[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14963

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

LONNIE FAVORS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:19-cr-60136-WPD-1

____________________

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 1 of 18
2 Opinion of the Court 19-14963

Before NEWSOM, MARCUS, Circuit Judges, and LAWSON,* District 

Judge.

PER CURIAM:

Lonnie Favors appeals his conviction and sentence for 

knowingly possessing a firearm and ammunition as a convicted 

felon, in violation of 18 U.S.C. § 922(g)(1). Favors argues that he is 

entitled to a new trial because the prosecutor engaged in misconduct during closing arguments. After review, and with the benefit 

of oral argument, we conclude that while some of the prosecutor’s 

commentary was improper, none of the remarks affected Favors’

substantial rights. Moreover, there was sufficient evidence of Favors’ guilt to support the verdict; therefore, any error was harmless. We accordingly affirm Favors’ conviction. However, we vacate Favors’ 240-month sentence and remand for resentencing under United States v. Carter, 7 F.4th 1039 (11th Cir. 2021) and United 

States v. Moss, 920 F.3d 752 (11th Cir. 2019), opinion reinstated in 

light of Borden v. United States, 141 S. Ct. 1817 (2021), 4 F.4th 1292 

(11th Cir. 2021) (en banc). 

I.

On April 11, 2019, the Fort Lauderdale Police Department 

(“FLPD”) received a 911 call reporting an armed subject asleep inside a white Jeep Wrangler parked at Broward Garden Apartments, 

* Honorable Hugh Lawson, Senior United States District Judge for the Middle 

District of Georgia, sitting by designation. 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 2 of 18
19-14963 Opinion of the Court 3

located at 2910 Northwest 19th Street in Fort Lauderdale, Florida.

Major Dana Swisher, a 22-year veteran of the FLPD and the supervisor of the department’s road patrol unit, and Officer Robert Norvis responded to the call. Typically, Major Swisher does not respond to 911 calls. Occasionally, though, he accompanies his subordinates to observe the impact of departmental policies. On the 

morning of April 11, Major Swisher was a passenger in Officer Norvis’ patrol car.

Swisher, Norvis, and three other FLPD officers were dispatched to Broward Garden Apartments around 8:18 a.m. The officers arrived in marked patrol vehicles. For safety purposes, and to 

maintain the element of surprise, the officers did not activate their 

flashing lights or sirens. Each officer was wearing a patrol uniform. 

Major Swisher and Officer Norvis additionally wore bullet-proof 

vests. 

All of the officers, with the exception of Major Swisher, were 

equipped with body-worn cameras in accordance with a recently 

enacted FLPD policy. Major Swisher testified that the department 

did not issue him a body-worn camera as the policy exempted any 

officer ranked above captain. Officer Norvis testified that FLPD issued him a body-worn camera on March 23, 2019. While he was 

wearing the camera on April 11, Norvis stated that the events leading to Favors’ arrest happened so fast that he forgot to activate the 

camera. Only about three minutes passed between the time Major 

Swisher and Officer Norvis entered the apartment complex parking 

lot and the time they arrested Favors. FLPD policy required Officer 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 3 of 18
4 Opinion of the Court 19-14963

Norvis to e-mail his supervisor regarding any failure to turn on his 

camera. There is no evidence that Norvis sent an e-mail. Shortly 

after Favors’ arrest, Norvis did, however, inform Major Swisher, 

who was in his chain of command, that he did not record the 

events. 

As Major Swisher and Officer Norvis pulled into the south 

side of the apartment complex, they observed a white Jeep Wrangler backed into a parking space. There was a wrought-iron fence 

behind the Jeep and a U-Haul truck adjacent to the vehicle. The 

officers parked some distance from the Jeep and approached along 

the fence line with their service weapons drawn. The officers used 

the U-Haul truck as a shield as they neared the Jeep and looked for 

an occupant. 

The officers observed a male subject reclined in the driver’s 

seat. He appeared to be asleep. Major Swisher instructed Officer 

Norvis to move toward the driver’s side door. Officer Norvis tried 

the door handle, but it was locked. Major Swisher then rounded 

the vehicle toward the front right quarter panel so that he could 

view the driver through the front windshield. From his position, 

Officer Norvis observed the butt of a firearm protruding from underneath the driver’s side seat. When the suspect, whom the officers later identified as Favors, stretched his arms and sat up, the officers gave verbal commands for him to put his hands up and to 

unlock the driver’s side door. Favors complied. The officers removed Favors from the vehicle and placed him in handcuffs. Major 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 4 of 18
19-14963 Opinion of the Court 5

Swisher testified that after Favors’ arrest he saw the butt of the firearm beneath the driver’s side seat. 

Officer Norvis conducted a pat-down search of Favors. The 

search revealed two magazines fully loaded with nine-millimeter 

bullets in the front pocket of Favors’ hooded sweatshirt. Officer 

Norvis photographed the gun located on the floorboard under the 

driver’s seat with his tablet camera. He then removed the firearm 

from the vehicle. Norvis identified the gun as a Tauris nine-millimeter pistol. The gun was fully loaded with a round in the chamber. 

Senior Special Agent Joshua Murr with the federal Bureau of 

Alcohol, Tobacco, and Firearms (“ATF”) examined the firearm and 

ammunition seized during Favors’ arrest. Agent Murr testified that 

the Taurus nine-millimeter pistol was manufactured in Brazil and 

imported to Miami, Florida by Taurus International, who then distributed the firearm to Georgia. The agent thus concluded that the 

firearm had traveled in interstate and foreign commerce. The agent 

further determined that the ammunition had been manufactured 

in Minnesota and traveled in interstate commerce. Finally, Agent 

Murr testified that the firearm was operational. The agent was not 

aware whether DNA or fingerprints were taken from the firearm. 

But, according to Agent Murr, it is rare to extract fingerprints from 

firearms because the solvents commonly used to clean firearms remove fingerprints. 

Favors stipulated at trial that he was previously convicted of 

a felony offense. He also stipulated that at the time he possessed 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 5 of 18
6 Opinion of the Court 19-14963

the firearm and ammunition in this case, he knew that he had previously been convicted of a felony offense.

A.

Favors argues that the government committed prosecutorial misconduct by making eight improper statements during closing arguments. Favors asserts those statements inflamed the jury’s 

passions, interjected the prosecutor’s personal experience to vouch 

for the credibility of the government’s witnesses, and shifted the 

burden of proof from the government to the defense. 

We review de novo claims of prosecutorial misconduct during closing arguments. United Stated v. Sosa, 777 F.3d 1279, 1294 

(11th Cir. 2015). To establish prosecutorial misconduct, “(1) the remarks must be improper, and (2) the remarks must prejudicially 

affect the substantial rights of the defendant.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006) (quotation marks omitted). 

“A defendant’s substantial rights are prejudicially affected when a 

reasonable probability arises that, but for the remarks, the outcome 

of the trial would have been different.” Id. “When the record contains sufficient independent evidence of guilt, any error is harmless.” Id.

“Prosecutorial misconduct must be considered in the context of the entire trial, along with any curative instruction.” United 

States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) (citing United 

States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997)). “Because 

statements and arguments of counsel are not evidence, improper 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 6 of 18
19-14963 Opinion of the Court 7

statements can be rectified by the district court’s instruction to the 

jury that only the evidence in the case be considered.” United States 

v. Smith, 918 F.2d 1551, 1562 (11th Cir. 1990). When the district 

court provides a curative instruction, “we will reverse only if the 

evidence is so prejudicial as to be incurable by that measure.” 

Lopez, 590 F.3d at 1256. 

1.

Favors argues that he is entitled to a new trial based on the 

prosecutor’s repeated attempts to gain the jury’s sympathy and to 

inflame the passions of the jury. Favors contends that the prosecutor’s tactics were misleading and confusing. Prosecutors must refrain from improper tactics designed to produce a wrongful conviction. Berger v. United States, 295 U.S. 78, 88 (1935). The only purpose of closing arguments is for the prosecutor to help the jury 

evaluate the evidence. United States v. Rodriguez, 765 F.2d 1546, 

1559 (11th Cir. 1985). “A prosecutor is . . . forbidden to make improper suggestions, insinuations and assertions calculated to mislead the jury and may not appeal to the jury’s passion or prejudice.” 

Id. at 1559-60 (quotation marks and citation omitted).

According to Favors, the prosecutor endeavored to garner 

the jury’s sympathy by drawing a comparison between the officers 

responding to the 911 call and members of the armed forces:

Think about this, ladies and gentlemen. There’s been 

criticism of the police and how they did their job, but 

other than the military, can you think of any other 

profession where you leave your house—if you’re 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 7 of 18
8 Opinion of the Court 19-14963

married, you leave your wife. If you’re a father, you 

leave your children. If you’re a mother . . .

Defense counsel objected to the prosecutor’s remark before 

he finished his sentence, arguing that the prosecutor was asserting 

an improper argument and inflaming the passions of the jury. The 

district court sustained the objection. The prosecutor moved on

with his argument. He went on to say that the officers wore bulletproof vests for a reason. Defense counsel twice objected to this remark. The district court overruled the objection.

Favors argues that the prosecutor’s comments were strategically designed to draw on the jury’s sympathies for members of 

the military, who risk their lives in defense of others. But defense 

counsel’s well-timed objection makes it uncertain what conclusion 

the prosecutor intended to draw. Even if the prosecutor had completed his statement in the way presupposed by Favors, we do not 

find the remark inflammatory. It is commonly understood that law 

enforcement officers face certain dangers in the line of duty. Moreover, it is evident from the context of the evidence presented during the trial of this case that the officers faced dangerous circumstances. The officers testified that the 911 dispatcher alerted them 

to a potentially armed suspect. Thus, while the prosecutor’s comments did not necessarily assist the jury in evaluating the evidence, 

it was not misleading for the prosecutor to comment that the officers’ job was inherently dangerous or that donning bulletproof vests 

was a legitimate use of the officers’ available resources. 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 8 of 18
19-14963 Opinion of the Court 9

The most questionable conduct highlighted by Favors came 

during the prosecutor’s rebuttal argument. The prosecutor compared the evidence to a jigsaw puzzle, remarking, 

Ladies and gentlemen, when you take the 37 pieces of 

evidence that [Favors’] charged with, the gun, the 36 

bullets, and you put all the pieces together, this is how 

the puzzle looks . . . and this is why he’s guilty.

The prosecutor then published a photograph displaying the firearm, magazines, and ammunition seized from Favors arranged to 

spell out “GUILTY!” Defense counsel promptly objected to the 

photograph as improper, unethical, and inflaming the passions of 

the jury. The district court sustained the objection. The prosecutor 

concluded his argument by stating, “[w]hen you put all the evidence together”—the firearm, magazines, and ammunition—“the 

picture is clear. The defendant’s guilty, and that’s the verdict we 

ask you to return.” 

Defense counsel moved for a mistrial based on the photograph published to the jury during the government’s closing remarks. The district court questioned defense counsel, “Why 

couldn’t [the prosecutor] have taken a piece of paper and write 

guilty on it and say, that’s what I think your verdict should be?” 

The district court agreed that the photograph was improper but 

determined that a mistrial was not warranted. The court opined 

that “it’s demeaning to this jury’s intelligence to think that artfully 

setting out the word ‘guilty,’ using bullets and a gun, is going to 

somehow cause them to come back with a guilty verdict when it 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 9 of 18
10 Opinion of the Court 19-14963

wasn’t otherwise justified.” The district court ultimately denied the 

motion for mistrial. 

The government conceded during oral argument that the 

photograph was inappropriate. We agree. There was no conceivable purpose for fashioning the evidence into the word “GUILTY!” 

other than for potential shock value. Nevertheless, we conclude 

that the prosecutor’s conduct did not prejudicially affect Favors’ 

substantial rights when viewed in the context of the entire trial. 

The government introduced the firearm, magazines, and ammunition during trial, evidence which the government’s witnesses described and discussed in detail. Simply arranging the evidence to 

spell out the verdict the government hoped the jury would return 

therefore was unlikely to mislead or improperly influence the 

jury’s deliberations. 

2.

Favors next contends that the prosecutor impermissibly interjected his personal experience as a prosecutor to reinforce the 

credibility of the government’s witnesses and to undermine Favors’ defense. “Ordinarily, it is improper for a prosecutor to bolster 

a witness’s testimony by vouching for that witness’s credibility.” 

United States v. Bernal-Benitez, 594 F.3d 1303, 1313 (11th Cir. 

2010). Bolstering occurs when a jury “could reasonably believe that 

the prosecutor was indicating a personal belief in the witness’s 

credibility.” United States v. Knowles, 66 F.3d 1146, 1161 (11th Cir. 

1995) (quotation marks and citation omitted). 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 10 of 18
19-14963 Opinion of the Court 11

During the trial, defense counsel thoroughly cross-examined 

Major Swisher and Officer Norvis about the absence of body-worn 

camera footage depicting their initial approach, observation of the 

firearm under the driver’s side seat, and arrest of Favors. Swisher 

testified that since he had a rank above captain, the FLPD policy 

did not require him to wear a body-worn camera. Norvis testified

that the department issued him a body-worn camera a few weeks 

before Favors’ arrest. Unfortunately, he failed to activate his camera. The evidence demonstrated that only about three minutes 

passed between the time the two officers entered the apartment 

complex and when they arrested Favors, lending credibility to Norvis’ testimony that events unfolded so quickly he forgot to turn on 

his camera. 

In his closing remarks, the prosecutor made the point that 

the absence of body-worn camera footage did not diminish the 

strength of the other evidence presented of Favors’ guilt. The prosecutor showed the jury his tie, where he affixed a body-worn camera loaned to him by the FLPD, stating, “But guess what, ladies and 

gentlemen, I forgot to turn it on. So . . . does that mean that everything I just told you wasn’t said?” He continued,

Ladies and gentlemen, I’ve been a prosecutor for 

many, many, many, many years, 32 in federal court. 

These things are relatively new. Ladies and gentlemen, there have been people convicted for years before these body cameras were invented, without 

body-camera video.

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 11 of 18
12 Opinion of the Court 19-14963

The district court overruled defense counsel’s objection that this 

comment was improper argument. The prosecutor went on to describe historical events, such as the assignation of Abraham Lincoln 

by John Wilkes Booth, which we know to be factual but which was 

not captured by a video recording, to support his conclusion that 

video footage was not necessary to prove guilt.

Favors argues that the prosecutor improperly portrayed 

himself as an expert and called on his experience as a federal prosecutor to undermine Favors’ defense. To the contrary. The prosecutor’s objective was to inform the jury that the absence of bodycamera footage alone did not mandate an acquittal. Rather, as the 

prosecutor explained, and the district court later re-stated in the 

jury charges, the jury’s job is to evaluate the strengths and weaknesses of the evidence, to determine the credibility of the witnesses, and to review all the evidence. In context, the prosecutor’s 

statements were not improper. 

Favors claims that the prosecutor improperly drew on his 

experience again during his rebuttal argument. Defense counsel argued in closing that law enforcement officers staged the position of 

the firearm in the automobile prior to photographing the weapon.

The prosecutor countered in his rebuttal that the gun was not 

staged; rather Officer Norvis photographed the gun from two different angles. He directed the jury to examine the knobs and divots 

of the firearm along with the position of the seat. He then stated:

And that is his entire defense, ladies and gentlemen. 

Because I’ve done prosecution for 35 years, three in 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 12 of 18
19-14963 Opinion of the Court 13

state, 32 in federal, and there’s something I’ve learned 

listening to all these closing arguments. What is not 

said by the defense attorney is as important as what is 

said.

Defense counsel objected to the statement as improper burden 

shifting. The district court instructed the jury that the burden of 

proof lay with the government and invited the prosecutor to continue with his argument. 

On appeal, Favors argues not that the prosecutor was engaging in burden shifting but that he again was invoking his personal 

expertise to explain the evidence. To the extent that the prosecutor 

in any way expressed a personal view about how the jury should 

view the evidence, the prosecutor’s statement was improper. But 

Favors has not shown how this particular reference to the prosecutor’s years of experience prejudicially impacted his substantial 

rights. 

The same is true of the prosecutor’s comment, “I’m here to 

tell you, [the gun] was here, in arm’s reach of the defendant, Lonnie 

Favors.” Defense counsel objected to this statement as a “misstatement of the argument” and a “denigration of the defense.” The district court gave this curative instruction: “The jury will rely on 

their own recollection of what the testimony was. What the lawyers say isn’t evidence.” The court’s instruction cured any potential 

prejudice to Favors. See Lopez, 590 F.3d at 1256. 

3.

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 13 of 18
14 Opinion of the Court 19-14963

Favors’ final argument in support of his quest for a new trial 

is that the prosecutor improperly attempted to shift the burden of 

proof onto the defense. “[P]rosecutors must refrain from making 

burden-shifting arguments which suggest that the defendant has an 

obligation to produce any evidence or to prove innocence.” United 

States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). A prosecutor 

may, however, comment “on the failure by defense counsel, as opposed to the defendant, to counter or explain evidence.” United 

States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998).

The prosecutor posed several rhetorical questions to the 

jury concerning the gun found in Favors’ locked vehicle during his 

closing and rebuttal arguments. Favors characterizes these questions as impermissible burden shifting. The prosecutor asked,

Who else could have put it there? Who else have you 

heard could have put it there? And why do we know 

that he put it there?

Defense counsel objected to these questions as improper burden 

shifting. The district court overruled the objection.

The prosecutor later asked, 

Now, ladies and gentlemen, maybe the evil tooth 

fairy possibly fluttered into the passenger compartment and put the gun there? We don’t have any proof 

of that. 

Defense counsel again objected to improper burden shifting. The 

district court responded by reminding the jury that the burden of 

proving Favors’ guilt was on the government, not the defense. 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 14 of 18
19-14963 Opinion of the Court 15

It is evident that the purpose of the prosecutor’s remarks 

was not to suggest that Favors had an obligation to prove that 

someone else placed the gun in the vehicle. Rather, the prosecutor 

was commenting on the defense’s failure to counter or explain the 

government’s evidence that a gun was found in a locked car where

Favors was sleeping. See Knowles, 66 F.3d at 1163 (“It is not error 

to comment on the failure of the defense as opposed to the defendant, to counter or explain the evidence.”) (quotation marks omitted). And, even if the prosecutor’s argument could be viewed as 

burden shifting, the district court provided a sufficient curative instruction such that Favors’ substantial rights were not prejudiced. 

***

The prosecutor in this case pushed the boundaries of propriety during his closing arguments. But when viewed in the context 

of the trial as a whole, even the most problematic of the prosecutor’s conduct did not prejudicially affect Favor’s substantial rights. 

The district court adequately addressed any improper conduct 

through its curative instructions and the general charges to the 

jury, reminding the jury that the burden of proving Favors’ guilt 

lay with the government, that the comments of the attorneys were

not evidence, and that it was the duty of the jury to weigh the evidence and to evaluate the credibility of the witnesses prior to reaching a verdict. Moreover, the record contains sufficient evidence independent of the prosecutor’s concluding arguments to support a 

finding of Favors’ guilt. Accordingly, any error was harmless. See 

Eckhardt, 466 F.3d at 947. 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 15 of 18
16 Opinion of the Court 19-14963

B.

The district court sentenced Favors to 240-months imprisonment. The sentence was based, in part, on a finding that two 

prior convictions for making terroristic threats under Georgia law 

and three convictions for aggravated assault under Georgia law 

qualified Favors as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1).1 The parties 

agree under United States v. Carter, 7 F.4th 1039 (11th Cir. 2021) 

and United States v. Moss, 920 F.3d 752 (11th Cir. 2019), opinion 

reinstated in light of Borden v. United States, 141 S. Ct. 1817 (2021), 

4 F.4th 1292 (11th Cir. 2021) (en banc), that Favors’ three 

1 Favors argues on appeal that under United States v. Oliver (Oliver I), his two 

Georgia convictions for making terroristic threats do not qualify as violent felonies under the ACCA. In their response brief, the government conceded this 

position based on our decision in United States v. Oliver, (Oliver II), 955 F.3d 

887 (11th Cir. 2020). Since briefing in this case ended, however, we vacated 

and superseded our decision in Oliver II in United States v. Oliver (Oliver III), 

962 F.3d 1311, 1314 (11th Cir. 2020).

The Georgia terroristic threats statute under which Favors was convicted makes it unlawful to “threaten[ ] to commit any crime of violence, to 

release any hazardous substance, . . . or to burn or damage property with the 

purpose of terrorizing another.” O.C.G.A. § 16-11-37(a). In Oliver III, we held 

this statute divisible under Mathis v. United States, 136 S.Ct. 2243, 2249 (2016)

and concluded that “to threaten to commit any crime of violence” necessarily 

“requires the threatened use of violent force against another” and, therefore, 

qualifies as a predicate offense under the ACCA. 962 F.3d at 1320-21. The record here indicates that Favors was convicted of making terroristic threats to 

commit murder. His convictions under O.C.G.A. § 16-11-37(a) consequently 

qualify as violent felonies under the ACCA. 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 16 of 18
19-14963 Opinion of the Court 17

convictions under O.C.G.A. § 16-5-21 do not qualify as violent felonies under the ACCA. 

Favors pleaded guilty to and was convicted of aggravated assault under O.C.G.A. § 16-5-21 in 2009, 2016, and 2018. However, 

the record does not indicate whether Favors’ aggravated assault 

convictions were premised on O.C.G.A. § 16-5-20(a)(1), attempting 

to commit a violent injury, or O.C.G.A. § 16-5-20(a)(2), placing another in reasonable apprehension of immediately receiving a violent injury. We therefore must assume that the conviction was 

based on the least of the acts criminalized by the simple assault statute, placing another in reasonable apprehension of receiving a violent injury. See Moss, 920 F.3d at 758. 

The ACCA mandates a minimum sentence of 15 years’ imprisonment for any defendant convicted of being a felon in possession of a firearm who has three or more previous convictions “for 

a violent felony or a serious drug offense . . . committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The ACCA 

defines “violent felony” as any crime punishable by a term of imprisonment exceeding one year that “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). The Supreme Court 

held in Borden that the phrase “use . . . against the person of another” in the ACCA’s elements clause “sets out a mens rea requirement—of purposeful or knowing conduct.” Borden, 141 S. Ct. at 

1828, 1829 n.6 (plurality opinion). A crime that can be committed 

with a mens rea of mere recklessness cannot qualify as a crime of 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 17 of 18
18 Opinion of the Court 19-14963

violence under the elements clause. Id. at 1834. In Moss, we therefore held, “[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.” Moss, 920 F.3d at 759.

Having concluded that Favors’ three prior convictions for 

aggravated assault with a deadly weapon were based on simple assault under O.C.G.A. § 16-5-20(a)(2), a crime that can be accomplished with a mens rea of recklessness, we find that the convictions do not qualify as violent felonies under the ACCA’s elements 

clause. We accordingly vacate Favors’ sentence and remand for resentencing. 

II.

For the reasons stated above, we affirm Favor’s conviction, 

but we vacate his sentence and remand for resentencing.

AFFIRMED IN PART, VACATED AND REMANDED IN 

PART. 

USCA11 Case: 19-14963 Date Filed: 06/02/2022 Page: 18 of 18