United States v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (to be published). Panel of Judges Moore, Gibbons, and McKeague. Judge Moore wrote the majority opinion; Judge McKeague dissented.
Felon-in-possession case. Defendant sentenced as an armed career criminal. Conclusion: Tennessee's aggravated-assault statute is not categorically a violent felony. And in this case, the Shepard docs did not establish the nature of the prior conviction.
The Court found that the "use of physical force" clause of the ACCA requires more than reckless conduct. The decision rests on the potential for just reckless conduct falling under the statute. But the Court also notes (in footnote 6) that causing serious bodily injury may not necessarily require the use of physical force. The prior conviction was not a violent felony under the physical-force clause.
In terms of the "otherwise" clause, after Begay, reckless aggravated assault is not a violent felony.
Looking at the Shepard documents, there is no showing that the defendant necessarily had pleaded guilty to an offense qualifying as a violent felony. The government asked the Court to consider the state's proffer of a factual basis during the plea colloquy. While the plea colloquy is a Shepard document, the defendant here had entered an Alford plea (avoid acknowledgment of guilt). In considering this issue, the Court noted it has declined to consider preliminary-exam transcripts because the defendant did not admit the conduct; Shepard requires a judicial record in which the defendant necessarily admitted certain conduct to enter a plea. The state's factual basis does not qualify.
The Court is clear: "We must consider only the facts necessarily admitted by the defendant in pleading guilty even if we are forced 'to feign agnosticism about clearly knowable facts.'" There are Sixth Amendment concerns as well.
Judge McKeague dissented. He finds that United States v. Matthews, 278 F.3d 560 (6th Cir. 2002), answered the question and makes Tennessee's aggravated-assault offense a violent felony. He finds that Begay did not overrule Matthews and he cites United States v. Benton, 639 F.3d 723 (6th Cir. 2011). (The majority found that case's statements to be dicta.) The dissent also disagrees on the issue of considering the state's factual basis at a plea, but he does agree that reading that factual basis (without obtaining the defendant's confirmation of it) was insufficient. He would allow consideration of those facts if other Shepard documents confirmed them.
