United States of America v. Davon S. Tooley

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0292p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVON S. TOOLEY,
Defendant-Appellant.
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No. 24-5286
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:23-cr-00127-1—Danny C. Reeves, District Judge.
Decided and Filed: October 23, 2025
Before: WHITE, STRANCH, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Pam Ledgewood, Lexington, Kentucky, for Appellant. Charles P. Wisdom Jr.,
UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Davon Tooley appeals his
sentence for possession of a firearm as a convicted felon, arguing that the district court
incorrectly counted his prior Kentucky conviction for second-degree manslaughter as a crime of
violence under the Sentencing Guidelines. We agree, VACATE Tooley’s sentence, and
REMAND for resentencing.
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I. Background
In April 2022, Tooley’s car struck a truck. Tooley asked the truck driver not to call the
police because he had drugs and a firearm in his car, but the driver declined his request and
called the police. Tooley fled on foot but was quickly apprehended. Officers found the gun and
drugs in his car. The following year, officers who were conducting a traffic stop on Tooley’s car
observed a device used for smoking drugs. They searched the car and found ammunition, drugs,
drug paraphernalia, and a gun with an extended magazine.
Tooley was charged with two counts of possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1), and pleaded guilty. The presentence report (“PSR”)
calculated a base offense level of twenty-two for both counts. As relevant here, an offense level
of twenty-two is appropriate for violations of 18 U.S.C. § 922(g)(1) “if (A) the offense involved
a (i) semiautomatic firearm that is capable of accepting a large capacity magazine . . . and (B) the
defendant committed any part of the instant offense subsequent to sustaining one felony
conviction of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(3).
Here, Tooley’s offense score of twenty-two was based on his prior Kentucky conviction of
second-degree manslaughter, which the district court determined was a “crime of violence.”
Tooley did not object to this calculation at the time. He was sentenced to a total of 145 months
in prison.
II. Discussion
This appeal presents two questions. First, does the offense of second-degree
manslaughter in Kentucky constitute a “crime of violence”? And, second, if not, does the district
court’s reliance on that conviction to enhance Tooley’s sentence constitute plain error? We
answer the first question in the negative and the second question in the affirmative.
A. Standard of Review
The parties agree that, because Tooley did not object to the district court’s calculation of
his guidelines range, our review is for plain error. To establish plain error, a defendant must
show that “(1) an error occurred in the district court; (2) the error was obvious or clear; (3) the

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No. 24-5286 United States v. Tooley Page 3
error affected defendant’s substantial rights; and (4) this adverse impact seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Dubrule,
822 F.3d 866, 882 (6th Cir. 2016) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th
Cir. 2006)). Tooley argues that it was plain error for the district court to calculate his base
offense level at twenty-two.
B. Analysis
1. Base Offense Calculation
A defendant convicted under 18 U.S.C. § 922(g)(1) is eligible for an enhanced base
offense level if the defendant has a previous conviction for a “crime of violence.” USSG
§ 2K2.1(a)(3). In determining the nature of a prior conviction, we “apply a ‘categorical’
approach, looking to the statutory definition of the offense and not the particular facts underlying
the conviction.” United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010) (citing Taylor v.
United States, 495 U.S. 575, 600 (1990)).
The term “crime of violence” is defined either by reference to a set of enumerated
offenses, none of which is relevant here, or as an offense under state or federal law, “punishable
by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted
use, or threatened use of physical force against the person of another . . . .” USSG § 4B1.2(a).
In Borden v. United States, the Supreme Court analyzed the definition of “violent felony” in the
Armed Career Criminal Act, 18 U.S.C. § 924(e), and determined that the phrase “use of physical
force against the person of another” incorporated a mens rea requirement. 593 U.S. 420, 432–34
(2021) (plurality opinion). The Court held that the clause, and thus the definition of “violent
felony,” “covers purposeful and knowing acts, but excludes reckless conduct.” Id.; see id. at 446
(Thomas, J., concurring in the judgment).
Borden further elaborated on the various levels of mens rea. Relying on case law and the
Model Penal Code, the Court explained that a person “acts purposefully when he ‘consciously
desires’ a particular result.” Id. at 426 (quoting United States v. Bailey, 444 U.S. 394, 404
(1980)). Similarly, a person “acts knowingly when ‘he is aware that [a] result is practically
certain to follow from his conduct,’ whatever his affirmative desire.” Id. (quoting Bailey, 444

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No. 24-5286 United States v. Tooley Page 4
U.S. at 404) (citing Model Penal Code § 2.02(2)(b)(ii)). By contrast, the Borden Court
explained, recklessness and negligence involve less culpable mental states. A person acts
recklessly “in the most common formulation, when he ‘consciously disregards a substantial and
unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Id. at
427 (quoting Model Penal Code § 2.02(2)(c)). And, “a person acts negligently if he is not but
‘should be aware’ of such a ‘substantial and unjustifiable risk,’ again in ‘gross deviation’ from
the norm.” Id. (quoting Model Penal Code § 2.02(2)(d)).
Because we have long treated the terms “crime of violence” under the Sentencing
Guidelines and “violent felony” under the Armed Career Criminal Act as having “essentially the
same definitions,” we follow Borden’s analysis here. United States v. Ford, 560 F.3d 420, 421
(6th Cir. 2009); Gibbs, 626 F.3d at 352 n.6 (noting that “crime of violence” under the Guidelines
and “violent felony” under the ACCA share “essentially the same definitions”). We must thus
determine if Tooley’s conviction of second-degree manslaughter in Kentucky required a mens
rea of purposefulness or knowledge, or if it required merely recklessness.
When Tooley was convicted of second-degree manslaughter, Kentucky law stated: “[a]
person is guilty of manslaughter in the second degree when he wantonly causes the death of
another person . . . .” Ky. Rev. Stat. § 507.040(1). Kentucky law defines “wantonly” as follows:
A person acts wantonly with respect to a result or to a circumstance described by
a statute defining an offense when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or that the circumstance
exists. The risk must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a reasonable person
would observe in the situation. A person who creates such a risk but is unaware
thereof solely by reason of voluntary intoxication also acts wantonly with respect
thereto.
Ky. Rev. Stat. § 501.020 (3).
Borden does not address the term “wantonly.” But Borden’s mens rea framework
corresponds to the levels of culpability described by Kentucky law. Indeed, both Borden and the
Kentucky framework rely explicitly on the Model Penal Code. Compare Borden, 593 U.S. at
426 (citing Model Penal Code § 2.02(2)), with Ky. Rev. Stat. § 501.020, 1974 Kentucky Crime
Commission/LRC Commentary (explaining that the Kentucky mens rea statute “follow[s] the

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lead of the Model Penal Code” and “fully and clearly defin[es]” four culpable mental states).
The difference between the Borden framework and the Kentucky statute is simply the terms
used. Borden and the Model Penal Code use the terms “recklessly” and “negligently” to describe
what Kentucky law defines as “wantonly” and “recklessly,” respectively. But the two
frameworks are functionally identical.
As relevant here, the definition of “wantonly” in Kentucky law clearly maps onto the
definition of “recklessly” used in the Model Penal Code and Borden. In Kentucky, a person
acting wantonly “is aware of and consciously disregards a substantial and unjustifiable risk that
the result will occur.” Ky. Rev. Stat. § 501.020(3). Similarly, in Borden, the Court explained
that a person who acts recklessly “‘consciously disregards a substantial and unjustifiable risk’
attached to his conduct . . . .” Borden, 593 U.S. at 427 (quoting Model Penal Code § 2.02(2)(c)).
Both definitions also require that the person’s actions constitute a “gross deviation” from
accepted standards. Ky. Rev. Stat. § 501.020(3); Borden, 593 U.S. at 427. Thus, although
Borden did not use the term “wantonly,” its definition of “recklessly” is functionally identical to
the definition of “wantonly” under Kentucky law.
Similarly, the terms “recklessly” under Kentucky law and “negligently” under Borden
and the Model Penal Code are equivalent. Under Kentucky law, a person acts “recklessly” if he
“fails to perceive a substantial and unjustifiable risk” and the failure is “a gross deviation from
the standard of care.” Ky. Rev. Stat. § 501.020(4). In Borden, the same substantive language is
used to describe the lowest mens rea, but Borden uses the term “negligently”: “a person acts
negligently if he is not but ‘should be aware’ of such a ‘substantial and unjustifiable risk,’ again
in ‘gross deviation’ from the norm.” Borden, 593 U.S. at 427 (quoting Model Penal Code
§ 2.02(2)(d)). Each framework contemplates the same levels of culpability; they simply use
different terms.
This is true as well of Kentucky’s murder statute. The Kentucky murder statute, Ky.
Rev. Stat. § 507.020, covers wanton conduct that “demonstrates extreme indifference to human
life.” Brown v. Commonwealth, 975 S.W.2d 922, 924 (Ky. 1998). Under Kentucky law,
extreme indifference to human life elevates the culpability of conduct that would otherwise be
merely wanton such that it “cannot fairly be distinguished” from intentional homicide. Id. at 923

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(quoting Ky. Rev. Stat. § 507.020, Commentary). The Kentucky murder statute relies on the
framework from the Model Penal Code, as explained in the Commentary to the statute, but here
too, replaces the term “recklessly” with “wantonly.” Compare Ky. Rev. Stat. § 507.020,
Commentary (“wantonness manifesting extreme indifference to human life”), with Model Penal
Code § 210.2(1)(b) (“committed recklessly under circumstances manifesting extreme
indifference to the value of human life”). Thus, Kentucky’s murder, manslaughter, and mens rea
statutes all rely on the Model Penal Code framework but use the term “wantonly” instead of
“recklessly.”
Because wantonness under Kentucky law is functionally identical to recklessness as
defined in Borden, a crime requiring a mens rea of wantonness under Kentucky law is not a
“crime of violence” under the Sentencing Guidelines. A defendant convicted of a crime
requiring wantonness under Kentucky law “consciously disregard[ed] a substantial and
unjustifiable risk that the result [would] occur.” Ky. Rev. Stat. § 501.020(3). The Supreme
Court has clearly held that such a defendant “has not used force ‘against’ another person in the
targeted way that clause requires.” Borden, 593 U.S. at 432. The district court therefore erred in
classifying Tooley’s conviction of Kentucky second-degree manslaughter as a “crime of
violence,” under USSG § 2K2.1(a)(3).
Resisting this conclusion, the government argues that wantonness under Kentucky law
requires that a defendant act “knowingly,” in contrast to the definition of “recklessly” in the
Borden framework.1 Apparently recognizing that the Kentucky definition of “wantonly” does
not use the word “knowingly,” the government’s argument rests on the statute’s use of the word
“aware” in describing a defendant who is “aware of and consciously disregards a substantial and
unjustifiable risk.” Ky. Rev. Stat. § 501.020(3). This is in contrast to the Model Penal Code’s
and Borden’s use of the phrase “consciously disregards a substantial and unjustifiable risk,”
which does not include the word “aware.” See Borden, 593 U.S. at 427 (quoting Model Penal
Code § 2.02(2)(c)).
1We note that in another case, the government conceded that post-Borden, wanton second-degree assault
under Kentucky law “does not qualify as a crime of violence under the elements clause.” United States v. Wright,
No. 22-5452, 2023 WL 4995748, at *3 (6th Cir. Aug. 4, 2023).

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We are not persuaded that being aware of a risk is tantamount to acting knowingly. The
requirement of awareness in the Kentucky statute applies to the clause that immediately follows,
i.e., the “substantial and unjustifiable risk.” That places the definition on all fours with
recklessness in the Borden framework, which also covers a defendant who “consciously
disregards a substantial and unjustifiable risk.” Id. at 427 (quoting Model Penal Code §
2.02(2)(c)). Consciousness of the risk and awareness of the risk amount to the same thing: the
defendant must appreciate the risk and choose to act anyway. In contrast, a defendant who acts
knowingly must be “aware” that a result is “practically certain to follow from his conduct.” Id.
at 426 (quoting Bailey, 444 U.S., at 404). Simply being aware of the risk is insufficient. We
therefore reject the government’s attempt to distinguish “wantonly” under Kentucky law and
“recklessly” under Borden based on the inclusion of the term “aware” in the Kentucky statute.
The government also points to our opinion in United States v. Harrison, 54 F.4th 884,
890 (6th Cir. 2022), for the proposition that a mens rea more culpable than recklessness can
constitute a “crime of violence.” Harrison did indeed so hold; but its holding is not relevant to
the second-degree manslaughter offense at issue here. Harrison considered Kentucky’s murder
statute which, as we have explained, encompasses wantonness manifesting extreme indifference
to human life. This elevation in the degree of wantonness makes the level of culpability
equivalent to acting knowingly or intentionally in the eyes of the law. Brown, 975 S.W.2d at 924
(citing Ky. Rev. Stat. § 507.020, Commentary). Kentucky’s manslaughter statute, at issue here,
does not require this elevated level of wantonness. Id. at 923. As the concurrence in Harrison
explained, for purposes of Kentucky law, “the line between wanton murder—functionally
indistinguishable from knowledge or intent—and wanton manslaughter—more like mere
recklessness—turns on the ‘extreme indifference to human life’ prong.” Harrison, 54 F.4th at
894 (Cole, J., concurring). Harrison thus does not conflict with our conclusion that simple
wantonness, without more, under Kentucky law is functionally equivalent to recklessness under
Borden and cannot support a sentencing enhancement for a crime of violence.
In a similar vein, we held that wantonness in Michigan’s second-degree murder statute is
“close to acting purposefully or knowingly on the mens rea spectrum.” United States v. Jamison,
85 F.4th 796, 803 (6th Cir. 2023), cert. denied, 144 S. Ct. 613 (2024). Wantonness in that case

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differed from “wantonly” in Kentucky’s second-degree manslaughter statute and “recklessly”
under Borden in that it required “such heedless disregard of a harmful result, foreseen as a likely
possibility, that it differs little in the scale of moral blameworthiness from an actual intent to
cause such harm.” Id. (quoting People v. Goecke, 579 N.W.2d 868, 879 (Mich. 1998)). Thus,
Jamison, like Harrison, involved a mens rea more culpable than Kentucky’s general definition
of wantonness. Jamison simply makes clear that, just as a mens rea more culpable than
recklessness can constitute a “crime of violence,” so too can a mens rea more culpable than
simple wantonness. Neither case undermines our conclusion here that wantonness under the
Kentucky manslaughter statute is insufficient for a crime of violence.
2. Plain or Obvious Error
The government next argues that, even if we conclude that Tooley’s manslaughter
conviction is not a “crime of violence” under the Sentencing Guidelines, Tooley still cannot
show the plain error required to reverse because “the law is not clear.” Appellee’s Br. at 6. The
government argues that Borden “reserved the question of whether offenses that involve a mens
rea between recklessness and knowledge satisfy the use of force clause.” Id. at 6–7 (citing
Borden, 593 U.S. at 429 n.4). We do not agree.
Plain error requires, at minimum, that “the error is clear under current law.” United
States v. Lanham, 617 F.3d 873, 884 (6th Cir. 2010) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)). Here, our holding flows directly from binding Supreme Court precedent. A
plain reading of the definition of “recklessness” in Borden and the definition of “wantonness”
under Kentucky law reveals that the two are functionally identical. It was therefore clear error to
treat “wantonness” under Kentucky law as a distinct and more culpable mens rea. To be sure,
were we to conclude, as the government urges, that the wantonness required for a Kentucky
manslaughter conviction falls between “recklessness” and “knowing,” a different result might be
appropriate. Cf. United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (“A lack of
binding case law that answers the question presented will also preclude our finding of plain
error.”). But because Borden makes clear that wantonness under Kentucky law is equivalent to
recklessness under Borden, our conclusion squarely follows from binding precedent. As such, it
was plain error for the district court to hold otherwise.

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3. Impact on the Defendant’s Substantial Rights and Judicial Proceedings
The clear error inquiry requires two more findings: that the error impacts the defendant’s
substantial rights and the fairness of judicial proceedings. Neither party addresses these points.
But we have little trouble concluding that the sentencing error here impacted Tooley’s
substantial rights by subjecting him to a lengthier sentence. See Molina-Martinez v. United
States, 578 U.S. 189, 192 (2016); see also United States v. Wilson, 614 F.3d 219, 223 (6th Cir.
2010) (“A sentencing error affects a defendant’s substantial rights when there is a reasonable
probability that, but for the error, she would have received a more favorable sentence.”). And by
exposing Tooley to a harsher sentence through the misapplication of settled law, the error
affected the fairness and integrity of the judicial proceedings. See Rosales-Mireles v. United
States, 585 U.S. 129, 132, 143 (2018); United States v. Bostic, 371 F.3d 865, 876–77 (6th Cir.
2004). We therefore conclude that the error here meets the final two requirements for plain
error.
* * *
For the reasons stated, we VACATE Tooley’s sentence and REMAND for resentencing
consistent with this opinion.

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