'Serious Bodily Injury' Agg Assault Held Not to Qualify as ACCA Predicate

In United States v. Anthony Mayo, No. 16-4282 (Aug. 22, 2018), the Court holds that first-degree aggravated assault in violation of Section 2702(a)(1) of Pennsylvania’s Crimes Code does not qualify as a predicate “violent felony” for purposes of the 15-year mandatory minimum provided by the Armed Career Criminal Act.

Before Johnson v. United States, 135 S. Ct. 2551 (2015), the Pennsylvania assault offense was thought to qualify under the so-called “residual clause” of ACCA’s definitional provision, which looks to whether the elements of an offense ordinarily involve conduct presenting “a serious potential risk of physical injury to another.” Johnson having held the residual clause to be unconstitutionally vague, the Pennsylvania offense cannot qualify as a predicate unless it meets the ACCA’s alternative definition of a violent felony as an offense having as an element the use or threat of "physical force against the person of another." See 18 U.S.C. § 924(e)(2)(B)(i).

A person violates Section 2702(a)(1) if he causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to human life. Relying on authoritative Pennsylvania state precedent, Mayo concludes the offense does not necessarily involve the use or threat of physical force because a conviction may be obtained by proving culpable acts of omission such as failing to provide a child with food or medical care.

The Court rejects the government’s argument from United States v. Castleman, 134 S. Ct. 1405 (2014), which states that “‘bodily injury’ must result from ‘physical force.’” That decision, the Court explains, construed a different definitional provision and expressly reserved the question of whether the same analysis would apply to the ACCA. Furthermore, to hold aggravated assault as defined by Section 2702(a)(2) a violent felony would “conflate an act of omission with the use of force, something that Castleman, even if it were pertinent, does not support.”

The Court also distinguishes Chapman v. United States, 866 F.3d 129 (3d Cir. 2017), which concluded that the offense defined by 18 U.S.C. § 876(c), which proscribes mailing a communication containing a threat to injure the person of another, has the threat of force as an element. Mayo explains that while some offenses defined in terms of the causation of bodily injury “inherently involve the use or attempted use of ‘physical force,’ we have not said that bodily injury is always and only the result of physical force.” In the end, "because Pennsylvania aggravated assault under § 2702(a)(1) criminalizes certain acts of omission, it sweeps more broadly than the ACCA’s definition of ‘physical force.’”