Submitted: September 22, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, BENTON, and KELLY, Circuit Judges.
BENTON, Circuit Judge.
Minnis pled guilty to possessing heroin with intent to
distribute in violation of 21 U.S.C. § 841(a)(1) and
§ 841(b)(1)(B)(i). Finding Minnis a career offender
under U.S.S.G. § 4B1.1, the district court sentenced him to
188 months' imprisonment. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
argues he is not a career offender, claiming his prior
conviction for attempted first-degree assault is not a crime
of violence. See § 565.050 RSMo. This court
reviews de novo whether a prior conviction is a crime of
violence. United States v. Harrison, 809 F.3d 420,
425 (8th Cir. 2015).
U.S.S.G. § 4B1.1(a), "a defendant is a career
(1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
"crime of violence" is "any offense under
federal or state law, 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." U.S.S.G. § 4B1.2(a)(1). A
"crime of violence" includes "attempting to
commit such offenses." U.S.S.G. § 4B1.2 cmt. n. 1.
"To determine whether a prior conviction was for a crime
of violence, " this court applies "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. Rice, 813 F.3d 704, 705 (8th Cir.
2016) (citation omitted). A conviction may be a crime of
violence "only if the statute's elements are the
same as, or narrower than, those of the generic
offense." Descamps v. United States, 133 S.Ct.
2276, 2281 (2013). See United States v. Vinton, 631
F.3d 476, 484 (8th Cir. 2011) ("To determine whether a
previous conviction is a crime of violence under §
4B1.2(a), we often have looked to the case law interpreting
18 U.S.C. § 924(e)(2)(B), a provision of the Armed
Career Criminal Act (ACCA) that defines the term 'violent
felony' using similar language.").
on State v. Lammers, 479 S.W.3d 624, 636 (Mo. banc
2016), Minnis believes: "The elements of attempted first
degree assault in Missouri are unmistakably broader than the
generic crime." In Missouri, "attempt" is
"a substantial step towards commission of the
offense." State v. Whalen, 49 S.W.3d 181, 186
(Mo. banc 2001), citing State v. Withrow, 8 S.W.3d
75, 78 (Mo. banc 1999). In Lammers, the court found
sufficient evidence for attempted first-degree assault where
the defendant purchased two assault rifles, took target
practice, and admitted planning "to carry out a mass
shooting, with Walmart in mind as a specific target."
See Lammers, 479 S.W.3d at 632-33. Minnis relies on
the dissenting opinion that argued Lammers's conduct was
not a substantial step. See id. at 637 (Teitelman,
did not modify Missouri's attempt analysis. See
id. at 632 ("[T]o be convicted of attempted
first-degree assault, Defendant must have . . . committed
some act that is a substantial step toward completing that
offense. . . . 'Substantial step' is defined as
conduct which is strongly corroborative of the firmness of
the actor's purpose to complete the commission of the
offense." (internal quotation marks omitted) (citing
Whalen, 49 S.W.3d at 186)).
Lammers-applying well-established law-did not lower
the threshold for proving attempt. See id. at 633-34
("The trial court did not err in finding sufficient
evidence that Defendant's conduct constituted a
substantial step under section 564.011." (emphasis
Government invokes United States v. Alexander, 809
F.3d 1029 (8th Cir. 2016). There, this court found that
Alexander's conviction for second-degree assault under
RSMo § 565.060.1(2) was a violent felony under the ACCA.
See id. at 1032-33. Alexander argued that
"criminalizing a 'substantial step' is
over-inclusive because it expands beyond the traditional
understanding of a generic assault attempt."
Id. at 1033. This court noted: "We have found
no case in which the Missouri Supreme Court has construed
attempt under § 565.060(1)(2) in an overinclusive
manner." Id. Lammers, decided after
Alexander, does not modify the substantial-step
analysis, and thus does not construe attempt in an
overinclusive manner. Alexander controls
here.The elements of attempted first-degree
assault under Missouri law are not broader than the generic
claims that because "Missouri statutes defining first
degree attempted assault do not require proof of
'physical force' within the contemplation of §
4B1.2(a)(1), " his prior conviction cannot be a crime of
violence. First-degree assault in Missouri requires that a
defendant "knowingly causes or attempts to cause serious
physical injury to another person." § 565.050 RSMo.
Minnis emphasizes hypothetical scenarios, but this court has
rejected a similar argument under the ACCA:
Physical force . . . need not be applied directly to the body
of the victim. Hypothetical scenarios involving no physical
contact by the perpetrator (luring a victim to drink poison
or infecting a victim with a disease) ...