Sixth Circuit: Kentucky Wanton Second-Degree Manslaughter Is Not a “Crime of Violence” Under the Guidelines; Misclassification Is Plain Error (United States v. Tooley)

Sixth Circuit: Kentucky Wanton Second-Degree Manslaughter Is Not a “Crime of Violence” Under the Guidelines; Misclassification Is Plain Error

Introduction

In United States v. Tooley, the Sixth Circuit established a significant, published precedent clarifying that Kentucky second-degree manslaughter—defined by “wanton” conduct—does not qualify as a “crime of violence” under the Sentencing Guidelines’ elements clause. The court further held that treating this conviction as a crime of violence was plain error, warranting vacatur of the sentence despite the defendant’s failure to object at sentencing.

The case arises from two felon-in-possession incidents involving Davon S. Tooley. The district court applied USSG §2K2.1(a)(3)’s base offense level of 22 on the premise that Tooley’s prior Kentucky conviction for second-degree manslaughter was a “crime of violence” as defined in USSG §4B1.2(a). On appeal, Tooley argued that Kentucky’s “wantonness” is functionally equivalent to “recklessness” as used by the Supreme Court in Borden v. United States, which excludes reckless offenses from the elements clause. The Sixth Circuit agreed, vacated the sentence, and remanded for resentencing.

Key issues resolved:

  • Whether Kentucky second-degree manslaughter (based on “wantonness”) is a “crime of violence” under the Guidelines’ elements clause.
  • Whether the misclassification constituted plain error in the absence of a contemporaneous objection.

Summary of the Opinion

The Sixth Circuit held that:

  • Kentucky’s statutory “wantonness” maps directly onto “recklessness” as defined by the Model Penal Code and by the Supreme Court in Borden v. United States. Because Borden held that offenses requiring only a reckless mens rea do not involve the “use of physical force against the person of another” for elements clause purposes, Kentucky second-degree manslaughter is not a “crime of violence.”
  • The district court’s application of a base offense level of 22 under USSG §2K2.1(a)(3) on that basis was error, and—given the clear guidance from Borden—was plain error.
  • The error affected Tooley’s substantial rights by increasing his Guidelines range and undermined the fairness, integrity, or public reputation of judicial proceedings. The sentence was therefore vacated and the case remanded for resentencing.

Analysis

Precedents Cited and Their Influence

  • Taylor v. United States, 495 U.S. 575 (1990). Taylor anchors the categorical approach: courts assess the statutory elements of the prior conviction, not the facts of the defendant’s conduct. The panel used the categorical approach to look at Kentucky’s statutory definition of second-degree manslaughter, not Tooley’s underlying behavior.
  • Borden v. United States, 593 U.S. 420 (2021). The centerpiece. Borden construed ACCA’s elements clause (“use of physical force against the person of another”) to require purposeful or knowing conduct and to exclude reckless offenses. The Sixth Circuit applies Borden’s reasoning to the Guidelines’ identical “crime of violence” elements clause in §4B1.2(a)(1), consistent with prior Sixth Circuit cases treating the ACCA and Guidelines definitions as “essentially the same” (e.g., United States v. Ford, 560 F.3d 420; United States v. Gibbs, 626 F.3d 344).
  • Model Penal Code § 2.02. Both Kentucky’s culpability scheme and Borden draw from the MPC. The court carefully maps Kentucky’s terminology to MPC levels of culpability: Kentucky’s “wanton” = MPC “reckless”; Kentucky’s “reckless” = MPC “negligent.” This equivalence is key to the holding.
  • Kentucky authorities.
    • Ky. Rev. Stat. § 507.040(1) (second-degree manslaughter: “wantonly causes the death of another person”).
    • Ky. Rev. Stat. § 501.020(3) (definition of “wantonly”: aware of and consciously disregards a substantial and unjustifiable risk; conduct is a gross deviation).
    • Brown v. Commonwealth, 975 S.W.2d 922 (Ky. 1998) (explains that “wantonness” elevated to “extreme indifference to human life” in the murder statute makes the conduct tantamount to intentional homicide).
  • Sixth Circuit comparators.
    • United States v. Harrison, 54 F.4th 884 (6th Cir. 2022): Kentucky murder via “wantonness” with “extreme indifference” may be treated as equivalent to knowledge/intent and thus can qualify as a crime of violence. The panel distinguishes Harrison because second-degree manslaughter lacks the “extreme indifference” element; it involves only simple wantonness (i.e., recklessness).
    • United States v. Jamison, 85 F.4th 796 (6th Cir. 2023): Michigan second-degree murder’s “wantonness” is “close to acting purposefully or knowingly.” Again distinguishable because it is more culpable than Kentucky’s baseline wantonness.
    • United States v. Wright, No. 22-5452, 2023 WL 4995748 (6th Cir. Aug. 4, 2023) (nonprecedential): the government previously conceded that post-Borden, Kentucky wanton second-degree assault is not a crime of violence under the elements clause. Tooley is consistent with this concession and now provides a published, precedential rule for Kentucky manslaughter.
  • Plain-error authorities.
    • United States v. Olano, 507 U.S. 725 (1993) and Sixth Circuit applications (United States v. Dubrule, 822 F.3d 866; United States v. Lanham, 617 F.3d 873) provide the four-prong test: error, plainness, effect on substantial rights, and effect on fairness/integrity/public reputation.
    • Molina-Martinez v. United States, 578 U.S. 189 (2016) and Rosales-Mireles v. United States, 585 U.S. 129 (2018) reinforce that Guidelines miscalculations typically affect substantial rights and will often warrant correction on plain-error review.
    • United States v. Wilson, 614 F.3d 219 (6th Cir. 2010) and United States v. Bostic, 371 F.3d 865 (6th Cir. 2004) similarly support correction where the miscalculation likely increased the sentence and undermined the fairness of proceedings.

Legal Reasoning

The court’s reasoning proceeds in three principal steps: the categorical approach, mens rea mapping, and plain error.

1) Categorical Approach

Using the categorical approach, the court looked at the elements of Kentucky second-degree manslaughter. The statute provides that a person is guilty if he “wantonly causes the death of another person.” Kentucky defines “wantonly” as being aware of and consciously disregarding a substantial and unjustifiable risk, constituting a gross deviation from the reasonable-person standard. None of the enumerated “crime of violence” offenses in §4B1.2(a)(2) matches Kentucky second-degree manslaughter (e.g., “voluntary manslaughter” is enumerated, but Kentucky second-degree manslaughter is a wanton/reckless homicide, not voluntary manslaughter). Thus, only the elements clause could potentially apply.

2) Mapping Kentucky “Wantonness” to Borden’s “Recklessness”

The court carefully harmonized Kentucky’s culpability scheme with the MPC and Borden:

  • Under Kentucky law, “wantonness” requires awareness of and conscious disregard of a substantial and unjustifiable risk, with gross deviation from reasonable standards. This mirrors MPC “recklessness” and the Supreme Court’s formulation in Borden.
  • By contrast, Kentucky’s statutory term “recklessly” denotes failing to perceive such a risk—what the MPC would call “negligence.” Kentucky has adopted MPC concepts but uses names that differ from the MPC labels. The opinion is explicit that the frameworks are functionally identical even though the labels differ.
  • Borden held that the elements clause requires purposeful or knowing force, not reckless force. Because Kentucky second-degree manslaughter requires only wantonness (i.e., recklessness), the offense cannot satisfy the elements clause.

The government argued that the statute’s use of “aware” elevates Kentucky wantonness above recklessness to knowledge. The panel rejected this, explaining that “awareness of risk” is the hallmark of recklessness—distinct from “awareness that a harmful result is practically certain,” which defines knowledge. Simply put, awareness of risk is not awareness of practical certainty of the result. Therefore, Kentucky’s “wantonness” is not “knowing.”

The government also cited Harrison to suggest that some offenses above recklessness qualify. The court agreed with that general proposition but explained why it does not help here: Harrison addressed Kentucky murder, whose “extreme indifference to human life” elevates culpability to a level akin to knowledge or intent. Kentucky second-degree manslaughter lacks that elevation; it is “simple wantonness,” squarely within Borden’s exclusion for reckless offenses. Likewise, Jamison involved a Michigan mens rea that is “close to” purpose or knowledge—another species of elevated culpability not present here.

3) Plain Error

Because Tooley did not object at sentencing, the court reviewed for plain error. The panel held:

  • Error: Misclassifying Kentucky second-degree manslaughter as a crime of violence was error because it conflicts with Borden’s controlling construction of the elements clause.
  • Plainness: The error was “plain” or “obvious” in light of Borden and the direct mapping between Kentucky “wantonness” and MPC “recklessness.” The government’s reliance on Borden’s footnote reserving questions between recklessness and knowledge was unavailing because Kentucky’s wantonness is not a “between” category; it is functionally identical to the MPC’s reckless level.
  • Substantial rights: Under Molina-Martinez and Wilson, a Guidelines miscalculation that raises the range ordinarily affects substantial rights. The panel concluded there was a reasonable probability of a lower sentence absent the error.
  • Fairness, integrity, or public reputation: Rosales-Mireles and Bostic underscore that leaving a Guidelines error uncorrected generally undermines the integrity of the judicial process. The panel found this prong satisfied and vacated the sentence.

Impact

The decision carries several important implications for federal sentencing within the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) and potentially beyond as persuasive authority.

  • Kentucky second-degree manslaughter is not a “crime of violence.” District courts may not use Ky. Rev. Stat. § 507.040(1) as a qualifying predicate under the Guidelines’ elements clause. This affects:
    • USSG §2K2.1(a)(3) (as in Tooley), where the base offense level of 22 hinges partly on a prior “crime of violence.” Without a qualifying predicate, the base offense level will typically be lower (the exact fallback level depends on other subsections of §2K2.1, including whether the offense involved a semiautomatic firearm capable of accepting a large capacity magazine).
    • Other applications of §4B1.2(a), including career offender analysis. Note: “Voluntary manslaughter” is enumerated in §4B1.2(a)(2), but Kentucky second-degree manslaughter is wanton/reckless—not voluntary manslaughter—and therefore is not captured by the enumerated list.
  • Plain error after Borden. The decision underscores that, post-Borden, treating ordinary reckless offenses as crimes of violence is not simply debatable; it is plain error. Parties and courts should align mens rea analysis with the MPC and Borden’s taxonomy, not labels peculiar to state codes.
  • Clarity on Kentucky’s culpability terms. The opinion provides a clear “translation” for federal sentencing:
    • “Wantonly” in Kentucky = MPC “recklessly” (excluded by Borden).
    • “Recklessly” in Kentucky = MPC “negligently” (even further below the elements clause threshold).
    • “Extreme indifference to human life” in Kentucky’s murder statute elevates wantonness to a level tantamount to knowledge or intent (as recognized in Brown and Harrison), potentially qualifying under the elements clause in appropriate contexts.
  • Potential resentencings and collateral review. Defendants whose Guidelines ranges were enhanced based on Kentucky second-degree manslaughter being treated as a crime of violence may have grounds for resentencing or collateral relief, subject to procedural constraints and retroactivity principles. Tooley’s plain-error analysis will be particularly relevant on direct appeal; different standards apply on collateral review.
  • Persuasive reach beyond Kentucky. States that deploy “wantonness” or similar terminology in a way that matches MPC recklessness should expect similar treatment under Borden. Tooley reinforces the methodological point: what matters is the functional mental state, not the label a legislature uses.

Complex Concepts Simplified

  • Categorical approach: Courts do not look at what the defendant actually did. They look only at the statutory elements of the prior offense. If the least culpable conduct criminalized by the statute would not qualify as a “crime of violence,” then no conviction under that statute qualifies.
  • Elements clause vs. enumerated offenses: “Crime of violence” under §4B1.2(a) can be established either if the prior offense matches an enumerated crime (like murder, voluntary manslaughter, aggravated assault, robbery, etc.) or if it has as an element the “use, attempted use, or threatened use of physical force against the person of another.” The latter is the elements clause. Tooley is an elements clause case; the enumerated list does not include Kentucky second-degree manslaughter.
  • Mental states (mens rea):
    • Purpose/Intent: The defendant wants the harmful result.
    • Knowledge: The defendant is aware the harmful result is practically certain.
    • Recklessness: The defendant is aware of a substantial and unjustifiable risk and consciously disregards it.
    • Negligence: The defendant should be aware of a substantial and unjustifiable risk but fails to perceive it.
    Borden holds the elements clause requires purpose or knowledge, not recklessness or negligence.
  • Kentucky’s terminology: Kentucky’s “wantonness” corresponds to MPC recklessness. Kentucky’s “recklessness” corresponds to MPC negligence. This unusual naming does not change the functional analysis under Borden.
  • Plain error review: On appeal, if a party did not object below, they must show an error that is clear under current law, that affected their substantial rights (often satisfied when the Guidelines range was increased), and that seriously affected the fairness, integrity, or public reputation of judicial proceedings. Sentencing miscalculations under the Guidelines frequently meet these standards.

Conclusion

United States v. Tooley provides a clear, precedential rule for the Sixth Circuit: Kentucky second-degree manslaughter—premised on “wantonness”—is not a “crime of violence” under the Sentencing Guidelines’ elements clause. The court’s careful alignment of Kentucky’s mens rea terms with the MPC and Borden’s taxonomy forecloses treating wantonness as akin to knowledge, and it distinguishes earlier Sixth Circuit cases (Harrison and Jamison) that addressed elevated forms of culpability. Importantly, the Sixth Circuit deems the misclassification plain error after Borden, ensuring correction on direct appeal even absent an objection.

The decision will materially affect federal sentencing where Kentucky wanton offenses have been used as “crime of violence” predicates, particularly in §2K2.1 and §4B1.2 contexts. It also offers a broader methodological lesson: courts must look past state-law labels to the substance of the mental state, measured against Borden’s requirement of purposeful or knowing use of force for the elements clause. As a result, Tooley strengthens uniform application of federal sentencing law while providing concrete guidance to district courts, probation officers, and practitioners navigating the complex interface between state culpability schemes and federal sentencing enhancements.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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