Submitted: June 21, 2019
from United States District Court for the Western District of
Arkansas - Fayetteville
LOKEN, BENTON, and ERICKSON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
case is on remand from the Supreme Court of the United
States. See Myers v. United States, 139 S.Ct. 1540
(2019). James D. Myers 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 as an armed career
criminal to 188 months' imprisonment. He appealed the
ACCA designation. This court affirmed. See United States
v. Myers, 896 F.3d 866, 872 (8th Cir. 2018). The Supreme
Court vacated the judgment and remanded "for further
consideration in light of the position asserted by the
Solicitor General in his brief for the United States filed on
March 21, 2019." Myers, 139 S.Ct. at 1540. For
the following reasons, this court again
Armed Career Criminal Act (ACCA) enhances sentences for those
who possess firearms after three convictions for a
"violent felony or a serious drug offense."
18 U.S.C. § 924(e)(1). The district
court sentenced Myers as an armed career criminal based on
one prior serious drug conviction and two prior violent
felonies under Arkansas law-first-degree terroristic
threatening and second-degree battery. Myers appeals, arguing
neither one is a violent felony. This court reviews de novo
the determination that a conviction is a violent felony under
the ACCA. See United States v. Keith, 638 F.3d 851,
852 (8th Cir. 2011).
maintains his Arkansas first-degree terroristic threatening
conviction is not a violent felony under the ACCA. The
parties agree Myers was convicted under Arkansas Code
Annotated § 5-13-301(a)(1)(A). At the time of his
conviction, it said:
(a)(1) A person commits the offense of terroristic
threatening in the first degree if:
(A) With the purpose of terrorizing another person, the
person threatens to cause death or serious physical injury or
substantial property damage to another person; or
Ark. Code Ann. § 5-13-301(a)(1)(A)
(1995). Myers argues this section is "overbroad"
because it "criminalizes the making of threats to cause
'substantial property damage' in addition to threats
'to cause death or serious physical injury, '"
and "does not . . . necessarily involve an element of
physical force against the person of another."
violent felony under the ACCA includes "any crime
punishable by imprisonment for a term exceeding one year . .
. that-(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another." 18 U.S.C. §
924(e)(2)(B). To determine whether a prior
conviction is a violent felony, courts apply a categorical
approach, looking to the statute of conviction to determine
whether that conviction necessarily has, as an element, the
use, attempted use, or threatened use of physical force
against the person of another. See United States v.
Castleman, 572 U.S. 157, 168 (2014). "If there is a
realistic probability that the statute encompasses conduct
that does not involve use or threatened use of violent force,
the statute sweeps more broadly than the ACCA's
definition of violent felony." Martin v. United
States, 904 F.3d 594, 596 (8th Cir. 2018) (internal
quotation marks omitted). However, "[i]f the statute of
conviction defines more than one crime by listing alternative
elements," this court applies the "modified
categorical approach, to determine which of the alternatives
was the offense of conviction." United States v.
Winston, 845 F.3d 876, 877 (8th Cir. 2017) (internal
quotation marks omitted).
parties disagree whether the categorical or modified
categorical approach applies. This depends on whether A.C.A.
§ 5-13-301(a)(1)(A) lists alternative elements or means
and is, therefore, divisible or indivisible. See Mathis
v. United States, 136 S.Ct. 2243, 2248 (2016)
("Distinguishing between elements and facts is therefore
central to ACCA's operation.").
"'Elements' are the 'constituent parts'
of a crime's legal definition-the things the
'prosecution must prove to sustain a
conviction.'" Id., quotingBlack's Law Dictionary 634 (10th ed.
2014). "At a trial, they are what the jury must find
beyond a reasonable doubt to convict the defendant; and at a
plea hearing, they are what the defendant necessarily admits
when he pleads guilty." Id. (internal citation