Summary
The United States Court of Appeals for the Eighth Circuit denied a petition for rehearing en banc by an equally divided vote, with one judge disqualified and one judge not participating. The dissenting opinion argued that North Dakota aggravated assault, including reckless driving causing injury, qualifies as a crime of violence under the force clause of U.S.S.G. § 4B1.2(a), criticizing contrary circuit precedent.
Topics
Practice areas
Questions Presented
- Whether the appeal should be reheard en banc to reconsider the panel's determination that North Dakota aggravated assault is not a crime of violence under USSG § 4B1.2(a).
- Whether reckless driving causing injury has as an element the use, attempted use, or threatened use of physical force against the person of another under the force clause of USSG § 4B1.2(a).
Holdings
- Rehearing en banc was denied because the en banc poll produced five votes in favor, five votes against, and one disqualified judge.
Key quotations
“Accordingly, the suggestion to rehear the case en banc is denied.” (at 504)
“Reckless driving causing injury thus has as an element the use of physical force against the person of another.” (at 504)
Factual background
The underlying appeal concerned whether North Dakota aggravated assault qualifies as a crime of violence under the force clause of USSG § 4B1.2(a). The panel concluded that an offense encompassing reckless driving causing injury did not require the use of physical force against another person. The dissent from denial of rehearing argued that causing injury necessarily requires force and that reckless use of force qualifies as a use of force.
Procedural history
A panel of the Eighth Circuit held that aggravated assault in North Dakota was not a crime of violence under USSG § 4B1.2(a), in part because the offense could encompass reckless driving causing injury. After the panel opinion was filed on September 28, 2018, a judge in regular active service requested an en banc poll. The court denied rehearing en banc; the provided opinion includes a judge's dissent from that denial.