Submitted: June 16, 2016
from United States District Court for the District of
Minnesota - St. Paul.
MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.
MURPHY, Circuit Judge.
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
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.
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.
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).
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.
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 ...