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United States v. Harper

United States Court of Appeals, Sixth Circuit

November 9, 2017

United States of America, Plaintiff-Appellant,
v.
Adarius Harper, Defendant-Appellee.

          Argued: July 26, 2017

         Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:16-cr-20085-1-John Thomas Fowlkes Jr., District Judge.

         ARGUED:

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

          Mary C. Jermann-Robinson, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellee.

         ON BRIEF:

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

          Mary C. Jermann-Robinson, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellee.

          Before: GIBBONS, KETHLEDGE, and DONALD, Circuit Judges.

          OPINION

          KETHLEDGE, Circuit Judge.

         Under § 4B1.2(a) of the Sentencing Guidelines, a "crime of violence" involves "the use . . . of physical force against the person of another." The question presented here is whether a Tennessee aggravated-assault offense that requires the defendant to be merely reckless as to whether his conduct injures another is a "crime of violence" under that definition. The district court held it was not. The government brought this appeal. A recent published decision by this court compels us to reverse.

         In April 2012, Harper shot his brother on a public street in Memphis. He later pled guilty in state court to reckless aggravated assault in violation of Tenn. Code Ann. § 39-13-102(a)(1)(B) (2012). Three years later, Harper was caught selling drugs while possessing a loaded pistol. He thereafter pled guilty in this case to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

         At sentencing, the district court calculated Harper's Guidelines range to be 46-57 months' imprisonment. But the government argued that Harper's range should be increased to 84-105 months because, the government said, Harper's prior conviction for Tennessee reckless aggravated assault was one for a felony "crime of violence." See U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(a). That argument, the government acknowledged, was contrary to our court's caselaw. See, e.g., United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010). But the government contended that the Supreme Court's decision in Voisine v. United States, 136 S.Ct. 2272 (2016), effectively overruled McFalls. The district court disagreed, refused to increase the sentencing range, and sentenced Harper to 46 months.

         In a published decision released shortly before this one, our court adopted the government's argument that, post-Voisine, offenses that require only recklessness can be crimes of violence under U.S.S.G. § 4B1.2(a). See United States v. Verwiebe, 872 F.3d 408 (6th Cir.), amended, 874 F.3d 258 (6th Cir. 2017). We see no basis to distinguish the reckless-assault offense in Verwiebe (namely 18 U.S.C. ยง 113(a)(6)) from the offense here. Thus we are bound to hold that reckless ...


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