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United States v. Headbird

United States Court of Appeals, Eighth Circuit

August 9, 2016

United States of America Plaintiff- Appellee
v.
Christopher Harrison Headbird Defendant-Appellant

          Submitted: June 16, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul.

          Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.

          MURPHY, Circuit Judge.

         Christopher Headbird pled guilty to being a felon in possession of a firearm. The district court determined that Headbird had three prior violent felony convictions and sentenced him to 235 months imprisonment under the Armed Career Criminal Act (ACCA). Headbird appeals, contending that his juvenile adjudication for second degree assault, Minn. Stat. § 609.222, subd. 1, does not qualify as an ACCA predicate offense. We vacate Headbird's sentence and remand for resentencing.

         I.

         On August 19, 2014 the Leech Lake Tribal Police responded to a call from Headbird's aunt reporting that he had threatened and hit her. When the police arrived, Headbird took his girlfriend hostage inside a house. He eventually surrendered, however, and handed his shotgun to the police. Headbird was subsequently indicted with one count of being a felon in possession of a firearm to which he pled guilty. See 18 U.S.C. §§ 922(g)(1), 924(e). At sentencing the district court determined that Headbird had two prior convictions for aggravated robbery and a prior juvenile adjudication for assault, all of which qualified as ACCA predicate offenses. The court then sentenced Headbird to 235 months imprisonment, and Headbird appeals.

         II.

         Headbird contends his juvenile adjudication for Minnesota second degree assault does not qualify as an ACCA predicate offense. We review de novo the district court's determination of whether a conviction so qualifies. United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016). The ACCA imposes a mandatory minimum 15 year sentence for a defendant convicted of being a felon in possession of a firearm who "has three previous convictions . . . for a violent felony." 18 U.S.C. § 924(e)(1). A crime qualifies as a predicate offense under the force clause of the ACCA definition of "violent felony" if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). To determine whether a prior conviction fits that definition, we "start with the formal categorical approach and look only to the fact of conviction and the statutory definition of the prior offense." United States v. Jordan, 812 F.3d 1183, 1186 (8th Cir. 2016) (quoting United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012)). If the statute "criminalizes both conduct that does and does not qualify as a violent felony" and the statute is divisible, we apply the "modified categorical approach" and may review certain judicial records "to identify which section of the statute supplied the basis for a defendant's conviction." Id.

         A.

         Headbird first argues that Minnesota's second degree assault statute is not a violent felony under the ACCA because the state definition of assault does not contain an element which requires proof of "the use, attempted use, or threatened use of physical force." 18 U.S.C. § 924(e)(2)(B)(i). Minnesota Statutes section 609.222, subd. 1, makes it a felony to "assault[] another with a dangerous weapon." Assault is defined as "(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another." Id. § 609.02, subd. 10. These two forms of assault are referred to in Minnesota respectively as "assault fear" and "assault harm." State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012).

         In Schaffer, we analyzed a Minnesota statute which criminalizes "an act with intent to cause fear in another of immediate bodily harm or death" and concluded that it qualifies as a violent felony. 818 F.3d at 798; Minn. Stat. § 609.2242, subd. 1(1). The language in the "assault fear" part of the definition at issue here is materially identical to the statute in Schaffer. See Minn. Stat. § 609.02, subd. 10(1). Moreover, Headbird's argument that the "assault harm" part of the definition does not necessarily encompass the use or attempted use of physical force is foreclosed by United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016). In Rice we rejected a variation of Headbird's argument that "bodily harm" can be accomplished without violent force. See id. We thus agree with the holding in United States v. Harvey, ___ Fed.App'x___, 2016 WL 1696816 (8th Cir. Apr. 28, 2016) (per curiam) (citing Schaffer and Rice), that Minn. Stat. § 609.222, subd. 1, is a violent felony under either definition of assault.

         B.

         Because Headbird's conviction for second degree assault was a juvenile adjudication, it must also have "involve[d] the use or carrying of a firearm, knife, or destructive device" in order to qualify as an ACCA predicate offense. 18 U.S.C. § 924(e)(2)(B). Headbird was convicted of assault "with a dangerous weapon, " a term defined as:

any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great ...

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