FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOHN LEE BARLOW, 

Defendant-Appellant.

No.22-30030 

D.C. No. 

9:21-cr-00040-

DWM-1 

OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted June 6, 2023

Seattle, Washington

Filed October 4, 2023

Before: Mary M. Schroeder, Consuelo M. Callahan, and 

Carlos T. Bea, Circuit Judges.

Opinion by Judge Callahan;

Partial Concurrence and Partial Dissent by Judge Bea
2 USA V. BARLOW

SUMMARY*

Criminal Law

The panel affirmed a sentence imposed on John Barlow 

following his guilty plea to possessing a firearm as a felon. 

The panel rejected Barlow’s argument that the district 

court’s application of a Sentencing Guidelines enhancement 

pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing the 

firearm in connection with another felony violated his Fifth 

and Sixth Amendment rights under Apprendi v. New Jersey, 

530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 

99 (2013). The panel wrote that the determination of a 

sentencing enhancement based on a new offense can be 

made by a judge without a jury and by a standard of proof 

lower than beyond a reasonable doubt; that there is no 

mandatory minimum sentence at play and the enhancement 

still placed Barlow’s Guidelines range within the maximum 

possible sentence for the offense to which he pled guilty; and 

that Barlow received all the notice that is required for the 

enhancement. 

The panel rejected Barlow’s argument that there was 

insufficient evidence to support the district court’s finding 

that he used or possessed a firearm in connection with 

another felony offense under Montana law for purposes of 

applying the enhancement. The panel concluded that the 

district court’s account of the evidence is plausible in light 

of the record viewed in its entirety. 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. BARLOW 3

The panel rejected Barlow’s argument that the district 

court erred by determining under the modified categorical 

approach that his prior Georgia conviction for two counts of 

aggravated assault under O.C.G.A. § 16-5-21(a)(2) qualifies 

as a “crime of violence” under U.S.S.G. §§ 2K2.1 and 

4B1.2. Regarding Barlow’s argument that this court must 

presume that his conviction rested upon the least of the acts 

criminalized by the statute, the panel wrote that it need not 

decide whether a reasonable apprehension form of simple 

assault constitutes a “crime of violence” because Barlow’s 

indictment confirms that he committed the assault by 

“striking [the victim] with said handgun” and “by shooting 

[the victim] with a handgun,” not by placing him in 

reasonable apprehension of receiving a violent injury. The 

panel wrote that the charges as such could only aver an 

attempted battery form of simple assault under 

O.C.G.A.0020 16-5-20(a)(1)—that is, he attempted to 

commit a violent injury to the person of another. The panel 

therefore held that Barlow’s conviction for aggravated 

assault necessarily has as an element the use, attempted use, 

or threatened use plaintiff physical force against the person 

of another, and qualifies as a “crime of violence” under the 

elements clause definition in U.S.S.G. § 4B1.2(a)(1).

Judge Bea concurred in part, dissented in part, and 

dissented in the judgment. He agreed that the district court 

properly found that, for sentencing purposes, Barlow used or 

possessed a firearm in connection with a felony offense 

under Montana law. But he disagreed that Barlow’s Georgia 

conviction for aggravated assault is categorically a “crime of 

violence” under the Sentencing Guidelines. He wrote that 

under the categorical approach, the Georgia conviction must 

be deemed reasonable-apprehension assault, which is not a 
4 USA V. BARLOW

crime of violence. He would therefore vacate and remand 

for resentencing. 

COUNSEL

John Rhodes (argued), Assistant Federal Defender; Rachel 

Julagay, Federal Defender; Federal Defenders of Montana, 

Missoula, Montana; for Defendant-Appellant. 

Karla E. Painter (argued) and Timothy A. Tatarka, Assistant 

United States Attorneys; United States Attorney’s Office, 

Missoula, Montana; for Plaintiff-Appellee.

OPINION

CALLAHAN, Circuit Judge:

John Barlow pled guilty to possessing a firearm as a 

felon, in violation of 18 U.S.C § 922(g)(1). He was 

sentenced to 77 months in prison followed by three years of 

supervised release. On appeal, Barlow raises three 

challenges to the district court’s sentencing calculation

under the United States Sentencing Guidelines (“U.S.S.G.” 

or “Guidelines”). First, Barlow argues that the district 

court’s application of a four-level enhancement for 

possessing the firearm in connection with another felony 

violated his Fifth and Sixth Amendment rights under 

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. 

United States, 570 U.S. 99 (2013). Second, Barlow asserts 

that the application of a four-level enhancement was clear 

error because the finding that Barlow used or possessed a 
USA V. BARLOW 5

firearm in connection with the felony of assault with a 

weapon under Montana law is not supported by clear and 

convincing evidence. Third, Barlow argues that the district 

court erred by determining that his prior conviction for 

aggravated assault was a “crime of violence” because under 

Georgia law that crime can be committed recklessly, and 

thus the district court selected the incorrect Guidelines range 

as a starting point for its sentencing determination. We have 

jurisdiction under 28 U.S.C. § 1291, we reject these 

arguments, and we affirm. 

I.

In August 2021, Barlow was indicted for possessing a 

firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). 

Following Barlow’s motion to change his plea to guilty, the 

Government filed an offer of proof which included the fact 

that in 2013 Barlow had been convicted in Georgia of two 

counts of felony aggravated assault. It also included the fact 

that on May 23, 2021, days before officers discovered the 

firearm in Barlow’s possession following his arrest on an 

unrelated burglary, Barlow had been involved in an 

altercation involving a gun in a parking lot. Barlow pled 

guilty to the sole count in the indictment without a plea 

agreement and the district court accepted his plea. 

The Presentence Investigation Report (“PSR”) prepared 

for the district court contained supporting details. In relevant 

part, it stated that on July 9, 2013, Barlow was sentenced to 

10 years’ incarceration (with 8 years suspended) in Cobb 

County Superior Court for two counts of felony aggravated 

assault.1 At that time, Barlow signed a form acknowledging 

1 The PSR also identified two prior felony convictions in New Jersey 

related to possession and distribution of cocaine. The district court’s 
6 USA V. BARLOW

that it was unlawful for him to possess or purchase a firearm 

including a rifle, pistol, or revolver, or ammunition, pursuant 

to federal law. 

The PSR also provided the following details about the 

parking lot altercation: 

On May 23, 2021, an officer with the 

Kalispell Police Department (KPD) 

responded to a call about a disorderly male 

pulling a gun on the reporting party. Upon 

arrival, the officer spoke with Jeff Eickert, 

the reporting party, who advised he was 

waiting in the parking lot of the Asian Buffet 

when a dodge pickup pulled up and stopped 

abruptly. The driver got out of the vehicle 

and was screaming. Eickert asked the driver 

what was wrong, and the driver lifted up his 

shirt exposing a holstered gun. He ultimately 

placed his hand on the gun and stated he was 

the police. The suspect left the scene in his 

vehicle. Eickert provided the officer a 

description of the suspect and pictures of the 

vehicle taken by his girlfriend, Brenda 

Benson. In one of the pictures, the officer 

observed the suspect with a gun on his hip. 

Based on the totality of circumstances, 

description of the suspect, and the vehicle’s 

registration, the officer believed the suspect 

was Barlow. As the conversation continued 

finding that these separate convictions were not “controlled substance 

offenses” was the subject of the Government’s cross-appeal, which was 

voluntarily dismissed and therefore is not discussed further. 
USA V. BARLOW 7

with Eickert, the officer learned Barlow 

never threatened him or pointed the firearm 

at him. Benson spoke with an officer and 

reported the male acted like he was going to 

shoot them. She acknowledged she “felt very 

threatened.” The officer obtained video 

surveillance which reflected the suspect had 

a verbal exchange with Eickert, placed his 

left hand on his hip, and approached Eickert 

and Benson with his hand still on his hip.

The PSR noted that just over a week later, on June 1, 

2021, an officer with the Kalispell Police Department 

arrested Barlow for an outstanding warrant stemming from 

an unrelated burglary charge. Barlow was asked about the 

firearm he possessed on May 23, 2021, and he initially 

denied possessing a firearm until law enforcement explained 

they had pictures of him with it. Barlow denied the firearm 

was part of the burglary and stated he had purchased the 

firearm. On the same day, law enforcement searched 

Barlow’s residence and located a Glock 23 .40 caliber, semiautomatic pistol in his bedroom matching the description of 

the firearm he possessed during the parking lot altercation 

on May 23, 2021.

The PSR calculated a base offense level of 24 under 

U.S.S.G. § 2K2.1(a)(2) because it concluded Barlow had at 

least two prior felony convictions for either a crime of 

violence or a controlled substance offense. It added four 

levels under U.S.S.G. § 2K2.1(b)(6)(B) because he 

possessed the firearm in connection with another felony

offense, specifically assault with a weapon in violation of 

Mont. Code Ann. § 45-5-213 based on his uncharged 

conduct during the May 23, 2021, parking lot altercation. 
8 USA V. BARLOW

The PSR subtracted three levels for acceptance of 

responsibility, resulting in a total offense level of 25. With 

a criminal history category of VI, the PSR concluded that 

Barlow’s Guidelines range was 110 to 120 months (based on 

the ten-year statutory maximum). 

Barlow filed written objections to the PSR, arguing that 

his prior convictions did not constitute either a “crime of 

violence” or a “controlled substance offense” and therefore 

the base offense level should have been 14, not 24. He also 

argued that the parking lot altercation did not constitute 

“another felony offense” and therefore the four-level 

enhancement should not be applied. The probation officer 

responsible for preparing the PSR did not revise the report

in response to the objections and the Government argued for 

the base offense level outlined by probation and the fourlevel enhancement in its sentencing memorandum. 

The district court held a sentencing hearing on February 

10, 2022. The Government called a single witness, Brenda 

Benson, to testify about the facts supporting the four-level 

enhancement. She testified that during the parking lot 

altercation on May 23, 2021, Barlow approached her and her 

boyfriend Jeff Eickert and began yelling and cursing at them, 

accusing them of damaging his bumper. Benson testified 

that Barlow then exited his truck to approach them, lifted his 

shirt to display a firearm holstered on his hip, and 

momentarily rested his hand on it, multiple times. Benson 

testified that she felt threatened and in fear for her life based 

on Barlow’s “irrational” and “belligerent” conduct, and the 

fact that she observed he had two firearms.2 On cross2 Benson testified that Barlow claimed to be a police officer and when 

Barlow returned to his truck to find his “credentials” to prove he was a 

cop, she observed a second firearm fall out of the truck onto the ground. 
USA V. BARLOW 9

examination, Benson admitted that Barlow never pointed the 

gun at them, nor did he verbally threaten physical harm. The 

Government introduced as exhibits photos Benson took 

during the altercation showing a firearm holstered on 

Barlow’s hip, a blurry surveillance video from a nearby 

casino depicting the interaction, and the recording of 

Eickert’s 911 call following the incident. 

The district court then heard arguments from the parties 

and issued an oral ruling from the bench. Over Barlow’s 

objection, the district court first concluded that based on the 

testimony of Benson, the surveillance video, and the 

photographs provided, the government had shown by clear 

and convincing evidence that Barlow possessed a firearm in 

connection with another felony offense (assault with a 

weapon under Montana law) and thus the four-level 

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) applied. 

Although the district court acknowledged that the question 

of “use of a weapon” was a difficult one under the facts, it 

found that the evidence established that Barlow “purposely 

or knowingly cause[d] reasonable apprehension of serious 

bodily injury in another by use of a weapon or what 

reasonably appears to be a weapon.” The district court also 

concluded, over Barlow’s objection, that his previous 

conviction for aggravated assault under Georgia law was a 

“crime of violence” as defined by the Guidelines.

Based on those determinations, the district court found 

that Barlow’s base offense level was 20 under U.S.S.G. 

§ 2K2.1 because Barlow had one prior conviction for a crime 

of violence. The district court also found the four-level 

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) applied. The 

Barlow’s counsel represents, without a record cite, that this second 

firearm was ultimately determined to be a pellet gun.
10 USA V. BARLOW

district court further found that Barlow’s base offense level 

should be reduced by two levels for acceptance of 

responsibility and by one additional level for assisting 

authorities in the investigation. With these adjustments, the 

district court found that Barlow’s total offense level was 21, 

and that with a criminal history category of VI, Barlow’s 

Guidelines sentencing range was 77 to 96 months’ 

imprisonment. The district court sentenced Barlow to 77 

months’ imprisonment, to be followed by three years’ 

supervised release. 

The next day, the district court entered the judgment. 

Barlow timely appealed.

II.

On appeal, Barlow raises three objections to his 

sentence: (1) the district court’s application of a four-level 

enhancement for possessing the firearm in connection with 

another felony violated his Fifth and Sixth Amendment 

rights under Apprendi, 530 U.S. 466, and Alleyne, 570 U.S. 

99; (2) the application of the same four-level enhancement 

was clear error because there was insufficient evidence to 

support the finding that Barlow used or possessed a firearm 

in connection with the felony of assault with a weapon under 

Mont. Code Ann. § 45-5-213; and (3) the district court erred 

by determining that Barlow’s prior conviction under Georgia 

law for aggravated assault was a “crime of violence” 

resulting in an increased base offense level calculation under 

the Guidelines.

A. Constitutional Arguments

We review de novo whether a sentence violates a 

defendant’s constitutional rights. United States v. Hunt, 656 

F.3d 906, 911 (9th Cir. 2011). The Guidelines provide for a 
USA V. BARLOW 11

four-level sentencing enhancement when the defendant 

“[u]sed or possessed any firearm or ammunition in 

connection with another felony offense[.]” U.S.S.G. 

§ 2K2.1(b)(6)(B). The district court found by clear and 

convincing evidence that Barlow possessed the firearm in 

connection with another felony offense, namely assault with 

a weapon under Montana law. Barlow argues that this 

violated his constitutional rights. 

The underlying premise for Barlow’s argument is that 

following Apprendi and Alleyne, a sentencing enhancement 

based on a new offense should not be decided by a judge. 

Instead, Barlow contends the question of whether he 

possessed the firearm in connection with another felony 

offense should be considered by a jury and decided beyond 

a reasonable doubt. Barlow also argues that the 

enhancement increases his sentence “without sufficient 

notice” that he would be punished for “another felony 

offense.” Neither argument is persuasive.

First, as a constitutional matter, the determination of a 

sentencing enhancement based on a new offense (a 

“sentencing fact”) can be made by a judge without a jury and 

by a lower standard of proof. 3 See United States v. Lonich, 

23 F.4th 881, 910 (9th Cir. 2022); see also Rita v. United 

States, 551 U.S. 338, 352 (2007). Moreover, there is no

basis for extending the reasoning of Apprendi and Alleyne to 

Barlow’s circumstance. Specifically, there is no mandatory 

3 Notably, here the district court applied the more stringent clear and 

convincing evidence standard applicable to only a limited subset of 

sentencing enhancements in determining that Barlow had committed 

assault with a weapon under Montana law. United States v. Lonich, 23 

F.4th 881, 910 (9th Cir. 2022). We offer no opinion on whether a lower 

standard of proof would have also been proper.
12 USA V. BARLOW

minimum sentence at play and the district court’s application 

of the four-level enhancement still placed Barlow’s 

Guidelines range within the maximum possible sentence for 

the offense to which he pled guilty. As the Supreme Court 

in United States v. Watts, 519 U.S. 148, 155 (1997) 

explained, “consideration of information about the 

defendant’s . . . conduct at sentencing does not result in 

‘punishment’ for any offense other than the one [for] which 

the defendant was convicted”; rather, the defendant is 

punished “only for the fact that the present offense was 

carried out in a manner that warrants increased punishment.” 

Id. (quoting Witte v. United States, 515 U.S. 389, 401 

(1995)). Accordingly, this is not a circumstance to which 

the right to a jury would typically attach, nor is it a 

circumstance requiring that the other felony offense be 

proved beyond a reasonable doubt, and thus, neither 

Apprendi nor Alleyne apply. 

Second, Barlow has not shown a constitutional violation 

as a result of insufficient notice of the basis for the 

sentencing enhancement. He fails to cite any authority 

which requires that another offense giving rise to a

sentencing enhancement be identified in the charging 

indictment or at arraignment, and we are aware of no such 

authority. Rather, the Guidelines make clear that finding

“another felony offense” for purposes of U.S.S.G. 

§ 2K2.1(b)(6)(B) does not require a criminal charge be 

brought or a conviction obtained. See United States v. Bare, 

806 F.3d 1011, 1016 (9th Cir. 2015). Barlow received all 

the notice that is required for the sentencing enhancement. 

He has not shown that the district court violated his rights 

under the Fifth and Sixth Amendments.
USA V. BARLOW 13

B. Sufficiency of the Evidence Supporting “Use of a 

Weapon”

Barlow also argues that the district court erred in 

applying the enhancement under U.S.S.G. § 2K2.1(b)(6)(B) 

because there was insufficient evidence to support the 

district court’s finding that he used or possessed a firearm in 

connection with another felony offense. We “review the 

district court’s interpretation of the Sentencing Guidelines 

de novo, its application of the Guidelines to the facts of the 

case for abuse of discretion, and its factual findings for clear 

error.” United States v. Kirilyuk, 29 F.4th 1128, 1133 (9th 

Cir. 2022) (citing United States v. Gasca-Ruiz, 852 F.3d 

1167, 1170 (9th Cir. 2017) (en banc)). On a sufficiency of 

the evidence challenge, “[i]f the district court’s account of 

the evidence is plausible in light of the record viewed in its 

entirety, [we] may not reverse it .... Where there are two 

permissible views of the evidence, the factfinder’s choice 

between them cannot be clearly erroneous.” Anderson v. 

City of Bessemer City, 470 U.S. 564, 573–74 (1985) 

(citations omitted). An even greater deference is due where, 

as here, the district court weighs the credibility of a witness. 

Id. at 575.

The district court found that Barlow used or possessed a 

firearm in connection with the felony of assault with a 

weapon under Mont. Code Ann. § 45-5-213(1)(b), which 

provides that a person commits that offense if the person 

purposely or knowingly causes “reasonable apprehension of 

serious bodily injury in another by use of a weapon or what 

reasonably appears to be a weapon.” Mont. Code Ann. § 45-

5-213(1)(b) (emphasis added). In making that finding, the 

district court considered the testimony of what it determined 

to be a credible first-hand witness, Benson, as well as 

documentary evidence including photographs taken by 
14 USA V. BARLOW

Benson during the incident, a surveillance video, and a 

recording of the 911 call. 

Barlow contends that the surveillance video and 

recording of the 911 call undermine, and in some cases 

contradict, Benson’s testimony, and therefore her testimony 

cannot be used to support the finding. For example, 

according to Barlow, the video does not show Barlow 

touching the firearm or raising his shirt to display the 

firearm, as Benson alleged in her testimony. Without her 

testimony, Barlow asserts that the Government presented no 

evidence that he ever “used” the firearm, as required to prove 

the offense under Montana law.

We disagree. We conclude that the district court’s 

account of the evidence is plausible in light of the record 

viewed in its entirety. Benson testified that Barlow 

confronted and yelled at her and Eickert, acting irrationally, 

while repeatedly placing his hand on a holstered firearm on 

his hip. She testified that she felt threatened and feared for 

her life. The photographs offered to the court showed a 

holstered firearm on Barlow’s hip. The surveillance video, 

although admittedly very blurry, confirmed that Barlow 

appeared to angrily confront the couple. The 911 call 

reflected Eickert’s recollection of the incident, and he 

reported that Barlow pulled a gun out of his belt. While 

Barlow is correct that there was no evidence that he ever 

fired the gun, pointed the gun, or made a direct verbal threat, 

such evidence is not required to establish assault with a 

weapon under Montana law. See State v. Smith, 95 P.3d 137, 

143 (Mont. 2004) (explaining that the victim need not even

see the weapon to sustain a conviction based on “reasonable 

apprehension”). To the extent the district court discounted 

any alleged contradictions between the surveillance video 

and 911 call and Ms. Benson’s testimony, this was not clear 
USA V. BARLOW 15

error. Barlow has not shown that there was insufficient 

evidence to support the district court’s finding that he used 

or possessed a firearm in connection with another felony 

offense for purposes of applying the enhancement under 

U.S.S.G. § 2K2.1(b)(6)(B).

C. Increased Base Offense Level for a “Crime of 

Violence”

We review de novo whether a defendant’s prior 

conviction qualifies as a “crime of violence” under the 

Guidelines. See Gasca-Ruiz, 852 F.3d at 1174. For 

violations of 18 U.S.C. § 922(g)(1), felon in possession of a 

firearm, courts apply U.S.S.G. § 2K2.1. Section 

2K2.1(A)(4)(A) provides a base offense level of 20 if “the 

defendant committed any part of the instant offense 

subsequent to sustaining one felony conviction of either a 

crime of violence or a controlled substance offense.” The 

district court concluded that Barlow’s prior conviction for 

two counts of aggravated assault under Georgia law qualifies 

as a crime of violence and applied an increased base offense 

level in determining Barlow’s sentence.

We begin (and end) our inquiry with the first definition 

set forth in U.S.S.G. § 4B1.2—the “elements clause” (also 

known as the “force clause”).

4 Under that definition, a crime 

4 The term “crime of violence” as used in this section is defined in 

U.S.S.G. § 4B1.2(a), as either an offense under federal or state law 

punishable by imprisonment for a term exceeding one year, that “(1) has 

as an element the use, attempted use, or threatened use of physical force 

against the person of another,” or (2) is any one of several enumerated 

offenses, including “aggravated assault.” U.S.S.G. § 4B1.2(a); U.S.S.G. 

§ 2K2.1, cmt. n.1. The district court did not articulate which of the two 

definitions it relied on when it concluded that Barlow’s prior conviction 

qualified as a “crime of violence.” Although the enumerated offense 

clause is another avenue for determining whether a prior conviction is a 
16 USA V. BARLOW

of violence “means any offense under federal or state law . . . 

that . . . has as an element the use, attempted use, or 

threatened use of physical force against the person of 

another.” U.S.S.G. § 4B1.2(a)(1). To determine whether the 

prior offense qualifies pursuant to the elements clause, we 

only ask “whether the prior offense does in fact have one of 

those elements” —we do not compare the elements of the 

crime of conviction with the elements of the generic federal 

crime. United States v. Alvarez, 60 F.4th 554, 559 (9th Cir. 

2023). 

Here, the district court properly used the modified 

categorical approach to determine that Barlow’s prior 

conviction for aggravated assault qualified as a crime of 

violence. United States v. Door, 917 F.3d 1146, 1152 (9th 

Cir. 2019) (citing Mathis v. United States, 579 U.S. 500, 505 

(2016)); see also United States v. Moss, 920 F.3d 752, 757–

58 (11th Cir. 2019), opinion reinstated, 4 F.4th 1292 (11th 

Cir. 2021) (en banc) (holding that Georgia’s aggravated 

assault statute is divisible as to both the aggravator element, 

and the type of simple assault committed). Under the 

modified categorical approach, we may consult Shepard

documents, a limited class of documents, including the 

indictment, jury instructions, or plea agreement, to 

determine which specific crime a defendant was convicted 

of committing.5 Door, 917 F.3d at 1151–52; Shepard v. 

“crime of violence” under the Guidelines, we need not discuss it here 

given our conclusion that the elements clause applies.

5 The Partial Dissent attempts to demonstrate that our opinion evidences 

a departure from precedent by arguing that it is somehow at odds with 

the recent decision in United States v. Castro. But Castro did not apply 

the modified categorical approach at all because the statute at issue there 

was not divisible, and thus the framework it applied has no impact on 

our analysis. 71 F.4th 735, 738 n.3 (9th Cir. 2023).
USA V. BARLOW 17

United States, 544 U.S. 13, 26 (2005). We then apply the 

elements clause to the specific crime of conviction to 

determine whether it qualifies as a “crime of violence.” 

Door, 917 F.3d at 1152. 

In 2013, Barlow was convicted of two counts of 

aggravated assault. Aggravated assault under Georgia law 

has two elements: “(1) commission of a simple assault as 

defined by [O.C.G.A. §] 16-5-20(a) and (2) the presence of 

one [] statutory aggravator[]” under O.C.G.A. § 16-5-21(b). 

Patterson v. State, 299 Ga. 491, 492 (2016) (quotations and 

citations omitted). Simple assault can be committed in one 

of two ways: “(1) [a]ttempt[ing] to commit a violent injury 

to the person of another; or (2) [c]ommit[ting] an act which 

places another in reasonable apprehension of immediately 

receiving a violent injury.” O.C.G.A. § 16-5-20(a).

The key Shepard document in the record is the 

indictment, which confirms on the cover page that Barlow 

pled guilty to the offense charged. The indictment contains 

two counts. Count One charged Barlow: 

with the offense of AGGRAVATED 

ASSAULT for that the said accused . . . did 

unlawfully make an assault upon the person 

of Crushon Person, with a handgun, the same 

being a firearm, a deadly weapon and an 

object which, when used offensively against 

a person, is likely to and actually does result 

in serious bodily injury, by striking said 

Crushon Person with said handgun . . . .
18 USA V. BARLOW

(emphasis added). Count Two charged Barlow:

with the offense of AGGRAVATED 

ASSAULT for that the said accused . . . did 

unlawfully make an assault upon the person 

of Crushon Person, with a handgun, the same 

being a firearm, a deadly weapon and an 

object which, when used offensively against 

a person, is likely to and actually does result 

in serious bodily injury, by shooting said 

Crushon Person with said handgun . . . .

(emphasis added).

Barlow concedes that the indictment establishes that he 

was convicted of committing the version of aggravated 

assault found in O.C.G.A. § 16-5-21(a)(2) (known as the 

aggravator element)—simple assault committed with a 

deadly weapon. But he argues that the indictment does not 

indicate which type of simple assault formed the basis for his 

conviction—attempting to commit a violent injury under 

O.C.G.A. § 16-5-20(a)(1) or placing another in reasonable 

apprehension of receiving a violent injury under § 16-5-

20(a)(2). Accordingly, Barlow asserts that we must presume 

that his conviction rested upon the least of the acts 

criminalized by the statute (here § 16-5-20(a)(2), placing 

another in apprehension of receiving a violent injury), see 

Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013). He 

contends this does not qualify as a “crime of violence” under 

the elements clause. See Moss, 920 F.3d at 757–58; United 

States v. Carter, 7 F.4th 1039, 1043 (11th Cir. 2021). 

Barlow reasons that the Supreme Court of Georgia has 

held the “reasonable apprehension” form of simple assault 

may be committed with a mens rea of recklessness because 
USA V. BARLOW 19

it “does not require proof of specific intent.” Patterson, 299 

Ga. at 493. Relying on the Eleventh Circuit’s holdings in 

Moss and Carter,

6 Barlow argues that recklessness is an 

insufficient mens rea for a “crime of violence” under Borden 

v. United States.

7 141 S. Ct. 1817, 1821–22 (2021) (holding 

that an offense is not a “violent felony”—and thus, not a 

“crime of violence”—“if it requires only a mens rea of 

recklessness—a less culpable mental state than purpose or 

knowledge”); see also Moss, 920 F.3d at 758; Carter, 7 F.4th 

at 1043.

Barlow’s approach may be logical, but we need not 

decide whether a reasonable apprehension form of simple 

assault constitutes a “crime of violence” because Barlow’s

indictment confirms that he committed the assault “by 

striking [the victim] with said handgun” and “by shooting 

6 Moss held that “[b]ecause Georgia’s aggravated assault statute, 

O.C.G.A. § 16-5-21(a)(2) . . . can be satisfied by a mens rea of 

recklessness when based on simple assault under § 16-5-20(a)(2), it 

cannot qualify as a crime of violence under the elements clause of the 

ACCA.” See Moss, 920 F.3d at 759. Carter similarly held that the 

defendant’s aggravated assault conviction could not support his 

classification as an armed career criminal. Carter, 7 F.4th at 1041. Both 

cases so held because the Shepard documents did not indicate the portion 

of Georgia’s simple assault statute under which the defendants were 

convicted, thus the courts assumed that the convictions arose under the 

“least of the acts criminalized” by the statute, that is, the “reasonable 

apprehension” form of simple assault.

7 Borden concerned the definition of “violent felony” in the Armed 

Career Criminal Act (“ACCA”), id. at 1821–22, but also governs our 

court’s interpretation of “crime of violence” in the U.S.S.G., which “is 

defined identically to the phrase ‘violent felony’ in the ACCA.” United 

States v. Walker, 953 F.3d 577, 579 (9th Cir. 2020).
20 USA V. BARLOW

[the victim] with said handgun,”8 not by placing the victim 

in reasonable apprehension of receiving a violent injury.9

The charges against Barlow could only aver an attempted 

battery form of simple assault under O.C.G.A. § 16-5-

20(a)(1)—that is, that Barlow “attempt[ed] to commit a 

violent injury to the person of another.” 

Barlow’s attempt to analogize this case to the facts 

presented in Moss and Carter is unpersuasive. The Eleventh 

Circuit in Moss and Carter did not provide its reasoning for 

concluding that the qualifying language in each indictment 

did not foreclose the averment of a “reasonable 

apprehension” form of simple assault. Moss, 920 F.3d at 

758; Carter, 7 F.4th at 1043. But the indictment in Moss

charged the defendant for assaulting the victim “with his 

mouth,” Moss, 920 F.3d at 755, while the indictment in 

Carter charged the defendant for assaulting the victim by 

“shooting at” (rather than “shooting”) him, Carter, 7 F.4th 

at 1044.

10 Georgia case law establishes that these charges

8 Because the two counts in Barlow’s indictment were not separately 

sentenced, they are not treated as separate qualifying predicates, and we 

may affirm if we conclude that either of the counts constitute a “crime 

of violence.” See U.S.S.G. § 4A1.2(a)(2).

9 Therefore, resolution of whether a reasonable apprehension form of 

simple assault under Georgia law constitutes a “crime of violence” under 

the Guidelines is not necessary to the disposition in this case and we do 

not reach it. See Yu v. Idaho State Univ., 15 F.4th 1236, 1244–45 (9th 

Cir. 2021).

10 Contrary to the Partial Dissent’s argument, to reach our decision we 

have not looked to the facts underlying the conviction, but rather to the 

language contained in the indictment to discern the predicate conviction,

as authorized by Door. 917 F.3d at 1151–52. The qualifying language 

in the indictment (that Barlow committed the assault “by striking [the 

victim] with said handgun” and “by shooting [the victim] with said 

handgun”) is not only relevant to the aggravator element of an 
USA V. BARLOW 21

can aver a reasonable apprehension assault, see, e.g., Jordan 

v. State, 744 S.E.2d 447, 451 (Ga. App. 2013) (considering 

“by shooting at” language in indictment), whereas 

aggravated assault committed “by striking” and “by 

shooting” the victim cannot, see, e.g., State v. Thomas, 830 

S.E.2d 296, 299–300 (Ga. App. 2019) (considering “by 

shooting” language in indictment). Although this distinction 

may seem technical, it is nevertheless meaningful to our 

analysis, particularly because under Georgia law, the 

attempted battery form of simple assault under O.C.G.A. 

§ 16-5-20(a)(1) is properly charged when, as here, the 

battery is completed (for example, the indictment confirms 

Barlow was charged with committing aggravated assault by

“shooting” and “striking” the victim rather than merely

“shooting at” the victim). See Scott v. State, 234 S.E.2d 685, 

686–87 (Ga. App. 1977).

Barlow cites three Georgia Supreme Court decisions, 

which he argues establish that an indictment alleging 

aggravated assault “by striking” or “by shooting” could be 

proven under the reasonable apprehension form of simple 

assault. See Johnson v. State, 637 S.E.2d 393 (Ga. 2006);

Chase v. State, 592 S.E.2d 656 (Ga. 2004); Simpson v. State, 

589 S.E.2d 90 (Ga. 2003). But these cases do not support 

his assertion. Rather, what Johnson and Simpson suggest is 

that while a jury may be given an instruction which defines 

both methods of committing simple assault, to convict a 

defendant of aggravated assault “by striking” or “by 

shooting,” it remains “necessary that the evidence show 

beyond a reasonable doubt that the defendant attempted to 

aggravated assault conviction but is also relevant to the simple assault 

element because the indictment states in various separate places that 

Barlow used a gun in committing the crime.
22 USA V. BARLOW

cause a violent injury to the alleged victim.”11 Johnson, 637 

S.E.2d at 395 (considering an indictment which charged the 

defendant with assaulting the victim by striking her with a 

gun); Simpson, 589 S.E.2d at 92–93 (considering an 

indictment which charged the defendant with assaulting the 

victim by shooting him with a gun); see also Chase, 592 

S.E.2d at 658 (noting “[w]hile there was no question that 

appellant fired a gun through the floor, striking his wife in 

the room below in the top of her head, there was no evidence 

from which the jury could find the victim had been placed in 

reasonable apprehension of immediately receiving a violent 

injury.”).

We disagree with the Partial Dissent’s characterization 

of the holdings in Simpson and Johnson as commanding a 

different result here. In both of those cases, the defendants 

argued that the trial court violated their right to due process 

by instructing the juries that they could convict for 

aggravated assault in a manner not alleged in the indictment, 

“by striking” in Johnson and “by shooting” in Simpson. The

Georgia Supreme Court in both cases rejected the arguments 

and clarified that the jury instructions provided did not alter 

the alleged method of committing aggravated assault as 

stated in the indictments by “simply defin[ing] both methods 

of committing simple assault.” Simpson, 589 S.E.2d at 93; 

11 The Partial Dissent quarrels with our reading of Johnson. But our 

quote is not “selective.” In Johnson, the Georgia Supreme Court

expressly stated that “the trial court properly instructed the jury with 

respect to aggravated assault, stating unequivocally that in order to 

convict the defendant of [the] offense alleged [in the indictment 

(aggravated assault “by striking [the victim]”)], it was ‘necessary [to] . . 

. show beyond a reasonable doubt that the defendant attempted to cause 

a violent injury to the alleged victim,’”—that is, the attempted battery 

form of simple assault. Johnson, 637 S.E.2d at 395.
USA V. BARLOW 23

Johnson, 637 S.E.2d at 395. Neither case stands for the 

proposition that the language contained in Barlow’s 

indictment makes it impossible to determine which specific 

form of simple assault Barlow pled guilty to committing.

We therefore hold that Barlow’s conviction for 

aggravated assault necessarily has as an element the use, 

attempted use, or threatened use of physical force against the 

person of another, and therefore qualifies as a “crime of 

violence” under the elements clause.12

III.

In conclusion, we affirm because Barlow has not shown 

that the district court erred in calculating his sentence under 

the Guidelines. Barlow has not shown that applying the 

four-level enhancement violated his rights under the Fifth or 

Sixth Amendments. He has not shown that the district 

court’s factual finding that Barlow possessed the firearm in 

connection with his commission of assault with a weapon 

under Montana law is erroneous. Finally, the district court 

correctly determined that Barlow’s prior Georgia conviction 

for aggravated assault was a “crime of violence.”

AFFIRMED.

12 Because we conclude that the prior conviction qualifies as a “crime of 

violence” under the elements clause definition under U.S.S.G. 

§ 4B1.2(a)(1), we need not reach Barlow’s arguments regarding whether 

his prior aggravated assault conviction also qualifies as a “crime of 

violence” under the Guidelines’ alternative definition in the “enumerated 

offense clause” under U.S.S.G. § 4B1.2(a)(2).
24 USA V. BARLOW

BEA, Circuit Judge, concurring in part, dissenting in part, 

and dissenting in the judgment:

I agree that the district court properly found that, for 

sentencing purposes, Defendant-Appellant John Barlow 

used or possessed a firearm in connection with a felony 

offense under Montana law. See U.S.S.G. § 2K2.1(b)(6)(B); 

United States v. Watts, 519 U.S. 148 (1997). But I disagree 

that Barlow’s Georgia conviction for aggravated assault, see 

O.C.G.A. § 16-5-21(a)(2), is categorically a “crime of 

violence” under the Sentencing Guidelines, see U.S.S.G. 

§§ 2K2.1(a), 4B1.2(a). In concluding that Barlow’s 

conviction is a crime of violence, the district court here 

professedly applied its “common sense,” rather than the 

categorical approach. The majority similarly affirms. But 

because the categorical approach demands a contrary result, 

I would vacate Barlow’s sentence and remand for 

resentencing.

I respectfully dissent.

I.

A “crime of violence” is one that has “as an element, the 

use, attempted use, or threatened use of physical force 

against the person of another.” U.S.S.G. § 4B1.2(a)(1). To 

determine whether Barlow’s aggravated assault conviction 

meets that definition, we must apply the “categorical 

approach,” which we recently have summarized as follows:

To determine whether a conviction is a crime 

of violence, we do not look to the facts 

underlying the conviction. Instead, the 

Supreme Court requires us to employ a 

categorical approach that looks to the 

statutory definition of the offense and the fact 
USA V. BARLOW 25

of conviction itself. If the statute criminalizes 

conduct beyond that covered by the 

Guidelines—regardless of the defendant’s 

actual conduct—the conviction is not a crime 

of violence. Where a statute describes 

conduct on both sides of the line, we must 

determine whether it is divisible. If the statute 

describes different ways to prove a single set 

of elements, it is indivisible. In contrast, a 

statute is divisible if it lists alternative 

elements and thereby describes alternative 

crimes.

United States v. Tagatac, 36 F.4th 1000, 1004 (9th Cir. 

2022) (cleaned up).

The “central feature” of the categorical approach is that 

sentencing judges must “focus on the elements, rather than 

the facts, of a crime.” Descamps v. United States, 570 U.S. 

254, 263 (2013). That rule reflects the constitutional 

principle that juries—not judges—are responsible for 

finding the predicate facts on which any criminal sentence 

rests. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 

In this way, “juries in our constitutional order exercise 

supervisory authority over the judicial function by limiting 

the judge's power to punish.” United States v. Haymond, 139 

S. Ct. 2369, 2376 (2019). “A judge's authority to issue a 

sentence derives from, and is limited by, the jury's factual 

findings of criminal conduct.” Id.

The Supreme Court thus developed the categorical 

approach to keep judges out of the facts in sentencing 

proceedings. See Taylor v. United States, 495 U.S. 600–02 

(1990). As the Court recognized, when a crime covers a 

range of conduct, it is often impossible to decipher the 
26 USA V. BARLOW

precise facts which the jury found proven beyond a 

reasonable doubt. See id. And judges are not authorized to 

determine those facts for themselves. Thus, a sentencing 

court assessing the “fact of a prior conviction” may infer 

only the minimal conduct—based on the elements of the 

crime—that was necessary for the prosecution to obtain the 

conviction. See Apprendi, 530 U.S. at 490.1 The categorical 

approach, then, respects the role of the jury by vesting 

sentencing power in the judge only if the elements of the 

crime “necessarily impl[y]” that the jury found the defendant 

guilty of conduct that satisfies a statutory enhancement. 

Taylor, 495 U.S. at 599; see United States v. Marcia-Acosta, 

780 F.3d 1244, 1255–56 (9th Cir. 2015) (reasoning that a 

sentencing judge can ask whether a defendant was 

“convicted” of a crime but not whether he “committed the 

crime”). 

In Shepard v. United States, the Supreme Court made 

this point clear. 544 U.S. 13, 25–26 (2005). There, the Court

explained that engaging in a factual approach—rather than a 

categorical approach—to increase a sentence based on a 

prior guilty plea could very well violate a defendant’s Sixth 

Amendment rights:

The sentencing judge considering the 

enhancement would make a disputed finding 

of fact about what the defendant and state 

judge must have understood as the factual 

basis of the prior plea, and the dispute raises 

1 In Apprendi, the Supreme Court remarked that the “the fact of a prior 

conviction” supplies a rare exception to the Sixth Amendment rule in 

criminal cases that “any fact that increases the penalty for a crime ... 

must be submitted to a jury, and proved beyond a reasonable doubt.” 530 

U.S. at 490.
USA V. BARLOW 27

the concern underlying Jones and Apprendi: 

the Sixth and Fourteenth Amendments 

guarantee a jury standing between a 

defendant and the power of the State, and 

they guarantee a jury's finding of any 

disputed fact essential to increase the ceiling 

of a potential sentence. While the disputed 

fact here can be described as a fact about a 

prior conviction, it is too far removed from 

the conclusive significance of a prior judicial 

record, and too much like the findings subject 

to Jones and Apprendi, to say that [a judge is] 

clearly authorize[d] ... to resolve the dispute.

544 U.S. 13, 25–26 (2005) (cleaned up).

Put in other terms, notwithstanding the actual facts 

underlying the conviction, the Sixth Amendment requires 

the sentencing judge to “presume that the conviction rested 

upon nothing more than the least of the acts criminalized.” 

See Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) 

(cleaned up).

To be sure, faithfully applying this required categorical 

approach sometimes yields odd results. For instance, in 

Borden v. United States, the Supreme Court held that a 

Tennessee conviction for aggravated assault did not 

constitute a “violent felony” under the Armed Career 

Criminal Act (“ACCA”). 141 S. Ct. 1817, 1821 (2021). 

Another example comes from United States v. Castro, in 

which we recently held that a Montana conviction for 

Partner or Family Member Assault (“PFMA”) is not a 

“crime of violence” under the Sentencing Guidelines. 71 
28 USA V. BARLOW

F.4th 735, 744 (9th Cir. 2023).2 There, we noted that “federal 

courts hate the categorical approach” because “[i]t 

frequently produces absurd results.” Id. at 738 n.2. 

As I explain below, this case is yet another in which 

following the categorical approach produces the admittedly 

counterintuitive result that a type of assault is not a crime of 

violence. Yet no matter how much we may “hate” this 

analytical framework, see Oral Arg. at 1:25, Supreme Court 

precedent demands it, see Taylor, 495 U.S. at 600–02, and 

we must obey, see United States v. Werle, 35 F.4th 1195, 

1201 (9th Cir. 2022). 

II.

Start by examining the elements of the predicate crime. 

Georgia’s aggravated assault statute requires proof of simple 

assault that was committed in a manner that satisfies a 

statutory enhancement. O.C.G.A. § 16-5-21(a). Simple 

assault, in turn, may be committed either by: (1) attempting 

to injure the victim; or (2) placing the victim in a reasonable 

apprehension of injury. O.C.G.A. § 16-5-20(a). I shall refer 

to these separate offenses as ‘attempt-to-injure’ and 

‘reasonable-apprehension’ assault, respectively.

The parties appear to agree that attempt-to-injure 

aggravated assault qualifies as a crime of violence. That 

makes sense. An “[a]ttempt[] to commit violent injury to the 

person of another,” O.C.G.A. § 16-5-20(a)(1), matches with 

an “attempted use . . . of physical force against the person of 

another,” U.S.S.G. § 4B1.2(a)(1). But the parties dispute: 

(A) whether Barlow was convicted of reasonable2 We reached this result even though the defendant had “grabbed the 

victim by the neck and then threw her to the ground and hit her face into 

a glass door.” Castro, 71 F.4th at 738 n.2 (cleaned up).
USA V. BARLOW 29

apprehension assault instead of attempt-to-injure assault; 

and (B) whether reasonable-apprehension aggravated assault 

qualifies as a crime of violence. I address each issue in turn.

A.

To ascertain the elements for Barlow’s crime of 

conviction, we must first determine whether Georgia’s 

assault statutes are “divisible.” See Descamps, 570 U.S. at 

257. Because all agree that they are divisible, Maj. Op. at 

16,

3 we apply the modified categorial approach. See 

Tagatac, 36 F.4th at 1004. Under that approach, we examine 

the Shepard documents in the record to determine what type 

of simple assault formed the basis for Barlow’s aggravated 

assault conviction. See Shepard, 544 U.S. at 26. 

Importantly, reviewing the Shepard documents does 

“not permit courts to substitute a facts-based inquiry for an 

elements-based one.” United States v. Sahagun-Gallegos, 

782 F.3d 1094, 1101 (9th Cir. 2015) (citation and internal 

quotation omitted); see Descamps, 570 U.S. at 263 (“The 

3A criminal statute is divisible if it “lists alternative elements and thereby 

describes alternative crimes.” Tagatac, 36 F. 4th at 1004; see Descamps, 

570 U.S. at 257. Georgia’s aggravated assault statute is divisible because 

either form of simple assault—attempt-to-injure assault or reasonableapprehension assault—can satisfy one of the elements of the crime. See 

Simpson v. State, 589 S.E.2d 90, 93 (Ga. 2003) (explaining that a 

defendant can be “convicted for aggravated assault if he committed a 

simple assault in either manner contained in the simple assault statute”). 

In other words, a defendant can commit either form of aggravated assault 

without committing the other form of aggravated assault. The aggravated 

assault statute therefore “describes alternative crimes” and is divisible.

Tagatac, 36 F.4th at 1004; see United States v. Moss, 920 F.3d 752, 757 

(11th Cir. 2019), opinion reinstated, 4 F.4th 1292 (11th Cir. 2021)

(holding Georgia’s aggravated assault statute is divisible because the 

simple assault statute “lists two separate crimes”).
30 USA V. BARLOW

modified approach thus acts not as an exception, but a 

tool.”). Rather, in the case of a guilty plea, we use the 

documents for the limited purpose of ascertaining whether 

the defendant “necessarily admitted [the] elements” of a 

specific statutory alternative. Shepard, 544 U.S. at 26 

(emphasis added). If the documents are ambiguous, we do 

not then look to the facts; we “presume that the conviction 

rested upon nothing more than the least of the acts 

criminalized.” Moncrieffe, 569 U.S. at 190–91 (cleaned up).4

The lone Shepard document in the record—the 

indictment—does not clarify which type of simple assault—

attempt-to-injure or reasonable-apprehension—formed the 

basis for Barlow’s aggravated assault conviction. The 

indictment alleges only that: (1) Barlow “did unlawfully 

make an assault upon the person of [the victim], with a 

handgun . . . by striking [the victim] with said handgun,” and 

(2) Barlow “did unlawfully make an assault upon the person 

of [the victim], with a handgun . . . by shooting [the victim] 

with said handgun.”

While “striking” and “shooting” someone with a gun 

certainly qualifies as ‘violence,’ I reiterate that in employing 

the required categorical approach, “we do not look to the 

facts underlying the conviction.” Tagatac, 36 F.4th at 1004. 

That is the most fundamental rule underlying the categorical 

approach. Taylor, 495 U.S. at 600 (creating the categorical 

approach and explaining that it forbids examination of “facts 

4 This principle is particularly salient here because Barlow’s conviction 

could have been the result of a plea bargain. As the Supreme Court has 

explained, “if a guilty plea to a lesser ... offense was the result of a plea 

bargain, it would seem unfair to impose a sentence enhancement as if the 

defendant had pleaded guilty” to a greater offense. Taylor, 495 U.S. at 

601–02.
USA V. BARLOW 31

underlying the prior convictions”). Instead of analyzing 

whether the conduct alleged in the indictment might strike 

an observer as ‘violent,’ we must use the indictment to 

determine only what elements the State was required to 

prove—those that Barlow necessarily admitted—to obtain 

the predicate conviction. See Pereida v. Wilkinson, 141 S. 

Ct. 754, 764–65 (2021); Shepard, 544 U.S. at 26. And on 

that question, Barlow’s indictment is silent. It does not 

clarify whether he was alleged to have committed attemptto-injure or reasonable-apprehension assault. Because the 

indictment provides no clarity, we must assume Barlow’s 

conviction rested upon the less-culpable conduct: 

reasonable-apprehension assault. Borden, 141 S. Ct. at 1822; 

Moncrieffe, 569 U.S. at 190–91; see Sahagun-Gallegos, 782 

F.3d at 1099-1100 (assuming the defendant was convicted 

of the lesser form of aggravated assault because the Shepard 

documents did not “cite[] a specific subsection” or “quote[] 

the elements of a specific subsection” of the simple assault 

statute).

This is where the majority’s analysis parts from mine. 

The majority concludes that the indictment could be read as 

alleging only attempt-to-injure assault because the 

indictment uses the words “striking” and “shooting.” Maj. 

Op. at 20. In other words, according to the majority, the 

allegations in Barlow’s indictment would not authorize a 

jury to convict for reasonable-apprehension aggravated 

assault. Maj. Op. at 20. The problem for the acceptance of 

the majority’s reading is that the Georgia Supreme Court has 

expressly held otherwise—twice. And, after all, we are 

dealing with a Georgia state conviction.5

5 We are bound by the Georgia Supreme Court’s interpretation of 

Georgia statutes. See, e.g., Johnson v. United States, 559 U.S. 133, 138 
32 USA V. BARLOW

In Simpson v. State, the indictment alleged that Simpson 

“assaulted [the victim] by shooting him with a gun . . . .” 589 

S.E.2d at 92 (emphasis added). Simpson argued that the trial

court erroneously instructed the jury that it could convict 

him of either reasonable-apprehension assault or attempt-toinjure assault. Id. The Georgia Supreme Court disagreed, 

holding that an allegation of assaulting a victim “by shooting 

him with a gun” “defined both methods of committing 

simple assault . . . .” Id. at 93 (emphasis added). The court 

upheld the conviction because a defendant can “be convicted 

for aggravated assault if he committed a simple assault in 

either manner contained in the simple assault statute, so 

long as the State proved that he did so by use of a gun.” Id.

(emphasis added). And it made clear that the “indictment did 

not and need not . . . specify the manner in which the 

defendant committed the simple assault.” Id. Rather, 

instructing the jury on reasonable-apprehension assault 

based on an allegation of “shooting [the victim] with a 

gun . . . did not authorize a conviction in a manner other than 

that alleged the indictment.” Id. at 92–93.

Similarly, in Johnson v. State, “[t]he indictment alleged 

that Johnson assaulted [the victim] by striking her with a 

gun, and that he assaulted [another victim] by shooting her 

with a gun.” 637 S.E.2d 393, 394 (Ga. 2006) (emphases 

added). Again, Johnson argued that the trial court 

erroneously instructed the jury that it could convict him of 

either attempt-to-injure assault or reasonable-apprehension 

assault. Id. And—again—the Georgia Supreme Court 

(2010); Johnson v. Fankell, 520 U.S. 911, 916 (1997) (“Neither this 

Court nor any other federal tribunal has any authority to place a 

construction on a state statute different from the one rendered by the 

highest court of the State.”).
USA V. BARLOW 33

disagreed. It concluded that an indictment alleging assault 

“by striking [the victim] with a gun” adequately alleged both 

types of simple assault. Id. at 395.6

The “shooting” and “striking” “with a gun” allegations 

in Simpson and Johnson are identical to those in Barlow’s 

indictment. We therefore must conclude that Barlow’s 

“indictment did not . . . specify the manner in which 

[Barlow] committed the simple assault.” Simpson, 589 

S.E.2d at 93. Because the indictment does not specify, we 

must assume Barlow’s “conviction rested upon nothing more 

than the least of the acts criminalized,” Moncrieffe, 569 U.S.

6 The majority misreads Simpson and Johnson as holding that an 

aggravated assault conviction for ‘shooting’ or ‘striking’ requires 

proving “the defendant attempted to cause a violent injury to the alleged 

victim.” Maj. Op. at 21–22 (quoting Johnson, 687 S.E.2d at 395). That 

selective quote of a jury instruction in Johnson shows only that the 

defendant there was, in fact, convicted of attempt-to-injure assault. 

Barlow, however, pleaded guilty and so no such instruction was given. 

And Simpson—which did not qualify its holding as the majority 

claims—makes clear that an allegation of shooting “authorize[s] a 

conviction” for reasonable-apprehension aggravated assault, so long as 

the State “allege[s] the aggravating aspect of the simple assault”—here, 

the use of a gun. 589 S.E.2d at 93; see O.C.G.A. § 16-5-21(a)(2) (“A 

person commits the offense of aggravated assault when he or she 

assaults . . . with a deadly weapon . . . .”). Thus, contrary to the 

majority’s conclusion, Georgia case law establishes that allegations of 

“shooting” and “striking” can charge reasonable-apprehension assault. 

But see Maj. Op. at 21.
34 USA V. BARLOW

at 190–91 (cleaned up) (emphasis added),7 which here is 

reasonable-apprehension aggravated assault.8

B.

The majority’s reading of Barlow’s indictment also parts 

with the Eleventh Circuit, which reached the opposite 

conclusion on an indistinguishable set of facts. Indeed, the 

Eleventh Circuit’s interpretation of Georgia’s aggravated 

assault statute should be persuasive because the Eleventh 

Circuit, after all, encompasses Georgia and is therefore more 

familiar with its statutes. Cf. Factors Etc. Inc. v. Pro Arts, 

Inc., 652 F.2d 278, 281–84 (2nd Cir. 1981). 

In United States v. Carter, the Eleventh Circuit 

employed the modified categorical approach to determine 

whether an indictment for “shooting at” a victim constituted 

attempt-to-injure assault or reasonable-apprehension assault 

7 The majority flips this presumption on its head. It claims that it is 

“meaningful” that attempt-to-injure assault “is properly charged” based 

on Barlow’s indictment. Maj. Op. at 21. That is the precisely the wrong 

way to frame the issue. The modified categorical approach requires us to 

ask whether the lesser crime—not the greater crime—is properly 

charged by the indictment. Moncrieffe, 569 U.S. at 190–91. If it would 

be proper for a jury to convict for either crime, we must presume that the 

lesser crime is the crime of conviction. See Marcia-Acosta, 780 F.3d at 

1252–53 & n.8 (citing Moncrieffe, 569 U.S. at 190–91) (explaining that 

we are “required to assume” the lesser crime was the crime of conviction 

whenever the defendant “was not required to admit” that he committed 

the greater crime).

8 Even if there were any “lingering ambiguity” about whether Barlow’s 

indictment alleged reasonable-apprehension assault, we must resolve 

such ambiguity in Barlow’s favor. Pereida, 141 S. Ct. at 765 (“We have 

observed that these [Shepard] materials will not in every case speak 

plainly, and that any lingering ambiguity about them can mean the 

government will fail to carry its burden of proof in a criminal case.” 

(internal quotation marks omitted)). 
USA V. BARLOW 35

under Georgia’s aggravated assault statute. 7 F.4th 1039, 

1044 (11th Cir. 2021). The court concluded the allegation of 

“shooting at” a victim did “not reveal which version of 

simple assault was the basis for Carter’s conviction.” Id. It 

thus assumed the defendant was convicted of the least of the 

acts criminalized: reasonable-apprehension assault. Id.

The majority tries to distinguish Carter based on the sole 

presence of that lone preposition: “at.” Maj. Op. at 20–21. It 

reasons that Carter is distinguishable because the indictment 

in that case alleged that the defendant committed assault by 

“shooting at” the victim, 7 F.4th at 1044 (emphasis added), 

while Barlow’s indictment alleges assault by “shooting” and 

“striking” the victim. According to the majority, Georgia 

law permits a reasonable-apprehension assault conviction 

for “shooting at” a victim but not for “shooting” or “striking” 

a victim. Maj. Op. at 20–21. The majority is incorrect to 

draw this distinction.

First, it might be preferable to be shot at rather than shot, 

but only because—as a factual matter—being “shot” implies 

that the bullet struck home, whereas being “shot at” suggests 

the bullet missed its mark. Indeed, as the majority sees it, it 

is “meaningful” that the “battery [was] completed.” Maj. Op. 

at 21. But Barlow was not convicted of the crime of 

battery—he was convicted of the crime of aggravated 

assault. And in Georgia, completing a battery is not an 

element of aggravated assault. In relying on this observation, 

the majority thus ignores “the categorical approach’s central 

feature: a focus on the elements, rather than the facts, of a 

crime.” See Descamps, 570 U.S. at 263 (emphasis added);

Marcia-Acosta, 780 F.3d at 1250 (“Consideration of only 

‘the elements of the crime of conviction’ is the pivotal 

concept in applying the modified categorical analysis.”). It 

mistakenly “look[s] to the facts underlying the conviction” 
36 USA V. BARLOW

to give weight to an element—contact—that is not an 

element of Barlow’s crime of conviction. Tagatac, 36 F.4th 

at 1004.9 Under the categorical approach, the shooting 

allegation in Barlow’s indictment is relevant only because 

the use of a gun is an aggravating element of simple assault 

under Georgia law, and thus determines his crime of 

conviction. Pereida, 141 S. Ct. at 764–65.10

Second, the majority’s reasoning cannot be squared with 

the Georgia Supreme Court’s decisions in Simpson and

Johnson. The indictments in those cases did not modify 

“shooting” or “striking” allegations with the preposition ‘at.’ 

See Simpson, 589 S.E.2d at 92–93; Johnson, 637 S.E.2d at 

9 The majority is incorrect to claim that Door authorizes its approach. 

Maj. Op. at 20 n.10 (citing Door, 917 F.3d at 1151–52). In Door, we did 

not evaluate language in an indictment, because the defendant was 

convicted under a specific subsection that categorically constituted a 

crime of violence. 917 F.3d at 1152–53. Ultimately, the majority offers 

no precedent that supports reading an indictment for anything other than 

determining whether a defendant “necessarily admitted [the] elements” 

of the crime. See Sahagun-Gallegos, 782 F.3d at 1098 (quoting Shepard, 

544 U.S. at 26) (emphasis added).

10 For similar reasons, I cannot agree with the majority’s assertion that 

the qualifying language in the indictment “is also relevant to the simple 

assault element because the indictment states in various separate places 

that Barlow used a gun in committing the crime.” Maj Op. at 19 n.11. A 

person can commit reasonable-apprehension assault using a gun by, for 

example, pointing a gun at a person without any desire to shoot, or by 

shooting a gun to scare a victim rather than to make contact. The claim 

that the use of a gun implicates attempt-to-injure simple assault involves 

a factual determination—not compelled by the allegations in the 

indictment—that Barlow used the gun in an attempt to injure his victim. 

That factual inference is precisely what the categorical approach forbids. 

See Taylor, 495 U.S. at 600; Sahagun-Gallegos, 782 F.3d at 1100–01.
USA V. BARLOW 37

394–95. We are bound by Simpson and Johnson, so the 

majority’s attempt to distinguish Carter is misplaced.11

Third, even assuming we could look to the facts 

underlying Barlow’s conviction (we cannot), and assuming 

further that Simpson and Johnson were not binding (they 

are), the majority’s ‘shooting at’ distinction actually 

strengthens the persuasive force of Carter. By alleging that 

the defendant shot “at” the victim, 7 F.4th at 1044, the 

indictment in Carter alleged that the defendant “direct[ed]” 

or “aim[ed]” his shots at the victim.12 Indeed, in Borden, the 

Supreme Court held that a crime of violence is one where the 

“perpetrator direct[s] his action at . . . another individual.”

141 S. Ct. at 1825 (emphasis added). Yet Carter still: (1) 

held that the “shooting at” allegation did “not reveal which 

version of simple assault was the basis for Carter’s 

conviction,” 7 F.4th at 1044; and (2) “assume[d] that he was 

convicted under the least of the acts criminalized by the 

statute—here . . . placing another in apprehension of 

receiving a violent injury.” Id. at 1044–45 (cleaned up). Why 

would a different result follow from the “shooting” and 

“striking” allegations in Barlow’s indictment, when those 

allegations are less suggestive of attempt to injure? After all, 

one could ‘shoot’ or ‘strike’ someone unintentionally (e.g., 

an inadvertent pull of the trigger), while one would tend to 

11 I reiterate: (1) Simpson and Johnson are binding, supra note 5; (2) the 

allegations in the Simpson and Johnson indictments are identical to those 

in Barlow’s indictment; and (3) Simpson and Johnson hold that such 

indictments permissibly allege reasonable-apprehension assault. From 

these three indisputable premises, it follows that Barlow’s indictment 

alleges reasonable-apprehension aggravated assault.

12 Webster’s II New Riverside Dictionary at 44 (Rev. Ed. 1996) 

(explaining that “at” is “[u]sed to indicate direction or aim,” as in “[she] 

smiled at him”).
38 USA V. BARLOW

shoot ‘at’ a victim only with purpose. The majority does not 

explain this point.

Nor can it. The majority’s attempted distinction is a part 

of its overall departure from our precedent applying the 

categorical approach. For example, in Castro, a panel of our 

Circuit deferred to the Montana Supreme Court’s 

interpretation of Montana’s PFMA statute. 71 F.4th at 742–

43. Here, the majority ignores the Georgia Supreme Court’s 

decisions in Simpson and Johnson. Maj. Op. at 21–23. And

in Castro, we presumed that the defendant’s conviction 

rested upon the lesser of the acts criminalized. 71 F.4th at 

739. Again, here, the majority assumes that Barlow’s 

conviction rested upon the greater. Maj. Op. at 21–23. 

Reading Castro and the majority opinion together, one might 

overlook that both were decided by the same Circuit, 

purported to apply the same legal framework, and were 

decided within mere months of one another.

Respectfully, I am surprised by the majority’s claim that 

Castro has “no impact on our analysis” because the court 

there “did not apply the modified categorical approach at all 

because the statute at issue there was not divisible.” Maj. Op. 

at 16 n.5. That distinction is irrelevant. As the Supreme 

Court has made clear, the modified categorical approach 

does not act “as an exception.” Descamps, 570 U.S. at 263. 

Under either the categorical approach or the modified 

categorical approach, we must always refrain from 

evaluating the facts and we must always presume that the 

conviction rested upon the least of the acts criminalized—

which is precisely what we did in Castro. See 71 F.4th at 739 

(citing Moncrieffe, 569 U.S. at 190–91). 

The majority’s attempt to elude Moncrieffe and Castro 

merely because this case involves the modified categorical 
USA V. BARLOW 39

approach runs headfirst into this Circuit’s decision in 

Marcia-Acosta, 780 F.3d at 1247–56. There, we considered 

whether the defendant’s conviction for aggravated assault in 

Arizona constituted a crime of violence. Id. at 1247. 

Arizona’s aggravated assault statute was divisible because it 

included, as alternative elements, intentional, knowing, or 

reckless simple assault. Id. at 1247–48. At the defendant’s 

plea colloquy, the defendant’s counsel stated that the 

defendant had “grabbed a metal bar ... hit the victim on the 

head, and ... caused an injury to the victim’s skull ... 

intentionally.” Id. at 1247. Relying on that factual-basis 

statement, the district court held that the defendant’s 

conviction necessarily entailed intentional aggravated 

assault, a crime of violence. Id. at 1248.

We vacated the defendant’s sentence and remanded for 

resentencing. Id. at 1255–56. Applying the modified

categorical approach, we presumed that the defendant’s 

conviction rested upon the least of the acts criminalized: 

reckless assault. Id. We disregarded the facts in the Shepard 

documents because the defendant was not “required to admit 

he acted knowingly or intentionally” to give effect to his 

guilty plea. Id. at 1253 (emphasis added). Rather, the

conviction “could have been supported by a finding of 

recklessness.” Id. at 1252 (emphasis added). “Thus, in 

applying the modified categorical approach, we would be 

required to assume that Marcia–Acosta's conviction was for 

reckless assault.” Id. at 1252 n.8 (citing Moncrieffe, 569 U.S. 

at 190–91) (emphasis added).

The panel concluded:

At bottom, the Shepard documents in this 

case at most suggest that Marcia–Acosta 

committed the crime of intentional 
40 USA V. BARLOW

aggravated assault. They do not show that 

Marcia–Acosta was convicted of that crime. 

On the contrary, from this record we cannot 

say whether he was convicted of the crime of 

intentional aggravated assault, the crime of 

knowing aggravated assault, or the crime of 

reckless aggravated assault.

...

We can say for sure only that the Shepard

documents do not prove that Marcia–Acosta 

was convicted of the crime of intentional (or 

knowing) aggravated assault, and so the 

modified categorical approach is not 

satisfied.

Id. at 1255–56 (emphases in original).

And in Sahagun-Gallegos, another case applying the 

modified categorical approach to an aggravated assault 

conviction, a panel of our Circuit did the same. 782 F.3d at 

1098–1100. There, we assumed that the defendant 

committed the lowest form of simple assault because the 

Shepard documents did not “cite[] a specific subsection” or 

“quote[] the elements of a specific subsection” of the simple 

assault statute. Id. at 1099. The government claimed that was 

irrelevant because the Shepard documents showed that the 

defendant “could only have violated” the subsection that 

involved a crime of violence. Id. at 1100. We flatly rejected 

that argument: “[T]he Government's argument asks us to 

adopt an approach that Descamps expressly forbids, namely, 

to discover what [the defendant] actually did, and then use 

the facts, as opposed to the elements, of his prior conviction 
USA V. BARLOW 41

to determine whether he committed a crime of violence.” Id.

(cleaned up).

Therefore, contrary to the majority’s assertion, the 

modified categorical approach does not relieve this Court of 

its duty—as articulated in Castro—to refrain from 

evaluating any facts beyond those required for the 

prosecution to obtain the conviction. See id. Where, as here, 

Barlow’s conviction “could have been supported by a 

finding of [reasonable-apprehension assault],” we are 

“required to assume that [Barlow’s] conviction was for 

[reasonable-apprehension assault].” See Marcia-Acosta, 780 

F.3d at 1252–53 & n.8 (emphases added). The majority’s 

refusal to apply the framework in Castro rests on a 

meaningless factual distinction that is flatly contradicted by 

our precedent. 

With respect, I believe the majority today oversteps its 

role. It mistakenly asks whether Barlow “committed” 

attempt-to-injure assault, rather than whether he was 

“convicted” of attempt-to-injure assault. See id. at 1255. The 

only thing we can say for sure is that the form of simple 

assault underlying Barlow’s conviction is uncertain. A 

faithful application of the categorical approach thus compels 

us to presume that Barlow’s conviction constituted 

reasonable-apprehension assault. I would follow our Circuit 

and the Eleventh Circuit’s precedent in so holding.

III.

The majority, concluding that Barlow’s indictment 

necessarily alleged attempt-to-injure assault, declines to 

decide whether the elements for reasonable-apprehension 

aggravated assault are encompassed by the Sentencing 

Guidelines’ definition of a crime of violence. Maj. Op. at 

19–20 & n.9; Moncrieffe, 569 U.S. at 190–91. Were the 
42 USA V. BARLOW

majority to reach the issue, binding precedent would again 

tie its hands—Borden answers, “No.”

Recall that the Sentencing Guidelines define a crime of 

violence as one that has “as an element, the use, attempted 

use, or threatened use of physical force against the person of 

another.” U.S.S.G. § 4B1.2(a)(1). In Borden, the Supreme 

Court clarified the mens rea requirement applicable to a 

defendant’s “use, attempted use, or threatened use” of force. 

141 S. Ct. at 1821–23. It held that a predicate crime cannot 

qualify as a crime of violence unless it requires proof that the 

defendant “knowingly” or “purposefully” used, attempted to 

use, or threatened to use force. Id. In other words, “a reckless 

offense cannot so qualify.” Id. That is because the “‘use of 

force’ denotes volitional conduct” of the defendant, and the 

use of such force “against” another person “expresses a kind 

of directedness or targeting.” Id. at 1825–27. Applying that 

reasoning, Borden concluded that Tennessee’s statutory 

aggravated assault is not categorically a violent felony 

because such an assault can be committed recklessly. Id. at 

1821–22.

So too here. To convict Barlow of reasonableapprehension aggravated assault, the State of Georgia was 

required to prove: (1) an intentional act, which (2) in fact 

placed the victim in reasonable apprehension of harm. 

Patterson v. State, 789 S.E.2d 175, 175–76 (Ga. 2016) (“All 

that is required is that the assailant intend to commit the act 

which in fact places another in reasonable apprehension of 

injury, not a specific intent to cause such apprehension.” 

(cleaned up)). Georgia law imposes no mental culpability 

requirement be proven as to the defendant’s actions with 

respect of the element of placing a victim in reasonable 

apprehension of harm. Id. Reasonable-apprehension 

aggravated assault “is a general intent crime, meaning that 
USA V. BARLOW 43

the State need not prove that the accused intended to place 

another in reasonable apprehension of receiving immediate 

bodily injury.” Cruz v. State, 874 S.E.2d 136, 139 (Ga. Ct. 

App. 2022). 

[P]ursuant to the express language of 

[O.C.G.A. § 16-5-20](a)(2), an assault under 

that subsection looks to the victim’s state of 

mind, rather than the accused’s, to establish 

the elements of an assault. There is an intent 

of the accused that must be shown, but it is 

only the criminal intent to commit the acts 

which caused the victim to be reasonably 

apprehensive of receiving a violent injury, 

not any underlying intent of the accused in 

assaulting the victim.

Dunagan v. State, 502 S.E.2d 726, 730 (Ga. 1998) (cleaned 

up) (emphases added), overruled on other grounds as 

recognized by Holmes v. State, 529 S.E.2d 879, 882 (Ga. 

2000).13 Because reasonable-apprehension aggravated 

13 As summarized by a Georgia treatise:

Where the defendant is charged with the reasonable 

apprehension type of deadly weapon aggravated 

assault, . . . a general intent to injure is not an element 

of the offense. Proof of the defendant’s use of a deadly 

or offensive weapon which placed the victim in 

reasonable apprehension of immediately receiving a 

violent injury would be sufficient for conviction. In 

this type of deadly or offensive weapon aggravated 

assault, the state must show the intention to commit 

the act of using the deadly or offensive weapon, not 

the intention to make the victims apprehensive. 
44 USA V. BARLOW

assault does not require proof of the defendant’s knowing or 

purposeful use, attempted use, or threatened use of force, 

Borden establishes that such reasonable-apprehension 

aggravated assault is not a crime of violence.

To be sure, Georgia adheres to the common law 

distinction between “general intent” and “specific intent” 

crimes, while Borden instead uses the Model Penal Code’s 

culpability standards. See United States v. Bailey, 444 U.S. 

394, 404 (1980) (explaining the difference between the 

common law and the Model Penal Code approaches for 

defining the mental component of criminal culpability); 

Borden, 141 S. Ct. at 1823 (citing Bailey, 444 U.S. at 404) 

(applying the Model Penal Code approach). In other words, 

Borden drew the line at the Model Penal Code’s formulation 

of “recklessness.” 141 S. Ct. at 1823. So, applying Borden 

requires us to translate the Model Penal Code’s 

“recklessness” into Georgia’s common law framework.

Fortunately, Section 2.02 of the Model Penal Code 

translates “the common law requirement of ‘general intent’” 

into the Model Penal Code’s mental culpability framework. 

Model Penal Code § 2.02, Comment 5. According to that 

translation, when “the culpability sufficient to establish a 

material element of an offense is not prescribed by law, such 

element is established if a person acts purposely, knowingly 

or recklessly with respect thereto.” Model Penal Code 

§ 2.02(3) (emphasis added). Because Georgia law does not 

prescribe a mental culpability requirement for the element of 

placing the victim in apprehension of harm, Patterson, 789 

S.E.2d at 175–76; Dunagan, 502 S.E.2d at 730; Cruz, 874 

S.E.2d at 139, the Model Penal Code is clear that that 

Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Ga., A58 

(2022 ed.) (footnotes omitted) (emphases added).
USA V. BARLOW 45

element can be satisfied through proof of recklessness, 

Model Penal Code § 2.02(3). Reasonable-apprehension 

aggravated assault can therefore be committed recklessly, 

and so is not a crime of violence. Borden, 141 S. Ct. at 1821–

23.

Indeed, the Eleventh Circuit has twice held that a 

Georgia conviction for reasonable-apprehension aggravated 

assault “cannot qualify as a crime of violence” for this 

precise reason. Moss, 920 F.3d at 759; Carter, 7 F.4th at 

1043. And Borden cited Moss with approval, 141 S. Ct. at 

1823 n.2. 

I would therefore join the Eleventh Circuit in concluding 

that reasonable-apprehension aggravated assault under 

Georgia law is not a crime of violence.

* * *

As this case demonstrates, the categorical approach can 

sometimes produce results which at first appear absurd. But 

we are bound by it. And applying it here, Barlow’s Georgia 

conviction for aggravated assault must be deemed 

reasonable-apprehension assault, which is not a crime of 

violence, and which should not have been treated as a crime 

of violence by the sentencing court. For this reason, I would 

vacate Barlow’s sentence and remand for resentencing.