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United States v. McMillan

United States Court of Appeals, Eighth Circuit

July 24, 2017

United States of America Plaintiff- Appellee
v.
Ryan William McMillan Defendant-Appellant

          Submitted: April 7, 2017

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

          Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

          MURPHY, Circuit Judge.

         Ryan William McMillan pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 84 months imprisonment based in part on its determination that his prior conviction for third degree riot was a crime of violence under the sentencing guidelines. McMillan appeals, and we vacate his sentence and remand for resentencing.

          I.

         McMillan pled guilty to being a felon in possession of a firearm in November 2015. The presentence investigation report recommended a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) because McMillan had committed the current offense after felony convictions for a controlled substance offense and a crime of violence, specifically a 2009 Minnesota conviction for third degree riot. See Minn. Stat. § 609.71, subd. 3 (2009). McMillan objected to the presentence report's determination that his conviction for third degree riot qualified as a crime of violence.

         At McMillan's May 2016 sentencing hearing, the district court overruled McMillan's objection and determined that his third degree riot conviction qualified as a crime of violence because it had "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). After deciding that McMillan's base offense level was 24, and adjusting his offense level, the court calculated an advisory guideline range of 92 to 115 months and sentenced McMillan to 84 months. McMillan appeals, arguing that the district court erred by overruling his objection that his prior conviction for third degree riot does not qualify as a crime of violence.

         II.

         We review de novo whether a conviction qualifies as a crime of violence. United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016). Section 2K2.1 of the guidelines provides that courts should apply a base offense level of 24 for a conviction of unlawful possession of a firearm if, among other factors, the defendant had previously "sustain[ed] at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). A "crime of violence" is any federal or state offense punishable by more than one year imprisonment that either: "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a) (2015).[1] Subsection one contains the force clause and subsection two contains the enumerated and residual clauses. See United States v. Jordan, 812 F.3d 1183, 1185 (8th Cir. 2016).[2]

         III.

         McMillan argues that the district court erred by concluding that his prior conviction for third degree riot qualifies as a crime of violence under the force clause. To determine whether a prior conviction qualifies as a predicate offense under the force clause, "we apply a categorical approach, looking to the elements of the offense as defined in the . . . statute of conviction rather than to the facts underlying the defendant's prior conviction." Rice, 813 F.3d at 705 (quoting United States v. Dawn, 685 F.3d 790, 794 (8th Cir. 2012)) (alteration in Dawn). If the statute of conviction is divisible, however, "in that it encompasses multiple crimes, some of which are crimes of violence and some of which are not, we apply 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." Id.

          (quoting Dawn, 685 F.3d at 794-95). "We then determine whether a violation of that statutory subpart is a crime of violence." Id.

         Minnesota's riot statute states: "When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant therein is guilty of riot third degree . . . ." Minn. Stat. § 609.71, subd. 3 (2009). Because a prior conviction only qualifies as a crime of violence under the force clause if it "has as an element the use, attempted use, or threatened use of physical force against the person of another, " U.S.S.G. ยง 4B1.2(a)(1) (2015) (emphasis added), we must determine whether we may use the modified categorical approach to ...


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