Submitted: January 14, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
BENTON, MELLOY, and KELLY, Circuit Judges.
Meux pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced him under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), based on its
finding that Meux's three prior felony convictions under
Arkansas Code § 5-64-401 qualified as serious drug
offenses. Using the 2016 United States Sentencing Guidelines
(USSG) in effect at the time of sentencing, the district
court also determined that because Meux "used or
possessed the firearm" in connection with a crime of
violence, his base offense level was 34 and his criminal
history category was VI. See USSG §
4B1.4(b)(3)(A), (c)(2). After a 3-level reduction for
acceptance of responsibility, the final advisory Guidelines
range was 188 to 235 months of imprisonment, and the district
court imposed a sentence of 210 months. Meux appeals, arguing
that his Arkansas convictions do not qualify as serious drug
offenses and that he did not possess the firearm in
connection with a crime of violence.
review de novo whether a prior conviction is a
predicate offense under the ACCA." United States v.
Van, 543 F.3d 963, 966 (8th Cir. 2008). Meux's
Arkansas convictions are predicate offenses under the ACCA
only if they meet the ACCA's definition of a serious drug
offense: "an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . .
." 18 U.S.C. § 924(e)(2)(A)(ii). To determine
whether a prior conviction meets this definition,
"courts look to the elements of the crime of conviction,
not the underlying facts." United States v.
Boman, 873 F.3d 1035, 1040 (8th Cir. 2017) (citing
Mathis v. United States, 136 S.Ct. 2243, 2248
government concedes that the version of Arkansas Code §
5-64-401 in effect at the time of Meux's convictions is
overbroad, as subsection (c) criminalizes mere possession of
a controlled substance. But Meux was convicted under subsection
(a), which criminalizes manufacturing, delivering, or
possessing with intent to manufacture or deliver a controlled
substance. The statute indicates that these are separate
offenses, each carrying its own punishment, and therefore the
statute is divisible. See Mathis, 136 S.Ct. at 2256
("If statutory alternatives carry different punishments,
then . . . they must be elements."). The Arkansas
Supreme Court has confirmed that § 5-64-401(a) itself
encompasses several different crimes. See Cothren v.
State, 42 S.W.3d 543, 549 (Ark. 2001) (explaining that
manufacturing a controlled substance and possessing with
intent to deliver a controlled substance are separate
offenses with distinct elements); see also
Flores-Larrazola v. Lynch, 854 F.3d 732, 732 & n.1
(5th Cir. 2017). Review of the documents permitted by
Shepard v. United States, 544 U.S. 13, 26 (2005),
confirms that Meux was convicted of twice delivering a
controlled substance and once possessing with intent to
deliver a controlled substance. The district court did not
err in finding that these convictions qualified as serious
did not object to the application of USSG §
4B1.4(b)(3)(A) and (c)(2) for using or possessing a firearm
in connection with a crime of violence, so we review for
plain error, affirming the judgment unless Meux shows an
error that is plain, "affects his substantial
rights," and "seriously affects the fairness,
integrity or public reputation of judicial proceedings."
Boman, 873 F.3d at 1040 (cleaned up). Because Meux
was subject to an enhanced sentence under the ACCA, these
Guideline provisions applied so long as "the facts
surrounding the offense of conviction support a charge that
[Meux's] firearm . . . possession was in connection with
conduct that constituted a crime of violence," as
defined by USSG § 4B1.2(a). United States v.
Eason, 907 F.3d 554, 560 (8th Cir. 2018). "This is
not a categorical inquiry; it turns on the facts of
defendant's offense of conviction." Id.
Meux's conviction resulted from an incident in which he
pointed a gun at a person attempting to repossess Meux's
car. Meux could have been charged with committing a crime of
violence for this conduct. See United States v.
Maid, 772 F.3d 1118, 1120 (8th Cir. 2014)
("[I]ntentionally pointing any firearm toward another .
. . constitute[s] a threatened use of physical force under
USSG § 4B1.2(a)(1)." (cleaned up)); see
also Ark. Code Ann. § 5-13-204(a)(2) ("A
person commits aggravated assault if, under circumstances
manifesting extreme indifference to the value of human life,
he or she purposely . . . displays a firearm in such a manner
that creates a substantial danger of death or serious
physical injury to another person."); Wooten v.
State, 799 S.W.2d 560, 561-62 (Ark. Ct. App. 1990)
(suggesting that one commits aggravated assault by pointing a
firearm toward another). The district court did not commit
error, plain or otherwise.
judgment of the district court is affirmed.
 The Honorable James M. Moody
Jr., United States District Judge for the Eastern District of
Meux's relevant arrests and convictions occurred between
1991 and 2004. The relevant parts of § 5-64-401 did not
materially change ...