United States v. Jason Pyles , 888 F.3d 1320 ( 2018 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-2116
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Jason Lee Pyles
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Arkansas - Ft. Smith
    ____________
    Submitted: January 10, 2018
    Filed: May 3, 2018
    ____________
    Before LOKEN, BEAM, and KELLY, Circuit Judges.
    ____________
    LOKEN, Circuit Judge.
    Jason Lee Pyles pleaded guilty to being a felon in possession of a firearm in
    violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2). The district court1 concluded that
    Pyles is an Armed Career Criminal because he has three prior “violent felony”
    1
    The Honorable P.K. Holmes, III, Chief Judge of the United States District
    Court for the Western District of Arkansas.
    convictions, see 
    18 U.S.C. § 924
    (e)(1), and overruled Pyles’s objection that his 2014
    Arkansas conviction for aggravated assault on a family member was not a violent
    felony conviction. The court sentenced Pyles to 180 months in prison, the mandatory
    minimum Armed Career Criminal Act (ACCA) sentence. Pyles appeals, arguing the
    district court erred in ruling that aggravated assault on a family member in violation
    of 
    Ark. Code Ann. § 5-26-306
    (a)(3) is a violent felony. Reviewing this issue de novo,
    we affirm.
    Section 5-26-306(a)(3) of the Arkansas Code provides:
    (a) A person commits aggravated assault on a family or household
    member if, under circumstances manifesting extreme indifference to the
    value of human life, the person purposely . . . (3) Impedes or prevents the
    respiration of a family or household member or the circulation of a
    family or household member’s blood by applying pressure on the throat
    or neck or by blocking the nose or mouth of a family or household
    member.
    We apply a categorical approach to determine whether a violation of this statute
    constitutes a violent felony for ACCA purposes, looking to the elements of the offense
    as defined in the statute rather than to the facts underlying Pyles’s conviction. See
    United States v. Parrow, 
    844 F.3d. 801
    , 802 (8th Cir. 2016).
    At issue in this case is whether a violation of § 5-26-306(a)(3) is a violent
    felony under the ACCA’s “force clause,” which defines violent felonies to include
    “any crime punishable by imprisonment for a term exceeding one year . . . that 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)(i). The Supreme Court has defined the
    word “force” in this statute as meaning “violent force -- that is, force capable of
    causing physical pain or injury to another person.” Johnson v. United States, 559 U.S.
    -2-
    133, 140 (2010). However, the force required is “only that degree of force necessary
    to inflict pain -- a slap in the face, for example.” 
    Id. at 143
    .
    Pyles argues that a violation of § 5-26-306(a)(3) is not a violent felony because
    the statute could be violated by the use of minimal, non-violent force, such as
    removing a person’s sleep apnea breathing machine. In Parrow, we concluded that
    Iowa’s Domestic Abuse -- Strangulation statute satisfied the requirement of violent
    force. “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.” 844 F.3d at 803. Likewise, the
    force element of a § 5-26-306(a)(3) violation -- impeding respiration or blood
    circulation by applying pressure on the throat or neck or by blocking the nose or
    mouth -- necessarily requires the use of violent force as defined in Johnson.
    “[T]he proper inquiry is whether the conduct encompassed by the elements of
    the offense, in the ordinary case, involves the use, attempted use, or threatened use of
    physical force against the person of another.” United States v. Forrest, 
    611 F.3d 908
    ,
    910 (8th Cir.), cert. denied, 
    562 U.S. 1053
     (2010), quoting James v. United States, 
    550 U.S. 192
    , 208 (2007), overruled on other grounds, Johnson v. United States, 
    135 S. Ct. 2551
    , 2563 (2015). Pyles has not cited, and we have not found, any Arkansas case
    in which the defendant was charged with violating § 5-26-306(a)(3) for the use of
    non-violent force. “Before we conclude that a state statute sweeps more broadly than
    the federal definition of violent felony, there must be a realistic probability, not a
    theoretical possibility, that the statute encompasses conduct that does not involve use
    or threatened use of violent force.” United States v. Swopes, 
    886 F.3d 668
    , 671 (8th
    Cir. 2018) (en banc) (quotation omitted).
    Seeking to distinguish this case from the Iowa statute at issue in Parrow, Pyles
    argues that a violation of § 5-26-306(a)(3) only requires a mens rea of recklessness
    when it provides, “under circumstances manifesting extreme indifference to the value
    -3-
    of human life.” We have held that, “at least in some circumstances, a crime involving
    a mens rea of mere recklessness does not [satisfy the force clause].” United States v.
    Garcia-Longoria, 
    819 F.3d 1063
    , 1066 (8th Cir. 2016). However, that unsettled issue
    does not apply here because an element of § 5-26-306(a)(3) is that the defendant acted
    “purposely,” and the Supreme Court of Arkansas has defined acting “purposely” as
    a “culpable mental state . . . which requires deliberate conduct with a knowledge or
    awareness that one’s actions are practically certain to bring about the prohibited
    result.” Bell v. State 
    259 S.W.3d 472
    , 476-77 (Ark. App. 2007), citing McCoy v.
    State, 
    69 S.W.3d 430
    , 435-37 (Ark. 2002).
    The judgment of the district court is affirmed.
    ______________________________
    -4-
    

Document Info

Docket Number: 17-2116

Citation Numbers: 888 F.3d 1320

Judges: Loken, Beam, Kelly

Filed Date: 5/3/2018

Precedential Status: Precedential

Modified Date: 10/19/2024