IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60452

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

LEONARD GRIFFIN, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

PER CURIAM:

The question is whether Mississippi aggravated assault, MISS. CODE 

ANN. § 97-3-7(2) (West 1997), is a violent felony under the Armed Career 

Criminal Act, 18 U.S.C. § 924(e). We conclude that it is. 

I.

The Armed Career Criminal Act (ACCA) imposes a fifteen-year 

minimum sentence on a defendant who is convicted of being a felon in 

possession of a firearm and has three previous convictions for “violent 

felon[ies]” or “serious drug offense[s].” 18 U.S.C. § 924(e)(1). Absent those 

prior convictions, the punishment range for the felon-in-possession offense is 

much lower—between zero and ten years. Id. §§ 922(g), 924(a)(2). 

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2020

Lyle W. Cayce

Clerk

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No. 17-60452

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The Act defines “violent felony” as a crime punishable by more than a 

year of imprisonment that (1) “has as an element the use, attempted use, or 

threatened use of physical force against the person of another” (the elements 

clause); (2) is burglary, arson, extortion, or involves the use of explosives (the 

enumerated offenses clause); or (3) “otherwise involves conduct that presents 

a serious potential risk of physical injury to another” (the residual clause). 18 

U.S.C. § 924(e)(2)(B); United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 

2017). Johnson v. United States, 135 S. Ct. 2551 (2015), held that the last of 

these definitions, the residual clause, is unconstitutionally vague. Id. at 2563. 

Soon after, the Supreme Court announced that Johnson retroactively applies

to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265

(2016). 

Leonard Griffin invokes Johnson in this collateral challenge to his 2008

conviction for being a felon in possession of a firearm. The district court 

sentenced him as an armed career criminal after finding that he had three 

convictions for violent felonies. Two of his convictions were for Mississippi 

strong arm robbery. His third was for Mississippi aggravated assault. The 

court thus imposed the ACCA’s fifteen-year minimum sentence. 

Within a year of Johnson, Griffin filed a successive section 2255 petition 

challenging his sentence. See 28 U.S.C. § 2255(f)(3). After we authorized

Griffin to file the petition, the district court denied it on the merits. The district

court ruled that Griffin’s three predicate offenses still constituted violent 

felonies under the ACCA’s elements clause, which Johnson did not affect. 

Although Griffin sought permission to appeal the classification of all three 

predicates as violent felonies, we granted him a certificate of appealability on 

only one issue: “whether the district court erred by denying [his] § 2255 motion 

based on its determination that Mississippi aggravated assault constitutes a 

violent felony post-Johnson.”

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II.

In ruling on the motion for postconviction relief, the district court 

recognized that it relied on the residual clause at Griffin’s 2008 sentencing. 

Accordingly, there is jurisdiction to consider this successive habeas 

application. United States v. Clay, 921 F.3d 550, 559 (5th Cir. 2019). 

But reliance on the residual clause was harmless if Griffin’s three 

convictions also satisfied the other, still-valid definitions of “violent felony.” 

The certificate of appealability limits our review to Griffin’s aggravated assault 

conviction. Because the ACCA does not list aggravated assault in its 

enumerated offense clause, Griffin’s petition turns on whether Mississippi 

aggravated assault is a violent felony under the elements clause.1 

When Griffin was convicted of aggravated assault, the Mississippi 

statute read as follows: 

A person is guilty of aggravated assault if he (a) attempts to 

cause serious bodily injury to another, or causes such injury 

purposely, knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of human life; or (b) 

attempts to cause or purposely or knowingly causes bodily injury 

to another with a deadly weapon or other means likely to produce 

death or serious bodily harm . . . . 

MISS. CODE. ANN. § 97-3-7(2) (West 1997). 

The statute is divisible. See Mason v. State, 867 So. 2d 1058, 1059 (Miss. 

Ct. App. 2004). We thus apply the modified categorical approach to evaluate 

whether the offense is a violent felony. See United States v. Lerma, 877 F.3d 

628, 631 (5th Cir. 2017), cert. denied, 138 S. Ct. 2585 (2018). Under that 

 

1 Although Griffin waived the right to collaterally attack his conviction in his plea 

agreement, the government forfeited the right to invoke Griffin’s waiver by failing to assert 

waiver in the district court. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006); see 

also United States v. Wiese, 896 F.3d 720, 722 n.1 (5th Cir. 2018), cert. denied, 139 S. Ct. 1328 

(2019). 

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approach, we “look[] to a limited class of documents (for example the 

indictment, jury instructions, or plea agreement and colloquy) to determine 

what crime, with what elements, a defendant was convicted of.” Mathis v. 

United States, 136 S. Ct. 2243, 2249 (2016). If our inquiry narrows the offense 

to a particular section of the statute, we then assess whether that crime 

satisfies the elements clause. It does if one of its elements “include[s] the use, 

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

another.” Lerma, 877 F.3d at 631. 

Griffin’s aggravated assault indictment charged him with violating 

subsection (a) of the Mississippi statute. He argues that section 97-3-7(2)(a) 

does not require the use of physical force because it allows conviction only on 

causing “serious bodily injury.” That injury can be caused, Griffin contends,

from nonviolent acts like poisoning. 

Our recent en banc decision in United States v. Reyes-Contreras, 910 F.3d 

169 (5th Cir. 2018) (en banc), defeats Griffin’s argument. We held that both 

direct force (using destructive or violent force against someone) and indirect 

force (causing bodily injury through actions that are not themselves violent) 

constitute “physical force.” Reyes-Contreras, 910 F.3d at 181–82. We also held 

that causing injury necessarily involves the use of physical force. See id. at 

183–84. Finally, with respect to mens rea, we held that “use of force” includes

knowing and reckless conduct in addition to intentional conduct. Id. at 183. 

After Reyes-Contreras, an offense satisfies the elements clause if the 

proscribed conduct “(1) is committed intentionally, knowingly, or recklessly; 

and (2) ‘employs a force capable of causing physical pain or injury’; (3) against 

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the person of another.” United States v. Gracia-Cantu, 920 F.3d 252, 254 (5th 

Cir. 2019) (per curiam) (quoting Reyes-Contreras, 910 F.3d at 185).2

Mississippi aggravated assault is a violent felony under this rubric. The 

offense conduct must be committed “purposely, knowingly or recklessly under 

circumstances manifesting extreme indifference to the value of human life.” 

MISS. CODE ANN. § 97-3-7(2)(a) (West 1997); see also Gracia-Cantu, 920 F.3d 

at 254. And the conduct must cause “serious bodily injury to another,” MISS.

CODE ANN. § 97-3-7(2)(a) (West 1997), which Reyes-Contreras explained

“necessarily requires the use of physical force,” United States v. Burris, 920 

F.3d 942, 952 (5th Cir. 2019). 

We have previously recognized, albeit in an unpublished opinion, that 

our en banc elimination of the distinction between indirect and direct force 

means that Mississippi aggravated assault is a violent felony under the 

elements clause. United States v. Liddell, 776 F. App’x 258 (5th Cir. 2019). 

Further supporting that conclusion is another recent decision holding that the 

similarly worded Texas aggravated assault offense satisfies the elements 

clause. See United States v. Gomez Gomez, 917 F.3d 332, 333–34 (5th Cir. 

2019); see also United States v. Combs, 772 F. App’x 108, 109–10 (5th Cir. 

2019). Compare TEX. PENAL CODE ANN. § 22.02(a)(1), with MISS. CODE ANN.

§ 97-3-7(2)(a) (West 1997). 

* * *

We AFFIRM the denial of Griffin’s section 2255 petition.

 

2 Although Reyes-Contreras and Gracia-Cantu dealt with the definition of “crime of 

violence” under 18 U.S.C. § 16, we construe the elements clauses of section 16 and the ACCA 

congruently. See Reyes-Contreras, 910 F.3d at 174 n.6.

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