United States v. Cecil Parker, Jr. ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2905
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Cecil Samuel Parker, Jr.,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: September 18, 2023
Filed: December 18, 2023
[Unpublished]
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Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
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PER CURIAM.
Cecil Parker, Jr., pleaded guilty to unlawful possession of a firearm as a felon.
See 18 U.S.C. § 922(g)(1). The district court* determined that Parker was subject to
*
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
an enhanced sentence under the Armed Career Criminal Act (ACCA) because he had
sustained three previous convictions for a violent felony or a serious drug offense, or
both. See id. § 924(e)(1). The court sentenced Parker to the statutory minimum term
of 180 months’ imprisonment. Without the sentencing enhancement for an armed
career criminal, the statutory maximum penalty would have been 180 months’
imprisonment, id. § 924(a)(8), but Parker’s advisory guideline range would have been
lower.
Parker argues on appeal that the district court erred in sentencing him as an
armed career criminal because the government did not establish that two of his prior
offenses qualified as violent felonies. The disputed convictions, both from Arkansas,
came in 1995 for battery in the second degree and in 2017 for domestic battering in
the third degree. Parker maintains that these offenses do not categorically qualify as
violent felonies. Although each statute defines multiple alternative offenses, some
of which constitute violent felonies, Parker contends that the government did not
show that he was convicted based on elements that meet the standard.
At sentencing, the district court asked defense counsel whether he objected to
the recommendation of the presentence report that Parker was an armed career
criminal. Counsel stated that he could not “find a good legal basis to challenge the
ACCA designation,” but lodged an objection “to preserve it for appeal in case the law
changes.”
The government argues that Parker waived any challenge to his status as an
armed career criminal. Parker argues that he made an “inartful” objection that
preserved the issue, and that he should prevail under the plain-error standard even if
the objection was forfeited. We conclude that even if Parker did not waive the
contention, he did not preserve an objection. He acknowledged that the armed career
criminal designation applied to him under current law, and objected only “in case the
law changes” in the future. To obtain relief under the plain-error standard, Parker
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must show an obvious error that affected his substantial rights and seriously affected
the fairness, integrity, or public reputation of judicial proceedings. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 732-35 (1993).
The government moves to supplement the record on appeal with charging
documents for Parker’s convictions in 1995 and 2017. See Fed. R. App. P. 10(e). We
ordinarily consider only evidence that was presented in the district court, but this
court has authority to supplement the record when the interests of justice demand it.
Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993). We
conclude that supplementation is warranted here. The government had no need to
present the charging documents at sentencing, because Parker disclaimed any
objection to his classification as an armed career criminal. With Parker disputing the
classification for the first time on appeal, the interests of justice support expanding
the record to include documents that the government could have presented if Parker
had properly objected. Parker does not dispute the authenticity of the charging
documents or advance any other reason why they should not be considered in
determining whether the district court imposed a lawful sentence.
An offense constitutes a violent felony under the ACCA if it 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 an offense qualifies, we
are required to use a categorical approach that examines only the elements of the
offense. Mathis v. United States, 579 U.S. 500, 504 (2016). Where a statute lists
elements in the alternative and creates multiple offenses, we may look to “a limited
class of documents (for example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a defendant was
convicted of.” Id. at 505-06; see Shepard v. United States, 544 U.S. 13, 26 (2005).
Applying this approach to Parker’s disputed convictions, we conclude that both
offenses qualify as violent felonies. The second-degree battery statute in Arkansas
is divisible into multiple offenses. Ark. Code Ann. § 5-13-202(a); United States v.
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Rice, 813 F.3d 704, 705 (8th Cir. 2016). The charging document for Parker’s
conviction alleged that he “feloniously, with the purpose of causing physical injury
to another person . . . did cause serious physical injury” to the victim. To commit that
violation, an offender must act purposefully, and it is not possible to cause serious
physical injury without using physical force. Parker’s offense of conviction thus
required the use of physical force against the person of another. United States v.
Myers, 928 F.3d 763, 767 (8th Cir. 2019); United States v. Winston, 845 F.3d 876,
878 (8th Cir. 2017).
The Arkansas statute prohibiting domestic battering in the third degree is also
divisible into multiple offenses. Ark. Code Ann. § 5-26-305; United States v. Eason,
829 F.3d 633, 642 (8th Cir. 2016). Parker’s charging document alleged that he
“unlawfully, feloniously, with the purpose of causing physical injury to a family or
household member, did cause physical injury to” the victim who was a member of the
family or household. Those elements require proof of purposeful conduct causing
physical injury. So the crime entails the use of physical force against another, and the
offense qualifies as a violent felony. United States v. Eason, 907 F.3d 554, 558 (8th
Cir. 2018); United States v. Moore, 713 F. App’x 511, 514 (8th Cir. 2017) (per
curiam); United States v. Starks, 674 F. App’x 580, 582 (8th Cir. 2016) (per curiam).
For these reasons, we conclude that Parker had sustained two previous
convictions for violent felonies. It is undisputed that he also had sustained a previous
conviction for a serious drug offense. Therefore, the district court correctly
determined that Parker was an armed career criminal under 18 U.S.C. § 924(e).
The motion to supplement the record is granted. The judgment of the district
court is affirmed.
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