Borden v. United States: Reckless Crimes Don't Count Under the ACCA

On June 10, 2021, the Supreme Court ruled that a crime that can be committed recklessly does not count as a "violent felony" under the Armed Career Criminal Act (ACCA). The case is Borden v. United States, 593 U.S. 420 (2021), and many people serving ACCA sentences had been waiting on it. This post, written the day after the decision, gives a quick overview of the main points.

The ACCA is a federal law that sets a 15-year mandatory minimum for some gun cases when the person has three earlier convictions for a violent felony or serious drug offense. "Reckless" means the person knew of a risk and ignored it, but did not mean to hurt anyone.

The case

Mr. Borden got an ACCA sentence in a Sixth Circuit case. One of his earlier convictions was for aggravated assault under Tennessee law, Tenn. Code § 39-13-102(a)(1)(B). He argued it should not count because a person can commit that crime just by being reckless, and it does not require proof that the person meant to use force against a particular person. The lower courts disagreed and upheld his ACCA sentence.

The Supreme Court agreed to hear the case in March 2020 and heard argument in November 2020.

What the Court decided

The Court reversed. Justice Kagan wrote for four Justices. She reasoned that the ACCA's "elements clause" covers only crimes where the person uses force on purpose or knowingly, not crimes of mere recklessness. The Court said the elements clause "suggests a higher degree of intent" than recklessness or negligence. The ACCA's purpose was to mark out a narrow category of violent crimes. That requires a purposeful or knowing state of mind, not mere indifference to risk. Justice Thomas agreed with the result for different reasons, so the vote was 5-4.

The opinion echoed Begay v. United States, 553 U.S. 137 (2008). There, the Court said the ACCA targets a "particular type of offender," not people whose acts are negligent or reckless. Those offenders have not been shown to be more likely to be dangerous in the future, the Court said. It held that a simple DUI was not enough to support an ACCA sentence.

Who Borden may affect

Borden reaches well beyond Tennessee aggravated assault. It may affect any ACCA sentence that rests on an earlier conviction for a crime that can be committed recklessly.

Timing matters, though. A § 2255 motion asks the sentencing judge to vacate or correct a federal sentence. Under 28 U.S.C. § 2255(f)(3), a motion based on a right newly recognized by the Supreme Court generally must be filed within one year of the decision. For Borden, that window generally closed in June 2022, so anyone who did not file then would need a lawyer to check whether another route remains.

Update (October 2026): Since Borden, some federal appeals courts have applied the same reasoning to the similar elements clause in 18 U.S.C. § 924(c). For example, in January 2022 the Tenth Circuit overruled its earlier decision in United States v. Mann, 899 F.3d 898 (10th Cir. 2018), on this point. Check the law in your circuit.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.