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United States v. Myers

United States Court of Appeals, Eighth Circuit

July 2, 2019

United States of America Plaintiff-Appellee
v.
James Dwayne Myers Defendant-Appellant

          Submitted: June 21, 2019

          Appeal from United States District Court for the Western District of Arkansas - Fayetteville

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         This 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[1] 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 affirms.[2]

         The 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).

         I.

         Myers 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."

         A 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).

         The 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 ...


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