Submitted: November 14, 2016
from United States District Court for the Western District of
Missouri - Kansas City
RILEY,  Chief Judge, SMITH and KELLY,
Price was sentenced to 110 months' imprisonment after
pleading guilty to possessing firearms as a felon. The
district court calculated his base offense level as 24
because of two felony crime-of-violence convictions, and then
it applied a four-level enhancement because Price possessed
the guns in connection with a felony marijuana offense. Price
appeals these enhancements. We affirm.
Crime of Violence
review the crime-of-violence determination de novo.
United States v. Harrison, 809 F.3d 420, 425 (8th
Cir. 2015). Section § 2K2.1(a)(2) of the Guidelines
directs a base offense level of 24 when a felon in possession
has twice been convicted of a crime of violence. "Crime
of violence" means an offense punishable by more than
one year in prison that "has as an element the use,
attempted use, or threatened use of physical force against
the person of another." U.S.S.G. § 4B1.2(a)(1).
"'[P]hysical force' means violent
force-that is, force capable of causing physical pain or
injury to another person." Johnson v. United
States, 559 U.S. 133, 140 (2010).
argues that his 2011 attempted-aggravated-assault conviction
under Kan. Stat. Ann. § 21-3410(a) (2007) (current
version at Kan. Stat. Ann. § 21-5412(b)(1) (2011)) did
not require proof that he used violent force against another.
The statute defines aggravated assault as ordinary assault
committed under special circumstances, such as with a deadly
weapon. Kan. Stat. Ann. § 21-3410. A companion statute
defined ordinary assault as "intentionally placing
another person in reasonable apprehension of immediate bodily
harm." Kan. Stat. Ann. § 21-3408 (2007) (current
version at Kan. Stat. Ann. § 21-5412(a) (2011)). Price
contends that we recently held an indistinguishable Arkansas
statute not to require violent force. See United States
v. Jordan, 812 F.3d 1183, 1186 (8th Cir. 2016). The
Arkansas statute, though, is distinguishable. It requires
only that the defendant "create a substantial danger
of death or serious physical injury." Id.
(quoting Ark. Code Ann. § 5-13-204(a)(1)). The Kansas
statute, on the other hand, requires that the defendant make
the victim reasonably fear immediate physical harm. We
recently addressed a similar Minnesota statute requiring
proof of an "act with intent to cause fear in another of
immediate bodily harm or death." United States v.
Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting
Minn. Stat. § 609.2242, subd. 1(1)). The Minnesota
statute, we concluded, requires violent force. Id.
at 798. The Kansas aggravated-assault statute likewise
requires violent force.
contends that the government did not raise this force-clause
argument below and should be unable to do so now. The
government, however, is not seeking review of the district
court's decision. Its appellate arguments are not
essential to our review. We may affirm the district court
judgment for any reason the record supports. United
States v. Berger, 553 F.3d 1107, 1109 (8th Cir. 2009).
Over Price's objection, the district court accepted the
presentence report's findings and conclusions, which
determined "that both [prior convictions] fall under the
'force' clause of § 4B1.2(a)(1)." In sum,
the record supports the district court's conclusion that
Price's prior convictions fall under the force clause of
also argues that Kansas law defines "attempt" more
broadly than does the common law. Price did not present this
argument to the district court. "To preserve an error
for appellate review, an objection must be timely and must
'clearly stat[e] the grounds for the objection.'
Errors not properly preserved are reviewed only for plain
error . . . ." United States v. Pirani, 406
F.3d 543, 549 (8th Cir. 2005) (en banc) (alteration in
original) (citation omitted) (quoting United States v.
Williams, 994 F.2d 1287, 1294 (8th Cir. 1993)). The
government notes that, under our cases, if a completed crime
is a crime of violence, then an attempt to commit it
"automatically qualifies…under the binding
commentary to § 4B1.2." United States v.
Sawyer, 588 F.3d 548, 556 (8th Cir. 2009), abrogated
in part by United States v. Eason, 829 F.3d 633, 641
(8th Cir. 2016); see also United States v. Brown,
550 F.3d 724, 728 (8th Cir. 2008) (Guidelines consider an
aiding-and-abetting conviction to be a conviction for the
underlying offense). In light of this caselaw, Price's
asserted error is not plain. See United States v.
Anderson, 783 F.3d 727, 741 (8th Cir. 2015).
review a possession-in-connection-with-another-felony
enhancement for clear error. United States v. Bates,
614 F.3d 490, 493 (8th Cir. 2010). Section §
2K2.1(b)(6)(B) of the Guidelines calls for a four-level
enhancement when the defendant "[u]sed or possessed any
firearm . . . in connection with another felony
district court found that Price's guns were linked to
more than 600 grams of marijuana found in the trunk of the
car that he occupied. The evidence at sentencing established
that on June 13, 2014, a white Chevy Malibu backed into a
residential driveway. Price got out of the front passenger
seat and went into the house. Then someone opened the garage
door from the inside, and a backseat passenger got out of the
car. The car's trunk opened, and Price and the other
passenger made three or four trips carrying things from the
trunk to the garage. The other passenger closed the trunk and
got back into the car. Price closed the garage and also got
back into the car and left. Police soon stopped the car and
arrested Price. More than 600 grams of marijuana was found in
the trunk-all of it was in heat-sealed or Ziploc baggies.
Some of it was found inside a pillow case and some in white
grocery bags. Four guns were also found in the car, including
a loaded MAC-10-style gun and a Beretta pistol in the trunk.
Price pleaded guilty to knowingly possessing these guns.
argues that the evidence does not support a finding that he
constructively possessed the marijuana. We disagree. Price
knew about and exercised dominion or control over the
marijuana. See United States v. Scofield, 433 F.3d
580, 586 (8th Cir. 2006) (constructive possession arises from
knowledge and control or dominion). The only material
difference between the guns in the trunk, which Price admits
knowingly possessing, and the marijuana in the trunk, which
he denies knowingly possessing, is that the ...