Intentional Assault by Any Other Name is Still Intentional Assault

Is an intentional assault committed during an extreme emotional disturbance a “violent felony” for the purposes of the Armed Career Criminal Act? In United States v. Maynard, the Sixth Circuit says it is.

Kentucky allows defendants accused of committing first, second, or fourth-degree assaults to mitigate their conduct by presenting evidence that, at the time of the assault, they were “under the influence of extreme emotional disturbance.” Ky. Rev. Stat. § 508.040. In a published opinion, the Sixth Circuit clarified what the court had already said in unpublished opinions: the mitigating factor does not change the fact that the statute has as an element the actual, threatened, or attempted use of physical force. The statute requires proof that the defendant actually caused physical harm, and so the court had no trouble finding that the Ky. Rev. Stat. § 508.040 qualifies as a violent felony under the elements clause of the ACCA.

The overall takeaway of Maynard is this: statutes that permit mitigation arguments do not alter the elements of the offense.

In a very short concurrence, Judge White makes clear that she concurred only because United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which interpreted Ohio’s felonious assault statute, compelled the conclusion. Sixth Circuit court watchers may be interested to know that the Sixth Circuit had en banc arguments in June to address whether Anderson was correctly decided. See Williams v. United States, 875 F.3d 803, 807–09 (6th Cir. 2017) (Moore, J.) (explaining why Anderson was incorrect). True nerds anxiously await the en banc court's forthcoming opinion.