PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant, 

v. 

CLAY O’BRIEN MANN, 

 Defendant - Appellee. 

No. 17-2117 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:14-CR-03092-JAP-1)

_________________________________ 

Finnuala K. Tessier, Attorney, Appellate Section, Criminal Division, United States 

Department of Justice, Washington, D.C. (Kenneth A. Blanco, previous Acting Assistant 

Attorney General, and Trevor N. McFadden, previous Deputy Assistant Attorney 

General, United States Department of Justice, Washington, D.C., with her on the opening 

brief; John P. Cronan, Acting Assistant Attorney General, United States Department of 

Justice, Washington, D.C., with her on the reply brief; James D. Tierney, Acting United 

States Attorney, Paige Messec, Assistant United States Attorney, and James R. W. Braun, 

Appellate Chief, District of New Mexico, Albuquerque, New Mexico, with her on the 

opening and reply briefs), for Plaintiff - Appellant. 

Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for 

Defendant - Appellee. 

_________________________________ 

Before MATHESON, McKAY, and McHUGH, Circuit Judges. 

_________________________________ 

McHUGH, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 10, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

This case forces us to decide whether assault resulting in serious bodily injury, 18 

U.S.C. § 113(a)(6), is a crime of violence under 18 U.S.C. § 924(c)(3)(A). We hold that it 

is. Because the district court concluded otherwise, we reverse its judgment and remand 

for further proceedings consistent with this opinion. 

BACKGROUND 

We have previously described the events precipitating this prosecution. See United 

States v. Mann, 786 F.3d 1244, 1246–48 (10th Cir. 2015). In brief, Clay O’Brien Mann’s 

neighbors invited about a dozen friends to join them late one summer evening for a 

bonfire at their undeveloped property on an Indian reservation. These occasional 

gatherings irritated Mr. Mann. And when this particular soirée continued into the early 

morning, Mr. Mann, who had been drinking, hurled a lit artillery-shell firework in the 

direction of the partygoers. The firework exploded, chaos ensued, and his neighbors and 

their guests ran away screaming. Three of them unwittingly retreated in the direction of 

Mr. Mann. He then fired nine shots with a semiautomatic rifle, killing one person and 

wounding two others. Mr. Mann thereafter patrolled the fence line separating the 

properties while shouting profanities and threats at other partygoers. He eventually drove 

away and was apprehended later that morning. 

Mr. Mann, who is an enrolled member of the Navajo Nation and Indian Tribe, was 

indicted on eight counts, and a jury convicted as to five of them. The district court 

vacated one of those convictions1

 and sentenced Mr. Mann, all told, to just over fourteen 

 1

 Mr. Mann was ultimately convicted of one count of involuntary 

manslaughter, in violation of 18 U.S.C. §§ 1153 and 1112(a); two counts of assault 
3 

years in prison. Mr. Mann appealed, and we affirmed. In the course of affirming, we 

noted that but for a “careless error” by the government, Mr. Mann might well have 

received an additional twenty-five years on his sentence for a second § 924(c) conviction. 

Id. at 1249 n.6; see 18 U.S.C. § 924(c)(1)(C)(i); Deal v. United States, 508 U.S. 129, 

131–37 (1993). That error lay in Count 8 of the original indictment, which charged Mr. 

Mann with “knowingly discharg[ing] and carry[ing] a firearm . . . during and in relation 

to a crime of violence, . . . namely, assault resulting in serious bodily injury as charged in 

Count 6 herein,” in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Indictment at 3–4, United 

States v. Mann, No. 11-cr-01528-JAP (D.N.M. June 7, 2011), ECF No. 33. The problem 

was that the indictment charged “assault resulting in serious bodily injury” in Count 7, 

not in Count 6. Id. at 3. After realizing the government’s mistake, the district court 

dismissed Count 8 without prejudice, allowing the government to present a corrected 

§ 924(c)(1)(A)(iii) charge to another grand jury if it desired. Mann, 786 F.3d at 1249 n.6; 

Transcript of Jury Trial at 6–7, Mann, No. 11-cr-01528-JAP, ECF No. 125. The 

government elected to do so. 

By the time we decided Mann, a second grand jury had already re-indicted Mr. 

Mann on a corrected § 924(c)(1)(A)(iii) charge. That charge went to trial, but the district 

court declared a mistrial after the jury was unable to reach a unanimous verdict. Before a 

third trial was set to begin, Mr. Mann moved to dismiss the indictment, arguing that 

 

resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6); 

and one count of discharging a firearm during and in relation to a crime of violence, 

in violation of 18 U.S.C. § 924(c)(1)(A)(iii). 
4 

assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), is not a crime of violence 

under § 924(c)(1)(A). The district court agreed. United States v. Mann, No. CR 14-3092 

JAP, 2017 WL 3052521 (D.N.M. June 16, 2017). Relying on a line of precedent from 

this court holding that recklessness is an insufficient mens rea to constitute a crime of 

violence—and concluding that proof of recklessness would suffice to convict under 

§ 113(a)(6)—the district court held that § 113(a)(6) is not a crime of violence for 

purposes of § 924(c)(3). Id. at *2–5. The district court dismissed the indictment, and the 

government timely brought this appeal. 

DISCUSSION 

We generally review the dismissal of an indictment for abuse of discretion. United 

States v. Pauler, 857 F.3d 1073, 1075 (10th Cir. 2017). But where, as here, the district 

court’s judgment rests on a question of law, our review is de novo. Id.; United States v. 

Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009) (“We review the district court’s legal 

conclusion that a particular offense constitutes a crime of violence de novo.”). 

The operative indictment charged Mr. Mann with discharging a firearm during and 

in relation to a crime of violence, namely, assault resulting in serious bodily injury, in 

violation of 18 U.S.C. § 924(c)(1)(A)(iii). By enacting § 924(c)(1), Congress imposed 

various “increased penalties” for use of a firearm in relation to certain crimes. Welch v. 

United States, 136 S. Ct. 1257, 1267 (2016). As relevant here, § 924(c)(1)(A) provides 

that “any person who, during and in relation to any crime of violence . . . uses or carries a 

firearm” shall be subject to some additional punishment. On a second or subsequent 
5 

conviction, a defendant is to be sentenced to a term of imprisonment of not less than 

twenty-five years. Id. § 924(c)(1)(C)(i). 

Crimes of violence are defined at § 924(c)(3). That subsection offers two 

independent definitions. Under the first definition, a crime of violence means any offense 

that is a felony and “has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another.” Id. § 924(c)(3)(A). Under the 

second definition, a crime of violence means any offense that is a felony and “that by its 

nature, involves a substantial risk that physical force against the person or property of 

another may be used in the course of committing the offense.” Id. § 924(c)(3)(B). In this 

appeal the government argues that assault resulting in serious bodily injury, § 113(a)(6), 

qualifies under either definition. But in light of our recent holding that § 924(c)(3)(B) is 

unconstitutionally vague, United States v. Salas, 889 F.3d 681, 683 (10th Cir. 2018), our 

analysis will begin and end with § 924(c)(3)(A). 

In determining whether a § 113(a)(6) offense “has as an element the use, 

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

another,” § 924(c)(3)(A), we apply a “categorical approach.” United States v. Pam, 867 

F.3d 1191, 1203 (10th Cir. 2017). In other words, we look only to the elements that must 

be proven to convict a person under § 113(a)(6) in the abstract, “and not to the particular 

facts underlying” Mr. Mann’s actual conviction for that offense. Id. (internal quotation 

marks omitted). 

To convict Mr. Mann of assault resulting in serious bodily injury, the government 

needed to prove (1) the defendant assaulted a victim and (2) the victim suffered serious 
6 

bodily injury. 18 U.S.C. § 113(a)(6); see id. § 1153(a) (providing that “[a]ny Indian” who 

commits “a felony assault under section 113,” “within the Indian country, shall be subject 

to the same laws and penalties as all other persons committing [such offense], within the 

exclusive jurisdiction of the United States”); United States v. Zunie, 444 F.3d 1230, 1233 

(10th Cir. 2006). Every conviction under § 113(a)(6) requires an assault. “To determine if 

every violation of [§ 113(a)(6)] is a crime of violence, then, we need only determine 

whether . . . an assault that causes [serious] bodily injury” necessarily involves the use, 

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

another. See United States v. Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017) (holding that 

18 U.S.C. § 111(b) is a crime of violence under U.S.S.G. § 4B1.2), cert. denied, 138 S. 

Ct. 1582. As another federal court of appeals recently put it, the “question . . . answers 

itself.” See United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017) (“How would it 

be possible to suffer serious bodily injury without force capable of producing such 

injury?”). We reiterate here that “[a]n assault that causes [serious] bodily injury by 

definition involves the use of physical force.” Kendall, 876 F.3d at 1270. 

Yet the district court in this case concluded that § 113(a)(6) is not a crime of 

violence under the categorical approach because it is possible to violate that statute with a 

mens rea of recklessness. The district court was partially correct: recklessness is indeed 

sufficient2

 to support a conviction under § 113(a)(6). Zunie, 444 F.3d at 1235. The district 

 2 Zunie’s facts are illustrative of how § 113(a)(6) may be applied to defendants 

less culpable than Mr. Mann. The defendant in Zunie, “dangerously drunk and 

recklessly out of control, drove his truck into the opposite lane of traffic and collided 

head-on with a smaller vehicle,” leaving a four-year old boy permanently and 
7 

court was incorrect, however, to hold that § 113(a)(6) is therefore not a crime of violence. 

To see why § 113(a)(6) “has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another,” § 924(c)(3)(A), notwithstanding 

that it can be violated by defendants with a mens rea of recklessness, we turn to a line of 

cases beginning with Leocal v. Ashcroft, 543 U.S. 1 (2004). 

In Leocal, the Supreme Court considered whether a conviction under a Florida 

statute criminalizing drunken driving counted as a crime of violence for purposes of 18 

U.S.C. § 16.3

 The Florida statute required no mens rea at all, reaching “negligent or 

merely accidental conduct” just as much as purposeful or reckless conduct. Id. at 9. A 

crime of violence, meanwhile, must involve “the ‘use . . . of physical force against the 

person or property of another.’” Id. (quoting § 16(a)). Such a “use,” the Court reasoned, 

“requires active employment.” Id. (“While one may, in theory, actively employ 

something in an accidental manner, it is much less natural to say that a person actively 

employs physical force against another person by accident.”). Because the Florida statute 

reaches negligent or merely accidental conduct, it can be violated without the use of 

physical force against the person or property of another and so, the Court held, it is not a 

 

severely disabled. 444 F.3d at 1232. The serious-bodily-injury element was clearly 

established. But we also held the evidence was sufficient to prove the defendant had 

committed an assault. In so holding we drew a line between “mere negligence,” 

which we suggested would not be enough to support a conviction under § 113(a)(6), 

and recklessness, which is. Id. at 1235 & n.2. 

3

 The term “crime of violence” appears in several federal statutes. For present 

purposes, the definitions in §§ 924(c)(3)(A) and 16(a) are substantially identical. The 

only textual difference is that a crime of violence must be a felony to satisfy 

§ 924(c)(3)(A), while some misdemeanors will suffice to satisfy § 16(a). 
8 

crime of violence. Id. at 9–10. As the unanimous Court was careful to note, that case did 

not present “the question whether a state or federal offense that requires proof of the 

reckless use of force against a person or property of another qualifies as a crime of 

violence,” id. at 13, and it declined to hazard any guidance in dicta. 

In United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008), we considered 

whether a conviction under a Texas statute for assaulting a public servant counted as a 

crime of violence for purposes of a sentencing guideline.4

 We first determined that, under 

Texas law, proof of recklessness was sufficient to convict. Id. at 1122 (citing Johnson v. 

State, 172 S.W.3d 6, 10 (Tex. App. 2005)). From there, we asked “whether a mens rea

component of recklessness may satisfy” the “use of physical force requirement” found in 

the applicable crime-of-violence definition. Id. at 1122–23. We held that it may not. Id. at 

1123. We explained that our conclusion was “guided by three factors.” Id. The first was 

the Supreme Court’s holding in Leocal, the second was “a survey of our own precedent,” 

and the third was “the persuasive reasoning of our sister circuits.” Id. As we have already 

discussed, Leocal is inconclusive. As for our own (pre-Leocal) precedent, we had 

suggested in dicta that “a crime with a mens rea of recklessness could qualify as a crime 

of violence.” Id. (citing Zunie, 444 F.3d at 1235 n.2). But, persuaded by out-of-circuit 

case law, we abandoned our dicta in Zunie and concluded that “recklessness falls into the 

category of accidental conduct that the Leocal Court described as failing to satisfy the use 

 4

 The term “crime of violence” also appears more than once in the United States 

Sentencing Guidelines. Under U.S.S.G. § 2L1.2, a crime of violence means (among other 

things) any felony under state or federal law that “has as an element the use, attempted 

use, or threatened use of physical force against the person of another.” United States v. 

Zuniga-Soto, 527 F.3d 1110, 1115 (10th Cir. 2008). 
9 

of physical force requirement.” Id. at 1124. “We therefore h[e]ld that a mens rea of 

recklessness does not satisfy [the] use of physical force requirement under § 2L1.2’s 

definition of ‘crime of violence.’” Id.

In the years following Zuniga-Soto we extended its reasoning to new contexts. 

See, e.g., United States v. Duran, 696 F.3d 1089, 1095 (10th Cir. 2012) (holding that 

aggravated assault under Texas law could be committed with a reckless state of mind and 

is therefore not a crime of violence under U.S.S.G. § 4B1.2); United States v. Armijo, 651 

F.3d 1226, 1237 (10th Cir. 2011) (holding that Colorado’s version of manslaughter 

involving only reckless conduct is not a crime of violence under U.S.S.G. § 4B1.2). 

In Voisine v. United States, 136 S. Ct. 2272 (2016), however, the Supreme Court 

declined to extend Leocal’s reasoning to convictions for reckless assault—at least for 

purposes of 18 U.S.C. § 922(g)(9), a federal statute prohibiting persons convicted of a 

“misdemeanor crime of domestic violence” from possessing a firearm. The petitioners in 

that case were originally convicted under a section of the Maine Criminal Code which 

makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury 

or offensive physical contact to another person.” Id. at 2277 (quoting Me. Stat. tit. 17–A, 

§ 207(1)(A)). They argued they were not persons convicted of a misdemeanor crime of 

domestic violence under § 922(g)(9) because their Maine convictions “could have been 

based on reckless, rather than knowing or intentional, conduct.” Id.

Section 922(g)(9) takes its crime-of-violence definition from § 921(a)(33)(A), 

which in relevant part defines “misdemeanor crime of domestic violence” as a 

misdemeanor that “has, as an element, the use or attempted use of physical force.” The 
10 

parties and the Court zeroed in on the word “use.” Id. at 2278 (noting that “the word ‘use’ 

. . . is the only statutory language either party thinks relevant”). Turning to dictionary 

definitions of the noun “use,” the Court concluded that “the force involved in a qualifying 

assault must be volitional,” as opposed to some sort of “involuntary motion,” which 

would not count as “an active employment of force.” Id. at 2278–79. And because the 

reckless use of force is a volitional use of force, the Court concluded that “[a] person who 

assaults another recklessly ‘use[s]’ force, no less than one who carries out that same 

action knowingly or intentionally.” Id. at 2280. Thus § 922(a)(33)(A)’s definition of a 

misdemeanor crime of violence “contains no exclusion for convictions based on reckless 

behavior.” Id. 

Turning to Leocal, the Voisine Court saw “nothing” in the earlier case to 

“suggest[ ] . . . that ‘use’ marks a dividing line between reckless and knowing conduct.” 

Id. at 2279. Rather, the Leocal Court’s exclusion of “merely accidental” conduct from 

crimes of violence under 18 U.S.C. § 16 “fully accords” with the Voisine Court’s 

exclusion of involuntary conduct from misdemeanor crimes of violence under 18 U.S.C. 

§ 921(a)(33)(A). Id. at 2279 & 2280 n.4. 

Since Voisine was decided, we have repeatedly questioned the continuing vitality 

of Zuniga-Soto and its progeny. In United States v. Hammons, 862 F.3d 1052, 1054 (10th 

Cir. 2017), we held that a violation of Oklahoma’s drive-by shooting statute qualifies as a 

violent felony under the federal Armed Career Criminal Act (“ACCA”).5

 In so holding, 

 5

 The ACCA yields yet another example of a federal statute employing a “use of 

force” definition similar to the one found in 18 U.S.C. § 924(c)(3)(A). See 18 U.S.C. 
11 

we rejected the defendant’s reliance on Zuniga-Soto. Id. at 1055. After Voisine, we 

observed, a proper categorical approach focuses on whether the requisite force “is 

‘volitional’ or instead ‘involuntary’—it makes no difference whether the person applying 

the force had the specific intention of causing harm or instead merely acted recklessly.” 

Id. at 1056. But we left “for another day” the question whether Voisine abrogated ZunigaSoto, id. at 1056 n.4, because we determined the Oklahoma drive-by-shooting offense at 

issue in that case required the deliberate use of physical force, not mere recklessness, id.

at 1055–56. 

About a month later, we held that a violation of New Mexico’s drive-by-shooting 

statute likewise qualifies as a violent felony under the ACCA. Pam, 867 F.3d at 1208–11. 

We again rejected the defendant’s reliance on Zuniga-Soto, adopting instead Voisine’s 

reasoning to conclude that, under the ACCA, “a statute requiring proof only that the 

defendant acted willfully and with reckless disregard for the risk posed by that act to 

another person may categorically involve the use of physical force.” Id. at 1208. And we 

again found it unnecessary to address whether Voisine abrogated Zuniga-Soto, as our 

prior precedent did not purport to construe the ACCA clause at issue in Pam. Id. at 1207 

n.5. 

The government now urges us to apply Voisine’s reasoning to § 924(c)(3)(A), 

much as earlier panels applied Voisine’s reasoning to the ACCA. Mr. Mann responds 

with various arguments. First, he enumerates six reasons why Voisine “left intact 

 

§ 924(e)(2)(B)(i) (defining “violent felony” as “any crime punishable by imprisonment 

for a term exceeding one year . . . that . . . has as an element the use, attempted use, or 

threatened use of physical force against the person of another” (emphasis added)). 
12 

precedent holding that 18 U.S.C. § 16 does not encompass an offense with a recklessness 

mens rea.” Appellee’s Br. at 14–24 (arguing that Voisine “does not require this court to 

abandon its relevant recklessness precedent” (emphasis added)). We need not belabor 

these arguments. In this case, we construe § 924(c)(3)(A)—not § 16 or § 921(a)(33)(A). 

We may assume without deciding that Voisine does not require us to rule in favor of the 

government.6

 But neither does our prior precedent require us to rule in favor of Mr. 

Mann. 

Indeed, this court has already extended Voisine’s reasoning to the ACCA. Pam, 

867 F.3d at 1207; Hammons, 862 F.3d at 1056. In Voisine, the Court reasoned that harm 

caused by reckless conduct—“acts undertaken with awareness of their substantial risk of 

causing injury”—is “the result of a deliberate decision to endanger another.” 136 S. Ct. at 

2279. And reckless conduct is therefore both “the [volitional] use . . . of physical force” 

for purposes of 18 U.S.C. § 921(a)(33)(A), see id. at 2279–80, and “the [volitional] use 

. . . of physical force against the person of another” for purposes of 18 U.S.C. 

§ 924(e)(2)(B)(i), Pam, 867 F.3d at 1207–08. We hold today that Voisine’s reasoning 

extends to § 924(c)(3)(A) as well: reckless conduct is no less “the [volitional] use . . . of 

physical force against the person or property of another,” for purposes of 18 U.S.C. 

§ 924(c)(3)(A). 

 6

 The government argues that Voisine abrogated Zuniga-Soto, Armijo, and Duran. 

But none of those cases construed § 924(c)(3)(A), and so once more we decline to 

address whether their holdings survive Voisine. United States v. Pam, 867 F.3d 1191, 

1207 n.15 (10th Cir. 2017); United States v. Hammons, 862 F.3d 1052, 1056 n.4 (10th 

Cir. 2017). 
13 

Mr. Mann’s arguments to the contrary are not persuasive. For instance, he argues 

that the drive-by-shooting offenses at issue in Hammons and Pam both “include[ ] as an 

element willful conduct as well as a reckless element.” Appellee’s Br. at 29. Because 

§ 113(a)(6) can be violated by reckless driving, Zunie, 444 F.3d at 1232–36, it 

criminalizes “pure recklessness,” Appellee’s Br. at 30, which he argues ought not be 

treated as a crime of violence. Mr. Mann appears to suggest that we join the Eighth 

Circuit in carving out an exception for, at least, offenses that encompass reckless driving. 

Appellee’s Br. at 30 (citing United States v. Fields, 863 F.3d 1012, 1014–16 (8th Cir. 

2017)). We decline to do so. Over Judge Loken’s dissent, the Fields court adhered to preVoisine Eighth Circuit precedent, explaining that it “remain[ed] dispositive of the present 

appeal.” Fields, 863 F.3d at 1015. We are not burdened by such precedent in this circuit, 

and we see no reason to treat reckless driving as categorically different than other forms 

of reckless conduct. We note also that nothing in Voisine suggests a distinction between 

“recklessness” and “pure recklessness,” as Mr. Mann distinguishes those terms. 

In addition, the nature of a § 113(a)(6) violation requires that the actor’s use of 

force be directed at the person of another. To violate § 113(a)(6), Mr. Mann must have 

committed an assault and that assault must have resulted in serious bodily injury. Because 

§ 113 nowhere defines “assault,” in United States v. Gauvin, we adopted the general 

practice of giving common law meaning to common law terms used by a federal criminal 

statute that does not otherwise define the term, and we concluded that assault as used in 

§ 113 means “an attempted battery” or “placing another in reasonable apprehension of a 

battery.” 173 F.3d 798, 802 (10th Cir. 1999) (quoting Wayne R. LaFave & Austin W. 
14 

Scott, Jr., Substantive Criminal Law, § 7.16 (1986)). In turn, Mr. Mann must have acted 

with at least recklessness in committing the assault resulting in serious bodily injury. To 

act recklessly “is to take . . . action with a certain state of mind (or mens rea)—in the 

dominant formulation, to ‘consciously disregard[ ]’ a substantial risk that the conduct will 

cause harm to another.” Voisine, 136 S. Ct. at 2278 (quoting ALI, Model Penal Code 

§ 2.02(2)(c) (1962)); see Farmer v. Brennan, 511 U.S. 825, 836–37 (1994) (“The 

criminal law . . . generally permits a finding of recklessness only when a person 

disregards a risk of harm of which he is aware.” (emphasis added)). We have, moreover, 

repeatedly held that § 113(a)(6) is a general intent crime, Zunie, 444 F.3d at 1233; United 

States v. Benally, 146 F.3d 1232, 1237 (10th Cir. 1998), by which we mean a criminal 

“act [must be] done voluntarily and intentionally, and not because of mistake or 

accident,” Zunie, 444 F.3d at 1234 (quotation marks omitted). Contrary to Mr. Mann’s 

argument, a defendant convicted of § 113(a)(6) has necessarily committed a “purposeful 

act,” Appellee’s Br. at 30, and exhibited “willful conduct,” id. at 29. And that purposeful 

act or willful conduct can take many forms: it could be the pulling of the trigger of a gun 

or the mere driving of a car (“pure recklessness,” as Mr. Mann calls it). The underlying 

action does not much matter. What matters instead is whether the act was done with (at 

least) conscious disregard of a substantial risk that the behavior will cause harm to 

another. If it was, then the act will support a § 113(a)(6) conviction, and, in turn, an 

increased penalty under § 924(c)(3)(A). 

Mr. Mann also argues there are “meaningful differences” between the ACCA and 

§ 924(c)(3)(A), such that even if Voisine’s reasoning is properly extended to the former, 
15 

it is not properly extended to the latter. Appellee’s Br. at 32. But the only difference he 

identifies is that the ACCA definition applies only to force used “against the person of 

another,” while § 924(c)(3)(A) refers to force used “against the person or property of 

another.” These “against” clauses distinguish the ACCA and § 924(c)(3)(A) definitions 

from the § 921(a)(33)(A) definition at issue in Voisine, which contains no comparable 

clause. See Bennett v. United States, 868 F.3d 1, 19 (1st Cir. 2017) (noting the canon 

against surplusage “at least suggest[s] that the follow-on ‘against’ phrase . . . must be 

conveying something that the phrase ‘use . . . of physical force’ does not”), opinion 

withdrawn and vacated, 870 F.3d 34 (1st Cir. 2017), reasoning adopted by United States 

v. Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017). And a panel of the Sixth Circuit found 

that distinction significant when interpreting similar language in the Sentencing 

Guidelines: 

[T]he definition in § 4B1.2 includes language that the definition in Voisine

did not. There, § 921(a)(33)(A) required only “the use . . . of physical 

force” simpliciter (so far as the “use of force” element was concerned); 

here, in contrast, § 4B1.2 requires “the use . . . of physical force against the 

person of another[.]” (Emphasis added.) The italicized language is a 

restrictive phrase that describes the particular type of “use of physical 

force” necessary to satisfy § 4B1.2. See generally Shertzer, The Elements of 

Grammar 7 (1986). Specifically, § 4B1.2 requires not merely a volitional 

application of force, but a volitional application “against the person of 

another.” 

United States v. Harper, 875 F.3d 329, 331 (6th Cir. 2017), petition for cert. filed (U.S. 

Jan. 30, 2018) (No. 17-7613); cf. Voisine, 136 S. Ct. at 2278 (noting that “the word ‘use’ 

. . . is the only statutory language either party thinks relevant”). Harper went on to 

explain that Voisine’s reasoning should not be extended to a provision of the Sentencing 
16 

Guidelines that included the language “against the person of another.” See 875 F.3d at 

332 (“That phrase is not meaningless, but restrictive. And understood the way the English 

language is ordinarily understood, it narrows the scope of the phrase ‘use of force’ to 

require not merely recklessness as to the consequences of one’s force, but knowledge or 

intent that the force apply to another person.”). 

Harper is in tension with our opinion in Pam, as Harper itself noted.7 See id. at 

332 (observing that Pam did not “acknowledge, much less analyze, the language that 

§ 4B1.2 has but that the provision in Voisine did not: namely, ‘against the person of 

another’”). We are bound by our prior panel opinions in Pam and Hammons, and Mr. 

Mann does not ask us to overrule them. But he does ask us to refrain from extending 

them beyond their specific holdings. He argues that by including a broader “against” 

clause in § 924(c)(3)(A)—one that reaches harm to property as well as persons—

Congress meant to limit crimes of violence to those crimes which were necessarily 

committed by a person specifically aiming to use force against a person or property. See 

Appellee’s Br. at 32 (arguing that, with respect to § 924(c)(3), “the ‘against’ phrase 

cannot be explained away as just a means to clarify that only harm to a person is 

relevant”). 

We are not persuaded that the presence of the words “or property” in 

§ 924(c)(3)(A) can support the weight Mr. Mann would have us place on them. The 

 7 Harper’s reasoning is also at odds with its own circuit’s binding precedent. 

In Harper, the unanimous three-judge panel explained it was reluctantly following 

United States v. Verwiebe, 874 F.3d 258 (6th Cir. 2017), which had already held that 

a violation of 18 U.S.C. § 113(a)(6), the very statute at issue in this case, is a crime 

of violence under U.S.S.G. § 4B1.2(a). 
17 

better reading, we think, is simply that § 924(c)(3)(A) reaches property crimes and the 

ACCA does not. We do not believe that Congress, by expanding the reach of 

§ 924(c)(3)(A) relative to the ACCA in an obvious textual sense, simultaneously intended 

to restrict its reach by surreptitiously adding a heightened mens rea requirement. Were 

we to accept Mr. Mann’s account, we would need to construe the “ACCA’s follow-on 

‘against’ phrase [as serving] a wholly distinct narrowing function from the one that its 

similarly worded counterpart in [§ 924(c)(3)(A)] performs.” Bennett, 868 F.3d at 19 n.15. 

That would be the wrong result. As the Sixth Circuit observed in a related context, “[a]ll 

that is going on is that the category of victims is larger with today’s statute.” Verwiebe, 

874 F.3d at 263. “That one statute requires a victim of the ‘use of force’ in one way, and 

the other statute requires a victim in another way, does not offer a meaningful basis for [a 

mens rea] distinction.” Id.

Mr. Mann also invokes the rule of lenity. “But ‘the rule of lenity only applies if, 

after considering text, structure, history, and purpose, there remains a grievous ambiguity 

or uncertainty in the statute, such that the Court must simply guess as to what Congress 

intended.’” United States v. Castleman, 572 U.S. 157, 134 S. Ct. 1405, 1416 (2014) 

(quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). Where, as here, “the customary 

tools of statutory interpretation convince the court of a specific meaning for statutory 

language,” the rule of lenity is inapplicable. United States v. Alexander, 802 F.3d 1134, 

1141 (10th Cir. 2015). 

One question remains: if § 113(a)(6) could ever be violated by a defendant with a 

mens rea less than recklessness—say, negligence—then § 113(a)(6) may not be a crime 
18 

of violence. See Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) (“Because we 

examine what the [ ] conviction necessarily involved, not the facts underlying the case, 

we must presume that the conviction rested upon nothing more than the least of the acts 

criminalized.” (internal quotation marks and brackets omitted)). But Mr. Mann has 

conceded that “[t]he least of the acts criminalized by § 113(a)(6) is the reckless causing 

of serious bodily injury.” Appellee’s Br. at 26; see Zunie, 444 F.3d at 1235 n.2 

(suggesting as much in dicta). We accept his concession and conclude that § 113(a)(6) is 

categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A). Because the district 

court ruled otherwise in dismissing the government’s indictment, its judgment cannot 

stand. 

CONCLUSION 

For the reasons stated, the district court’s judgment is REVERSED. We 

REMAND this matter for further proceedings consistent with this opinion.