United States v. Charles Borden, Jr. ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0212n.06
Case No. 18-5409
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 25, 2019
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
CHARLES BORDEN, JR., ) TENNESSEE
)
Defendant-Appellant. )
BEFORE: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges.
COOK, Circuit Judge. After Charles Borden, Jr. pleaded guilty to possessing a firearm as
a felon, the district court sentenced him as an armed career criminal to 115-months’ imprisonment.
Borden contends that the court’s enhancement of his sentence amounts to a denial of due process.
Finding no constitutional violation, we AFFIRM.
I.
Police caught Borden with a pistol during a traffic stop in April 2017. He eventually
pleaded guilty to possessing that firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).
The government recommended sentencing Borden as an armed career criminal, relying on
three prior Tennessee aggravated assault convictions as predicate offenses. Borden objected to
that classification. He argued that one of his prior aggravated assault convictions did not qualify
Case No. 18-5409, United States v. Borden
as a predicate “crime of violence” within USSG § 4B1.2(a) because it involved a reckless variant
of the offense. Borden acknowledged, however, that this court’s decision in United States v.
Verwiebe, 874 F.3d 258 (6th Cir. 2017) (cert. denied, 139 S.Ct. 63 (Oct. 1, 2018), held just the
opposite: reckless aggravated assault is a crime of violence under § 4B1.2(a)’s use-of-force clause.
But Borden asserted that applying Verwiebe to his case would violate ex post facto and due process
principles because this court decided Verwiebe six months after his arrest for felonious possession.
Finding no due process violation, the district court applied Verwiebe retroactively to
conclude that all three of Borden’s aggravated assault convictions qualified as predicate crimes of
violence. It designated him an armed career criminal, increasing Borden’s sentencing exposure to
180-months’ imprisonment at minimum. But after considering the 18 U.S.C. § 3553(a) factors
and granting Borden a downward departure for assistance to law enforcement, the court sentenced
Borden to just 115-months’ imprisonment. This appeal followed.
II.
Since Verwiebe, our cases have held repeatedly that reckless aggravated assault in violation
of Tenn. Code Ann. § 39-13-102(a)(1)(B) qualifies as a crime of violence within USSG
§ 4B1.2(a). United States v. Harper, 875 F.3d 329, 330 (6th Cir. 2017); see also Davis v. United
States, 900 F.3d 733, 736 (6th Cir. 2018). Borden argues that the district court should have ignored
that precedent for two reasons. First, he maintains that applying Verwiebe to his case violated the
Constitution’s ex post facto and due process protections because it was decided six months after
he committed his offense. Second, Borden challenges Verwiebe and Harper as wrongly decided.
We review his constitutional and statutory-interpretation claims de novo. See United States v.
Copeland, 321 F.3d 582, 601 (6th Cir. 2003); Verwiebe, 874 F.3d at 260.
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Case No. 18-5409, United States v. Borden
Due process entitled Borden to “fair warning” as to “the reach of statutes defining criminal
activity” and the punishment accompanying a conviction. Dale v. Haeberlin, 878 F.2d 930, 934
(6th Cir. 1989); see also Webb v. Mitchell, 586 F.3d 383, 392 (6th Cir. 2009). Bound by these
principles of fairness, Rogers v. Tennessee, 532 U.S. 451, 462 (2001), the district court could not
apply Verwiebe if by doing so it “enforced changes in interpretations of the law that unforeseeably
expand[ed] the punishment accompanying [his] conviction beyond that which [Borden] could have
anticipated at the time” he committed his crime, Dale, 878 F.2d at 934. Thus, the key to our
analysis is whether, in April 2017, Borden could have anticipated the punishment he ultimately
received, 115-months’ imprisonment for possessing a firearm as a felon. Id. at 935; see also
Weaver v. Graham, 450 U.S. 24, 30–31 (1981); United States v. Crenshaw, 172 F.3d 50, 1999 WL
17642, at *3 (6th Cir. Jan. 6, 1999) (table).
At the time of Borden’s crime, a felon convicted of possessing a firearm faced up to ten
years’ imprisonment. 18 U.S.C. § 924(a)(2). That is, even if the court had given Borden the
benefit of then-existing precedent requiring more than recklessness for crimes of violence and
declined to enhance Borden’s sentence, Borden could have anticipated a sentence of up to ten
years. He received nine years and seven months. R. 41, PageID 212. The district court’s
application of Verwiebe, therefore, cannot be said to have disadvantaged Borden; he suffered no
deprivation of his due process rights.
To the extent he challenges Verwiebe as wrongly decided, Borden is not alone. See Harper,
875 F.3d at 330–31 (criticizing Verwiebe as “mistaken”). Nevertheless, we follow our precedent
and conclude that aggravated assault in Tennessee constitutes a crime of violence for USSG
§ 4B1.2(a) purposes. Id. at 330 (“[W]e are bound to hold that reckless aggravated assault in
violation of Tenn. Code Ann. § 39-13-102(a)(1)(B) is a crime of violence . . . .”); see Davis, 900
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Case No. 18-5409, United States v. Borden
F.3d at 736. Absent an intervening decision by the Supreme Court or this court sitting en banc,
United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014), Harper remains controlling authority in
this circuit and aggravated assault in Tennessee categorically qualifies as a crime of violence.
III.
We AFFIRM.
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