RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 18a0030p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

DARYL LYNN HIGDON, 

Petitioner-Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

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No. 17-5027 

Appeal from the United States District Court 

for the Eastern District of Tennessee at Greeneville. 

Nos. 2:12-cr-00104-1; 2:16-cv-00246—Robert Leon Jordan, District Judge. 

Argued: December 7, 2017 

Decided and Filed: February 13, 2018 

Before: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN 

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED 

STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Rosana 

E. Brown, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, 

Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, 

Knoxville, Tennessee, for Appellee. 

_________________ 

OPINION 

_________________ 

 KETHLEDGE, Circuit Judge. Daryl Higdon was sentenced as an armed career criminal 

based in part on a North Carolina conviction for discharging a firearm into an occupied structure. 

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No. 17-5027 Higdon v. United States Page 2

The question here is whether that offense—which requires an application of force to an occupied 

structure, but not to the occupants themselves—nonetheless counts as an offense that involves 

the use “of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). We hold 

it does not and reverse the district court’s decision to the contrary. 

 Higdon pled guilty in 2012 to being a felon in possession of a firearm in violation of 

18 U.S.C. § 922(g)(1). The district court determined that Higdon was subject to a 15-year 

mandatory-minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), 

based in part on Higdon’s 1984 conviction for discharging a firearm into an occupied structure in 

violation of N.C. Gen. Stat. § 14-34.1 (1981). The court thus sentenced Higdon to 15 years’ 

imprisonment. Higdon did not appeal. About two years later, however, the Supreme Court 

invalidated the so-called residual clause of the ACCA. See Johnson v. United States, 135 S. Ct. 

2551 (2015). Higdon then moved to set aside his sentence under 28 U.S.C. § 2255, arguing that 

the North Carolina offense for which he was convicted was not a “violent felony” under the 

remaining provisions of the ACCA. The district court denied the motion, holding that the North 

Carolina offense did “involve the use of force against the person of another[.]” Op. at 6. We 

review that decision de novo. Braden v. United States, 817 F.3d 926, 929-30 (6th Cir. 2016). 

 An offense counts as a “violent felony” under the ACCA if (among other things) it “has 

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). Here, the relevant North Carolina offense is defined as 

follows: 

Any person who willfully or wantonly discharges or attempts to discharge: 

(1) Any barreled weapon capable of discharging shot, bullets, pellets, or other 

missiles at a muzzle velocity of at least 600 feet per second; or 

(2) A firearm 

into any building, structure, vehicle, aircraft, watercraft, or other conveyance, 

device, equipment, erection, or enclosure while it is occupied is guilty of a Class 

H felony. 

N.C. Gen. Stat. § 14-34.1 (1981). As interpreted by the North Carolina courts, “[t]he elements of 

this offense are (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it 
No. 17-5027 Higdon v. United States Page 3

is occupied.” State v. Rambert, 459 S.E.2d 510, 512 (N.C. 1995). As a judicial gloss, the North 

Carolina courts have added a fifth element, namely that the defendant know or have “reasonable 

grounds to believe” that the property (which we refer to here as a “structure”) might be occupied. 

State v. James, 466 S.E.2d 710, 715 (N.C. 1996). 

 Here, the district court did not hold, and the government has not presented any developed 

argument, that these elements involve the “attempted” or “threatened” use of physical force 

against the person of another. Indeed the government all but disavowed any such theory at oral 

argument. Thus the question here is simply whether these elements, taken separately or together, 

require the “use . . . of physical force against the person of another[.]” Plainly they do not: the 

North Carolina offense requires the use of force (in the form of discharging a firearm) against a 

structure, not “against the person of another.” The projectile can miss the structure’s occupants 

altogether—with no physical force applied to the person of anyone—and yet the shooting can 

satisfy all the elements of the North Carolina offense. Thus, discharging a firearm into an 

occupied structure in violation of N.C. Gen. Stat. § 14-34.1 is not a “violent felony” under the 

ACCA, at least on a “use” theory. Accord United States v. Parral-Dominguez, 794 F.3d 440, 

445 (4th Cir. 2015) (same).

 In arguing the contrary, the government confuses the mens rea requirements of 

§ 924(e)(2)(B)(i) with that subsection’s more tangible requirements. The subsection’s definition 

of “violent felony” includes four requirements, to wit: (1) conduct giving rise to force (e.g., 

pulling a trigger on a gun); (2) certain consequences from that conduct (i.e., the application of 

“physical force against the person of another”); and two types of mens rea, namely that (3) the 

conduct giving rise to the force be “volitional” rather than accidental, see Voisine v. United 

States, 136 S. Ct. 2272, 2278-79 (2016), and that (4) the defendant be at least reckless as to the 

consequences of that conduct. See United States v. Verwiebe, 874 F.3d 258, 264 (6th Cir. 2017); 

but see United States v. Harper, 875 F.3d 329, 330-33 (6th Cir. 2017) (interpreting the relevant 

text to mean that the defendant must act intentionally or knowingly as to those consequences). 

Here, the government argues throughout its brief (and, respectfully, the district court held) that 

the North Carolina offense meets the second requirement (i.e., the consequences requirement) 

simply because it meets the fourth one (i.e., the necessary mens rea as to those consequences). 
No. 17-5027 Higdon v. United States Page 4

For example, as the district court put it, “‘[e]ven if no one was actually struck, the defendant 

fired a bullet toward a location where he knew or believed another person to be.’” Op. at 8 

(quoting Parral-Dominguez, 794 F.3d at 452 (Wilkinson, J., dissenting)). That description might 

well satisfy the requirement that the defendant act recklessly, but that requirement is separate 

from the one that the force be used “against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i) 

(emphasis added). And as to that requirement it matters very much whether the person was 

“actually struck.” (Indeed, by the government’s logic, a defendant who intentionally fired a gun 

at someone would be guilty of murder even if he missed.) Nor, for similar reasons, does the 

plate-throwing hypothetical from Voisine do the government any good here; for there, unlike 

here, some of the shards actually struck the victim. 136 S. Ct. at 2279. 

 The government also seems implicitly to adopt a meaning of “against” that is implausible 

in the context of § 924(e)(2)(B)(i). By way of background, the government repeatedly asserts 

that a defendant uses force against the person of another if the defendant merely shoots in the 

person’s “direction”—even without hitting him. In so asserting, the government seems to use 

“against” in the sense of “[i]n hostile opposition or resistance to[,]” which is indeed one of the 

word’s definitions. American Heritage Dictionary 32 (3d ed. 1992). Yet the usage example for 

that definition is “struggle against fate,” id., which illustrates that this meaning is too abstract for 

a phrase as concrete as “physical force against the person of another.” Instead a better fit comes 

with an alternative definition: “[s]o as to come into forcible contact with[,]” for which the 

example is “dashing waves against the shore.” Id. That definition involves physical contact with 

the (physical) object of the preposition, which makes the definition the more natural one for 

“against” as used in “physical force against the person of another.” Indeed the very point of 

including the words “the person of” in the statutory text—as opposed to saying simply, “force 

against another”—is to emphasize that the force must be applied to the victim’s “person.” The 

offense here lacked that requirement, and thus Higdon lacks the predicate convictions to be 

sentenced as an armed career criminal. 

 The district court’s January 3, 2017 judgment is reversed, and the case remanded for 

proceedings consistent with this opinion.