PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-1861

_____________

UNITED STATES OF AMERICA

v.

MARC JAMES HARRIS, 

 Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 09-cr-00283)

District Judge: Honorable Berle M. Schiller

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Argued: January 16, 2018

______________

Before: AMBRO*, RESTREPO and FUENTES, Circuit 

Judges.

(Filed: May 17, 2023)

______________

Arianna J. Freeman [ARGUED]

Brett G. Sweitzer

Federal Community Defender Office for the

Eastern District of Pennsylvania

601 Walnut Street, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

*

Judge Ambro assumed senior status on February 6, 2023.
2

Robert A. Zauzmer [ARGUED]

Josh A. Davison

Bernadette McKeon

Office of United States Attorney 

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee 

______________

OPINION OF THE COURT

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RESTREPO, Circuit Judge.

The Armed Career Criminal Act (“ACCA” or “the 

Act”) establishes a fifteen-year mandatory minimum term of 

imprisonment for anyone convicted of a firearms offense under 

18 U.S.C. § 922(g) who has at least three prior convictions for 

a “violent felony or a serious drug offense, or both.” 18 U.S.C. 

§ 924(e)(1). Our precedent dictates that Marc Harris’ prior 

aggravated assault conviction should not be deemed a violent 

felony under the Act.

Harris was sentenced to a fifteen-year term of 

imprisonment pursuant to ACCA and challenged his sentence. 

He appealed to this Court, claiming the statutes underlying his 

prior convictions criminalize reckless conduct. Harris argued

only crimes involving intentional acts of physical force could 

serve as an ACCA predicate offense, rendering his enhanced 

sentence illegal. 

The Supreme Court has since agreed with Harris. In 

Borden v. United States, the Court held crimes that could be 

committed with a mens rea of recklessness do not qualify as 

violent felonies under ACCA’s element of force clause. 141 

S. Ct. 1817 (2021) (plurality opinion). Simply put, crimes that 

can be committed recklessly do not necessarily entail, as

ACCA requires, “the active employment of force against 

another person.” Id. at 1834.
3

The Government has conceded that Borden eliminates 

some of Harris’ prior convictions as predicate offenses but 

maintains that three qualifying offenses remain. Harris 

disagrees, arguing the Borden decision renders all of his 

Pennsylvania prior convictions for robbery and aggravated 

assault to be non-predicate offenses, leaving only one 

qualifying drug offense. 

But this Court need not address the effect of Borden on 

these Pennsylvania statutes to decide this appeal. Prior to the 

Borden decision, this Court decided United States v. Mayo, 

which held a Pennsylvania conviction for first-degree 

aggravated assault does not require physical force as 

understood within the context of ACCA. 901 F.3d 218 (3d Cir. 

2018). Applying Mayo, as we are bound to do, Harris’ 

aggravated assault conviction is stricken as a predicate, and he 

no longer has the three violent felony convictions necessary to 

justify the enhancement. We therefore vacate Harris’ sentence 

and remand for further proceedings. 

I. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 

2241 and 2255. We have jurisdiction under 28 U.S.C. §§ 1291 

and 2253. We exercise plenary review over the question of 

whether a prior conviction qualifies as a violent felony under 

ACCA. United States v. Jones, 332 F.3d 688, 690 (3d Cir. 

2003). 

II. Procedural History

In 2010, Marc Harris pled guilty to possession of a 

firearm by a convicted felon in violation of 18 U.S.C. §§ 

922(g)(1) and 924(e). This offense typically carries a 

maximum sentence of ten years’ imprisonment. 18 U.S.C. § 

924(a)(2). In Harris’ pre-sentence report, however, the 

probation officer concluded that Harris qualified as an armed 

career criminal under ACCA because his criminal record 

included three predicate offenses: one serious drug conviction 

and at least two violent felony convictions. Based on this 

determination, the District Court imposed a mandatory 
4

minimum sentence of fifteen years’ imprisonment under 

ACCA. Harris did not file a direct appeal.

In 2016, Harris moved to correct his sentence pursuant 

to 28 U.S.C. § 2255 following the Supreme Court’s decision in 

Johnson v. United States (Johnson 2015), which he argued

rendered the ACCA enhancement inapplicable. 576 U.S. 591

(2015). Prior to Johnson 2015, ACCA defined “violent 

felony” as any crime punishable by a term of imprisonment 

exceeding one year that fit under one of three alternate clauses: 

the element of force clause (a crime that “(i) has as an element 

the use, attempted use, or threatened use of physical force

against the person of another”); the enumerated offenses clause 

(a crime that “(ii) is burglary, arson, or extortion, [or] involves 

the use of explosives”); or the residual clause (a crime that 

“otherwise involves conduct that presents a serious potential 

risk of physical injury to another”). 18 U.S.C. § 924(e)(2)(B). 

The Supreme Court in Johnson 2015 invalidated the residual 

clause on the grounds that it was unconstitutionally vague. 576 

U.S. at 606. Harris argued his prior convictions for robbery 

and aggravated assault only qualified under the residual clause, 

rendering his ACCA sentence illegal.

1

The District Court denied Harris’ § 2255 motion 

without explanation. Harris appealed and we remanded to 

permit the Court to determine whether a certificate of 

appealability (COA) should be issued. The Court denied the 

COA, concluding that Harris’ sentence was legal because his 

prior robbery and aggravated assault convictions “qualify as 

violent felonies under the ACCA’s [element of force] clause,”

and he thus “has more than three qualifying convictions.” JA

4 (alterations and internal quotation marks omitted). In finding 

the sentence was not based on the unconstitutional residual 

clause, the Court ruled there was no merit to the appeal. 

Harris subsequently filed an unopposed motion for a 

COA, which this Court granted “on the question [of] whether 

[his] due process rights were violated by the use of his 

Pennsylvania robbery and aggravated assault convictions to 

enhance his sentence under [ACCA].” JA 5.

1 Harris argued in his § 2255 motion that, but for the ACCA 

enhancement, his Sentencing Guidelines range would have 

been 51 to 63 months’ imprisonment. J.A. 17. 
5

The parties briefed this issue and presented oral 

argument to this panel on January 16, 2018. This Court 

subsequently ordered this case to be reargued en banc and 

permitted the parties to submit supplemental briefing. On 

August 22, 2018, before the parties’ en banc briefing was filed,

a panel of this Court decided Mayo. Before the en banc Court 

issued an opinion, the Supreme Court granted review in

Borden and this Court stayed Harris’ appeal pending the 

outcome.

After the Supreme Court issued its decision in Borden,

this Court ordered the parties to submit additional briefing 

addressing the decision’s effect. Specifically, they were 

directed to address whether Harris’ prior Pennsylvania 

convictions for first-degree robbery and aggravated assault 

were pursuant to statutes that could be violated by conduct 

committed with a mens rea of recklessness. 

In its post-Borden briefing, the Government concedes

that the Borden decision eliminated two of Harris’ prior

Pennsylvania robbery convictions as ACCA predicates. The 

first conviction stemmed from Harris pleading guilty to firstdegree robbery generally in April of 1993. The Government 

acknowledges that two of the three subsections defining firstdegree robbery can be committed recklessly. The second 

conviction, for second-degree robbery, occurred in May of 

1993. The Government recognizes Harris could establish his 

conviction arose from a portion of the statute that criminalized 

reckless conduct. Both robbery convictions, therefore, could 

no longer serve as predicate offenses under ACCA.

Notwithstanding these concessions, however, the 

Government posits Harris has three remaining convictions of 

“a violent felony or a serious drug offense,” or some 

combination of both under 18 U.S.C. § 924(e)(1), rendering the 

ACCA enhancement appropriate. It is undisputed that he has 

one qualifying serious drug offense under § 924(e)(2)(A). The 

Government contends his third conviction for robbery and a 

conviction for first-degree aggravated assault, both under 

Pennsylvania law, remain qualifying predicate offenses. 
6

Harris disagrees, arguing both convictions fail to 

constitute violent felonies in light of Borden. He suggests, 

however, that this panel need not address the effect of Borden 

given our Court’s decision in Mayo. It is the controlling law 

of this Circuit that a Pennsylvania conviction for first-degree

aggravated assault “does not categorically require the use of 

physical force against another” and therefore cannot constitute 

a violent felony under ACCA. Mayo, 901 F.3d at 224, 230. 

Harris asserts Mayo is binding on this panel and, because it 

eliminates one of his three remaining prior convictions, is

dispositive of this appeal. 

The Government has consistently argued that Mayo was 

wrongly decided and should be overturned, in part because it

improperly relied on a “single intermediate appellate court” 

decision in concluding that Pennsylvania first-degree 

aggravated assault can be committed without the use of 

physical force. Gov’t Br. 17, July 26, 2001. Indeed, Mayo

cites Commonwealth v. Thomas, 867 A.2d 594, 597 (Pa. Super. 

Ct. 2005), a case where a mother starved her four-year-old son 

to death, to support its holding that the use of force is not an 

element of aggravated assault under 18 Pa. Cons. Stat. § 

2702(a). The Government argues that Thomas’ conduct of 

executing the “prolonged confinement, torture, and starvation 

of a little boy” necessitated physical force sufficient to qualify 

the crime as a violent felony under ACCA. Gov’t Br. 20, Aug. 

28, 2018. It opines that Mayo, by citing Thomas as grounds for 

finding that starving a child to death does not constitute a 

predicate offense for the ACCA sentencing enhancement, 

“freed all other Pennsylvania defendants of the federal 

consequences of a conviction for the prototypically violent 

crime of first-degree aggravated assault.” Id.

Recognizing that the Thomas decision was not issued by 

Pennsylvania’s highest appellate court, this panel petitioned 

the Pennsylvania Supreme Court for a controlling decision on 

whether first-degree aggravated assault necessarily requires 

the perpetrator to use force. In so doing, we sought to 

determine definitively whether Mayo was premised on an 

accurate interpretation of 18 Pa. Cons. Stat. § 2702(a)(1).

2

 

2 The specific question of law certified to the Pennsylvania 

Supreme Court was:
7

The Pennsylvania Supreme Court granted our petition

and issued an opinion answering the “narrow inquiry” of

whether the use of force is an element of first-degree 

aggravated assault. United States v. Harris, 289 A.3d 1060, 

1069 (Pa. 2023). Upholding the Superior Court’s decision in 

Thomas, the Supreme Court held it is not. The attempted or 

actual infliction of serious bodily injury is a required element, 

but the perpetrator need not use force to inflict such an injury. 

The Supreme Court interpreted Section 2702(a)(1) to mean 

that criminal liability is not tethered “to the use or attempted 

use of physical force but, instead, to the infliction of a specified 

harm, i.e., serious bodily injury, regardless of the means by 

which the harm is inflicted.” Harris, 289 A.3d at 1074.

Given this authoritative confirmation that Mayo

correctly determined that committing first-degree aggravated 

Whether the Pennsylvania First-Degree 

Aggravated Assault provision, codified at 18 Pa. 

Cons. Stat. § 2702(a)(1), requires some use of 

physical force, as the Government contends, or, 

instead, as the Pennsylvania Superior Court said 

in Commonwealth v. Thomas, 867 A.2d 594, 597 

(Pa. Super. Ct. 2005), the statute means that “the 

use of force or threat of force is not an element 

of the crime . . . .”

United States v. Harris, 272 A.3d 1286 (Pa. 2022) (Table).

We note the Government objected to our formulation of the 

certified question, asserting that only federal courts can 

determine what constitutes “physical force” under ACCA’s 

definition of a violent felony and whether that articulation of 

physical force is an element of Section 2702(a)(1). But, as the 

Pennsylvania Supreme Court recognized, this panel sought 

only to determine whether a violation of Section 2702(a)(1) 

“requires some use of physical force,” which requires the 

interpretation of a state statute. Harris, 289 A.3d at 1068-69

(emphasis added). The interpretation of a state statute is a 

question of state law, and federal courts are bound by a state’s

highest court’s interpretation. United States v. Johnson 

(Johnson 2010), 559 U.S. 133, 138 (2010).
8

assault in Pennsylvania does not require the perpetrator to use 

physical force, we turn to whether the opinion correctly 

interpreted ACCA to hold a conviction under 18 Pa. Cons. Stat. 

§ 2702(a)(1) cannot qualify as a predicate offense. We 

conclude that it did and follow our precedent accordingly. 

III. Analysis

The parties agree that Harris’ aggravated assault 

conviction could only qualify as a predicate offense under the 

element of force clause of ACCA. See 18 U.S.C. § 

924(e)(2)(B)(i). To determine whether the clause covers this

offense, we apply the categorical approach. This requires us to 

identify the elements of aggravated assault and determine

whether “the use, attempted use, or threatened use of physical 

force against another person is categorically an element of the 

offense of conviction.” United States v. Ramos, 892 F.3d 599, 

606 (3d Cir. 2018) (citing USSG § 4B1.2(a)(1)).

3

 If the statute 

defining aggravated assault contains an element of physical 

force within the context of ACCA, then the offense constitutes 

a violent felony under Section 924(e)(2)(B)(i). If the statute 

lacks such an element, then it “sweeps more broadly” than 

ACCA’s definition of a violent felony, and a conviction under 

the statute cannot count as a predicate offense. Descamps v. 

United States, 570 U.S. 254, 261 (2013). 

In determining whether the physical force element 

exists, we identify “the least culpable conduct hypothetically 

necessary to sustain a conviction under the statute” and 

presume the defendant engaged in that conduct when 

committing the prior offense. Hernandez-Cruz v. Att’y Gen.,

3 Although this Court’s decision in Ramos addresses the 

definition of a “crime of violence” as defined under the career 

offender Guideline, U.S.S.G. § 4B1.2(a), and not the definition 

of “violent felony” in ACCA, the decision is still binding on 

our analysis. Because of the substantial similarity between the 

two definitions, “courts generally apply authority interpreting 

one provision to the other.” United States v. Brasby, 61 F.4th 

127, 133 (3d Cir. 2023); see e.g., United States v. Hopkins, 577 

F.3d 507, 511 (3d Cir. 2009) (applying ACCA precedent in 

Guidelines Definition case)).
9

764 F.3d 281, 285 (3d Cir. 2014) (quoting Jean-Louis v. Att’y 

Gen., 582 F.3d 462, 471 (3d Cir. 2009)). When identifying the 

least culpable conduct, we must remain tethered to reality. 

There must be “legal authority establishing that there is ‘a 

realistic probability, not a theoretical possibility, that the State 

would apply its statute to conduct’” that falls outside the 

ACCA definition of a violent felony. Ramos, 892 F.3d at 606 

(quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). 

Categorizing the elements of a prior conviction requires 

us to ascertain the precise crime a defendant committed. If the 

statute underlying the prior conviction is divisible, meaning it 

encompasses “multiple, alternative versions of the crime,” then 

we modify the categorical approach to determine which

version “formed the basis of the defendant’s conviction.” 

Descamps, 570 U.S. at 262. This requires us to look beyond 

the statute to “the terms of the charging document, the terms of 

a plea agreement or transcript of colloquy between judge and 

defendant in which the factual basis for the plea was confirmed 

by the defendant, or to some comparable judicial record of this 

information.” Shepard v. United States, 544 U.S. 13, 26

(2005). This limited review is only to identify the elements of 

the crime underpinning a defendant’s conviction, not to 

uncover facts that would reveal whether a violent felony was 

committed. 

It is undisputed that the Pennsylvania statute for 

aggravated assault is a divisible offense, and that Harris was 

convicted of aggravated assault in the first degree. The parties 

do dispute, however, whether the extra-statutory documents 

can establish which version of aggravated assault he

committed. At the time of Harris’ conviction, a person was

guilty of first-degree aggravated assault if he:

(1) attempt[ed] to cause serious 

bodily injury to another, or causes 

such injury intentionally, 

knowingly or recklessly under 

circumstances manifesting 

extreme indifference to the value 

of human life; [or]
10

(2) attempt[ed] to cause or 

intentionally, knowingly or 

recklessly causes serious bodily 

injury to any of the officers, 

agents, employees or other persons

enumerated in subsection (c) or to 

any employee of any agency, 

company or other entity engaged 

in public transportation, while in 

the performance of a duty. 

18 Pa. Cons. Stat. § 2702(a). 

While Harris is correct that the charging documents do 

not identify the subsection of his conviction, the guilty plea 

colloquy is informative. It contains no indication that the 

assault involved a police officer or any other person referenced

in subsection (a)(2). The only reasonable reference from the 

factual retelling is that the victim was a citizen who suggested

a woman call the police “while he kept [Harris] stalled” outside 

her home. We find these circumstances sufficient to establish 

Harris was convicted under subsection (a)(1). See Thomas v. 

Att’y Gen., 625 F.3d 134, 146–47 (3d Cir. 2010) (applying the 

modified categorical approach and considering the factual 

basis for the guilty plea to discern which of the “alternative 

elements” defendant committed).

This determination reinforces the conclusion that this 

case is governed by our decision in Mayo. It is a wellestablished “tradition of this court” that an opinion with 

precedential authority “is binding on subsequent panels.” 3d 

Cir. I.O.P. 9.1. This panel is not free to disregard the decision 

in Mayo, regardless of whether we agree with the outcome. En 

banc consideration is the only means by which we can overrule 

our existing precedential authority, and even then the full Court 

“do[es] not overturn our precedents lightly.” Al-Sharif v. 

United States Citizenship & Immigration Servs., 734 F.3d 207, 

212 (3d Cir. 2013) (en banc). “[T]his practice shows our 

Court’s respect for the role of stare decisis and the 

predictability it affords.” Bastardo-Vale v. Att’y Gen., 934 

F.3d 255, 267 (3d Cir. 2019) (citation omitted). In accordance 

with this Court’s practice, we adopt Mayo’s holding that a 
11

conviction under 18 Pa. Cons. Stat. § 2702(a)(1) cannot serve

as a predicate offense under ACCA.4

This panel is obligated to follow Mayo, but we also 

agree with the opinion’s interpretation of how ACCA’s 

element of force clause applies to Pennsylvania’s first-degree 

aggravated assault. To qualify as a predicate violent felony, 

the clause requires an offense have “as an element the use, 

attempted use, or threatened use of physical force against the 

person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Court in 

Mayo recognized that subsection (a)(1) of the aggravated 

assault statute contains no such element. To be found guilty 

under Section 2702(a)(1), the offender must attempt to cause 

or cause serious bodily injury, but there is no requirement that 

the bodily injury result from physical force. In fact, the statute

criminalizes the omission of an act, or the failure to act, that 

causes serious bodily injury. As we held in Mayo, an act of 

omission does not constitute an act of physical force within the 

meaning of ACCA. 901 F.3d at 227–229. 

The Supreme Court has defined physical force under 

ACCA to be “violent force— that is, force capable of causing 

physical pain or injury to another person.” Johnson v. United 

States (Johnson 2010), 559 U.S. 133, 140 (2010). The Court 

held the word “violent . . . connotes a substantial degree of 

force” and that the term physical force “connotes force strong 

enough to constitute ‘power’,” especially when used within the 

definition of “violent felony.” Id. at 140, 142. Johnson 2010

disavowed the common law’s definition of force in the context 

of ACCA, concluding that crimes that may be “satisfied by 

even the slightest offensive touching” are not violent felonies. 

Id. at 139. Instead, the relevant conduct under the Act is 

“extreme and sudden . . . ; furious; severe; vehement” and 

“characterized by strong physical force.” Id. at 140 (citations 

omitted). 

In Mayo, we recognized that Pennsylvania courts have 

sustained convictions for aggravated assault under Section

2702(a)(1) where a defendant causes serious bodily injury 

without using or threatening physical force. The Mayo Court 

4 The Government’s petition for en banc rehearing in Mayo

was denied on October 25, 2018. 
12

identified one Pennsylvania case as particularly instructive, 

Commonwealth v. Thomas, 867 A.2d 594 (Pa. Super. Ct. 

2005). In Thomas, the Pennsylvania Superior Court held that 

“evidence of the use of force or the threat of force is not an 

element of the crime of aggravated assault.” Id. at 597. As a 

result, the prosecution was not required to provide “proof of 

the use of force or the threat of force” to obtain a conviction; 

the evidence was sufficient to sustain a conviction because the 

prosecution established Thomas “did cause[] serious bodily 

injury to [her son]” by starving him to death. Id. at 597, 602.5

If a crime satisfied by the slightest offensive touch does 

not qualify as a violent offense under ACCA, it necessarily 

follows that a crime satisfied without physical force cannot 

constitute a predicate offense. When applying ACCA, the law 

requires us to parse out different types of crimes to identify the

prior convictions that expose a defendant as “‘the kind of 

person who,’ when armed, ‘might deliberately point the gun 

and pull the trigger.’” Borden, 141 S. Ct. at 1822 (citing Begay 

v. United States, 553 U.S. 137, 146 (2008)). “Th[is] approach 

is under-inclusive by design: It expects that some violent acts, 

because charged under a law applying to non-violent conduct, 

will not trigger enhanced sentences.” Id. at 1832. Following 

this mandate of under-inclusivity, it follows that a statute that 

can be violated without the use of physical force would not 

trigger a mandatory minimum sentence of fifteen years. 

5

In answering our question regarding the required elements of 

first-degree aggravated assault, the Pennsylvania Supreme 

Court noted that Thomas “is not the only Pennsylvania decision

where an aggravated assault conviction pursuant to Section 

2702(a)(1) was upheld absent evidence of physical force.” 

Harris, 289 A.3d at 1071 n.17. The Court cited 

Commonwealth v. Bullock, 170 A.3d 1109 (Pa. Super. Ct. 

2017), which held there was sufficient evidence of aggravated 

assault where the defendant directed the utility provider to shut 

off the electricity even though his elderly mother needed 

electricity to run her oxygen machine to breathe. Id. Also cited 

was Commonwealth v. Taylor, No. 1641 WDA 2013, 2015 WL 

7576457 (Pa. Super. Ct. Feb. 9, 2015), where the defendant’s 

failure to feed her six-year-old twins caused serious bodily 

injury and constituted aggravated assault. Id.
13

As the Pennsylvania Supreme Court clarified at our 

request, Thomas was properly convicted of aggravated assault 

for committing a horrific crime in a manner that remains an 

example of how 18 Pa. Cons. Stat. § 2702(a)(1) is applied in 

Pennsylvania. There, aggravated assault convictions can be

sustained based on evidence of serious bodily injury, not 

physical force. Mayo’s holding that physical force is not an

element of Pennsylvania aggravated assault is not this Court’s 

assessment of Thomas’ conduct, which the Pennsylvania 

courts found culpable. It is instead a reflection of the 

categorical approach and the Act’s restrictive definition of a 

violent felony. ACCA imposes a significant mandatory 

sentence on those who meet its requirements. The severe 

punishment was not intended for all perpetrators who 

committed crimes where bodily injury could or did occur. The 

Act is instead designed to apply to those offenders who have 

committed numerous crimes involving a substantial degree of 

violent force. 

The Government argues physical force as defined by 

federal law requires us to find that starving a child to death is 

a violent felony. Specifically, it cites the Supreme Court’s 

decision in United States v. Castleman, which held that “[i]t is 

impossible to cause bodily injury without applying force in the 

common-law sense.” 572 U.S. 157, 170 (2014) (emphasis 

added). The Government contends that Castleman requires 

this Court to conflate the infliction of bodily injury with 

physical force. But, as we concluded in Mayo, the Castleman

decision involved the common-law concept of force, and it 

“expressly reserved the question of whether causing ‘bodily 

injury’ necessarily involves the use of ‘violent force’ under the 

ACCA.” 901 F.3d at 228 (internal citation omitted). And the 

Pennsylvania aggravated assault statute criminalizes the 

infliction of bodily injury “without any affirmative use of 

force.” Id. at 228 (emphasis added). 6

6

 At en banc argument for this case, the Government argued 

that the Supreme Court’s decision in Stokeling v. United States, 

139 S. Ct. 544 (2019), affects this Court’s decision in Mayo. 

But Stokeling held that the force element in Florida’s robbery 

statute was “the force necessary to overcome a victim’s 

physical resistance,” which the Court held was sufficient to 

satisfy physical force as defined by Johnson 2010. Stokeling,
14

There have been no developments in the law since Mayo

that would give this panel the authority to extend ACCA’s 

limited scope to include crimes committed by acts of omission. 

Although excluding aggravated assault under Section

2702(a)(1) from ACCA’s scope may be counterintuitive, it is 

the consequence of the Act’s restricted, and perhaps sometimes 

under-inclusive, application. 

IV. Conclusion

For the foregoing reasons, we will vacate the order 

denying Harris’ motion to correct his sentence and remand the 

case to the District Court for resentencing. The District Court 

is instructed to assess the applicability of the ACCA sentencing 

enhancement now that Harris’ aggravated assault conviction is

no longer considered a predicate offense.7 On remand the 

District Court should resentence Harris consistent with this 

opinion.

139 S. Ct. at 553. In Mayo, there was no force element in the 

aggravated assault offense, and the requisite serious bodily 

injury could result from the absence of physical force. Thus, 

Stokeling does not give this Court the authority to extend 

ACCA to Harris’ aggravated assault conviction. 

7 As a result of this opinion, Harris seemingly does not have

three prior qualifying violent felony convictions for purposes 

of ACCA. For this reason, we do not address whether his firstdegree conviction for robbery qualifies as a predicate offense

under ACCA.