Kansas reckless aggravated assault not a crime of violence

United States v. Ash, --- F.4th ---, 2021 WL 3400674 (August 4, 2021): Defendant Dustin Ash pled guilty to two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In United States v. Ash, 917 F.3d 1238 (10th Cir. 2019), the Court held that Ash's prior Missouri conviction for second-degree robbery and Kansas conviction for reckless aggravated battery qualified as “crimes of violence” under U.S.S.G. § 4B1.2(a). See Mo. Rev. Stat. § 569.030; Kan. Stat. Ann. § 21-3414(a)(2)(B) (2010). Ash filed a petition for a writ of certiorari, seeking review of “whether reckless crimes, like Mr. Ash's Kansas reckless aggravated battery conviction, qualify as crimes of violence under USSG § 4B1.2.” On June 21, 2021, the Supreme Court granted the petition, vacated the judgment, and remanded for further consideration in light of Borden v. United States, 141 S. Ct. 1817 (2021). The Court concluded there was “no meaningful basis” to distinguish Borden regarding the reckless aggravated battery issue and said “Borden definitively foreclosed counting Kansas reckless aggravated assault as a crime of violence.” However, because “Borden only addressed offenses with a minimum mens rea of recklessness” the Court did not reconsider its prior holding that “Missouri second-degree robbery is a crime of violence because it requires the perpetrator to overcome victim resistance.”