Submitted: November 14, 2016
from United States District Court for the District of
Minnesota - St. Paul
MURPHY, BENTON, and SHEPHERD, Circuit Judges.
MURPHY, Circuit Judge.
10, 2015 Richard Angelo McFee discharged a firearm into an
occupied residence. McFee was subsequently indicted on one
count of being a felon in possession of a firearm to which he
pled guilty. See 18 U.S.C. § 922(g)(1). At
sentencing the district court determined that he had three
prior convictions that qualified as Armed Career Criminal Act
(ACCA) predicate offenses. The court then sentenced him to
180 months imprisonment. McFee appeals, arguing that his
prior conviction under Minn. Stat. § 609.713, subd. 1
(2004) for making terroristic threats does not qualify as an
ACCA predicate offense. We vacate McFee's sentence and
remand for resentencing.
review de novo whether a conviction qualifies as an ACCA
predicate offense. United States v. Headbird, 832
F.3d 844, 846 (8th Cir. 2016). The ACCA imposes a mandatory
minimum fifteen year sentence if a defendant has been
convicted as a felon in possession of a firearm "and has
three previous convictions . . . for a violent felony."
18 U.S.C. § 924(e)(1). The ACCA defines "violent
felony" to include any federal or state offense
punishable by more than one year imprisonment that either:
"(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, [or]
involves use of explosives." Id. §
924(e)(2)(B). The former is known as the force clause and the
latter is known as the enumerated clause. See United
States v. Jordan, 812 F.3d 1183, 1185 (8th Cir. 2016).
Since McFee's prior conviction is for terroristic
threats, the only issue here is whether it "has as an
element the use, attempted use, or threatened use of physical
force against the person of another." 18 U.S.C. §
determine whether a prior conviction qualifies as an ACCA
predicate offense under the force clause, we typically
"apply a categorical approach, looking to the elements
of the offense as defined in the . . . statute of conviction
rather than to the facts underlying the defendant's prior
conviction." United States v. Rice, 813 F.3d
704, 705 (8th Cir. 2016) (quoting United States v.
Dawn, 685 F.3d 790, 794 (8th Cir. 2012)) (alteration in
Dawn). If the statute of conviction is divisible
however in that it defines multiple crimes, some of which are
ACCA predicate offenses "and some of which are not, we
apply a modified categorical approach to look at the charging
document, plea colloquy, and comparable judicial records for
determining which part of the statute the defendant
violated." Id. "We then determine whether
a violation of that statutory subpart is" an ACCA
predicate offense. Id.
Minnesota's terroristic threats statute makes it a crime
to "threaten, directly or indirectly, to commit any
crime of violence with purpose to terrorize another . . . or
in a reckless disregard of the risk of causing such
terror." Minn. Stat. § 609.713, subd. 1 (2004). The
statute then states that "'crime of violence'
has the meaning given 'violent crime' in section
609.1095, subdivision 1, paragraph (d)." Id.
Section 609.1095, subd. 1(d) (2004) provides a list of crimes
that qualify as "violent crime[s]."
the crimes listed in Minn. Stat. § 609.1095, subd. 1(d)
(2004) qualify as ACCA predicate offenses and some do not.
See United States v. Sanchez-Martinez, 633 F.3d 658,
660 (8th Cir. 2011). A Minnesota terroristic threats
conviction thus is not an ACCA predicate offense under the
categorical approach. See Rice, 813 F.3d at 705. We
must therefore decide whether we may apply the modified
categorical approach to determine which crime McFee
threatened to commit. See id. We may only apply the
modified categorical approach if the statue is divisible.
See Headbird, 832 F.3d at 846.
determine whether Minnesota's terroristic threats statute
is divisible, we must ascertain "which words or phrases
in the statute are elements of the crime" as opposed to
the means, or specific facts, of satisfying these elements.
Headbird, 832 F.3d at 847. A list of alternative
elements is divisible, but a list of alternative means is
not. See Mathis v. United States, 136 S.Ct. 2243,
2256 (2016). The elements of a crime "are what the jury
must find beyond a reasonable doubt to convict the defendant;
and at a plea hearing, they are what the defendant
necessarily admits when he pleads guilty." Id.
at 2248 (citation omitted). The specific facts underlying a
prior conviction, however, are "mere real-world
things-extraneous to the crime's legal
requirements." Id. In Mathis the
Supreme Court held that when analyzing which words or phrases
of a statute constitute the elements of a crime, courts may
look to state court decisions, the statute of prior
conviction, and, as a last resort, "the record of a
prior conviction itself." Id. at 2256.
conclude that the Minnesota terroristic threats statute's
definition of "crime of violence" is not divisible.
The statutory construction here supports that conclusion. In
Headbird we concluded that if a phrase is defined in
a separate statutory section, that "provides textual
support" that the definition is a list of "means by
which [an] element may be committed." 832 F.3d at 849.
The fact that the definition of "crime of violence"
is contained in a separate section of the Minnesota criminal
statutes thus provides textual support for the conclusion
that the term "crime of violence" is intended to be
an element of the crime and that the list of violent crimes
in Minn. Stat. § 609.1095, subd. 1 contains alternative
means by which that element may be committed. See
record in McFee's conviction for terroristic threats also
indicates that the definition of "crime of
violence" is a list of means, not elements. In
Mathis, the Supreme Court held that courts may look
to the record of a prior conviction "if state law fails
to provide clear answers." 136 S.Ct. at 2256. Here,
McFee's charging document charged him with
"wrongfully and unlawfully directly or indirectly
threaten[ing] to commit a crime of violence, with purpose to
cause, or in reckless disregard of the risk causing terror in
another." Since the charging document used the
"single umbrella term" of "crime of
violence" without specifying the particular crime
threatened, the record suggests that the prosecution was only
required to prove that McFee threatened a "crime of
violence" but not the particular crime he threatened.
See id. at 2257.
at least one other circuit court has concluded that a similar
terroristic threats statute is indivisible as to the specific
crime threatened. United States v. Brown, 765 F.3d
185, 191-93 (3d Cir. 2014). In Brown, the statute at
issue defined terroristic threats as "communicat[ing],
either directly or indirectly, a threat to: (1) commit any
crime of violence with intent to terrorize another."
Id. at 191 (quoting 18 Pa. Cons. Stat. §
2706(a)) (alteration in Brown). Another Pennsylvania
statue defined "a 'crime of violence' for
purposes of sentencing." Id. at 192 (citing 42
Pa. Cons. Stat. § 9714(g)). The court thus concluded
that the statute defining a "crime of violence" was
a list of means because it was contained in a separate
statutory section. See id. at 193.
government argues that the Minnesota Court of Appeals
concluded in State v. Jorgenson, 758 N.W.2d 316
(Minn.Ct.App. 2008), that the particular crime of violence
threatened is an element of Minnesota's terroristic
threats statute. The defendant in Jorgenson argued
that the district court committed plain error by instructing
the jury that the first element of terroristic threats was
that "the defendant threatened, directly or indirectly,
to commit a crime of violence. You are instructed that
assault is a crime of violence." Id. at 320
(emphasis removed). The defendant argued that it was plain
error to instruct the jury that assault was a crime of