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United States v. Fields

United States Court of Appeals, Eighth Circuit

July 20, 2017

United States of America Plaintiff- Appellee
v.
Phillip D. Fields Defendant-Appellant

          Submitted: June 9, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

          MELLOY, Circuit Judge.

         Phillip Fields pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced Fields to 41 months in prison. On appeal, Fields argues the district court erred in calculating his advisory sentencing range. Specifically, Fields contends his prior Missouri conviction for second-degree assault is not a crime of violence under the United States Sentencing Guidelines. We reverse and remand for resentencing.

         I.

         Fields's presentence investigation report ("PSR") concluded that he had one prior felony conviction for a controlled substance offense and one prior felony conviction for a crime of violence. The PSR thus recommended a base offense level of 24. See U.S.S.G. § 2K2.1(a)(2) (stating a base offense level of 24 applies if the defendant unlawfully possesses a firearm "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense").

         Fields objected. He argued before the district court that his second-degree assault conviction under Missouri Revised Statutes § 565.060.1(3) (2003)[1] was not a crime of violence. Thus, Fields argued, his base offense level should be 20. See U.S.S.G. § 2K2.1(a)(4) (stating a base offense level of 20 applies if the defendant unlawfully possesses a firearm "subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense").

         The district court concluded that the assault conviction was a crime of violence and overruled Fields's objection. After acceptance-of-responsibility adjustments, the district court found that Fields had a total offense level of 21 and a criminal history category of II. This resulted in a Guidelines range of 41 to 51 months. The district court sentenced Fields to the bottom of this range: 41 months in prison. If the district court had sustained Fields's crime-of-violence objection, the resulting Guidelines range would have been 27 to 33 months.

         II.

         "We review de novo a district court's determination that an offense qualifies as a crime of violence under the Guidelines." United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015). As material to the present case, the Guidelines define a crime of violence as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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); see also id. § 2K2.1 cmt. 1 (incorporating definition under § 4B1.2(a)).[2]

         "To determine whether a prior conviction was for a crime of violence, 'we 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) (alteration in original) (quoting United States v. Dawn, 685 F.3d 790, 794 (8th Cir. 2012)). "If the statute of conviction . . . encompasses multiple crimes, some of which are crimes of violence 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. (quoting Dawn, 685 F.3d at 794-95). "We then determine whether a violation of that statutory subpart is a crime of violence." Id.

         Here, the parties have simplified our analysis. There is no dispute that Fields was convicted of second-degree assault under Missouri Revised Statutes § 565.060.1 (2003). Further, there is no dispute that Fields was convicted under subsection (3) of that statute, so the government concedes we need not apply the modified categorical approach to determine the statutory subpart of conviction. Under subsection (3), "[a] person commits the crime of assault in the second degree if he . . . [r]ecklessly causes serious physical injury to another person." Mo. Rev. Stat. § 565.060.1(3). The only question before this Court, then, is whether a conviction under subsection (3) is categorically a crime of violence. In other words, because we may not look to the facts underlying the prior conviction, the question before us is whether the mere fact that Fields was convicted under subsection (3) necessarily demonstrates he committed a crime of violence.

         Fields argues that our decision in United States v. Ossana, 638 F.3d 895 (8th Cir. 2011), provides the controlling answer. In Ossana, we held that a conviction under an Arizona assault statute was not categorically a crime of violence under the Guidelines because the assault statute also criminalized reckless driving resulting in injury. Id. at 903. In so holding, we reasoned from the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 139 (2008), which held that a conviction for driving under the influence of alcohol was not a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA"). We have reaffirmed Ossana on at least two occasions. See United States v. Boose, 739 F.3d 1185, 1187 (8th Cir. 2014) ("So long as . . . Arkansas['s first-degree battery] statute . . . encompasses reckless driving which results in serious injury, [a] conviction [under that statute] [i]s not a qualifying crime of violence under the force clause of the ...


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