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

_____________

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 se nio r stat us 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

______________

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 firearm s offense under

18 U.S.C. § 922(g ) who has at least three prior co nvictions 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 sente nced to a fifteen

- year term of imprisonment pursuant to ACCA and challenged his sentence

. He appealed to this Court

, claiming the statutes underlying h is prior convictions c riminalize 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 w ith 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, c rimes 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 G overnment has con ceded that Borden eliminates
some of Harris’ prior convictions as predica te offenses but
maintain s that three qualifying offenses remain

. Harris disagree s , arguing t

he 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 f irst

- degree aggravated assault does not require physical force as understood within the context of ACCA

. 901 F.3d 218 (3d Cir. 2018)

. A pplying 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 n e cessary 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 Stat es 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

p robation officer concluded that Harris qualified as an armed
career criminal under ACCA because his criminal record
included three predicate offense s: one serious drug conviction
and a t least two violent felony convictions. Based on this
determination , the District Court imposed a mandatory4 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 argu ed rendered the ACCA enhancement inapplicable. 576 U.S. 591 (2015)

. Prior to Johnson 2015

, ACCA define d “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 for c e 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’ sentenc e was legal because his prior robbery and aggravated assault convictions “qualify as
viol ent felonies under the ACCA’s [element of force ] clause

, ” and he thus “has more than three qualifying convicti ons

. ” JA

4 ( alterations and internal quotation marks omitted). In f inding
the sentence was not based on the unconstitutional residual clause, the C ourt ruled there was no merit to the appeal.

Harris subsequently filed an unopposed motion for a

CO A

, 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 brief

ed this issue and presented oral argument to this panel on January 16, 2018. This Court subsequently ordered this case to b e reargued en banc and permitted the parties to submit supplemental briefing. On August 22, 2018, b efore the parties’ en banc briefin g was filed

, a panel of this Court decided Mayo

. Before the en banc C ourt issue d an opinion, t he 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
address ing 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 reckless ness

.

In its post

- Borden briefing, the Government concede s that the Borden decision eliminated two of Harris’ prior Pennsylvania robbery convictions as ACCA predicates

. The first conviction stemmed from Harris pleading guilty to first

degree robbery generally i n April of 1993 . The Government acknowledge s that t wo of the three subsections defining first

degree robbery can be committed recklessly

. The second
conviction , for second

- degree robbery, occurred in May of

1993

. The Government recognize s Harris could establish his
conviction arose from a p ortion of the statute that criminalized
reckless conduct. Both robbery convictions, therefore, could no longer serve as predicate offense s under ACCA

.

Notwithstanding these concessions, however, the Government posits Har

ris 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 q ualifying s erious drug offense under § 924 (e)(2)(A)

. The

G overnment contends his third conviction for robbery and a conviction for first

- degree aggravated assault, both under Pennsylvania law , remain qualifying predicate offense s

.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 22 4, 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 relie d on a “single intermediate appell ate court”
decision in conclud ing 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 con finement, 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 defendant s 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, th is panel petitioned the Pennsylvania Supreme Court for a controlling decision on
whether first

- degree aggravated assault necessarily requires the perpetrator t o use force. In so doing, we sought to determine definitively whether Mayo was premised on an accurate interpretation of 18 Pa. C ons

. S tat . § 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 “t o the use or attempt ed 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.3 d at 107 4

.

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 12 86 (Pa. 2022) ( T able).

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 t he Pennsylvania Supreme Court recognized

, th is 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) can not 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 th is
offense

, we apply the categorical approach

. This requires us to identify the elements of aggravated assault and determin e 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. R amos , 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

e xists , 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 Ramo s 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 similarit y 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) ; s ee 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 identify ing 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 ( quot ing Moncrieffe v. Holder , 569 U.S. 184 , 191 (2013))

.

C ategorizing 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,” the n we modify the categorical approach to determine which
version “formed the basis of the defendant’s conviction

. ” Descamp s , 570 U.S. at 26 2

. This requires us to look beyond
the statute to “the terms of the charging document, the terms of

a plea agreement or transcript of c olloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some compa rable judicial record of this
information

. ” Shepard v. United States , 544 U.S. 13, 26 (2005). Th is 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 w as guilty of first

- degree aggravated assault i f 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, whi le in the performance of a duty.

18 Pa. C ons

. S tat

. § 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 subsectio n ( a)(2)

. T he 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, 14 6

– 47 (3d Cir. 2010) ( applying the modified categorical approach and consider ing 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 well

established “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

. E n 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.

U nited States Citizenship & Immigration Servs.

, 734 F.3 d 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 a11 conviction under 18 Pa. C ons

. S tat

. § 2702 (a)(1) c annot serve

a s 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 require s 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). Th e Court in Mayo recognized that subsection (a)(1) of the aggravated
assault statute contains no such element. To be found guilty
under Section 270 2 (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

caus es 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. Unite d States (Johnson 2010

)

, 5 5 9 U.S. 133, 140 (2010). T he 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) whe re a defendant causes serious bodily injury without using or threatening physical force. The Mayo Court

4 The G overnment’s petition for en banc rehearing in Mayo
was denied on October 25, 2018

.12 identified one Pennsylvania case as particular ly 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, t he prosecution was not required to provide “proof of
the use of force o r 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 t hat a crime satisfied without physical force cannot constitute a predicate offense

. When applying ACCA, the law requires us to parse out different types of c rimes 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 18 2 2 ( citing Bega y 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

- inclusiv ity , it follows that a statute that
can be violated without the use of physical force would not trigger a mandatory minim um 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 uph eld 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 de fendant’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

, a ggravated assault c onvictions can be sustained based on evidence of serious bodily injury, not physical force. May o ’s holding that physical force is not a n element of Pennsylvania aggravated assault is not this Court’s

assessment o f Thomas’ conduct , which the Pennsylvania

courts found culpable

. I t is instead a reflection of the categorical approach and the Act’s restr ictive definition of a violent felony

. ACCA imposes a significant mandatory

sentenc e on those who meet its requirements

. T he severe punishment was not intended for all perpetrators who
committed crimes where bodily injury could or d id occur

. The
Act is instead designed to apply to those offenders who have committed numerous crimes involving a substantial degree of
violent force.

The G overnment 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. C astleman , 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 G overnment contends that Castleman requires
this Court to conflate the infliction of bodily injury with physical force

. But, as we conclude d 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 ’ u nder the
ACCA.” 901 F.3d at 228 (internal citation omitted)

. And t he 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 for ce as defined by Johnson 2010. Stokeling

,14 T here 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

.

I V

. 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 as sault 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 A s a result of this opinion

, Harris seemingly does not ha ve three prior qualifying violent felony convictions for purposes
of ACCA . For this reason, we d o not address whether his first

degree conviction for robbery qualifies as a predicate offense
under ACCA

.