Whether a crime with a mens rea of extreme recklessness has, 'as an element, the use, attempted use, or threatened use of physical force against the person or property of another' and thus can qualify as crimes of violence under the elements clause of 18 U.S.C. § 16(a)

QUESTION PRESENTED This petition concerns the categorical approach, and how crimes of “extreme recklessness” should be classified. Several federal statutes and sentencing guidelines define a “crime of violence,” with its harsh attendant consequences for sentencing and immigration, as a crime that “has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a); 8 U.S.C. § 1101(a)(48)(G) defining “aggravated felony” for immigration to include crimes of violence under § 16); see also 18 U.S.C. § 924(c)(3)(A) (use of a firearm in relation to a crime of violence); 18 U.S.C. § 924(e)(B)(i) (Armed Career Criminal Act definition including “use of physical force against the person of another); U.S.S.G. § 4B1.2(a)(1) (same) (“crime of violence” for Career Offender sentencing enhancement). In Leocal v. Ashcroft, 543 U.S. 1 (2004), this Court held that crimes with a negligence mens rea do not qualify as crimes of violence; then in Borden v. United States, 141 S.Ct. 1817 (2021), a majority of this Court held that crimes of at least ordinary recklessness do not qualify, though crimes with a mens rea of intent or knowledge do. It left open the question presented here: Whether a crime with a mens rea of extreme recklessness has, “as an element, the use, attempted use, or threatened use of physical force against the person or property of another” and thus can qualify as crimes of violence under the elements clause of 18 U.S.C. § 16(a)?