United States v. Harper

Harper shot his brother and pled guilty in state court to reckless aggravated assault, Tenn. Code 39-13- 102(a)(1)(B). Three years later, Harper was caught selling drugs while possessing a loaded pistol. He pled guilty as a felon in possession of a firearm, 18 U.S.C. 922(g). The court calculated Harper’s Guidelines range to be 46-57 months’ imprisonment. The government argued that Harper’s range should be 84-105 months because Harper’s prior Tennessee conviction was for a felony “crime of violence,” U.S.S.G. 2K2.1(a)(4)(A), 4B1.2(a). The government cited the Supreme Court’s 2016 decision, Voisine v. United States. The court refused to increase the sentencing range, sentencing Harper to 46 months. The Sixth Circuit vacated, acknowledging that, post-Voisine, offenses that require only recklessness can be crimes of violence under U.S.S.G. 4B1.2(a) and that, under its precedent, violation of Tenn. Code 39-13-102(a)(1)(B) is a crime of violence for purposes of 4B1.2(a). The court then explained the error in its own precedent: Voisine dealt with only “the use . . . of physical force” while section 4B1.2 requires “requires not merely a volitional application of force, but a volitional application “against the person of another.” An actor who is only reckless as to whether his force injures another does not commit a “crime of violence” as defined by 4B1.2; “a desire to simplify our own application of the law is hardly good enough reason to double a man’s Guidelines range.” View "United States v. Harper" on Justia Law