PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1861 _____________ UNITED STATES OF AMERICA v. MARC JAMES HARRIS, Appellant ______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 09-cr-00283) District Judge: Honorable Berle M. Schiller _____________ Argued: January 16, 2018 ______________ Before: AMBRO*, RESTREPO and FUENTES, Circuit Judges. (Filed: May 17, 2023) ______________ Arianna J. Freeman [ARGUED] Brett G. Sweitzer Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street, Suite 540 West Philadelphia, PA 19106 Counsel for Appellant * Judge Ambro assumed senior status on February 6, 2023. Robert A. Zauzmer [ARGUED] Josh A. Davison Bernadette McKeon Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Appellee ______________ OPINION OF THE COURT ______________ RESTREPO, Circuit Judge. The Armed Career Criminal Act (“ACCA” or “the Act”) establishes a fifteen-year mandatory minimum term of imprisonment for anyone convicted of a firearms offense under 18 U.S.C. § 922(g) who has at least three prior convictions for a “violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Our precedent dictates that Marc Harris’ prior aggravated assault conviction should not be deemed a violent felony under the Act. Harris was sentenced to a fifteen-year term of imprisonment pursuant to ACCA and challenged his sentence. He appealed to this Court, claiming the statutes underlying his prior convictions criminalize reckless conduct. Harris argued only crimes involving intentional acts of physical force could serve as an ACCA predicate offense, rendering his enhanced sentence illegal. The Supreme Court has since agreed with Harris. In Borden v. United States, the Court held crimes that could be committed with a mens rea of recklessness do not qualify as violent felonies under ACCA’s element of force clause. 141 S. Ct. 1817 (2021) (plurality opinion). Simply put, crimes that can be committed recklessly do not necessarily entail, as ACCA requires, “the active employment of force against another person.” Id. at 1834. 2 The Government has conceded that Borden eliminates some of Harris’ prior convictions as predicate offenses but maintains that three qualifying offenses remain. Harris disagrees, arguing the Borden decision renders all of his Pennsylvania prior convictions for robbery and aggravated assault to be non-predicate offenses, leaving only one qualifying drug offense. But this Court need not address the effect of Borden on these Pennsylvania statutes to decide this appeal. Prior to the Borden decision, this Court decided United States v. Mayo, which held a Pennsylvania conviction for first-degree aggravated assault does not require physical force as understood within the context of ACCA. 901 F.3d 218 (3d Cir. 2018). Applying Mayo, as we are bound to do, Harris’ aggravated assault conviction is stricken as a predicate, and he no longer has the three violent felony convictions necessary to justify the enhancement. We therefore vacate Harris’ sentence and remand for further proceedings. I. Jurisdiction and Standard of Review The District Court had jurisdiction under 28 U.S.C. §§ 2241 …
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