Submitted: February 11, 2019
Appeals from United States District Court for the District of
Minnesota - St. Paul
LOKEN, COLLOTON, and KELLY, Circuit Judges.
Williams and Demario Jefferson appeal the sentences imposed
by the district court after they each pleaded guilty to
possessing a firearm after being convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). We address
Williams's arguments first, then Jefferson's, and we
affirm both sentences.
2K2.1 of the U.S. Sentencing Guidelines establishes the base
offense level for offenses committed under § 922(g)(1).
The applicable base offense level is 24 "if the
defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance
offense." USSG § 2K2.1(a)(2). At the time of
sentencing, Williams had two prior felony convictions: a 2009
conviction for simple robbery, in violation of Minn. Stat.
§ 609.24, and a 2012 conviction for possession of a
firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1). In calculating his
base offense level, the district court characterized the
robbery conviction as a "crime of violence" and the
§ 924(c)(1) conviction as a "controlled substance
offense." Williams objected to both characterizations,
but the court overruled his objections and sentenced him to
100 months of imprisonment, the bottom of the Guidelines
range. On appeal, we review de novo whether a prior
conviction qualifies as a crime of violence or controlled
substance offense under the Guidelines. United States v.
Tessmer, 659 F.3d 716, 717 (8th Cir. 2011) (per curiam);
United States v. Robertson, 474 F.3d 538, 540 (8th
Williams acknowledges, his argument that Minnesota robbery
does not qualify as a crime of violence under the Guidelines
is foreclosed by precedent. We have previously held that
Minnesota simple robbery meets the Armed Career Criminal
Act's (ACCA) definition of "violent felony"
under the force clause. See United States v. Pettis,
888 F.3d 962, 964-66 (8th Cir. 2018), cert. denied,
139 S.Ct. 1258 (2019). Because the ACCA's force clause is
nearly identical to the force clause contained in the
Guidelines' definition of crime of violence, we construe
the clauses interchangeably. United States v. Hall,
877 F.3d 800, 806 (8th Cir. 2017), cert. denied, 139
S.Ct. 1254 (2019). Thus, Williams's 2009 robbery
conviction is a crime of violence. See United States v.
Robinson, No. 18-1420, slip op. at 3 (8th Cir. June 10,
2019) (per curiam); United States v. Bjerke, 744
Fed.Appx. 319, 322 (8th Cir. 2018) (per curiam), cert.
denied, No. 18-6993, 2019 WL 2078123 (U.S. May 13,
more complex issue is whether Williams's 2012 conviction
under § 924(c)(1) qualifies as a controlled substance
offense under the Guidelines. A controlled substance offense
is "an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense." USSG § 4B1.2(b); see
id. § 2K2.1 cmt. n.1 (incorporating this
definition). To determine whether a prior conviction meets
this definition, we apply the "categorical
approach," under which we look to the elements of the
crime of conviction rather than how a particular defendant
might have committed the offense. United States v.
Robinson, 639 F.3d 489, 495 (8th Cir. 2011). Where a
statute is "divisible," that is, lists multiple
elements in the alternative and "thereby define[s]
multiple crimes," we apply the "modified
categorical approach," examining a limited class of
documents-including the indictment, jury instructions, plea
agreement, and plea colloquy-to determine which crime the
defendant was convicted of. Mathis v. United States,
136 S.Ct. 2243, 2249 (2016). We can then compare the elements
of that crime to the Guidelines' definition.
determine whether a statute is divisible, "we ascertain
'which words or phrases in the statute are elements of
the crime,' as opposed to the means, or specific facts,
of satisfying these elements." United States v.
McMillan, 863 F.3d 1053, 1056 (8th Cir. 2017) (quoting
United States v. Headbird, 832 F.3d 844, 847 (8th
Cir. 2016)). "The elements of a crime 'are what the
jury must find beyond a reasonable doubt to convict the
defendant; and at a plea hearing, they are what the defendant
necessarily admits when he pleads guilty.'"
Id. (quoting Mathis, 136 S.Ct. at 2248).
"When analyzing which words or phrases of a statute form
the elements of a crime, courts may look to the statute of
prior conviction, . . . court decisions, and, as a last
resort, 'the record of a prior conviction
itself.'" Id. at 1057 (quoting
Mathis, 136 S.Ct. at 2256).
924(c)(1) applies to "any person who, during and in
relation to any crime of violence or drug trafficking crime .
. . for which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm."
Thus, to violate § 924(c)(1), the defendant must have
committed either a "crime of violence" or a
"drug trafficking crime." We have previously
concluded that these terms are alternative elements of §
924(c)(1), rather than means. United States v.
Boman, 873 F.3d 1035, 1041 (8th Cir. 2017). In
Williams's case, this means that he "necessarily
admitted" that he committed a drug trafficking crime
when he pleaded guilty to violating § 924(c)(1).
Id. (quoting Mathis, 136 S.Ct. at 2255).
The term "drug trafficking crime" means "any
felony punishable under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title
46." § 924(c)(2). This definition is quite broad,
and even the government acknowledges that some felonies
within it may not meet the Guidelines' definition of a
controlled substance offense. Williams argues that these
underlying felonies are merely alternative means of
committing a drug trafficking crime and that he did not admit
to committing any particular underlying felony when he
pleaded guilty to violating § 924(c)(1).
disagree. Our case law indicates that the underlying felony
is an element of-not merely a means of committing-the §
924(c)(1) offense. To prove a violation of § 924(c)(1),
"the jury . . . must find that the defendant committed
all the acts necessary to be subject to punishment for the
underlying offense." Boman, 873 F.3d at 1041
(cleaned up); see Rosemond v. United States, 572
U.S. 65, 71 (2014) (noting that a § 924(c) conviction
requires the prosecutor to "prove the commission of a
predicate (violent or drug trafficking) offense"). Even
if the underlying felony is not separately charged, there
must be proof beyond a reasonable doubt of all of the
elements of that offense to sustain the § 924(c)(1)
conviction. See Myers v. ...