Submitted: February 16, 2018
from United States District Court for the Western District of
Arkansas - Fayetteville
LOKEN, BENTON, and ERICKSON, Circuit Judges.
BENTON, Circuit Judge.
D. Myers 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 him as an armed career criminal
to 188 months' imprisonment. He appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
Armed Career Criminal Act (ACCA) enhances sentences for those
who possess firearms after three convictions for a
"violent felony or a serious drug offense."
18 U.S.C. § 924(e)(1). The district
court sentenced Myers as an armed career criminal based on
one prior serious drug conviction and two prior violent
felonies under Arkansas law-first-degree terroristic
threatening and second-degree battery. Myers appeals, arguing
neither one is a violent felony. This court reviews de novo
the determination that a conviction is a violent felony under
the ACCA. See United States v. Keith, 638 F.3d 851,
852 (8th Cir. 2011).
maintains his Arkansas first-degree terroristic threatening
conviction is not a violent felony under the ACCA. The
parties agree Myers was convicted under Arkansas Code
Annotated § 5-13-301(a)(1)(A). At the time of his
conviction, it said:
(a)(1) A person commits the offense of terroristic
threatening in the first degree if:
(A) With the purpose of terrorizing another person, the
person threatens to cause death or serious physical injury or
substantial property damage to another person; or
. . . .
Ark. Code Ann. § 5-13-301(a)(1)(A) (1995). Myers argues
this section is "overbroad" because it
"criminalizes the making of threats to cause
'substantial property damage' in addition to threats
'to cause death or serious physical injury, '"
and "does not . . . necessarily involve an element of
physical force against the person of another."
violent felony under the ACCA is "any crime punishable
by imprisonment for a term exceeding one year . . . that-(i)
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). To determine whether a prior
conviction is a violent felony, courts apply a categorical
approach, comparing "the elements of the crime of
conviction . . . with the elements of the generic
crime." Descamps v. United States, 570 U.S.
254, 257 (2013). If the elements criminalize a broader range
of conduct than the generic crime, the conviction is not a
violent felony. Id. ("The prior conviction
qualifies as an ACCA predicate only if the statute's
elements are the same as, or narrower than, those of the
generic offense."). However, "[i]f the statute of
conviction defines more than one crime by listing alternative
elements," this court applies the "modified
categorical approach, to determine which of the alternatives
was the offense of conviction." United States v.
Winston, 845 F.3d 876, 877 (8th Cir. 2017) (internal
quotation marks omitted).
parties disagree whether the categorical or modified
categorical approach applies. This depends on whether A.C.A.
§ 5-13-301(a)(1)(A) lists alternative elements or means
and is, therefore, divisible or indivisible. See Mathis
v. United States, 136 S.Ct. 2243, 2248 (2016)
("Distinguishing between elements and facts is therefore
central to ACCA's operation.").
"'Elements' are the 'constituent parts'
of a crime's legal definition-the things the
'prosecution must prove to sustain a
conviction.'" Id., quoting Black's
Law Dictionary 634 (10th ed. 2014). "At a trial,
they 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. (internal citation ...