of “recklessness” cannot qualify as a crime of violence under U.S. v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010).

The Court held that § 113(a)(6) is a crime of violence. The Court noted that the U.S. Supreme Court found recklessness sufficient in Voisine v. U.S., 136 S. Ct. 2272, 2280 (2016), a case decided after McFalls. This amended opinion notes that while that holding is in accord with the Fifth, Eighth, and Tenth Circuits, the First Circuit partially came out the other way in Bennett v. U.S., 868 F.3d 1, 23 (1st Cir. 2017). In Bennett, the First Circuit noted that the use of the phrase “against the person of another” in the Armed Career Criminal Act and in § 4B1.2(a) could possibly make Voisine inapplicable because the statute at issue in Voisine lacked that clause.

The Sixth Circuit declined to revise its initial holding in light of Bennett, reasoning that the key insight of Voisine, namely that the word “use” refers to “the act of employing something” and does not require a purposeful or knowing state of mind, does not change if a statute says that the “use of physical force” is “against” a person.