### 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, M ISS

. C ODE A NN

. § 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 A rmed C areer 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), 92 4(a)(2). United States Court of Appeals Fifth Circuit 

### FILED January 8, 2020

Lyle W. Cayce Clerk Case: 17-60452 Document: 00515263565 Page: 1 Date Filed: 01/08/2020No. 17

- 60452

2 The A ct 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

enumera ted 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. Uni ted States , 135 S. Ct. 2551 (2015), held that the last of these definitions , the residual clause , is unconstitutionally vague

. Id. at 25 63

. Soon after , the Supreme Court announced that Johnson retroactively appli es 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 200 8 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 p redicate 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, w e granted him a certificate of appeal ability on only one issue: “whether the district court e rred by denying [his] § 2255 motion based on its determination that Mississippi aggravated assault constitutes a violent felony post

- Johnson .” Case: 17-60452 Document: 00515263565 Page: 2 Date Filed: 01/08/2020No. 17

- 60452

3 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.” T he certificate of appealability limits our review to Griffin’s aggravated assault conviction. Because t he 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 . . . .
M ISS

. C ODE

. A NN

. § 97

- 3

- 7(2) (West 1997). Th e statute is divisible

. S ee Mason v. State , 867 S o. 2d 1058, 1059 (Miss. Ct. App. 2004) . W e 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 di strict 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). Case: 17-60452 Document: 00515263565 Page: 3 Date Filed: 01/08/2020No. 17

- 60452

4 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 parti cular section of the statute, w e then assess whether th at crime satisfies the elements clause . It does i f one of its elements “include [s] the use, attempted use, or threatened use of physic al 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 forc e 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. W e 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

- Con t rera s , 910 F.3d at 181

– 82. We also held that causing injury necessarily involves the use of physical force. See id. at 183

– 84. F inally , with respect to mens rea, we held that “use of force” include s knowing and reckless conduct in addition to intentional conduct. Id. at 183. After Reyes

- Contreras , a n 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 Case: 17-60452 Document: 00515263565 Page: 4 Date Filed: 01/08/2020No. 17

- 60452

5 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.” M ISS

. C ODE A NN

. § 97

- 3

- 7(2)(a) (West 1997) ; s ee also Gracia

- Cantu , 920 F.3d
at 254. And the conduct must cause “serious bodily injury to another,” M ISS

. C ODE A NN

. § 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 th e 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 Sta tes 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 T EX

. P ENAL C ODE A NN

. § 22.02(a)(1), with M ISS

. C ODE A NN

. § 97

- 3

- 7(2)(a) (West 1997). * * * W e AFFIRM the denial of Griffin’s section 2255 petition.

2 Although Reyes

- Contreras and Gracia

- Cantu dealt with the defini tion 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. Case: 17-60452 Document: 00515263565 Page: 5 Date Filed: 01/08/2020