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

D ARYL L YNN H IGDON , Petitioner-Appellant ,

v

.

U NITED S TATES OF A MERICA , Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ 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—Robe rt 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, FEDERA L DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxv ille, Tennessee, for Appellee. ON BRIEF: Rosana E. Brown, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLa urin, 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 co nviction for discharging a firearm into an occupied structure. 

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

The question here is whether that offense—which re quires 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 a nother.” 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 de termined that Higdon was subject to a 15-year mandatory-minimum sentence under the Armed Ca reer Criminal Act, 18 U.S.C. § 924(e)(1), based in part on Higdon’s 1984 conviction for discharg ing 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 resi dual 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 “vio lent 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 ag ainst the person of anothe r[.]” 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” unde r the ACCA if (among ot her things) it “has as an element the use, attempted use, or threat ened 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 discharg ing 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, ai rcraft, watercraft, or other conveyance, device, equipment, erection, or enclosure wh ile 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 discha rging (2) a firearm (3) into property (4) while itNo. 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 th e government has not presented any developed argument, that these elements involve the “att empted” or “threatened” use of physical force against the person of another. Indeed the governme nt all but disavowed any such theory at oral argument. Thus the question here is simply whet her these elements, taken separately or together, require the “use . . . of physical force against th e person of another[.]” Plainly they do not: the North Carolina offense requires th e 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 for ce applied to the pe rson of anyone—and yet the shooting can satisfy all the elements of the North Carolina o ffense. Thus, discharging a firearm into an occupied structure in violation of N.C. Gen. Stat. § 14-34.1 is not a “v iolent 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 subsec tion’s more tangible requirement s. 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 intenti onally 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 co nsequences).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 anothe r person to be.’” Op. at 8 (quoting Parral-Dominguez , 794 F.3d at 452 (Wilkinson, J., dissent ing)). That description might well satisfy the requirement that the defendant act recklessly, but that re quirement 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 l ogic, 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 st ruck 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 agai nst the person of another if the defendant merely shoots in the person’s “direction”—even without hitting him. In so asserting, the go vernment 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 anothe r.” Instead a better fit comes with an alternative definition: “[s]o as to co me 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 st atutory text—as opposed to saying simply, “force against another”—is to emphasize th at the force must be applied to the victim’s “person.” The offense here lacked that requirement, and thus Higdon lacks the predicat e convictions to be
sentenced as an armed career criminal.
The district court’s January 3, 2017 judgmen t is reversed, and the case remanded for proceedings consistent with this opinion.