United States v. Marquan Wilson ( 2009 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 08-3514
    ________________
    United States of America,                 *
    *
    Appellee,                    *
    * Appeal from the United States
    v.                                  * District Court for the
    * Western District of Missouri.
    Marquan L. Wilson, also known as          *
    Marquawn L. Wilson,                       *
    *
    Appellant.                   *
    ________________
    Submitted: April 17, 2009
    Filed: June 12, 2009 (Corrected 6/16/09)
    ________________
    Before WOLLMAN, MELLOY and GRUENDER, Circuit Judges.
    ________________
    GRUENDER, Circuit Judge.
    Marquan Wilson pled guilty to being a felon in possession of a firearm in
    violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court1
    found that Wilson was subject to the terms of the Armed Career Criminal Act
    (“ACCA”), 18 U.S.C. § 924(e), based on his three prior violent felony convictions.
    Accordingly, the district court sentenced Wilson to 180 months’ imprisonment, the
    1
    The Honorable Ortrie D. Smith, United States District Judge for the Western
    District of Missouri.
    mandatory minimum sentence under the ACCA. Wilson appeals his sentence, arguing
    that he should not have been subject to the ACCA because one of his three prior
    felony offenses—his conviction for child abuse under section 568.060 of the Missouri
    Revised Statutes—does not qualify as a violent felony under § 924(e)(2)(B). We
    affirm.
    I.    BACKGROUND
    On July 31, 2007, Kansas City, Missouri police officers approached Wilson and
    Lonnie Delaney at a bus stop near East 30th Street and Wabash Avenue because they
    matched the description of two suspects wanted in connection with an armed
    carjacking. While the officers were arresting Delaney on an outstanding warrant,
    Delaney told the officers that Wilson had thrown a firearm under the bus stop seat
    before the officers had arrived. The police searched the area around the bus stop and
    recovered a .38 caliber revolver. Thereafter, Wilson pled guilty to being a felon in
    possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
    Wilson’s Presentence Investigation Report (“PSR”) recommended that the
    district court impose an enhanced sentence under the ACCA based on Wilson’s prior
    felony convictions for unlawful use of a weapon in violation of Mo. Rev. Stat. §
    571.030, child abuse in violation of Mo. Rev. Stat. § 568.060, and first degree assault
    in violation of Mo. Rev. Stat. § 565.050. Based on this enhancement and Wilson’s
    acceptance of responsibility, the PSR calculated a total offense level of 30. Wilson’s
    total offense level of 30, his criminal history category of VI, and the mandatory
    minimum sentence under § 924(e)(1) resulted in an advisory sentencing guidelines
    range of 180 to 210 months’ imprisonment. At sentencing, Wilson objected to the
    ACCA enhancement, asserting that his prior conviction for child abuse under section
    568.060 did not qualify as a “violent felony” under § 924(e)(2)(B). The district court
    overruled Wilson’s objection, adopted the PSR’s guidelines calculation, and sentenced
    Wilson to 180 months’ imprisonment, the mandatory minimum sentence under the
    ACCA. Wilson appeals his sentence, again arguing that his prior conviction for child
    abuse does not qualify as a violent felony under the ACCA.
    -2-
    II.   DISCUSSION
    We review a district court’s sentence in two parts: first, we review for
    significant procedural error, such as improperly calculating the advisory sentencing
    guidelines range; and second, absent significant procedural error, we review for
    substantive reasonableness. United States v. Gall, 552 U.S. ---, 
    128 S. Ct. 586
    , 597
    (2007); see United States v. Walker, 
    555 F.3d 716
    , 721-22 (8th Cir. 2009) (classifying
    an error in applying the ACCA as procedural). “In reviewing a sentence for
    procedural error, we review the district court’s factual findings for clear error and its
    application of the guidelines de novo.” United States v. Barker, 
    556 F.3d 682
    , 689
    (8th Cir. 2009). More specifically, we review de novo the question whether a crime
    constitutes a violent felony under the ACCA. United States v. Boaz, 
    558 F.3d 800
    ,
    806 (8th Cir. 2009).
    Under the ACCA, an individual who is convicted of being a felon in possession
    of a firearm under 18 U.S.C. § 922(g)(1) and has three previous convictions for
    serious drug offenses or violent felonies is subject to a mandatory minimum sentence
    of 15 years’ imprisonment. See 18 U.S.C. § 924(e)(1). The ACCA defines “violent
    felony” as
    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 first step in determining whether a crime constitutes a violent felony under
    the ACCA is to identify the proper category for which the defendant was convicted.
    See Chambers v. United States, 555 U.S. ---, 
    129 S. Ct. 687
    , 690 (2009) (noting that
    -3-
    the ACCA violent felony inquiry follows a categorical approach). Where the statute
    underlying a defendant’s conviction criminalizes only one kind of behavior, our task
    is easy—that single category becomes the subject of the ACCA inquiry. Where,
    however, the statute of conviction criminalizes multiple kinds of behavior, we must
    identify the proper category that embraces the defendant’s conviction. 
    Id. at 690-91.
    Accordingly, a sentencing court “may look . . . to [the] charging document, plea
    agreement, jury instructions, or transcript of plea colloquy to determine [the] crime
    at issue.” 
    Id. at 691
    (citing Shepard v. United States, 
    544 U.S. 13
    , 25 (2005)). The
    statute underlying Wilson’s conviction, section 568.060, prohibits two categories of
    behavior: inflicting cruel and inhuman punishment upon a child, section
    568.060.1(1); and producing child pornography, section 568.060.1(2). In this case,
    however, the parties agree that Wilson’s child abuse conviction was based on
    subsection 1(1). See section 568.060.1(1) (“A person commits the crime of abuse of
    a child if such person: [k]nowingly inflicts cruel and inhuman punishment upon a
    child less than seventeen years old . . . .”).
    The second step in determining whether a crime constitutes a violent felony
    under the ACCA is to determine whether the crime “has as an element the use,
    attempted use, or threatened use of physical force against the person of another” under
    § 924(e)(2)(B)(i), “is burglary, arson, or extortion, [or] involves use of explosives”
    under § 924(e)(2)(B)(ii), “or otherwise involves conduct that presents a serious
    potential risk of physical injury to another” under the residual clause in §
    924(e)(2)(B)(ii). We will first consider whether section 568.060.1(1) satisfies the
    requirements of the residual clause because our conclusion in this regard makes
    further analysis unnecessary.
    After the Supreme Court’s decision in Begay v. United States, 553 U.S. ---, 
    128 S. Ct. 1581
    (2008), we have held that an offense is a violent felony under the residual
    clause if it “[ordinarily] poses a similar degree of risk of physical injury and . . .
    typically involves conduct that is similarly purposeful, violent and aggressive when
    compared to the conduct involved in . . . the example crimes.” United States v.
    -4-
    Gordon, 
    557 F.3d 623
    , 625 (8th Cir. 2009); see 
    Begay, 128 S. Ct. at 1585-86
    . The
    Government argues that section 568.060.1(1) satisfies the ACCA’s residual clause
    because the conduct proscribed by the offense ordinarily poses a serious potential risk
    of physical injury to another and typically involves purposeful, violent and aggressive
    conduct. Wilson, however, argues that the crime does not satisfy the ACCA’s residual
    clause because an individual may commit the offense even if no substantial risk of
    physical injury is present, because section 568.060.1(1) was intended to prevent
    emotional abuse rather than physical abuse, and because the conduct involved in child
    abuse does not indicate a proclivity for violence or aggression.
    Turning first to the residual clause’s risk of injury requirement, we conclude
    that the crime of child abuse under section 568.060.1(1) ordinarily poses a similar
    degree of risk of physical injury as the enumerated crimes because the child abuse
    offender must “inflict[] cruel and inhuman punishment upon a child.” Although we
    recognize that the “cruel and inhuman punishment” element in section 568.060.1(1)
    does not necessarily require physical injury, we have no problem concluding that in
    the ordinary case the infliction of cruel and inhuman punishment results in physical
    injury. See James v. United States, 
    550 U.S. 192
    , 207-08 (2007) (“[The] ACCA does
    not require metaphysical certainty. . . . One can always hypothesize unusual cases in
    which even a prototypically violent crime might not present a genuine risk of injury
    . . . [b]ut that does not mean that [such violent crimes] are categorically nonviolent.”).
    Furthermore, the fact that section 568.060.3(1) provides for an enhanced penalty
    where the child abuse results in a serious emotional injury does not undermine our
    conclusion that section 568.060.1(1) is directed primarily towards criminalizing child
    abuse that results in physical injury. See Mo. Rev. Stat. § 568.060.3 (“Abuse of a
    child is a class C felony, unless: (1) In the course thereof the person inflicts serious
    emotional injury on the child, . . . in which case the crime is a class B felony.”).2
    2
    We are similarly unpersuaded by Wilson’s reliance on State v. Dunson, where
    the Missouri Court of Appeals, relying on its earlier decision in Bass v. State, stated
    that “[section 568.060(1)] is intended to prevent abusive and punitive conduct which
    -5-
    Because child abuse under section 568.060.1(1) ordinarily presents a serious potential
    risk of physical injury, we conclude that it involves the requisite level of risk to
    qualify as a violent felony under the residual clause.
    We next consider whether child abuse under section 568.060.1(1) “typically
    involve[s] ‘purposeful, violent, and aggressive conduct.’” United States v. Williams,
    
    537 F.3d 969
    , 972 (8th Cir. 2008) (quoting 
    Begay, 128 S. Ct. at 1586
    ). We conclude
    that the offense satisfies Begay’s purposeful conduct requirement based on the
    offense’s mens rea of knowingly inflicting cruel and inhuman punishment. See United
    States v. Almenas, 
    553 F.3d 27
    , 34 (1st Cir.) (holding that Begay’s purposefulness
    requirement was “easily met” because the challenged offenses both “require the
    offender to act knowingly”), cert. denied, 556 U.S. ---, 
    77 U.S.L.W. 3634
    (2009). We
    also conclude that a violation of section 568.060.1(1), which requires the infliction of
    cruel and inhuman punishment, satisfies Begay’s requirement that the offense
    typically involves violent and aggressive conduct. Although we acknowledge that it
    is possible for an offender to violate section 568.060.1(1) without engaging in violent
    and aggressive conduct, our inquiry under the residual clause is focused on whether
    violent and aggressive conduct is typically involved. See 
    Gordon, 557 F.3d at 625
    ;
    cf. 
    James, 550 U.S. at 207
    (“[The] ACCA does not require metaphysical certainty.”).
    Indeed, Wilson cited only one reported Missouri prosecution under section
    568.060.1(1) that arguably did not involve violent and aggressive conduct. See State
    causes serious emotional injury to a child.” State v. Dunson, 
    979 S.W.2d 237
    , 243
    (Mo. Ct. App. 1998) (citing Bass v. State, 
    950 S.W.2d 940
    , 946 (Mo Ct. App. 1997)).
    However, the court in Bass held that “abuse of a child in violation of Sections
    568.060.1(1) and 568.060.3 . . . is intended to prevent abusive and punitive conduct
    which causes serious emotional injury to the child.” 
    Bass, 950 S.W.2d at 946
    (emphasis added). The Bass decision makes clear that the section 568.060.3
    enhancement—rather than the section 568.060.1(1) offense itself—addresses
    situations involving the infliction of serious emotional injury. Moreover, the fact that
    section 560.060.1(1) may be intended, in part, to prevent serious emotional injury to
    a child does not mean that the typical conviction under it does not involve physical
    injury to a child—indeed, the two types of injury are not mutually exclusive.
    -6-
    v. Esker, 
    658 S.W.2d 49
    (Mo. Ct. App. 1983) (affirming the defendant’s child abuse
    conviction under section 568.060.1(1) for locking his girlfriend’s seven-year-old son
    in their home’s basement without adequate nutritional, medical, dental, educational
    or emotional care). Every other reported case involving prosecutions under section
    568.060.1(1) clearly involves violent and aggressive conduct. See, e.g., State v. Still,
    
    216 S.W.3d 261
    , 263-66 (Mo. Ct. App. 2007) (noting defendant spanked children with
    a wooden paddle); State v. Yeager, 
    63 S.W.3d 307
    , 310 (Mo. Ct. App. 2001) (noting
    defendant must have dealt “a ‘very, very forceful blow’ to the [child’s] head”); State
    v. Silvey, 
    980 S.W.2d 103
    , 105 (Mo. Ct. App. 1998) (noting defendant’s multiple
    strikes to a child with a wooden paddle).
    In summary, we conclude that child abuse under section 568.060.1(1)
    constitutes a violent felony under the ACCA’s residual clause because it ordinarily
    poses a serious potential risk of physical injury and typically involves purposeful,
    violent and aggressive conduct. Thus, the district court did not commit a procedural
    error in concluding that Wilson’s prior felony convictions qualified him for a
    sentencing enhancement under the ACCA.3
    III.   CONCLUSION
    For the foregoing reasons, we affirm the district court.
    ______________________________
    3
    “After finding that the district court did not commit significant procedural
    error, as we have here, we would ordinarily review the substantive reasonableness of
    the district court’s sentence.” United States v. Fischer, 
    551 F.3d 751
    , 756 (8th Cir.
    2008). However, because Wilson “did not provide any argument in his briefs
    regarding the reasonableness of his sentence, he is deemed to have waived this issue
    on appeal.” See 
    id. -7-