United States of America v. Mario Delaine

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0103p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO DELAINE,
Defendant-Appellant.
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No. 25-5465
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:23-cr-00069-1—Charles Edward Atchley Jr., District Judge.
Argued: January 29, 2026
Decided and Filed: April 2, 2026
Before: GIBBONS, LARSEN, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Conrad Benjamin Kahn, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Conrad
Benjamin Kahn, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.,
Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S
OFFICE, Knoxville, Tennessee, for Appellee.
_________________
OPINION
_________________
MURPHY, Circuit Judge. The Armed Career Criminal Act requires a court to impose a
minimum sentence of 15 years’ imprisonment for felons who possess firearms if they have three
>

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prior “violent felony” convictions. 18 U.S.C. § 924(e)(1). The statute defines the phrase
“violent felony” in part to include an offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another[.]” Id. § 924(e)(2)(B)(i). The
district court in this case held that this definition covered three of Mario Delaine’s prior
convictions and thus applied the 15-year minimum. Delaine has appealed. His appeal raises
complex questions about the scope of the Armed Career Criminal Act. To name a few: When
deciding whether a state-law offense qualifies as a “violent felony,” must a sentencing court look
only to the state-law precedent at the time of a defendant’s conviction, or may it rely on later
state-court decisions that clarify the offense’s elements? And can an offense qualify as a violent
felony if the defendant intentionally uses force against another person but does not intend for the
force to cause an injury? Despite the excellent advocacy of Delaine’s counsel, we disagree with
him over the Act’s requirements and the nature of his prior offenses. Because all three of those
offenses are violent felonies, we affirm.
I
On November 5, 2022, a caller reported to the police that someone had discharged a
weapon at a Motel 6 in Chattanooga, Tennessee. When the police arrived at the motel, they
heard a suspect fire shots out the window of a motel room. As officers made their way to this
room, the suspect fired another round through the door. The officers announced their presence
and ordered everyone to exit. Delaine followed a woman out of the room. The woman gave the
officers permission to search it. They uncovered a pistol and shell casings. They also located
bullet holes in the window and door. Delaine confessed that he had fired the gun even though he
could not lawfully possess a firearm as a convicted felon.
The government charged Delaine with one felon-in-possession count. See 18 U.S.C.
§ 922(g)(1). It also alleged that his prior convictions subjected him to a minimum sentence of
15 years’ imprisonment under the Armed Career Criminal Act. See id. § 924(e)(1). The parties
entered a plea deal under Federal Rule of Criminal Procedure 11(c)(1)(C). Delaine agreed to
plead guilty to the sole count. The government agreed to a sentence of no more than 200
months’ imprisonment. It also gave Delaine the right to appeal a decision that he qualified for
the Armed Career Criminal Act’s enhanced penalty.

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At sentencing, the parties spent most of the time debating whether the Act’s enhancement
applied based on three of Delaine’s prior convictions: a Florida aggravated-assault conviction
from 2012; a Florida felony-battery conviction from 2009; and an Ohio domestic-violence
conviction from 2019. The district court sided with the government and imposed the Act’s
enhancement. Ultimately, it sentenced Delaine to 188 months’ imprisonment.
II
Delaine argues on appeal that the district court mistakenly applied the Armed Career
Criminal Act’s increased punishment. He is mistaken.
A. General “Armed Career Criminal Act” Principles
When felons illegally possess firearms, the law generally subjects them to a maximum
sentence of 15 years’ imprisonment. See 18 U.S.C. §§ 922(g)(1), 924(a)(8). But the Armed
Career Criminal Act turns this maximum sentence into a minimum one for qualifying
defendants. See id. § 924(e)(1). Under the Act, if a defendant “has three previous
convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions
different from one another,” a court must sentence the defendant to “not less than fifteen years”
of imprisonment. Id.
This case turns on the Act’s definition of “violent felony.” See id. § 924(e)(2)(B). As
relevant here, a prior conviction qualifies as a “violent felony” if it “has as an element the use,
attempted use, or threatened use of physical force against the person of another[.]” Id.
§ 924(e)(2)(B)(i). The Supreme Court has interpreted this so-called “elements clause” (like
similar clauses in other laws) to adopt a well-known “categorical approach.” Borden v. United
States, 593 U.S. 420, 424 (2021) (plurality opinion); see United States v. Taylor, 596 U.S. 845,
850 (2022). That approach requires us to consider in the abstract whether every conviction for a
given criminal offense would satisfy the elements clause because they would all necessarily
include “the use, attempted use, or threatened use of physical force against the person of
another[.]” 18 U.S.C. § 924(e)(2)(B)(i); see Borden, 593 U.S. at 424 (plurality opinion). In
contrast, we do not consider the facts of a specific conviction or whether a defendant’s specific
conduct used, attempted, or threatened force. Borden, 593 U.S. at 424 (plurality opinion). In

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other words, an offense categorically falls outside the Act whenever the “least culpable” conduct
that the offense covers does not qualify. Id.
The Supreme Court has interpreted the elements clause to contain both a state-of-mind
(mens rea) component and a conduct (actus reus) component. See id. at 429 (plurality opinion)
(state of mind); Johnson v. United States, 559 U.S. 133, 138 (2010) (conduct); see also 5 St.
George Tucker, Blackstone’s Commentaries 21 (1803). Start with the conduct component. An
offense can qualify if a defendant must “use,” “attempt[]” to use, or “threaten[]” to use “physical
force against the person of another” to commit it. 18 U.S.C. § 924(e)(2)(B)(i). The Court has
defined this language’s key phrase (“physical force”) to cover only “violent force” that could
“caus[e] physical pain or injury to another person.” Johnson, 559 U.S. at 140. And it has
applied this definition to two common-law crimes: battery and robbery. According to the Court,
the force necessary to commit a common-law battery—“the slightest offensive touching”—does
not satisfy this definition. Id. at 139. But the Court has added that the force necessary to commit
a common-law robbery—the force required “to overcome the victim’s resistance”—does satisfy
it. Stokeling v. United States, 586 U.S. 73, 77 (2019). This force may qualify even if it results in
only “minimal pain or injury.” Id. at 84. Beyond all that, the force can also qualify even if the
offender “cause[s] harm by omission”—that is, by failing to act when the offender has a duty to
act (such as a parent starving a child to death). Delligatti v. United States, 604 U.S. 423, 433–34
(2025).
Turn to the state-of-mind component. The elements clause does not expressly identify
any required state of mind. Yet the Supreme Court has found a state-of-mind component implied
in the clause’s text. The Court has held that this text excludes crimes “with a mens rea of
recklessness” (or lower) from its reach. Borden, 593 U.S. at 445 (plurality opinion); see id. at
446 (Thomas, J., concurring in the judgment). So when a person intentionally deploys force
(say, by driving a car) but acts recklessly or negligently about whether this force will hit a person
(say, by accidentally striking a pedestrian), the person has not “use[d] . . . physical force against
the person of another[.]” 18 U.S.C. § 924(e)(2)(B)(i); see Borden, 593 U.S. at 429,
432 (plurality opinion); id. at 446 (Thomas, J., concurring in the judgment); Leocal v. Ashcroft,
543 U.S. 1, 9–10 (2004).

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In Borden, however, the Court splintered as to the rationale for this holding. A four-
Justice plurality relied on two textual considerations. See Borden, 593 U.S. at 430–34 (plurality
opinion). The plurality first explained that the phrase “use of physical force” required a
“‘volitional’ or ‘active’ employment of force” (as compared to an involuntary muscle spasm).
Id. at 430 (quoting Voisine v. United States, 579 U.S. 686, 693 (2016)). Relying on the Court’s
earlier decision in Voisine, the plurality believed that this phrase—by itself—could include
recklessly harming others through such volitional acts. See Borden, 593 U.S. at 428–29,
442 (plurality opinion); see also Voisine, 579 U.S. at 693–94. But the plurality next explained
that the phrase “against the person of another” (when modifying “use” of “physical force”)
conveyed that a victim must be “the conscious object” of the force. Borden, 593 U.S. at 430–32,
443 (plurality opinion). The plurality thus relied on this second phrase in the elements clause to
exclude volitional motions that recklessly hit others. See id. By way of example, the plurality
distinguished between a driver who knowingly drove “his car straight at a known victim” to
escape the police and one who recklessly struck “a pedestrian whom he did not see” while
running a red light. Id. at 432. According to the plurality, the first driver would have used force
against the person of another in a way that the second driver would not have. Id.
Justice Thomas took a different path to the same result. He relied on the phrase “use of
physical force” alone to conclude that negligent and reckless conduct fell outside the elements
clause. See id. at 446 (Thomas, J., concurring in the judgment). In his view, this phrase had “a
well-understood meaning applying only to intentional acts designed to cause harm.” Id. (quoting
Voisine, 579 U.S. at 713 (Thomas, J., dissenting)). As he said in his Voisine dissent, the phrase
would not cover a party who recklessly deployed force—such as a man who texted while driving
and got into an accident that injured a passenger. See 579 U.S. at 707 (Thomas, J., dissenting).
B. Application
Delaine has an aggravated-assault conviction from Florida, a felony-battery conviction
from Florida, and a domestic-violence conviction from Ohio. He argues that these convictions
are not “violent felonies” because they cannot meet the state-of-mind or the conduct component
of the elements clause. We will take the convictions in turn, reviewing de novo the district

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court’s decision that all three qualify. See United States v. Campbell, 122 F.4th 624, 628 (6th
Cir. 2024).
1. Florida Aggravated Assault
We begin with Delaine’s 2012 conviction for aggravated assault in Florida. Florida law
relies on its “assault” statute to create its “aggravated assault” offense. That law first defines a
regular assault as “an intentional, unlawful threat by word or act to do violence to the person of
another, coupled with an apparent ability to do so, and doing some act which creates a well-
founded fear in such other person that such violence is imminent.” Fla. Stat. § 784.011(1). It
then defines an “aggravated assault” as an ordinary assault that is either “[w]ith a deadly weapon
without intent to kill” or “with an intent to commit a felony.” Id. § 784.021(1)(a)‒(b). The
parties agree that this statute is “divisible” into two aggravated-assault offenses—one involving
the use of a deadly weapon and the other involving the intent to commit another felony. See
Descamps v. United States, 570 U.S. 254, 257 (2013). And they agree that Delaine committed
the deadly weapon version.
Does this Florida offense satisfy the conduct and state-of-mind components to qualify as
a violent felony under the elements clause? Our answer is an unambiguous yes. To start,
Delaine does not dispute (and so we may assume) that the offense satisfies the conduct element
because it requires a “threatened use” of the type of “violent force” that falls within the elements
clause. 18 U.S.C. § 924(e)(2)(B)(i); Johnson, 559 U.S. at 140. Next, both text and precedent
show that the offense meets the state-of-mind requirement because it demands more than a
reckless threat. See Borden, 593 U.S. at 432 (plurality opinion). The offense’s text requires a
defendant to have “intentional[ly]” (not merely recklessly) directed a threat at another person.
Fla. Stat. § 784.011(1) (emphasis added); id. § 784.021(1). And the Florida Supreme Court
confirmed this reading when the Eleventh Circuit certified a question about this crime’s intent
element for purposes of the Armed Career Criminal Act. See Somers v. United States,
355 So. 3d 887, 891–92 (Fla. 2022). In Somers, the Florida Supreme Court held that the law
requires “an intentional threat to do violence to another person.” Id. at 891. As a result,
aggravated assault is a violent felony.

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Delaine responds by looking to the past. He argues that a defendant could have been
convicted for negligent or reckless threats of violence under this aggravated-assault statute when
a court convicted him in 2012. Yet Delaine does not rely on an older version of the statute that
Florida’s legislature has since amended. The relevant statutory provision remains the same today
as it was in 2012. Rather, Delaine argues that some Florida cases had read the statute to
encompass negligent or reckless threats before the Florida Supreme Court clarified things in
Somers. Because these courts allegedly allowed a jury to convict a defendant for negligent or
reckless threats when Delaine committed aggravated assault, this reasoning goes, the crime did
not satisfy the categorical approach at that time. The Seventh Circuit has accepted
this argument. See United States v. Anderson, 99 F.4th 1106, 1111‒12 (7th Cir. 2024). Like the
Eleventh Circuit, though, we must reject it. See Somers v. United States, 66 F.4th 890, 895–96
(11th Cir. 2023).
At the outset, Delaine finds some support for his view in a pair of Supreme Court cases.
The Court has twice asked whether a prior conviction can qualify as a “violent felony” or
“serious drug offense” if the statutory (or regulatory) law has changed in a way that renders the
prior offense ineligible at the time of a defendant’s current felon-in-possession conviction—even
if it was eligible at the time of the defendant’s prior conviction. See Brown v. United States,
602 U.S. 101, 111 (2024); McNeill v. United States, 563 U.S. 816, 820 (2011). For these types
of statutory changes, the Court has held that a sentencing court must “examine the law as it was
when the defendant violated it, even if that law is subsequently amended.” Brown, 602 U.S. at
111.
Further supporting Delaine’s reading, some circuit courts have suggested that this same
backward-looking framework applies when the judiciary departs from a prior interpretation of an
unamended law after the defendant’s prior conviction. For example, some circuits have said that
a sentencing court may not rely on a later-in-time state supreme court decision that departed
from earlier lower-court decisions. See Anderson, 99 F.4th at 1111‒12; United States
v. Cornette, 932 F.3d 204, 214–15 (4th Cir. 2019). And other circuits have held that a
sentencing court must look to the reading given by the state’s highest court at the time of
the defendant’s conviction even if that court later overruled this reading. See United States

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v. Vickers, 967 F.3d 480, 486–87 (5th Cir. 2020), vacated, 141 S. Ct. 2783 (2021); United States
v. Roblero-Ramirez, 716 F.3d 1122, 1126–27 (8th Cir. 2013); see also United States v. Faust,
853 F.3d 39, 57–58 (1st Cir. 2017).
But these circuit cases may have overlooked an important factor: statutory amendments
trigger different background interpretive rules than judicial decisions. On the one hand, courts
have long followed a “sacred” presumption that statutory amendments apply only prospectively
to future conduct—not retroactively to prior conduct. Reynolds v. McArthur, 27 U.S. 417,
434 (1829); see Landgraf v. USI Film Prods., 511 U.S. 244, 265–69 (1994); Soc’y for the
Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 769 (C.C.D.N.H. 1814) (Story, J.). The
Supreme Court’s decisions in Brown and McNeill make good sense against this background rule.
The rule means that later amendments do not apply to a defendant’s earlier conduct. And a
sentencing court should look to the law on the books at the time of that conduct (not a changed
law) to decide whether the defendant committed a “violent felony” or “serious drug offense”
under the Armed Career Criminal Act.
On the other hand, a different background rule has always applied to judicial decisions.
Courts presume that a decision interpreting a law “applies retroactively” because the decision
reveals what the law always meant (both before and after the decision). DIRECTV, Inc.
v. Imburgia, 577 U.S. 47, 56 (2015); see Rivers v. Roadway Express, Inc., 511 U.S. 298, 311–13
& n.12 (1994); United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982). As Blackstone
explained, when a court changed its interpretation, it did not “make a new law, but . . .
vindicate[d] the old one from” a prior “misrepresentation.” 1 St. George Tucker, supra, at 69.
Because we assume that federal laws incorporate these types of background rules, see Astoria
Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991), one might think this competing
rule should hold sway for judicial (in contrast to legislative) changes in the context of the Armed
Career Criminal Act.
Does it matter, though, that the Florida courts limit the ability of criminal defendants to
use new statutory interpretations to collaterally attack final criminal judgments? See Dettle
v. State, 395 So. 3d 1054, 1057 (Fla. 2024); State v. Barnum, 921 So. 2d 513, 528 (Fla. 2005); cf.
Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion). The Seventh Circuit thought this

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equitable limit on postconviction relief meant that a later judicial interpretation changed the
statute. See Anderson, 99 F.4th at 1111‒12. But just because the Florida courts refuse to grant
collateral relief to defendants based on new judicial decisions does not mean that those decisions
have the power to amend (rather than interpret) the law. See Hester v. State, 267 So. 3d 1084,
1086 (Fla. Dist. Ct. App. 2019). Besides, the inquiry that Delaine requests would seem to
conflict with the Supreme Court’s “categorical approach,” which categorically treats a state
offense as an eligible violent felony or an ineligible nonviolent one. See Mathis v. United States,
579 U.S. 500, 504–05 (2016). Under Delaine’s view, by contrast, the same offense might
constantly switch between these two categories depending on each new judicial decision. And
what if different intermediate appellate courts adopt different readings (which are binding in
their respective districts but not in others)? Should an offense’s “violent felony” status turn on
the district in which the defendant is convicted?
Further, while a rule disregarding later-in-time judicial decisions might help Delaine, it
might “hurt” other defendants. See Brown, 602 U.S. at 122. Here, for example, suppose that
Florida’s state intermediate courts had all previously held that aggravated assault required intent
(and so qualified as a violent felony), but the Florida Supreme Court later held that a reckless
threat could suffice (which would disqualify the crime from violent-felony treatment). Under
Delaine’s rule, we might have to treat aggravated assault as a violent felony for the many
defendants convicted before the state supreme court’s clarifying interpretation even though that
interpretation revealed what the law had “always meant.” Hester, 267 So. 3d at 1086. Given
that Delaine’s reading may well harm as many defendants as it helps, the rule of lenity likely
provides no aid in deciding this issue. Brown, 602 U.S. at 123; cf. Vickers, 967 F.3d at 486.
Ultimately, though, we need not enter this debate to decide this case. Even if we must
ignore changes in judicial interpretation that postdate a defendant’s prior conviction, the Florida
Supreme Court did not change Florida law in Somers. Before Delaine’s 2012 conviction, every
Florida appellate court described assault or aggravated assault as requiring intent. See Bartley
v. State, 689 So. 2d 372, 373 (Fla. Dist. Ct. App. 1997) (First District) (per curiam); Pinkney
v. State, 74 So. 3d 572, 576 (Fla. Dist. Ct. App. 2011) (en banc) (Second District); Lavin v. State,
754 So. 2d 784, 787 (Fla. Dist. Ct. App. 2000) (Third District); Benitez v. State, 901 So. 2d 935,

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937 (Fla. Dist. Ct. App. 2005) (Fourth District); Cambell v. State, 37 So. 3d 948, 950 (Fla. Dist.
Ct. App. 2010) (Fifth District). Some courts treated aggravated assault as “a specific intent
crime.” Bartley, 689 So. 2d at 373. Another court incorporated common-law rules that defined
intent to include a volitional statement or action that the defendant knew was “substantially
certain” to be taken as a threat by the victim. Pinkney, 74 So. 3d at 576. That court thus defined
“intent” to require what the Supreme Court would describe as a knowing state of mind. See
Borden, 593 U.S. at 426 (plurality opinion) (citation omitted); Voisine, 579 U.S. at 704–05
(Thomas, J., dissenting) (citing Restatement (Second) of Torts § 8A cmt. b (Am. L. Inst. 1965)).
Further, all these courts would not hesitate to grant judgment as a matter of law to defendants
when the prosecution failed to present enough evidence that the defendants intended to convey a
threat. See Denard v. State, 30 So. 3d 595, 596 (Fla. Dist. Ct. App. 2010); Swift v. State,
973 So. 2d 1196, 1199 (Fla. Dist. Ct. App. 2008); Benitez, 901 So. 2d at 937; Turner v. State,
771 So. 2d 1286, 1286 (Fla. Dist. Ct. App. 2000) (per curiam); see also Dobosh v. State,
684 So. 2d 276, 277 (Fla. Dist. Ct. App. 1996).
Since 1981, Florida’s standard jury instructions have likewise required an intentional
threat. See In re Standard Jury Instructions in Crim. Cases, 131 So. 3d 755, 758–59 (Fla. 2013)
(per curiam). Near the time of Delaine’s conviction, the instructions provided that the
prosecution must prove that a defendant “intentionally and unlawfully threatened, either by word
or act, to do violence to” a victim. Id. at 758 (emphasis added). And notably, the Florida
Supreme Court approved these instructions and has long presumed that they accurately reflect
Florida law. See id. at 755; Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001) (per curiam).
To reach the contrary claim, Delaine relies on two cases from Florida’s Fifth District
Court of Appeals: Kelly v. State, 552 So. 2d 206 (Fla. Dist. Ct. App. 1989), and LaValley
v. State, 633 So. 2d 1126 (Fla. Dist. Ct. App. 1994). The Seventh Circuit read these cases as
holding that “assault could be committed recklessly[.]” Anderson, 99 F.4th at 1110. But the
analysis in the opinions does not support that broadbrush conclusion.
Start with Kelly. There, the defendant confronted his “estranged girlfriend” (Frederica)
while she and her friend (Dorothy) were sitting in Dorothy’s car. Kelly, 552 So. 2d at 207.
Frederica refused the defendant’s demands to get out of the car, so he pointed a gun at her. Id.

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As Dorothy sped away, the defendant shot a round into the windshield. Id. A wild chase (with
two more gunshots) ensued. Id. “A bullet fragment hit Dorothy’s finger,” and lead and glass
shards landed on Frederica’s sweater. Id. The prosecution charged the defendant with (among
other things) aggravated assault of Dorothy. Id. at 208. In a brief paragraph, the court upheld
this conviction. Id. It recognized that aggravated assault required “intent.” Id. But it saw no
direct “proof” that the defendant intended to threaten Dorothy. Id. Still, it said that the required
“proof” of intent “may be supplied by proof of conduct equivalent to culpable negligence” or
“willful and reckless disregard for the safety of others.” Id. Kelly thus held that a reasonable
jury could find that the defendant intended to threaten the victim based on his dangerous conduct
toward her. Cf. Kirtsinger v. State, 126 So. 767, 768‒69 (Fla. 1930). In other words, Kelly’s
statements about recklessness and negligence concerned the evidence that suffices for a jury to
find intent. The statements did not construe the elements of aggravated assault. The decision
thus does not support Delaine’s view that the court interpreted aggravated assault to reach
unintentional threats.
Turn to LaValley. The victim there got into an argument with the defendant’s brother.
See LaValley, 633 So. 2d at 1127. The victim headed home, but the defendant and her brother
gave chase in her car. See id. Her vehicle “came within one foot” of the victim, and she drove
onto his yard. See id. The prosecution charged the defendant with aggravated assault. See id.
But the jury found her guilty of a lesser-included offense: reckless driving. See id. The court
affirmed. Id. at 1228. It reasoned that “a charge that one committed an aggravated assault by
intentionally driving her vehicle in a threatening manner subsumes the elements of reckless
driving.” Id. at 1227. The court thus expressly recognized that aggravated assault required
intent to threaten and held that a crime with a lower mental state (reckless driving) could qualify
as a lesser-included offense. Other Florida decisions have thus read LaValley as merely
articulating rules about lesser-included offenses. See Anderson v. State, 291 So. 3d 531,
536 (Fla. 2020). Delaine cites no case that reads LaValley to suggest that aggravated assault
itself requires only a reckless state of mind.
Later decisions from the Fifth District Court of Appeals leave no doubt that Delaine (and
the Seventh Circuit) misread Kelly and LaValley. Two years after LaValley, the court treated

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aggravated assault as “a specific intent crime” and so reversed a conviction because the trial
court refused to allow the defendant to make a “voluntary intoxication” defense to this crime.
Dobosh, 684 So. 2d at 277. Two years before Delaine’s conviction, the court reversed an
aggravated-assault conviction because the prosecution introduced insufficient evidence that the
defendant “had the specific intent to threaten” a victim hiding under a truck during a robbery.
Denard, 30 So. 3d at 596. And four months after that decision, the court clarified again that the
assault statute “inherent[ly]” required the “intention to make a threat to do violence.” Cambell,
37 So. 3d at 950.
All told, we see no “realistic probability” that a Florida court would have read the
aggravated-assault statute to reach reckless or negligent threats at the time of Delaine’s
conviction. United States v. Cervenak, 135 F.4th 311, 326 (6th Cir. 2025) (en banc) (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). The “text of the state statute” required
an intentional threat. Id. And many state decisions confirmed this unambiguous meaning.
One last point. In Borden, the plurality opinion held that the phrase the “use of
physical force against the person of another” excluded crimes involving the reckless use of force.
593 U.S. at 429 (plurality opinion). Technically, Delaine’s aggravated-assault offense involves a
different part of the elements clause—namely, the part that covers the “threatened use of
physical force against the person of another[.]” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added).
And the Supreme Court has suggested that a different “threats” statute (one that prohibits a
“threat to injure the person of another,” id. § 875(c)) might be best read to include defendants
who are reckless about whether their victims will interpret their statements as threats. See Elonis
v. United States, 575 U.S. 723, 741–42 (2015); see also id. at 744–46 (Alito, J., concurring in
part and dissenting in part); United States v. Sheikh, 164 F.4th 629, 634 (7th Cir. 2026). Might
this same reading apply to the language “threatened use of force” in the elements clause?
Because the parties have not briefed this question, we can leave it for another day.
2. Florida Felony Battery
We next turn to Delaine’s Florida conviction for felony battery from 2009. This offense
has two elements. The defendant must “[a]ctually and intentionally touch[] or strike[] another

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person against the will of the other[.]” Fla. Stat. § 784.041(1)(a). And that contact must
“[c]ause[] great bodily harm, permanent disability, or permanent disfigurement.” Id.
§ 784.041(1)(b).
This Florida offense also satisfies the conduct and state-of-mind components of the
elements clause. Starting with the conduct component, the offense always involves “force
capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140. To be
sure, the Supreme Court has held that the force required for common-law battery does not suffice
because it can include “even the slightest offensive touching.” Id. at 139. And the Florida
offense here is a battery offense. But a key difference exists between this Florida offense and the
common-law version. The Florida offense requires “great bodily harm, permanent disability, or
permanent disfigurement” in every case. Fla. Stat. § 784.041(1)(b). The common-law offense
does not. This fact makes all the difference. Indeed, the Court has since held that “any force that
actually causes injury” qualifies as violent force. Delligatti, 604 U.S. at 432. Or, as Justice
Scalia put it, “it is impossible to cause bodily injury without using force ‘capable of’ producing
that result.” United States v. Castleman, 572 U.S. 157, 174 (2014) (Scalia, J., concurring in the
judgment) (quoting Johnson, 559 U.S. at 140); see Stokeling, 586 U.S. at 84–85.
Turning to the state-of-mind element, Florida’s offense always requires “purposeful” or
at least “knowing” uses of force, so it does not include the reckless conduct that falls outside the
elements clause. See Borden, 593 U.S. at 432 (plurality opinion). In particular, the text requires
the defendant to “intentionally touch[] or strike[]” the victim. Fla. Stat. § 784.041(1)(a)
(emphasis added). And Florida caselaw confirms that the defendant must, in fact, intend this
touch or strike. See Jefferies v. State, 849 So. 2d 401, 404 (Fla. Dist. Ct. App. 2003). Some
cases again suggest that the required “intent” can exist if defendants know that their acts make it
“substantially certain” that a touch or strike will occur. See C.B. v. State, 810 So. 2d 1072,
1073 (Fla. Dist. Ct. App. 2002). Either way, though, the statute has more than “a mens rea of
recklessness” and thus counts as a violent felony under the elements clause. See Borden,
593 U.S. at 445 (plurality opinion).
In response, Delaine points out that while this Florida offense requires a defendant to
intentionally use force; it does not require the defendant to intentionally cause injury. See

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Jefferies, 849 So. 2d at 404. Put another way, so long as a defendant intentionally touches a
victim, even an accidental injury that this force produces could fall within the statute. See id.
And Delaine reads Borden as requiring a defendant to intend (or at least know) that harm will
result from the force.
This argument finds no support in either the Borden plurality opinion or Justice Thomas’s
concurrence in the judgment. To begin, Delaine mistakes a mere example in the plurality
opinion for a holding that the elements clause requires a defendant to knowingly cause an injury.
In a “background” part of its opinion (Part II), the plurality summarized the differences between
four states of mind: “purpose, knowledge, recklessness, and negligence.” Borden, 593 U.S. at
425–26 (plurality opinion). It said that a person acts knowingly if “he is aware that [a] result is
practically certain to follow from his conduct[.]” Id. at 426 (citation omitted). The plurality then
gave an example of what this state of mind requires, explaining that “[a] person who injures
another knowingly” makes “a deliberate choice with full awareness of consequent harm.” Id.
(emphasis added). Yet the plurality used this example only to differentiate a knowing mindset
from a reckless one. It did not use the example when interpreting the elements clause.
The plurality’s interpretation of that clause instead came in the next part of its opinion
(Part III). Id. at 429–34. There, the plurality held that the clause’s (implied) state-of-mind
element concerned the use of force, not the resulting harm. The plurality first explained that the
phrase “use of physical force” required “volitional” force. Id. at 430 (quoting Voisine, 579 U.S.
at 693). It then explained that the phrase “against the person of another” required the victim to
be the “conscious object” of this force. Id. Putting the two together, it decided that a defendant
must “consciously deploy[]” force against the other person. Id. at 432. Nowhere did the opinion
suggest that the defendant must also intend (or know of) the injury that this force causes. Nor
would such a reading fit the statutory text. The text says that the defendant must use “physical
force against the person of another”; it does not say the defendant must “knowingly injure
another.”
Delaine’s position fares no better under Justice Thomas’s concurrence. True, Justice
Thomas suggested that the phrase “use of physical force” alone had “a well-understood meaning
applying only to intentional acts designed to cause harm.” Id. at 446 (Thomas, J., concurring in

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the judgment) (emphasis added) (quoting Voisine, 579 U.S. at 713 (Thomas, J., dissenting)).
And one might read this sentence to suggest that Justice Thomas believes that a defendant must
intend to harm the victim. But things are not so simple. After all, Justice Thomas joined Justice
Alito’s dissent in Johnson, so he believes that even common-law battery includes enough
intentional force to fall within the elements clause. See Johnson, 559 U.S. at 145–47 (Alito, J.,
dissenting). He also adhered to that view in Castleman. 572 U.S. at 183–84 (Alito, J.,
concurring in the judgment). And he adhered to the view in Voisine, reconciling his position by
explaining that the harm that he believes a defendant must intend includes any “nonconsensual
touching.” 579 U.S. at 701 n.1 (Thomas, J., dissenting). Because Justice Thomas would hold
that the intent required for common-law battery makes that crime a “violent felony,” he would
undoubtedly hold that Florida’s felony battery (an enhanced version of the common-law crime)
also qualifies.
Still, his concurrence raises a question that matters here: Which Borden opinion—if
any—controls on the state-of-mind question that Delaine has raised? Is it Justice Kagan’s
plurality opinion for four Justices? Or Justice Thomas’s concurrence? Or is it neither opinion,
such that we may decide Delaine’s question from first principles rather than precedent? The
Supreme Court has yet to decide this so-called “Marks” question (named after Marks v. United
States, 430 U.S. 188 (1977)). See Delligatti, 604 U.S. at 434 n.5. And judges have disagreed
over it.
The disagreement arises from the “vexing task” of deciding which, if any, opinion
controls when the Supreme Court does not issue a single majority opinion. EMW Women’s
Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 431 (6th Cir. 2020) (citation omitted),
abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
Under Marks, the writing that agrees with the ultimate judgment “on the narrowest grounds”
represents the controlling one. 430 U.S. at 193 (citation omitted). We have indicated that
whether one opinion is narrower than another turns on the “results” or “outcomes” that the logic
of both opinions will produce in later cases. EMW, 978 F.3d at 431 (citation omitted); United
States v. Kratt, 579 F.3d 558, 562 (6th Cir. 2009). An opinion qualifies as the narrowest if it
would reach the same result as the fractured judgment in “a logical subset” of all future cases

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where another non-majority opinion would reach that result. Kratt, 579 F.3d at 562 (quoting
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)); see EMW, 978 F.3d at 431.
When no opinion can meet this test (because each reaches results different from the fractured
judgment under different sets of circumstances), “[t]he Marks rule is not workable” and the
reasoning in none of the opinions binds us. United States v. Ray, 803 F.3d 244, 270‒72 (6th Cir.
2015).
How do these rules play out here? The relevant “result[]” of Borden’s fractured
judgment was a finding that the state-law offense at issue did not qualify as a violent felony.
EMW, 978 F.3d at 431 (citation omitted). And the plurality found that a statute would satisfy
the elements clause if it at least included intentional or knowing states of mind, see 593 U.S. at
432 (plurality opinion), whereas Justice Thomas would cover only a statute that required
“intentional acts designed to cause harm,” id. at 446 (Thomas, J., concurring in the judgment).
So some judges have treated the Borden plurality opinion as logically “narrower” than Justice
Thomas’s concurrence because the plurality would reach Borden’s result (a finding that a crime
is not a violent felony) in a logical subset of the cases in which Justice Thomas would reach that
result. United States v. Gomez, 165 F.4th 1199, 1208 (9th Cir. 2026) (en banc) (citation
omitted); see United States v. Kepler, 74 F.4th 1292, 1302 n.11 (10th Cir. 2023). These courts
thus view the plurality opinion’s reasoning as binding. See Gomez, 165 F.4th at 1208.
But again, Justice Thomas (who disagreed with Johnson) seemingly had a more lenient
understanding of “harm” and “force” than did the plurality (which accepted Johnson). See
Voisine, 579 U.S. at 701 n.1 (Thomas, J., dissenting). So some other judges have held that the
reasoning in neither Borden opinion covers a logical subset of the other and thus that Borden
itself establishes only a narrow holding: “that the elements clause excludes reckless conduct.”
Somers, 66 F.4th at 895; see Gomez, 165 F.4th at 1214 (Collins, J., concurring in the judgment).
These judges thus do not view either opinion as binding on questions that involve more
demanding states of mind than recklessness. See Gomez, 165 F.4th at 1214 (Collins, J.,
concurring in the judgment).
We need not pick sides in this Marks debate because we hold that Florida felony battery
qualifies as a violent felony under either view of Borden’s precedential effect. If the reasoning

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of the Borden plurality opinion controls, we have already explained that it supports our
conclusion. The plurality required only that a defendant intentionally or knowingly use force
against a victim—not that the defendant intend or know that this force will cause an injury. See
Borden, 593 U.S. at 430–32 (plurality opinion). And if the reasoning of neither opinion controls,
we would follow the decisions of the Seventh and Eleventh Circuits that have already answered
the question. See United States v. Vail-Bailon, 868 F.3d 1293, 1299–1308 (11th Cir. 2017);
Douglas v. United States, 858 F.3d 1069, 1071–72 (7th Cir. 2017); see also United States
v. Mendez, 593 F. App’x 441, 443–44 (6th Cir. 2014). The plain text of the elements clause
requires only an intent or knowledge with respect to the force. We do not see how it can be read
to require “a separate intent element attached to the degree of injury.” Douglas, 858 F.3d at
1072.
Delaine claims that this conclusion conflicts with the Ninth Circuit’s decision in Gomez.
There, the en banc court held that a California conviction for assault with a deadly weapon did
not meet the Borden plurality’s reasoning. Gomez, 165 F.4th at 1208–10. Critically, though, the
court read the California crime not to “require an intent to apply force, knowledge that an action
will cause force to be applied to another, or even subjective awareness of a risk that such force
will result.” Id. at 1208. In other words, a defendant need not use intentional or knowing force
(without regard to whether that force would cause injury). Gomez thus adheres to our view,
which likewise requires the use of force to satisfy the applicable state-of-mind requirement.
Admittedly, another unpublished decision from the Ninth Circuit suggested that the
Borden plurality required “an awareness of consequent harm[.]” United States v. Vega,
2023 WL 4858148, at *1 n.2 (9th Cir. July 31, 2023) (mem.). But Vega makes the same mistake
that Delaine commits. The decision treated the explanatory analysis in the plurality opinion’s
background section as a holding about what the statute’s state-of-mind requirement modifies: the
injury. Id. Yet that state-of-mind requirement instead modifies the force component in the
elements clause. And Florida felony battery requires an intentional use of force. As a result, that
state-law offense qualifies as a violent felony under the elements clause.

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3. Ohio Domestic Violence
We lastly reach Delaine’s Ohio conviction for domestic violence from 2019. The Ohio
domestic-violence statute makes it a crime for a person to “knowingly cause or attempt to cause
physical harm to a family or household member.” Ohio Rev. Code § 2919.25(A). Ohio law
defines “[p]hysical harm to persons” to cover “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” Id. § 2901.01(A)(3). And it treats a domestic-
violence conviction as a misdemeanor unless a defendant has a prior domestic-violence
conviction, in which case the offense becomes a felony. Id. § 2919.25(D)(2)–(4). Because
Delaine had a prior conviction, he pleaded guilty to the felony version.
This Ohio domestic-violence offense also meets the state-of-mind and conduct elements
to qualify as a “violent felony” under the Armed Career Criminal Act. To start, Delaine does not
challenge the state-of-mind element because the crime applies only if a defendant “knowingly”
harms, or tries to harm, a victim. Id. § 2919.25(A); see Borden, 593 U.S. at 432 (plurality
opinion). Next, we have already held that the offense satisfies the conduct element. See United
States v. Gatson, 776 F.3d 405, 411 (6th Cir. 2015). As Gatson explained, the force that the
Ohio law requires—force that causes an “injury, illness, or other physiological impairment,”
Ohio Rev. Code § 2901.01(A)(3)—is (almost “by definition”) “force ‘capable of causing
physical injury or pain to another person.’” Gatson, 776 F.3d at 411 (quoting Johnson, 559 U.S.
at 140). So our cases have repeatedly treated Gatson as binding on whether an Ohio domestic-
violence conviction is a violent felony. See United States v. Alexander, 2023 WL 2682373, at
*3 (6th Cir. Mar. 29, 2023); United States v. Mitchell, 2022 WL 12230276, at *3 (6th Cir. Oct.
21, 2022); United States v. Marshall, 2022 WL 11710803, at *1 (6th Cir. Oct. 20, 2022);
United States v. Mickel, 2022 WL 1100459, at *2 (6th Cir. Apr. 13, 2022); United States
v. Melendez-Perez, 2021 WL 3045781, at *2–3 (6th Cir. July 20, 2021); United States
v. Solomon, 763 F. App’x 442, 445 (6th Cir. 2019).
Delaine disagrees for two reasons. Reason One: He first argues that Gatson’s holding did
not survive United States v. Taylor, 596 U.S. 845 (2022). He is correct that we could reevaluate
Gatson if a later Supreme Court decision called it into doubt. See United States v. Fields,
53 F.4th 1027, 1046–47 (6th Cir. 2022). But Taylor did no such thing. There, the Supreme

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Court held that attempted Hobbs Act robbery did not satisfy a similarly worded elements clause
in another statute. See Taylor, 596 U.S. at 850–60. Yet a defendant may complete a Hobbs Act
robbery through “actual or threatened force,” so the defendant need not use force in every case.
18 U.S.C. § 1951(b)(1) (emphasis added). Defendants who attempt a Hobbs Act robbery thus
need not “attempt[]” the “use” of force because they could commit that crime by attempting to
threaten force instead. Id. § 924(e)(2)(B)(i); see Taylor, 596 U.S. at 851–52.
According to Delaine, Ohio’s domestic-violence offense suffers from the same problem.
He claims that this offense does not qualify as a violent felony because a defendant can commit
it through an “attempt to cause” an injury to a qualifying person. Ohio Rev. Code § 2919.25(A)
(emphasis added). But he overlooks a key distinction between this case and Taylor. An Ohio
domestic-violence offense will always include the use of force that causes the “physical harm”
that the offense requires. Id. Unlike Hobbs Act robbery, then, the Ohio statute does not include
threatened force as an alternative way to commit the crime. See id. So someone who
attempts this offense will always have “attempted” the “use” of force under the elements clause.
18 U.S.C. § 924(e)(2)(B)(i). And our court and many other courts have refused to expand
Taylor’s logic to cover offenses (in particular, attempted murder) whose completed crime always
entails the use of force. See United States v. Parham, 119 F.4th 488, 495 (6th Cir. 2024); United
States v. Martin, 2023 WL 2755656, at *7 (6th Cir. Apr. 3, 2023); see also United States
v. Smith, 165 F.4th 751, 757–62 (3d Cir. 2026); United States v. Lassiter, 96 F.4th 629, 637–39
(4th Cir. 2024); United States v. Pastore, 83 F.4th 113, 120–21 (2d Cir. 2023). The logic of this
attempted-murder precedent applies to Delaine’s domestic-violence conviction.
Delaine responds that the elements clause uses the word “attempted” in its ordinary sense
(e.g., the party “[t]ried” to use force), not its specialized legal sense (e.g., the party “intended” to
use force and took a “substantial step” to that result). Appellant’s Br. 44; I Oxford English
Dictionary 764 (2d ed. 1989); Taylor, 596 U.S. at 851 (citation omitted). He also gives a
hypothetical: a husband who buys a weapon and drives home to harm his wife has attempted
domestic violence under Ohio law even if the police stop him on his way there. Appellant’s Br.
45. But according to Delaine, this husband has not “attempted” the “use” of force under the
ordinary understanding of “attempted.” See id. We disagree. For starters, some courts have

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read the elements clause to adopt the legal meaning of “attempted” (not the ordinary one on
which Delaine relies). See Lassiter, 96 F.4th at 638. Regardless, we need not choose between
the two here. A reasonable speaker would believe that the husband in Delaine’s hypothetical
tried to use force. An “attempted use” of force need not involve only a swing and a miss. One
would naturally say that a person tried to use force if the person had the intent to do so and took
a substantial step in carrying out that intent. The legal and ordinary meanings thus likely
collapse here.
We end with a disclaimer. The parties do not discuss in detail whether an attempted
domestic-violence offense is divisible from a completed domestic-violence offense within the
meaning of the Armed Career Criminal Act. See Descamps, 570 U.S. at 257. We need not
decide the issue either. We flag it merely to make clear that we have left it open for another day.
Reason Two: Delaine alternatively argues that the Ohio domestic-violence offense (which
covers any “physical harm,” Ohio Rev. Code § 2919.25(A)) does not always include the type of
“violent force” that the elements clause requires. Johnson, 559 U.S. at 140. Delaine suggests
that Ohio courts have given the phrases “injury” and “physiological impairment” in the statutory
definition of “physical harm” a broad reach. Ohio Rev. Code § 2901.01(A)(3). For example, he
points to a state decision that said a bank teller suffered a physiological impairment when she
momentarily froze during a robbery. Appellant’s Br. 46–47 (discussing State v. Vore, 2014 WL
1488742, at *3–4 (Ohio Ct. App. Apr. 14, 2014)).
Gatson compels us to reject this argument. At the outset, though, the government may
well have overread the scope of our stare decisis rules. In response to Delaine’s claim, it
suggests that Gatson requires us to reject every potential reason why an Ohio domestic-violence
offense might not qualify as a “violent felony.” Cf. Brumbach v. United States, 929 F.3d 791,
795 (6th Cir. 2019). We are not so sure. Suppose a decision in Case A rejects a defendant’s lone
argument that a state-law conviction does not qualify as a violent crime because it does not meet
the elements clause’s conduct requirement. Suppose a defendant in Case B then raises a distinct
argument: that the state-law conviction does not qualify as a violent felony because it does not
meet the elements clause’s state-of-mind requirement. Should Case A’s stare decisis effect alone
require the panel in Case B to reject this state-of-mind argument without considering the merits?

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If it does, the Case A panel might have a duty to consider every conceivable claim about why a
conviction does not qualify as a violent felony—even those that the first defendant did not raise.
After all, if the panel did not do so, it might create binding (potentially mistaken) law on claims
that merely “lurk[ed] in the record[.]” Wright v. Spaulding, 939 F.3d 695, 702 (6th Cir. 2019)
(citation omitted). Yet this approach might also bump up against the party-presentation
principle. See United States v. Sineneng-Smith, 590 U.S. 371, 375–76 (2020). That principle
perhaps explains why we have said that a decision is not binding on an issue if the decision did
not “consciously” resolve the issue. Wright, 939 F.3d at 702.
At day’s end, we need not identify the precise scope of our stare decisis rules. Even if
those rules have a narrower reach than the government proposes, Gatson still binds us. That
opinion confronted Delaine’s specific claim: that Ohio’s domestic-violence statute does not
require the “violent force” that the elements clause demands. Johnson, 559 U.S. at 140. When
rejecting this argument, Gatson relied on the plain meaning of the Ohio definition of “physical
harm” to conclude that the force that causes this harm reached the required level. 776 F.3d at
410–11. And a recent Supreme Court decision reaffirms Gatson’s logic by explaining that “any
force that actually causes injury” qualifies as violent force. Delligatti, 604 U.S. at 432. Yet
because Gatson did not refer to the Ohio cases that Delaine now cites, he suggests that Gaston
“was incorrectly decided” and asks us to reevaluate it using his purportedly better arguments.
Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir. 2001). Gatson, though, remains controlling
on the issue that it “consciously reached” until a changed circumstance (such as a new Supreme
Court precedent on the meaning of “violent felony” or a new Ohio Supreme Court decision on
the meaning of “physical harm”) calls it into doubt. Wright, 939 F.3d at 702; see United States
v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014). And Delaine points to no changed circumstance here.
We affirm.

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