Submitted December 14, 2015.
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.
For United States of America, Plaintiff - Appellee: Michael S. Gordon, Assistant U.S. Attorney, Stephanie Mazzanti, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Little Rock, AR.
Antonio Lamont Rice, Defendant - Appellant, Pro se, Oklahoma City, OK.
For Antonio Lamont Rice, Defendant - Appellant: Chris Tarver, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Little Rock, AR.
Before MURPHY, BENTON, and KELLY, Circuit Judges. KELLY, Circuit Judge, dissenting.
MURPHY, Circuit Judge.
Antonio Rice pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Rice to 110 months in prison based in part on its conclusion that his prior conviction for second degree battery was a crime of violence under the sentencing guidelines. Rice appeals his sentence, and we affirm.
Rice was arrested in 2013 and later pled guilty to being a felon in possession of a firearm. At sentencing the district court calculated a base offense level of 22 under § 2K2.1 of the guidelines after concluding that Rice had a prior felony conviction for a crime of violence, specifically a 2006 felony conviction of second degree battery in Arkansas. After adjusting Rice's offense level, the court calculated an advisory guideline range of 92 to 115 months and sentenced him to 110 months. Rice appeals, arguing that the district court erred while calculating his base offense level because his prior battery conviction was not a crime of violence.
We review de novo a district court's interpretation and application of the guidelines. See United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011). Section 2K2.1 of the guidelines provides that courts should apply a base offense level of 22 for a conviction of unlawful possession of a firearm if, among other things, the defendant had previously " sustain[ed] one felony conviction of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(3). The guidelines define " crime of violence" as any federal or state offense punishable by more than one year imprisonment that either " (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 4B1.2. The question thus is whether Rice's felony battery conviction was for a crime of violence under the guidelines, as the district court concluded.
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. Dawn, 685 F.3d 790, 794 (8th Cir. 2012) (alteration in original). If the statute of conviction is divisible in that it 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. at 794-95. We then determine whether a violation of that statutory subpart is a crime of violence. See id. at 795. Here, the Arkansas second degree battery statute is divisible, id., and the district court correctly applied the modified categorical approach to determine that Rice was convicted under subsection (a)(4) of that statute. The issue is therefore whether a violation of that subsection is a crime of violence. Since the violation " 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, we conclude that it was a crime of violence.
Subsection (a)(4) provides that a person is guilty of second degree battery if he " intentionally or knowingly, without legal justification, causes physical injury to one he knows to be" a law enforcement officer, a firefighter, a correctional facility employee, a school employee, an elderly person, a young child, a state officer or employee, a healthcare provider, or incompetent. Ark. Code Ann. § 5-13-202 (2006). The Supreme Court recently held in United States v. Castleman, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), that a similarly worded statute included the use of physical force as an element under 18 U.S.C. § 921(a)(33)(A)(ii). In Castleman, the defendant had been convicted of " intentionally or knowingly caus[ing] bodily injury" to his child's mother in violation of Tennessee law. Castleman, 134 S.Ct. at 1414. The Court held that this conviction included the use of physical force as an element because " [i]t is impossible to cause bodily injury without applying force." Id. at 1415.
Here, as in Castleman, Rice had been convicted of " intentionally or knowingly . . . caus[ing] physical injury"  to another person. Ark. Code Ann. § 5-13-202 (2006). His offense of conviction therefore includes the use of physical force as an element. See Castleman, 134 S.Ct. at 1415. Castleman does not end our analysis, however, because the Court held there that the physical force requirement of § 921(a)(33)(A)(ii) could be " satisfied by even the slightest offensive touching." Id. at 1410. By contrast, physical force under the guidelines refers specifically to " violent force," meaning " force capable of causing physical pain or injury to another person." United States v. Williams, 690 F.3d 1056, 1067 (8th Cir. 2012) (emphasis omitted). On the record here, we conclude that Rice's conviction includes the use of violent force as an element " since it is impossible to cause bodily injury without using force 'capable of' producing that result." Castleman, 134 S.Ct. at 1416-17 (Scalia, J., concurring).
Rice argues that a person can cause an injury without using physical force, for example, by offering his victim a poisoned drink. The circuit courts that have considered whether a person uses physical force in causing an injury through indirect means such as poisoning have reached differing conclusions. See, e.g., Chrzanoski v. Ashcroft,327 F.3d 188, 194-96 (2d Cir. 2003); United States v. Perez-Vargas,414 F.3d 1282, 1285-87 (10th Cir. 2005); compare United States v. Anderson,695 F.3d 390, 399-401 (6th Cir. 2012); De Leon Castellanos v. Holder,652 F.3d 762, 764-67 (7th Cir. 2011). We believe that Castleman resolves the question before our court, however, because there the Court held that even though the act of poisoning a drink does not involve physical force, " the act of employing poison knowingly as a device to cause physical harm" does.
Castleman, 134 S.Ct. at 1415. The Court explained, " [t]hat the harm occurs indirectly, rather than directly (as ...