Categorical Validation of Tennessee Aggravated Assault as a Crime of Violence under U.S.S.G. §4B1.2

Introduction

In United States v. Russell, 24-50075 (5th Cir. May 8, 2025), the Fifth Circuit addressed whether a 2017 Tennessee aggravated‐assault conviction qualifies categorically as a “crime of violence” (COV) under the United States Sentencing Guidelines (“U.S.S.G.”) §4B1.2(a). The defendant, Billy Joe Russell, a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1), challenged the district court’s decision to count his prior aggravated‐assault convictions to enhance his base offense level under U.S.S.G. §2K2.1(a)(1). Russell argued—at plain‐error review—that Tennessee’s aggravated‐assault statute criminalizes purely mental injuries and thus falls outside the Guidelines’ force and enumerated‐offense clauses. The Fifth Circuit affirmed, holding that Tennessee aggravated assault is categorically a COV and emphasizing the necessity of showing a “realistic probability” that the state courts treat mental‐harm‐only conduct as covered.

Summary of the Judgment

The panel affirmed the sentence of 115 months’ imprisonment. Applying U.S.S.G. §2K2.1(a)(1), the district court had added a base offense level of 26 because Russell possessed a semiautomatic firearm with a large‐capacity magazine and had two prior violent‐felony convictions under U.S.S.G. §4B1.2(a). Russell did not object below but raised on appeal a plain‐error challenge to the classification of his 2017 aggravated‐assault conviction as a COV. The Fifth Circuit held that:

U.S.S.G. §4B1.2(a)’s “force clause” and “enumerated‐offense clause” require elements of violent physical force or one of the listed offenses (including “aggravated assault”).
Under the categorical and modified categorical approaches, courts compare the generic, contemporary definition of the offense (drawn largely from the Model Penal Code) with the elements of the state statute.
Tennessee aggravated assault in 2017 was divisible and encompassed only forms of assault—such as intentionally causing serious bodily injury or using a deadly weapon—that meet the generic definition of aggravated assault as a violent crime.
Absent any state‐court decisions showing a “realistic probability” that Tennessee treats mental‐harm‐only conduct as “serious bodily injury,” the court would not resort to “legal imagination.”

Because Russell identified no Tennessee case interpreting the statute in the broader manner he suggested, he failed to demonstrate clear or obvious error. The panel therefore affirmed.

Analysis

Precedents Cited

Johnson v. United States, 559 U.S. 133 (2010): Defined “physical force” in the Armed Career Criminal Act context as “violent force.”
United States v. Garner, 28 F.4th 678 (5th Cir. 2022): Clarified the “force clause” and “enumerated‐offense clause” of §4B1.2(a).
Mathis v. United States, 579 U.S. 500 (2016): Established the categorical and modified categorical approaches for comparing generic federal offenses with state statutes.
United States v. Lee, 937 F.3d 752 (5th Cir. 2019): Explained “divisible statutes” and the use of Shepard materials under the modified categorical approach.
United States v. Castillo‐Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc): Emphasized that defendants must show a “realistic probability” that a state statute reaches nongeneric conduct.

Legal Reasoning

The court’s reasoning unfolds in three steps:

Define a Guidelines “Crime of Violence.” Section 4B1.2(a) classifies any offense punishable by over one year that either (1) has an element of actual or threatened physical force (“force clause”), or (2) is one of several enumerated offenses, including “aggravated assault” (“enumerated‐offense clause”).
Specify the Generic Offense. Drawing from the Model Penal Code’s definition, “aggravated assault” means intentionally or knowingly causing serious bodily injury (a physical‐harm concept defined to include pain or impairment that risks death or permanent disfigurement).
Compare Through the Categorical Approach.
- If a state statute is divisible (lists multiple crimes in the alternative), courts use the modified categorical approach to identify which variant applies—using Shepard documents like indictments.
- If the record does not specify which alternative was charged, courts revert to the categorical approach, examining the least culpable conduct criminalized by the statute.

Applying this framework, the Fifth Circuit held that Tennessee’s aggravated‐assault statute requires an assault under Tenn. Code Ann. §39-13-101 and one of several aggravating elements (serious bodily injury, deadly weapon, death, strangulation). The least culpable variant—intentionally or knowingly causing “serious bodily injury”—necessarily requires physical harm under both Tennessee law and the MPC. Russell failed to point to any Tennessee decision interpreting “serious bodily injury” to include purely mental injuries; therefore, there was no clear error in treating the conviction as a COV.

Impact

United States v. Russell reinforces critical principles in sentencing jurisprudence:

It underscores the requirement that defendants must produce actual state‐court authority to show a statutory interpretation broader than the generic federal definition.
It affirms the vitality of the categorical approach (and its modified variant) in distinguishing violent from non‐violent offenses for career‐offender and armed‐career‐criminal enhancements.
It signals to practitioners that speculative or textual arguments about state statutes will not suffice without concrete, on‐point precedent demonstrating that the state court has applied the statute to purely mental‐harm conduct.

Complex Concepts Simplified

Categorical Approach: Compare only the statutory elements of the state crime to the elements of the generic federal offense. You ignore the defendant’s actual conduct.
Modified Categorical Approach: When a state statute lists multiple ways to commit the crime, review a narrow set of documents (indictment, plea agreement) to determine which statutory variant the defendant was convicted under.
“Crime of Violence” under the Guidelines: Either an offense that by its elements involves physical force against a person, or one of the listed offenses (e.g., aggravated assault).
“Realistic Probability” vs. “Legal Imagination”: A defendant must point to real state‐court applications of the statute to cover nongeneric conduct; courts will not rely on hypotheticals.

Conclusion

United States v. Russell cements the principle that Tennessee aggravated assault categorically qualifies as a “crime of violence” under U.S.S.G. §4B1.2(a). The decision emphasizes fidelity to the categorical approach, reliance on the Model Penal Code’s generic definitions, and the necessity of actual state‐court precedent to demonstrate broader statutory coverage. As a result, sentencing courts and practitioners are reminded that enhancements for prior violent convictions demand a careful, precedent-based comparison, not a free-form or imaginative reading of state statutes.