United States v. Bralen Jordan
2016 U.S. App. LEXIS 2448
| 8th Cir. | 2016Background
- Bralen Jordan pled guilty in 2014 to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
- At sentencing the government argued Jordan qualified as an Armed Career Criminal under 18 U.S.C. § 924(e) based on three prior violent-felony convictions; the district court agreed and imposed a 180-month sentence.
- One prior conviction (threatening to destroy property with explosives, 2002) was undisputedly a violent felony; the dispute concerned two other convictions: third-degree domestic battery and Arkansas aggravated assault under Ark. Code Ann. § 5-13-204(a)(1).
- The district court treated the Arkansas aggravated-assault conviction as a violent felony under both the ACCA force clause and the residual clause; the residual clause was later held unconstitutional, so this opinion analyzes only the force clause.
- The court applied the categorical/modified-categorical approach and determined Jordan was convicted under subsection (a)(1) of the Arkansas aggravated-assault statute.
- The Eighth Circuit concluded that subsection (a)(1), which criminalizes purposeful conduct creating a substantial danger of death or serious physical injury, does not require the use, attempted use, or threatened use of violent physical force and therefore is not a violent felony under the ACCA force clause; judgment vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jordan's Arkansas aggravated-assault conviction under § 5-13-204(a)(1) is a "violent felony" under the ACCA force clause | Jordan: § 5-13-204(a)(1) does not require violent physical force and thus is not a force-clause violent felony | Government: Arkansas aggravated-assault is a violent felony under the ACCA force clause (and relied on prior unpublished authority) | Held: § 5-13-204(a)(1) is not a violent felony under the ACCA force clause because it requires only conduct creating a substantial danger, not the use/attempted use/threat of violent physical force |
| Whether the district court erred in sentencing Jordan as an Armed Career Criminal | Jordan: Sentencing enhancement improper because he lacked three qualifying prior violent-felony convictions | Government: Jordan had three qualifying priors, supporting ACCA enhancement | Held: District court erred; one prior (aggravated assault under (a)(1)) does not qualify — remanded for resentencing |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defines "physical force" as violent force capable of causing pain or injury)
- Samuel Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause unconstitutional)
- United States v. Soileau, 686 F.3d 861 (8th Cir. 2012) (categorical approach governs ACCA analysis)
- United States v. Bankhead, 746 F.3d 323 (8th Cir. 2014) (modified-categorical approach explained)
- United States v. Vinton, 631 F.3d 476 (8th Cir. 2011) (distinguished; involved a statute requiring attempted or actual physical injury)
- United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (statute criminalizing creation of risk, without bodily contact, is not a force-clause violent felony)