Whittling away Johnson: Assault with weapon or serious bodily harm are crimes of violence

The Sixth Circuit yesterday, in United States v. Verwiebe, held that two federal crimes—assault with a dangerous weapon and assault resulting in serious bodily injury—constitute “crimes of violence” under the “elements clause” in the career-offender guideline.

According to the court, even though simple common law “assault” by itself may not be a crime of violence, once you add “use of a dangerous weapon” or a resulting “serious bodily injury,” it does. In the court’s view, it’s impossible to commit an assault with a weapon or that results in serious bodily injury without using or threatening violent physical force.

The court scoffed at the idea that these forms of assault could be committed without violent force because an offender could use poison:

The “use of physical force” is not the drop of liquid in the victim’s drink; it is employing poison to cause serious bodily harm. See United States v. Castleman, 134 S. Ct. 1405, 1415 (2014). Under Verwiebe’s theory, tripping somebody into oncoming traffic, or for that matter perpetrating a sarin gas attack, would not be a crime of violence. Creative minds, once unhinged from common sense, might even suggest that pulling the trigger of a gun is not a sufficiently direct use of physical force. Sentencing law does not turn on such fine, reality-defying distinctions.

The court also rejected its prior precedent holding offenses are not crimes of violence if “a mental state of recklessness suffices for conviction,” reasoning that this prior precedent was overruled by Voisine v. United States, 136 S. Ct. 2272, 2280 (2016).