United States Court of Appeals
                                  FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                           ____________
No. 23-3143                                                      September Term, 2023
                                                                          1:22-cr-00096-CKK-1
                                                                         1:22-cr-00096-CKK-10
                                                                          1:22-cr-00096-CKK-2
                                                                          1:22-cr-00096-CKK-5
                                                                          1:22-cr-00096-CKK-8
                                                            Filed On: November 3, 2023
United States of America,

                  Appellee

         v.

Lauren Handy,

                  Appellant

------------------------------

Consolidated with 23-3146, 23-3147,
23-3156, 23-3158

               ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

         BEFORE:           Henderson*, Pillard, and Pan, Circuit Judges

                                          JUDGMENT

        This appeal was considered on the record from the United States District Court
for the District of Columbia and on the memoranda of law and fact filed by the parties.
The court has determined that the issues presented occasion no need for an opinion.
See D.C. Cir. Rule 36. It is

        ORDERED AND ADJUDGED that the district court’s August 29, 2023 and
September 15, 2023 minute orders detaining appellants pending sentencing, and the
district court’s August 31, 2023 memorandum opinion and order denying


* Circuit Judge Henderson would reverse the district court’s orders detaining appellants
pending sentencing and the district court’s memorandum opinion and order denying
reconsideration.
                 United States Court of Appeals
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                     ____________
No. 23-3143                                                September Term, 2023

reconsideration of the district court’s August 29 detention order, be affirmed.
Appellants have not demonstrated that the district court erred in concluding that they
had been found guilty of a crime of violence and therefore should be detained pending
sentencing pursuant to 

(a)(2).

       Appellee argues that the Freedom of Access to Clinic Entrances (“FACE”) Act,

, is “divisible,” and therefore that the court should apply the “modified
categorical approach.” See Mathis v. United States, 

, 505-06 (2016);
Descamps v. United States, 

 (2013). Appellants do not argue
otherwise. Thus, the court assumes, without deciding, that the statute is divisible, and
because appellants were found guilty of violating the FACE Act by force and by physical
obstruction, that appellants were found guilty of a separate offense from one “involving
exclusively a nonviolent physical obstruction.” 

(a)(1), (b).

       Notably, the parties agree that the level of “force” required to support a FACE Act
conviction is “violent force . . . capable of causing physical pain or injury to another
person,” Johnson v. United States, 

 (2010), so the court does not
decide whether a lesser degree of force might suffice. This leaves the court with
appellants’ contention that the plurality opinion in Borden v. United States, 

 (2021), introduced a rule that an offense is not categorically a crime of violence
unless it requires a specific intent to harm, and that the FACE Act lacks such a
requirement. However, appellants have failed to persuade the court that the plurality
opinion did in fact introduce this rule, or that such a rule would apply to the present
case, which involves differently-worded statutes.

        The plurality opinion in Borden concluded that “[t]he phrase ‘against another,’
when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or
target, another individual,” and “[r]eckless conduct is not aimed in that prescribed
manner.” 141 S. Ct. at 1825; see also id. at 1826 (“[T]he pairing of volitional action with
the word ‘against’ supports that word’s oppositional, or targeted, definition.”). While the
opinion does state that offenses criminalizing reckless conduct will not categorically
qualify as violent felonies under the relevant statute, appellants have not demonstrated
that the Justices intended to establish a requirement – in addition to the intent needed
for the crime – that the perpetrator act with a specific intent to harm or injure another.
See Amaya v. Garland, 

, 983 (9th Cir. 2021).

        Furthermore, even if the plurality opinion in Borden did conclude that the
definition of “violent felony” in the Armed Career Criminal Act encompasses only crimes
committed with a specific intent to harm another, appellants have not demonstrated that
that requirement would apply here, where the crime of violence definition encompasses

                                          Page 2
                 United States Court of Appeals
                             FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                      ____________
No. 23-3143                                                 September Term, 2023

“an offense that has as an element of the offense the use, attempted use, or threatened
use of physical force against the person or property of another.” 

(a)(4)(A) (emphasis added).

        Appellants argue that the FACE Act permits a conviction based on force used
with the specific intent to “interfere with,” rather than “injure,” another, and therefore is
not a crime of violence under Borden. But, for the reasons stated, appellants have not
demonstrated that 

(a)(4)(A) requires a specific intent to injure.
Moreover, the FACE Act appears to satisfy Borden’s requirement that the force be
“directed” or “targeted.” It imposes penalties on one who “by force or threat of force or
by physical obstruction, intentionally injures, intimidates or interferes with or attempts to
injure, intimidate or interfere with any person because that person is or has been, or in
order to intimidate such person or any other person or any class of persons from,
obtaining or providing reproductive health services.” 

(a)(1). The most
natural reading of that language appears to foreclose appellants’ argument that one
could intentionally use force, with an intent to “injure, intimidate or interfere with”
another, because that person is obtaining or providing reproductive health services, and
yet act with a state of mind of mere recklessness.

       Appellants also contend that a conviction for the “more serious” FACE Act
misdemeanor based on “physical obstruction” is not categorically a crime of violence
because it can include nonviolent physical obstruction. The FACE Act provides lower
penalties for “offense[s] involving exclusively a nonviolent physical obstruction.” 

(b). Appellants reason that one could therefore be guilty based on
“physical obstruction” but not fall into that lower penalty category either by using violent
physical obstruction or by using nonviolent physical obstruction in addition to force or
threat of force (thereby making it not “exclusive”). However, appellants have not
demonstrated that the district court erred in concluding that a FACE Act conviction
based on the use of force is a crime of violence, so one found guilty of violating the
FACE Act by both force and nonviolent physical obstruction would still necessarily have
been found guilty of a crime of violence.

       Finally, appellants do not challenge the district court’s conclusion that there was
no “substantial likelihood that a motion for acquittal or new trial will be granted” or that
the government intended to recommend a sentence of imprisonment, 

(a)(2)(A). They have therefore forfeited the issue. See United States ex rel.
Totten v. Bombardier Corp., 

 (D.C. Cir. 2004).

        Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution

                                           Page 3
                 United States Court of Appeals
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                     ____________
No. 23-3143                                                September Term, 2023

of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.

                                       Per Curiam


                                                 FOR THE COURT:
                                                 Mark J. Langer, Clerk

                                          BY:    /s/
                                                 Daniel J. Reidy
                                                 Deputy Clerk




                                          Page 4