Submitted: January 12, 2018
from United States District Court for the Western District of
Missouri - Springfield
LOKEN, GRUENDER, and KELLY, Circuit Judges.
GRUENDER, Circuit Judge.
Boaz appeals the denial of his 28 U.S.C. § 2255
petition. In 2009, a district court sentenced Boaz to 190
months' imprisonment and five years' supervised
release after concluding that he qualified as an armed career
criminal under the Armed Career Criminal Act
("ACCA"). See 18 U.S.C. § 924(e). In
2016, Boaz filed this § 2255 petition arguing that
because Johnson v. United States, 135 S.Ct. 2551,
2563 (2015), invalidated the residual clause of the ACCA, he
no longer qualified as an armed career criminal and should be
resentenced. The Government responded that Boaz still
qualified as an armed career criminal after Johnson,
and that even if he did not, his sentence remained valid
because the district court had authority to sentence him to
190 months' imprisonment without the ACCA
enhancement. The district court adopted the Government's
position on both issues.
affirm. Because Boaz's 1974 Arizona conviction for
exhibiting a deadly weapon qualifies as a predicate offense
under the force clause of the ACCA, Boaz remains an armed
career criminal without reliance on the now-invalidated
review de novo the question whether Boaz's
conviction qualifies as a violent felony under the force
clause of the ACCA. See United States v. Jordan, 812
F.3d 1183, 1185 (8th Cir. 2016). "Under the ACCA's
force clause, a crime is a violent felony if it is
'punishable by imprisonment for a term exceeding one
year' and 'has as an element the use, attempted use,
or threatened use of physical force against the person of
another.'" Jones v. United States, 870 F.3d
750, 752 (8th Cir. 2017) (quoting 18 U.S.C. §
924(e)(2)(B)(i)). "Physical force means violent
force-that is, force capable of causing physical pain or
injury to another person." Jordan, 812 F.3d at
1186 (internal quotation marks and emphasis omitted). In
analyzing whether the Arizona conviction satisfies the force
clause, we apply "a categorical approach that looks to
the fact of conviction and the statutory elements of the
prior offense." See Headbird v. United States,
813 F.3d 1092, 1095 (8th Cir. 2016). Under this approach, we
do not examine the particular facts underlying the conviction
but instead ask whether the conviction, based on the elements
of the offense, "necessarily" involved the
"use, attempted use, or threatened use of physical force
against the person of another." Jones, 870 F.3d
at 752; 18 U.S.C. § 924(e)(2)(B)(i).
was convicted of exhibiting a deadly weapon in violation of
Arizona law. The now-repealed Arizona statute provided that a
"person who, not in necessary self-defense, in the
presence of another, draws or exhibits any deadly weapon in a
threatening manner, or who, in any manner, unlawfully uses
the weapon in a fight or quarrel, is guilty of a
crime[.]" See United States v. Boaz, 558 F.3d
800, 808 (8th Cir. 2009) (quoting Ariz. Rev. Stat. Ann.
§ 13-916 (1974) (repealed)). Boaz does not dispute that
the crime is "punishable by imprisonment for a term
exceeding one year." See 18 U.S.C. §
question whether this offense "has as an element the
use, attempted use, or threatened use of physical force
against the person of another, " id. at §
924(e)(2)(B)(i), our prior interpretation of a similar
Missouri offense concerning unlawful use of a weapon guides
our analysis. A person violates the Missouri statute when he
knowingly "[e]xhibits, in the presence of one or more
persons, any weapon readily capable of lethal use in an angry
or threatening manner." Mo. Rev. Stat. §
571.030.1(4). In United States v. Pulliam, 566 F.3d
784 (8th Cir. 2009), we held that it "goes without
saying that displaying an operational weapon before another
in an angry or threatening manner qualifies as threatened use
of physical force against another person." Id.
at 788. We thus concluded that the Missouri offense satisfied
the force clause of the ACCA-a holding we recently reaffirmed
in United States v. Hudson, 851 F.3d 807, 808 (8th
Missouri statute is materially indistinguishable from the
Arizona statute. Missouri requires a "lethal"
weapon; Arizona requires a "deadly" weapon.
Missouri requires a "threatening" or
"angry" exhibition of the weapon; Arizona requires
a "threatening" exhibition of the weapon or use of
the weapon "in any manner . . . in a fight or
quarrel." Indeed, we held in Boaz's direct appeal
that the Arizona offense "clearly" qualified as a
violent felony by comparing it to the Missouri offense.
See Boaz, 558 F.3d at 808. Although our prior
Boaz decision predates Johnson's
invalidation of the residual clause, the decision supports
the proposition that we should treat the Missouri and Arizona
responses are unpersuasive. He cites a Ninth Circuit decision
for the proposition that the Arizona conviction does not
satisfy the force clause. See United States v. Long,
62 F.3d 1426 (9th Cir. 1995) (unpublished). But one reading
of the relevant passage is that the court was describing the
defendant's argument and not expressing its view on the
applicability of the force clause. See id. at
1426. Even if one reads the passage as more than
mere description, however, the passage is dicta. Writing in
1995 before the Johnson decision, the Long
court found that the conviction qualified as a violent felony
under the residual clause of the ACCA, so the force-clause
passage was not necessary to its holding. See id.;
Boesing v. Spiess, 540 F.3d 886, 892 n.5 (8th Cir.
2008) (noting that a "relevant passage is, at best,
dicta because it was not necessary to the court's
holding"). Moreover, even if the relevant
passage were not dicta, Long is an unpublished case
from the Ninth Circuit. We are not bound by it.
also cites two Arizona cases. In State v. Pearce,
527 P.2d 297 (Ariz.Ct.App. 1974), the court noted that the
purpose of the Arizona statute is "to make punishable
acts which endanger or are likely to endanger other persons,
" and based on this purpose, it held that the offense
does not require a specific intent to threaten. Id.
at 300-01. Boaz suggests that the quoted language indicates
that the statute criminalizes any conduct "likely to
endanger" others and that his conviction therefore does
not "necessarily" involve the "use, attempted
use, or threatened use of physical force against the person
of another." See id.; Jones, 870 F.3d
at 752. But Boaz misreads the case. The quoted language
describes the statute's purpose. Pearce, 527
P.2d at 300-01. It does not indicate that the statute
criminalizes any conduct "likely to endanger"
others. Id. As for the requisite intent for the
Arizona offense, a conviction can satisfy the force clause
even if it does not require a specific intent to threaten.
United States v. Harper, 869 F.3d 624, 626 (8th Cir.
second case offers no more support. He cites State v.
Neal, 549 P.2d 203 (Ariz.Ct.App. 1976), to show that
Arizona courts enforced the statute against individuals who
exhibited their weapons in non-threatening manners. But the
defendant in Neal ordered a group of individuals to
disperse and then shot his gun over their heads so that they
would comply. Id. at 205. Indeed, the Neal
court itself characterized the actions as
"threatening." Id. at 206; see also
United States v. Schaffer, 818 F.3d 796, 798 (8th Cir.
2016) (discussing the meaning of "threat" under
found no other case supporting Boaz's position and
conclude that the Arizona conviction qualifies as a violent
felony under the ACCA's force clause. Because ...