United States v. Aemonn Alexander ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1210
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Aemonn J. Alexander
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 25, 2015
Filed: January 11, 2016
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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Aemonn Alexander pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Alexander was sentenced to 180 months
imprisonment as an armed career criminal under 18 U.S.C. § 924(e)(1). Alexander
appeals his sentence, arguing that because his conviction for Assault Second Degree
does not qualify as one of three predicate offenses, the district court1 erred in applying
the armed career criminal enhancement. We find his Assault Second Degree
conviction qualifies as a “violent felony.” We affirm.
I.
On June 21, 2013, officers with the Independence, Missouri police department
responded to a domestic disturbance call at Alexander’s home. Alexander’s wife
reported to the officers that Alexander physically assaulted her and invited the police
officers into the house. Upon their entry into the home, the officers discovered a
loaded, stolen Ruger, 9 mm semiautomatic pistol. The officers found Alexander
hiding in the basement of the home with six 9 mm rounds of ammunition in his front
pocket.
A month later, Alexander was charged in a single-count Indictment with being
a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Alexander pled guilty to the Indictment without a plea agreement with the
government. The presentence investigation report (“PSR”) concluded that Alexander
had “three prior convictions for a violent felony or a serious drug offense, or both,”
which qualified as violent felonies under the Armed Career Criminal Act (“ACCA”),
codified at § 924(e), and indicated that one of Alexander’s prior “violent felonies”
was a Missouri state court Assault Second Degree conviction. Alexander objected
to the PSR’s finding that his Assault Second Degree conviction under Missouri
Revised Statute § 565.060 was a crime of violence under the ACCA. The district
court considered documents from Alexander’s Missouri state court prosecution,
overruled Alexander’s objections, and held that the Assault Second Degree
conviction constituted a predicate offense under § 924(e). Alexander was sentenced
1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
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to 180 months imprisonment, the minimum sentence allowed under the ACCA. 18
U.S.C. § 924(e)(1). Absent the ACCA enhancement, the maximum allowable
sentence for being a felon in possession of a firearm in violation of § 922(g) is 120
months imprisonment. 18 U.S.C. § 924(a)(2).
II.
A.
On appeal, Alexander maintains that the district court erred in counting his
Assault Second Degree conviction as a qualifying violent felony for ACCA purposes.
The government contends that, under the modified categorical approach, Alexander’s
Missouri conviction for Assault Second Degree constitutes a violent felony and was
properly counted as a predicate offense. “Having jurisdiction pursuant to 28 U.S.C.
§ 1291, we review de novo the district court’s legal determination that the prior
convictions serve as predicate offenses under the ACCA.” United States v. Cole, 778
F.3d 1055, 1055 (8th Cir. 2015) (per curiam).
Under the ACCA, a defendant is subject to a mandatory fifteen-year minimum
sentence on a felon-in-possession conviction if the defendant has three previous
convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1). The ACCA provides two categories of crimes that constitute a “violent
felony.” If the crime “has as an element the use, attempted use, or threatened use of
physical force against the person of another,” it is a “violent felony.” 18 U.S.C.
§ 924(e)(2)(B)(i). The statute, secondly, includes certain enumerated felonies and
any crime that “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).2
2
Because we address only subsection (i) of 18 U.S.C. § 924(e)(2)(B), we do not
reach Alexander’s arguments under Johnson v. United States, 135 S. Ct. 2551 (2015),
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“When a statute of conviction encompasses several different crimes, some of
which qualify as crimes of violence and some of which do not, we may use a
‘modified categorical approach’ to determine which part of the statute was the basis
for conviction.” United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011). A court
may examine underlying documents in the trial record, including the statement of the
factual basis for the charge in pleaded cases. Shepard v. United States, 544 U.S. 13,
20 (2005). Given adequate judicial record evidence, a reviewing court can generally
determine whether a plea “necessarily rested” on the subpart of the statute that
qualifies as a crime of violence. Vinton, 631 F.3d at 485; see also Shepard, 544 U.S.
at 21. The court will make this determination by examining the charging instrument,
the district court’s formal rulings of law and findings of fact, the plea colloquy
transcript, and the plea agreement. See Shepard, 544 U.S. at 20-21.
B.
Alexander was convicted of second-degree assault under Mo. Rev. Stat.
§ 565.060, which reads in relevant part:
1. A person commits the crime of assault in the second degree if he:
(1) Attempts to kill or knowingly causes or attempts to cause serious
physical injury to another person under the influence of sudden passion
arising out of adequate cause; or
(2) Attempts to cause or knowingly causes physical injury to another
person by means of a deadly weapon or dangerous instrument; or
(3) Recklessly causes serious physical injury to another person; or
which held the so-called “residual clause” found in subsection (ii) unconstitutional.
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(4) While in an intoxicated condition or under the influence of
controlled substances or drugs, operates a motor vehicle in this state
and, when so operating, acts with criminal negligence to cause physical
injury to any other person than himself; or
(5) Recklessly causes physical injury to another person by means of
discharge of a firearm; or
(6) Operates a motor vehicle in violation of subsection 2 of section
304.022, and when so operating, acts with criminal negligence to cause
physical injury to any person authorized to operate an emergency
vehicle, as defined in section 304.022, while such person is in the
performance of official duties.
Because Alexander pled guilty, we determine whether his plea “necessarily
rested” on a subpart of Mo. Rev. Stat. § 565.060 that constitutes a crime of violence.
The charging instrument in Alexander’s second-degree assault conviction alleged:
The Prosecuting Attorney of the County of Jackson, State of Missouri,
charges that the defendant, Aemonn Alexander, in violation of Section
560.060, RSMo, committed the class C felony of assault in the second
degree, punishable upon conviction under Sections 558.011 and
560.011, RSMo, in that on or about September 7, 1998, in the County
of Jackson, State of Missouri, the defendant knowingly attempted to
cause physical injury to Adam J. Zarrillo by means of a dangerous
instrument.
The language of the information tracks the language of § 565.060.1(2).
Alexander was convicted of committing second-degree assault by knowingly
attempting to cause physical injury to another by means of a dangerous instrument.
See Vinton, 631 F.3d at 485 (applying the modified categorical approach to determine
that Vinton had been convicted of § 565.060.1(2)). We have previously held that
second-degree assault under § 565.060.1(2) is a crime that “has as an element the use,
attempted use, or threatened use of physical force against the person of another” and
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therefore constitutes a violent felony. 18 U.S.C. § 924(e)(2)(B)(i); Vinton, 631 F.3d
at 485 (emphasis added).
Alexander argues that the circumstances in Vinton were different because the
defendant in Vinton pled guilty to causing physical injury while Alexander pled
guilty to attempting to cause physical injury and Missouri’s attempt statute could
encompass circumstances not involving violent or substantial force. The Missouri
Supreme Court has established that “Section 564.011 governs all attempt crimes, and
a substantial step is an essential element of any attempt under Missouri law, including
attempt-based assault as defined by section 565.060.1(2).” State v. Williams, 126
S.W.3d 377, 387 (Mo. 2004) (en banc). We therefore look to § 564.011, Missouri’s
attempt statute, which deems a person “guilty of attempt to commit an offense when,
with the purpose of committing the offense, he does any act which is a substantial
step towards the commission of the offense” and defines “substantial step” as
“conduct which is strongly corroborative of the firmness of the actor’s purpose to
complete the commission of the offense.” Mo. Rev. Stat. § 564.011.1. Specifically,
Alexander contends that criminalizing a “substantial step” is over-inclusive because
it expands beyond the traditional understanding of a generic assault attempt and
removes the “violent” or “substantial” force requirement from the ACCA.
Furthermore, Alexander asserts that our decision in United States v. Reid, 769
F.3d 990 (8th Cir. 2014), controls the “substantial step” issue. In Reid, the defendant
challenged the district court’s determination that a Missouri conviction for attempted
burglary qualified as a violent felony. 769 F.3d at 993. Critically, however, Reid
addressed the “substantial step” test and Missouri’s attempted burglary statute under
the “residual clause” of the ACCA, § 924(e)(2)(B)(ii). Id. at 993-94. Alexander’s
predicate conviction does not fall under subsection (ii), the residual clause, but rather
under subsection (i). Thus, the analysis and holding of Reid do not inform this
Court’s determination of whether an attempted second-degree assault qualifies as a
violent felony under § 924(e)(2)(B)(i).
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Missouri’s “attempt statute requires only a showing that ‘defendant’s purpose
was to commit the underlying offense and that defendant took a substantial step
toward its commission.’” State v. Faruqi, 344 S.W.3d 193, 202 (Mo. 2011) (en banc).
We have found no case in which the Missouri Supreme Court has construed attempt
under § 565.060(1)(2) in an overinclusive manner that eviscerates the requirements
of the ACCA and Alexander has not called any such case to our attention. See Fed.
R. App. P. 28(a)(8)(A) (stating that Appellant’s Brief must contain citations to the
authorities upon which the Appellant’s contentions rely). Thus, an attempted second-
degree assault under Mo. Rev. Stat. § 565.060(1)(2) constitutes an “attempted use . . .
of physical force” under § 924(e)(2)(B)(i).
III.
Accordingly, we hold Alexander’s conviction for Assault Second Degree
qualifies as a “violent felony” within the meaning of 18 U.S.C. § 924(e)(2)(B)(i) and
affirm the district court’s application of the ACCA enhancement to Alexander’s
sentence.
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