Appearances can be deceiving. It’s easy to read United States v. Higdon as a case that answers a narrow question: whether a North Carolina offense is a “violent felony” under the Armed Career Criminal Act’s definition. Higdon actually does much more and provides a nice outline about the state of violent-felony jurisprudence after Johnson v. United States, which relieved us of the burden of interpreting the statute’s residual clause. Johnson has not the panacea federal public defenders hoped. Much of the analysis about whether a conviction is for a violent felony has shifted to the use-of-force clause: any felony 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). And that shift has created some inter- and intra-circuit fault lines.
Let’s get down the brass tacks. Daryl Lynn Higdon pleaded guilty to being a felon in possession of a firearm and was sentenced to the mandatory minimum term of imprisonment of 15 years. The district court did so because Mr. Higdon had a 1984 conviction for discharging a firearm into an occupied structure in violation of N.C. Gen. Stat. § 14-34.1 (1981). North Carolina courts have identified five elements of this crime: (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) the defendant had reasonable grounds to believe the property might be occupied.
The government abandoned any claim that the offense involves “attempted” or “threated” use of physical force, and so the only question the Sixth Circuit had to answer was “whether these elements, taken separately or together, require the ‘use . . . of physical force against the person of another.’” The court had little trouble concluding, “[p]lainly they do not[.]” Although the statute requires proof that force was used (discharging a firearm), it does not require that the force be “against the person of another.” No injury must occur.
Now it’s time for the good stuff: why is Higdon important? This case provides direction for the proper analytical approach to help determine whether convictions contain a use-of-force element. The court identified the four requirements of “violent felonies”: “(1) conduct giving rise to force (e.g., pulling a trigger on a gun); (2) certain consequences from that conduct (i.e., the application of “physical force against the person of another”); and two types of mens rea, namely (3) the conduct giving rise to the force be ‘volitional’ rather than accidental, and (4) the defendant be at least reckless as to the consequences of the conduct.” (citations omitted). Higdon clarifies that an offense cannot satisfy these requirements if the defendant had knowledge of the consequences, but did not actually cause them. The court also defined “force against the person of another,” adopting the following definition: the force must be applied to the victim’s person.
Also of note is the fact that Higdon’s author, Judge Kethledge, highlighted his lingering disagreement with Judge Sutton about whether a mens rea of mere recklessness is sufficient to satisfy § 924(e)(2)(B)(i)’s definition. We covered this dispute previously, and this is an issue will continue to divide circuit courts until the Supreme Court intervenes.
One final note: credit where credit is due. Congratulations to Jennifer Coffin of Federal Defender Services of Eastern Tennessee for her hard work on this case.