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, A ppellate Section, Criminal Divi sion, United States Department of Justice, Washingto n, D.C. (Kenneth A. Blanco, pre vious Acting Assistant Attorney General, and Trevor N. Mc Fadden, previous Deputy Assis tant Attorney General, United States Departmen t of Justice, Washington, D.C., with her on the opening brief; John P. Cronan, Acting A ssistant Attorney General, Unite d States Department of Justice, Washington, D.C., with h er on the reply brief; James D . Tierney, Acting United States Attorney, Paige Messec, A ssistant United States Attorney , and James R. W. Braun, Appellate Chief, District of New Mexico, Albuquer que, New Mexic o, with her on the opening and reply briefs ), for Plaintiff - Appellant. Brian A. Pori, Assistant Federa l 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 Court2 This case forces us to decide w hether assault resulting in seri ous bodily injury, 18 U.S.C. § 113(a)(6), is a crime o f violence under 18 U.S.C. § 92 4(c)(3)(A). We hold that it is. Because the district court co ncluded otherwise, we reverse its judgment and remand for further proceedings cons istent with this opinion. BACKGROUND We have previously described th e events precipita ting this pros ecution. See United States v. Mann , 786 F.3d 1244, 1246– 48 (10th Cir. 2015). In brief, Clay O’Bri en Mann’s neighbors invited about a dozen f riends to join them late one s ummer evening for a bonfire at their undeveloped pr operty on an Indian reservation. These occasional gatherings irritated Mr. Mann. And when this particular soirée continued into the early morning, Mr. Mann, w ho had been drinking, hurled a lit artiller y-shell firework in the direction of the partygoers. The f irework exploded, chaos ensue d, and his neighbors and their guests ran away screaming . Three of them unwittingly retr eated in the direction of Mr. Mann. He then fired nine shot s with a semiautomatic rifle, killing one person and wounding two others . Mr. Mann thereafter patrolled the fence li ne separating the properties while shout ing profanities and threats at other partygoers. He even tually drove away and was apprehende d later that morning. Mr. Mann, who is an enrolled me mber of the Navajo Nation and In dian Tribe, was indicted on eight counts, and a jury convicted as to five of th em. The district court vacated one of those convictions 1 and sentenced Mr. Mann, all told, to just over fourteen

1 Mr. Mann was ultimately convict ed of one count of involuntary manslaughter, in violation of 18 U.S.C. §§ 1153 and 1112(a); tw o counts of assault3 years in prison. Mr. Mann appeal ed, and we affirmed. In the cou rse of affirming, we noted that but for a “careless e rror” 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[i ng] and carry[ing] a firearm . . . during and in relation to a crime of violence, . . . namel y, assault resulting in seri ous bodily injury as charged in Count 6 herein,” in violation o f 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 pr oblem was that the indictment charged “assault resulting in serious b odily injury” in Count 7, not in Count 6. Id. at 3. After realizing the govern ment’s mistake, the district c ourt dismissed Count 8 without prej udice, allowing the government to present a corrected § 924(c)(1)(A)(iii) charge to anoth er 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 wen t 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, M r. Mann moved to dismiss the ind ictment, arguing that

resulting in serious bodily injur y, in violation of 18 U.S.C. § § 1153 and 113(a)(6); and one count of discharging a fi rearm during and in relation t o a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).4 assault resulting in serious bod ily injury, 18 U.S.C. § 113(a)( 6), is not a crime of violence under § 924(c)(1)(A). The d istrict 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 recklessn ess is an insufficient mens re a to constitute a crime of violence—and concludi ng that proof of recklessness would suffic e to convict under § 113(a)(6)—the district court he ld that § 113(a)(6) is not a c rime of violence for purposes of § 924(c)(3). Id. at *2–5. The district court di smissed the indictment, and the government timely brought this appeal. DISCUSSION We generally review the dismissa l of an indictme nt 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 ques tion of law, our review is de n ovo. Id. ; United States v. Serafin , 562 F.3d 1105, 1107 (10th Cir . 2009) (“We review the district court’s legal conclusion that a particular o ffense constitutes a crime of vio lence de novo.”). The operative indictment charged M r. Mann with discharging a fi rearm during and in relation to a crime of viol ence, namely, ass ault resulting i n 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 h ere, § 924(c)(1)(A ) provides that “any person who, during and in relation to any crime of vi olence . . . uses or carries a firearm” shall be subject to some additional punishment. On a s econd or subsequent5 conviction, a defendant is to b e sentenced to a term of impriso nment 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 pers on or property of another.” Id. § 924(c)(3)(A). Under the second definition, a crime of vio lence means any offense that i s a felony and “that by its nature, involves a substantial ri sk that physical force againstthe person or property of another may be used in the cour se of committing the offense.” Id. § 924(c)(3)(B). In this appeal the government argues th at assault resulting in serious bodily injury, § 113(a)(6), qualifies under either definition . But in light of our recent h olding 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 e nd 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 appl y a “categorical approach.” United States v. Pam , 867 F.3d 1191, 1203 (10th Cir. 2017). Inother 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 re sulting in serious bodily inju ry, the government needed to prove (1) the defendant assaulted a victim and (2) th e victim suffered serious6 bodily injury. 18 U. S.C. § 113(a)(6); see id. § 1153(a) (providing that “[a]ny Indian” who commits “a felony assault under s ection 113,” “within the India n country, shall be subject to the same laws and penalties as all other persons committing [such offense], within the exclusive jurisdiction o f the United States”); United States v. Zunie , 444 F.3d 1230, 1233 (10th Cir. 2006). Every convic tion 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 cau ses [serious] bodily injury” n ecessarily 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 (10t h Cir. 2017) (holding that 18 U.S.C. § 111(b) is a crime o f 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 capab le of producing such injury?”). We reiterate here that “[a]n assault that causes [se rious] bodily injury by definition involves the u se 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 a pproach because it is possible to violate that statute with a mens rea of recklessness. The district court was partially corr ect: recklessness is indeed sufficient 2 to support a conviction under § 113(a)(6). Zunie , 444 F.3d at 1235. The district

2 Zunie ’s facts are illustra tive 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 la ne of traffic and collided head-on with a smaller vehicle,” leaving a four-year old boy pe rmanently and7 court was incorrect, however, to hold that § 113(a)(6) is there fore not a crime of violence. To see why § 113(a)(6) “has as a n element the use, attempted us e, or threatened use of physical force against the personor property of another,” § 92 4(c)(3)(A), notwithstanding that it can be violated by defe ndants with a mens rea of reckle ssness, we turn to a line of cases beginning with Leocal v. Ashcroft , 543 U.S. 1 (2004).
In Leocal , the Supreme Court considered w hether a conviction under a Flo rida statute criminalizing drunken dr iving counted as a crime of vio lence for purposes of 18 U.S.C. § 16. 3 The Florida statute required no mens rea at a ll, reaching “neg ligent or merely accidental conduct” just as much as purposeful or reckle ss conduct. Id. at 9. A crime of violence, meanwhile, must involve “the ‘use . . . of p hysical force against the person or property of another .’” Id. (quoting § 16(a)). Such a “u se,” 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 aperson actively employs physical force against another person by accident.”). B ecause the Florida statute reaches negligent or merely accide ntal conduct, it can be viola ted without the use of physical force against the pers on 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 th e evidence was sufficient to pr ove the defendant had committed an assault. In so hol ding we drew a line between “mer e 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 statut es. For present purposes, the definitions in §§ 924(c)(3)(A) a nd 16(a) are subs tantially identical. The only textual difference is that a crime of violence must be a f elony to satisfy § 924(c)(3)(A), while some misdem eanors 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 ques tion whether a state or federal offense th at requires proof of the reckless use of force against a person o r 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 Tex as statute for assaulting a pub lic servant counted as a crime of violence for purpose s of a sentencing guideline. 4 We first determined that, under Texas law, proof of recklessne ss was sufficient to convict. Id. at 1122 (citing Johnson v. State , 172 S.W.3d 6, 10 (Tex. App. 2005 )). From there, we asked “whe ther a mens rea component of recklessn ess may satisfy” the “use of physical for ce 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 concl usion was “guided by three fac tors.” 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 persuasiv e reasoning of our sister circu its.” 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, p ersuaded by out-of-circuit case law, we abandoned our dicta in Zunie and concluded that “reckl essness falls into the category of accidental conduct that the Leocal Court described as fail ing to satisfy the use

4 The term “crime of violence” als o appears more than once in th e United States Sentencing Guidelines. Under U.S .S.G. § 2L1.2, acrime of viole nce means (among other things) any felony under state o r federal law that “has as an e lement 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 requi rement under § 2L1.2’s definition of ‘crime of violence.’” Id. In the years following Zuniga-Soto we extended its reasoni ng to new contexts. See, e.g. , United States v. Duran , 696 F.3d 1089, 1095 (10t h Cir. 2012) (holding that aggravated assault under Texas l aw could be co mmitted with a re ckless state of mind and is therefore not a crime of vio lence under U.S.S.G. § 4B1.2); United States v. Armijo , 651 F.3d 1226, 1237 (10th Cir. 2011) ( holding that Co lorado’s versi on of manslaughter involving only reckless conduct is not a crime of violence unde r U.S.S.G. § 4B1.2).
In Voisine v. United States , 136 S. Ct. 2272 (2016), how ever, 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 prohibitin g persons convicted of a “misdemeanor crime of domestic violence” from possessing a fire arm. The petitioners in that case were originally convict ed under a section of the Main e Criminal Code which makes it a misdemeanor to “inten tionally, knowingly or reckless ly 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 wer e not persons convicted of a misdemeanor crime of domestic violence unde r § 922(g)(9) b ecause their Maine convict ions “could have been based on reckless, rather than kn owing or intentional, conduct. ” Id. Section 922(g)(9) takes its cri me-of-violence de finition from § 921(a)(33)(A), which in relevant part defines “m isdemeanor crime of domestic v iolence” as a misdemeanor that “has, as an ele ment, the use or attempted use of physical force.” The10 parties and the Court zeroed in on the word “use.” Id. at 2278 (noting th at “the word ‘use’ . . . is the only statutory langua ge either party thinks relevant”). Turning to dictionary definitions of the noun “use,” the Court concluded that “the fo rce involved in a qualifying assault must be volitional,” as o pposed to some sort of “involu ntary motion,” which would not count as “an active employment of force.” Id. at 2278–79. And because the reckless use of force is a volitio nal use of force, the Court c oncluded that “[a] person who assaults another recklessly ‘use [s]’ force, no less than one wh o carries out that same action knowingly or intentionally.” Id. at 2280. Thus § 922(a)(3 3)(A)’s definition of a misdemeanor crime of violence “c ontains no exclusion for convic tions 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 reck less and knowing conduct.” Id. at 2279. Rather, the Leocal Court’s exclusion of “mere ly accidental” conduct from crimes of violence under 18 U.S. C. § 16 “fully accords” with th e Voisine Court’s exclusion of involuntary condu ct from misdemeanor crimes of vio lence under 18 U.S.C. § 921(a)(33)(A). Id. at 2279 & 2280 n.4. Since Voisine was decided, we have repeatedly q uestioned the continuing vital ity of Zuniga-Soto and its progeny. In United States v. Hammons , 862 F.3d 1052, 1054 (10th Cir. 2017), we held that a violati on of Oklahoma’s drive-by sho oting statute qualifies as a violent felony under the federal Armed Career Criminal Act (“AC CA”). 5 In so holding,

5 The ACCA yields yet another exa mple of a federal statute emplo ying 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 a pproach focuses on whether the requisite force “is ‘volitional’ or instead ‘involun tary’—it makes no difference wh ether the person applying the force had the specific inte ntion of causing harm or insteadmerely acted recklessly.” Id. at 1056. But we left “for anot her day” the question whether Voisine abrogated ZunigaSoto , id. at 1056 n.4, because we determin ed the Oklahoma drive-by-shoot ing offense at issue in that case required the deliberate use of physical forc e, 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 v iolent 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, unde r the ACCA, “a statute requirin g proof only that the defendant acted willfully and w ith reckless disregard for the r isk posed by that act to another person may categoricallyinvolve the use of physical fo rce.” 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, h e enumerates six reasons why Voisine “left intact § 924(e)(2)(B)(i) (defining “viole nt felony” as “any crime puni shable by imprisonment for a term exceeding one year . . . that . . . has as an element the us e, attempted use, or threatened use of physical fo rce against the person of another ” (emphasis added)).12 precedent holding that 18 U.S.C. § 16 does not encompass an off ense with a recklessness mens rea.” Appellee’s Br. a t 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, w e 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 prece dent require us to rule in fav or 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 o f a deliberate decision to endanger another.” 136 S. Ct. at 2279. And reckless conduct is the refore 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 purp oses 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 pers on or property o f 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 construe d § 924(c)(3)(A), and so once m ore we decline to address whether their holdings survive Voisine

. United States v. Pam , 867 F.3d 1191, 1207 n.15 (10t h 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 in stance, he argues that the drive-by-shooti ng offenses at issue in Hammons and Pam both “include[ ] as an element willful conduct as we ll as a reckless element.” Appelle e’s Br. at 29. Because § 113(a)(6) can be violatedby reckless driving, Zunie , 444 F.3d at 1232–36, it criminalizes “pure recklessness, ” Appellee’s Br. at 30, which h e argues ought not be treated as a crime of violence . Mr. Mann appears to suggest tha t we join the Eighth Circuit in carving out an exce ption 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. Ove r Judge Loken’s dissent, the Fields court adhered to preVoisine Eighth Circuit precedent, explai ning that it “remain[ed] dispo sitive of the present appeal.” Fields , 863 F.3d at 1015. We are not bur dened by such precedent in th is circuit, and we see no reason to treat r eckless driving as categorically different than other forms of reckless conduct. We not e also that nothing in Voisine suggests a distinction between “recklessness” and “pure reckless ness,” as Mr. Mann distinguish es 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 h ave resulted in ser ious bodily injury. Because § 113 nowhere defines “assault,” in United States v. Gauvin, we adopted the general practice of giving common law mean ing to common law terms used by a federal criminal statute that does not otherwise define the term, and we conclud ed that assault as used in § 113 means “an attempted battery” or “placing another in reaso nable apprehension of a battery.” 173 F.3d 798, 802 (1 0th Cir. 1999) (quoting Wayne R. LaFave & Austin W.14 Scott, Jr., Substantive Criminal Law , § 7.16 (1986)). In turn, M r. Mann must have acted with at least reckle ssness in committing th e assault resulting in serious bodily injury. To act recklessly “is to take . . . ac tion with a certain state of mind (or mens rea )—in the dominant formulation, to ‘consciou sly disregard[ ]’ a substanti al risk that the conduct will cause harm to another.” Voisine , 136 S. Ct. at 2278 (quoti ng ALI, Model Pe nal 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. 1 998), by which we mean a crim inal “act [must be] done voluntarily and intentionally, and not because of mistake or accident,” Zunie , 444 F.3d at 1234 (quotation ma rks omitted). Contrary to Mr. M ann’s argument, a defendant convicted of § 113(a)(6) has necessarily committed a “purposeful act,” Appellee’s Br. at 30, and ex hibited “willful conduct,” id. at 29. And that purposeful act or willful conduct can take many forms: it could be the pul ling 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 th e act was done with (at least) conscious disregard of a s ubstantial risk that the behav ior will cause harm to another. If it was, then the act w ill support a § 113(a)(6) conviction, and, in turn, an increased penalty under § 924(c)(3)(A). Mr. Mann also argues there are “m eaningful differences” betweenthe 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 t o the latter. Appellee’s Br. at 32 . But the only difference he identifies is that the ACCA def inition applies only to force us ed “against the person of another,” while § 924(c)(3)(A) refe rs to force used “against th e person or property of another.” These “against” claus es distinguish the ACCA and § 92 4(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 su ggest[s] that the follow-on ‘aga inst’ phrase . . . must be conveying something that the p hrase ‘use . . . of physical forc e’ 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 SixthCircuit found that distinction significant wh en interpreting similar language in the Sentencing Guidelines: [T]he definition in § 4B1.2 includes language that the definiti on 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 o f physical force” necessary to satisfy § 4B1.2. See generally Shertzer, The Elements of Grammar 7 (1986). Specifically, § 4B1. 2 requires not merely a volition al application of force, but a vo litional 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 (noti ng that “the word ‘use’ . . . is the only statutory langua ge either party thinks relevant”). Harper went on to explain that Voisine ’s reasoning should not be extended to a provi sion of the Sentencing16 Guidelines that included the lang uage “against the person of an other.” See 875 F.3d at 332 (“That phrase is not meanin gless, but restrictive. And unde rstood the way the English language is ordinarily understo od, 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 le ss analyze, the language that § 4B1.2 has but that the provision in Voisine did not: namely, ‘aga inst the person of another’”). We are bound by o ur prior panel opinions in Pam and Hammons , and Mr. Mann does not ask us to overrule them. But he does ask us to re frain from extending them beyond their specific holdi ngs. He argues that by includin g a broader “against” clause in § 924(c)(3)(A)—one tha t reaches harm to property as w ell as persons— Congress meant to limit crimes o f violence to those crimes whic h were necessarily committed by a person specifi cally aiming to use force against a person or property. See Appellee’s Br. at 32 (arguing th at, with respect to § 924(c)(3) , “the ‘against’ phrase cannot be explained away as just a means to clarify that only h arm to a person is relevant”). We are not persuaded that the pr esence of the words “or property” in § 924(c)(3)(A) can support the we ight Mr. Mann wo uld have us pl ace on them. The

7 Harper ’s reasoning is also at odds with its own circuit’s binding pre cedent. In Harper , the unanimous three-judge panel explained it was reluctantly following United States v. Verwiebe , 874 F.3d 258 (6th Cir. 2017), w hich 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 simp ly that § 924(c)(3)(A) reaches property crimes and the ACCA does not. We do not believe that Congress, by expanding th e reach of § 924(c)(3)(A) relative to the ACC A in an obvious textual sense , simultaneously intended

to restrict its reach by surreptitiously addi ng a heightened mens rea requ irement. 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 funct ion from the one that its similarly worded counterpart i n [§ 924(c)(3)(A)] performs.” Bennett , 868 F.3d at 19 n.15. That would be the wrong result. A s the Sixth Circuit observed i n a related context, “[a]ll that is going on is that the ca tegory of victims is larger withtoday’s statute.” Verwiebe , 874 F.3d at 263. “That one sta tute requires a victim of the ‘us e of force’ in one way, and the other statute requires a vict im in another way, does not of fer a meaningful basis for [a mens rea] distinction.” Id. Mr. Mann also invokes the rule of lenity. “But ‘the rule of len ity only applies if, after considering text, structure , history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, s uch that the Court must simply guess as to what Congress intended.’” United States v. Castleman , 572 U.S. 157, 134 S. C t. 1405, 1416 (2014) (quoting Barber v. Thomas , 560 U.S. 474, 488 (2010)). Where, as here, “the customary tools of statutory interpretati on convince the court of a speci fic 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 crime18 of violence. See Moncrieffe v. Holder , 569 U.S. 184, 190–91 (2013) (“Because we examine what the [ ] conviction necessarily involved, not the f acts underlying the case, we must presume that the convic tion rested upon nothing more th an the least of the acts criminalized.” (internal quotati on 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 con cession and con clude that § 113(a)(6) is categorically a crime of violen ce under 18 U.S.C. § 924(c)(3)(A ). Because the district court ruled otherwise in dismi ssing the government’s indictment , its judgment cannot stand. CONCLUSION For the reasons stated, the distr ict court’s judgment is REVERS ED. We REMAND this matter for further proceedings consistent with this opinion.