United States v. Preston Phillips , 817 F.3d 567 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1712
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Preston C. Phillips
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: February 8, 2016
Filed: March 8, 2016
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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Preston Charles Phillips pled guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) and 924(e). He appeals, arguing (1) his civil
right to possess a firearm was restored by an amendment to the Missouri Constitution,
and (2) he was not an armed career criminal under Johnson v. United States, 135 S. Ct.
2551 (2015). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
In March 2013, a bystander told officers that an armed person was waiting at
a Kansas City bus stop. Approaching Phillips at the bus-stop bench, officers saw a
shotgun on the ground beneath him. Phillips, having ten prior felony convictions, was
charged in federal court with being an armed career criminal in possession of a
firearm.
Phillips argues that his civil right to bear arms was restored by a 2014
amendment to the Missouri Constitution. See Mo. Const. art. I, § 23 (effective
September 4, 2014, by Mo. Const. art. XII, §2(b)). To the contrary, the Supreme
Court of Missouri has held that his civil right to bear arms was not restored by the
amendment. State v. Clay, 2016 WL 503216, at *7 (Mo. banc Feb. 9, 2016) (after the
2014 amendment, nonviolent felons continue to be restricted from possessing
firearms).
Phillips asserts that he was incorrectly classified as an armed career criminal.
A felon in possession with at least three prior felony convictions for a “violent felony
or a serious drug offense, or both, committed on occasions different from one another”
faces a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). Phillips
claims his convictions for second-degree domestic assault and second-degree burglary
are not violent felonies. A “violent felony” is “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; or (ii) is burglary,
arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” § 924(e)(2)(B). The
Supreme Court has held that the ending “otherwise” clause is unconstitutionally
vague. Johnson, 135 S. Ct. at 2563.
This court reviews de novo whether a prior conviction is a violent felony under
§ 924(e). United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012). This court
considers “how the law defines the offense and not in terms of how an individual
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offender might have committed it on a particular occasion.” United States v. Vincent,
575 F.3d 820, 824 (8th Cir. 2009). “When the law defines an offense by proscribing
several discrete, alternative sets of elements that might be shown as different manners
of committing the offense, we employ the modified categorical approach that permits
examination of a limited class of materials to determine which set of elements the
defendant was found to have violated.” Id.
Under Missouri law, a person commits the crime of second-degree domestic
assault if the crime involves a family or household member, and he or she:
(1) Attempts to cause or knowingly causes physical injury to such family
or household member by any means, including but not limited to, by use
of a deadly weapon or dangerous instrument, or by choking or
strangulation; or
(2) Recklessly causes serious physical injury to such family or household
member; or
(3) Recklessly causes physical injury to such family or household
member by means of any deadly weapon.
§ 565.073 RSMo. Since this section is divisible, this court uses the modified
categorical approach to determine whether the offense is a violent felony.
Phillips agrees that, for at least one second-degree domestic assault (case
number 1016-CR00303-01), he was convicted under subsection (1) of 565.073 RSMo.
A conviction under this subsection is a violent felony because it “has as an element
the use, attempted use, or threatened use of physical force” Griffin v. United States,
617 Fed. Appx. 618, 624 (8th Cir. 2015).
The government’s sentencing exhibit shows that Phillips was convicted of
another second-degree domestic assault (case number 0716-CR05605-01). Although
the exhibit includes the judgment of conviction, it does not indicate the subsection
under which Phillips was convicted. Taking judicial notice of the indictment in case
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number 0716-CR05605-01, Phillips pled guilty to “knowingly caus[ing] physical
injury to [the victim] by striking the victim.” See United States v. Jones, 574 F.3d
546, 551 n.3 (8th Cir. 2009) (court may take judicial notice of a document “not relied
on in sentencing by the district court” and “not been made a part of the record on
appeal” if “it would be pointless to remand the case simply to have the District Court
take notice of that which we may notice ourselves” (citing United States v. Remoi,
404 F.3d 789, 793 n.1 (3d Cir. 2005))). Phillips has two convictions under subsection
(1) of 565.073 RSMo, which are violent felonies. See Griffin, 617 Fed. Appx. at 624.
Phillips argues that his Missouri second-degree burglary conviction (case
number 88-2768) is not a violent felony. A prior burglary conviction “qualifies as an
ACCA predicate only if the statute’s elements are the same as, or narrower than, those
of the generic offense.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
“[T]he basic elements of the Missouri second-degree burglary statute are the same as
those of the generic burglary offense . . . under the categorical approach.” United
States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014). See also United States v.
Bearden, 780 F.3d 887, 896 (8th Cir. 2015). The district court1 properly included
Phillips’s second-degree burglary conviction as a predicate felony under § 924(e), and
thus properly found him to be an armed career criminal.2
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The judgment is affirmed.
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1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
2
Phillips has another Missouri second-degree burglary conviction from case
number 0716-CR05605-01, which occurred on the same occasion as the second-
degree domestic assault.
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