Submitted: October 17, 2016
from United States District Court for the Northern District
of Iowa, Waterloo
RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
Parrow pled guilty to possessing a firearm after a
domestic-abuse conviction, in violation of 18 U.S.C. §
922(g)(9). The district court sentenced him to 77 months'
imprisonment and three years' supervised release. Parrow
appeals (1) the base-offense level of 20 under section
2K2.1(a)(4)(A) of the U.S. Sentencing Guidelines, and (2) the
four-level enhancement for possessing the firearm in
connection with another felony under section 2K2.1(b)(6)(B).
Having jurisdiction under 28 U.S.C. § 1291, this court
of section 2K2.1(a)(4)(A) is reviewed for plain error because
Parrow did not object. See United States v. Poitra,
648 F.3d 884, 892 (8th Cir. 2011); United States v.
Pirani, 406 F.3d 543, 549 (8th Cir. 2005)(en banc).
Application of section 2K2.1(b)(6)(B) is reviewed de novo.
See United States v. Jackson, 633 F.3d 703, 705 (8th
section 2K2.1(a)(4)(A), the base level for a
felon-in-possession offense is 20 if the defendant has
"one felony conviction of . . . a crime of
violence." A crime of violence "has as an element
the use, attempted use, or threatened use of physical force
against the person of another." Section 4B1.2(a)(1).
"[T]he phrase 'physical force' means violent
force-that is, force capable of causing physical pain or
injury to another person." Johnson v. United
States, 559 U.S. 133, 140 (2010) (interpreting a nearly
the prior conviction is for Domestic Abuse-Strangulation,
which punishes domestic assaults "committed by knowingly
impeding the normal breathing or circulation of the blood of
another by applying pressure to the throat or neck of the
other person or by obstructing the nose or mouth of the other
person." Iowa Code § 708.2A(2)(d). This
conviction-an aggravated misdemeanor punishable by
imprisonment for over one year-is a felony offense.
See Iowa Code § 903.1(2); United States v.
Holm, 745 F.3d 938, 941 (8th Cir. 2014).
decide whether a conviction is a crime of violence under
section 2K2.1(a)(4)(A), this court applies "a
categorical approach, looking to the elements of the offense
as defined in the… statute of conviction rather than
to the facts underlying the . . . conviction."
United States v. Dawn, 685 F.3d 790, 794 (8th Cir.
2012). If the statute includes both offenses that are and are
not crimes of violence-is divisible-this court applies
"a modified categorical approach to look at the charging
document, plea colloquy, and comparable judicial records for
determining which part of the statute the defendant
violated." United States v. Rice, 813 F.3d 704,
705 (8th Cir. 2016). A statute is not divisible when it,
"instead of laying out a crime's elements, lists
alternative means of fulfilling one (or more) elements,
" so a jury does not have to decide between the two
scenarios to convict. Mathis v. United States, 136
S.Ct. 2243, 2253 (2016) (holding that another Iowa statute
was not divisible because it listed "disjunctive factual
scenarios" for burglary, not separate elements).
Abuse-Strangulation has two scenarios for conviction:
"by applying pressure to the throat or neck of another
person, " or "by obstructing the nose or mouth of
another person." Iowa Code § 708.2A(2)(d). These
alternatives are means of violating the statute
because, to be convicted, the defendant need only knowingly
impair breathing or blood circulation during a domestic
assault. See State v. Bland, 871 N.W.2d 703 (table),
2015 WL 527826, at *1 (Iowa. App. 2015) (using a single
umbrella term of "domestic abuse assault by
strangulation" for either means); Mathis, 136
S.Ct. at 2257 (state court's use of a "single
umbrella term like 'premises'" to include all
alternatives shows "that each alternative is only a
possible means of commission . . ."). The categorical
approach applies here.
elements of Domestic Abuse-Strangulation are: (1) committing
a domestic assault in violation of Iowa Code § 708.1,
and (2) knowingly causing impaired breathing or blood
circulation by either means in the statute. Knowingly
strangulating another is categorically capable of causing
physical pain or injury to another person because it requires
proof that the victim's breathing or blood circulation
was impaired by the defendant. Iowa Code § 708.2A(2)(d);
State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997)
(defining "bodily injury" as "physical pain,
illness, or any impairment of physical condition."). The
offense here "includes the use of violent force as an
element 'since its impossible to cause bodily injury
without using force capable of producing that
result.'" Rice, 813 F.3d at 706,
quoting United States v. Castleman, 134 S.Ct. 1405,
1416-17 (2014) (Scalia, J., concurring).
prior conviction for Domestic Abuse-Strangulation is a crime
of violence. His base offense level was not erroneous.
See United States v. Jones, 574 F.3d 546, 552 (8th
Cir. 2009) (holding that attempted domestic assault by
choking is a crime of violence under ACCA because it
"involves conduct that is . . . purposeful, violent and
aggressive."). See also United States v.
Howell, 838 F.3d 489, 501 (5th Cir. 2016) (holding that
an almost identical Texas domestic-assault-by-strangulation
statute is a crime of violence under the Guidelines);