Eleventh Circuit Court of Appeals - Published Opinions

Thursday, April 04, 2019

Moss: Georgia Aggravated Assault is Not a Violent Felony Under the Elements Clause

In United States v. Moss, No. 17-10473 (Apr. 4, 2019) (Wilson, Branch, Anderson), the Court held that Georgia aggravated assault did not satisfy the elements clause of the ACCA because it could be committed recklessly.

The Court relied heavily on its prior decision in Palomino Garcia, which held that an Arizona assault offense with a reckless mens rea did not satisfy the elements clause in the Guidelines.  The Court rejected the government's reliance on Turner, which held that Florida aggravated assault qualified under the elements clause.  Looking only to the face of the Florida assault statute, the Court emphasized that Florida assault required an intentional mens rea, whereas Georgia assault did not.  The Court made no mention of Florida case law showing that aggravated assault could be committed recklessly, even though it looked to Georgia case law to establish that proposition in this case.