Submitted: January 10, 2018
from United States District Court for the Western District of
Arkansas - Ft. Smith
LOKEN, BEAM, and KELLY, Circuit Judges.
Lee Pyles pleaded guilty to 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 concluded that Pyles is an Armed
Career Criminal because he has three prior "violent
felony" convictions, see 18 U.S.C. §
924(e)(1), and overruled Pyles's objection that his 2014
Arkansas conviction for aggravated assault on a family member
was not a violent felony conviction. The court sentenced
Pyles to 180 months in prison, the mandatory minimum Armed
Career Criminal Act (ACCA) sentence. Pyles appeals, arguing
the district court erred in ruling that aggravated assault on
a family member in violation of Ark. Code Ann. §
5-26-306(a)(3) is a violent felony. Reviewing this issue de
novo, we affirm.
5-26-306(a)(3) of the Arkansas Code provides:
(a) A person commits aggravated assault on a family or
household member if, under circumstances manifesting extreme
indifference to the value of human life, the person purposely
. . . (3) Impedes or prevents the respiration of a family or
household member or the circulation of a family or household
member's blood by applying pressure on the throat or neck
or by blocking the nose or mouth of a family or household
apply a categorical approach to determine whether a violation
of this statute constitutes a violent felony for ACCA
purposes, looking to the elements of the offense as defined
in the statute rather than to the facts underlying
Pyles's conviction. See United States v. Parrow,
844 F.3d. 801, 802 (8th Cir. 2016).
issue in this case is whether a violation of §
5-26-306(a)(3) is a violent felony under the ACCA's
"force clause, " which defines violent felonies to
include "any crime 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." 18 U.S.C. §
924(e)(2)(B)(i). The Supreme Court has defined the word
"force" in this statute as meaning
"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).
However, the force required is "only that degree of
force necessary to inflict pain -- a slap in the face, for
example." Id. at 143.
argues that a violation of § 5-26-306(a)(3) is not a
violent felony because the statute could be violated by the
use of minimal, non-violent force, such as removing a
person's sleep apnea breathing machine. In
Parrow, we concluded that Iowa's Domestic Abuse
-- Strangulation statute satisfied the requirement of violent
force. "Knowingly strangulating another is categorically
capable of causing physical pain or injury to another person
because it requires proof that the victim's breathing or
blood circulation was impaired by the defendant." 844
F.3d at 803. Likewise, the force element of a §
5-26-306(a)(3) violation -- impeding respiration or blood
circulation by applying pressure on the throat or neck or by
blocking the nose or mouth -- necessarily requires the use of
violent force as defined in Johnson.
proper inquiry is whether the conduct encompassed by the
elements of the offense, in the ordinary case, involves the
use, attempted use, or threatened use of physical force
against the person of another." United States v.
Forrest, 611 F.3d 908, 910 (8th Cir.), cert.
denied, 562 U.S. 1053 (2010), quoting James v.
United States, 550 U.S. 192, 208 (2007), overruled
on other grounds, Johnson v. United States, 135
S.Ct. 2551, 2563 (2015). Pyles has not cited, and we have not
found, any Arkansas case in which the defendant was charged
with violating § 5-26-306(a)(3) for the use of
non-violent force. "Before we conclude that a state
statute sweeps more broadly than the federal definition of
violent felony, there must be a realistic probability, not a
theoretical possibility, that the statute encompasses conduct
that does not involve use or threatened use of violent
force." United States v. Swopes, 886 F.3d 668,
671 (8th Cir. 2018) (en banc) (quotation omitted).
to distinguish this case from the Iowa statute at issue in
Parrow, Pyles argues that a violation of §
5-26-306(a)(3) only requires a mens rea of recklessness when
it provides, "under circumstances manifesting extreme
indifference to the value of human life." We have held
that, "at least in some circumstances, a crime involving
a mens rea of mere recklessness does not [satisfy
the force clause]." United States v.
Garcia-Longoria, 819 F.3d 1063, 1066 (8th Cir. 2016).
However, that unsettled issue does not apply here because an
element of § 5-26-306(a)(3) is that the defendant acted
"purposely, " and the Supreme Court of Arkansas has
defined acting "purposely" as a "culpable
mental state . . . which requires deliberate conduct with a
knowledge or awareness that one's actions are practically
certain to bring about the prohibited result." Bell
v. State 259 S.W.3d 472, 476-77 (Ark. App. 2007), citing
McCoy v. State, 69 S.W.3d 430, 435-37 (Ark. 2002).
judgment of the district ...