United States v. Donald Boman
2017 U.S. App. LEXIS 20592
| 8th Cir. | 2017Background
- Police responded to a shooting on Nov. 2, 2013; witnesses identified Donald Boman as the suspected shooter; Boman was detained and officers later found a firearm and ammunition in the shared bedroom of Boman and his girlfriend, Jamie Cooper.
- Two boxes of ammunition were recovered; the firearm’s magazine was missing one round. Witnesses heard a single loud noise consistent with a gunshot and the alleged victim, Marcus Brown, feared he had been shot.
- A grand jury indicted Boman under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for possession of a firearm as a felon; a jury convicted him after a two-day trial.
- At sentencing the PSR recommended (1) a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony and (2) ACCA designation based on three prior violent-felony convictions (including two § 924(c)(1) convictions), producing a Guidelines range and 262-month sentence.
- On appeal and certiorari the Supreme Court vacated and remanded in light of Mathis; on remand the Eighth Circuit considered (A) whether prior § 924(c)(1) convictions qualify as ACCA violent-felony predicates and (B) whether the § 2K2.1(b)(6)(B) enhancement was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior § 924(c)(1) convictions are ACCA violent-felony predicates under the force clause | Government: § 924(c)(1) convictions involve a ‘‘crime of violence’’ and therefore can be ACCA predicates (modified categorical approach applies) | Boman: § 924(c)(1) is indivisible or otherwise does not categorically have as an element the use of physical force against a person, so it cannot be an ACCA violent felony | Court: § 924(c)(3) definition is indivisible and broader than ACCA’s force-clause; under the categorical approach § 924(c)(1) convictions are not ACCA predicates — plain error in ACCA designation. |
| Whether court may apply the modified categorical approach to § 924(c)(1) convictions | Government: courts may look at record to identify the underlying crime of violence and then assess whether that offense is an ACCA violent felony | Boman: modified categorical approach not available because § 924(c)(3) is not divisible; record does not show which subsection applied | Court: modified categorical approach does not apply; § 924(c)(3) is indivisible, so categorical approach controls. |
| Whether § 924(c)(3) (definition of crime of violence) is divisible into force-clause vs. residual-clause alternatives | Government: alternatives can be parsed to identify force-clause predicates | Boman: § 924(c)(3) is indivisible; both alternatives are means, not separate elements | Court: § 924(c)(3) is not divisible; it covers force against property as well as persons and therefore sweeps beyond ACCA’s violent-felony definition. |
| Whether § 2K2.1(b)(6)(B) four-level enhancement (possession in connection with another felony) was appropriate | Government/PSR: Boman discharged a firearm in furtherance of the felony Intimidation with a Dangerous Weapon (Iowa § 708.6), so enhancement applies | Boman: record does not support that he discharged toward Brown or that his conduct wasn’t justified (self-defense) | Court: Preponderance of evidence supports discharge toward Brown and lack of substantial evidence of self-defense; district court did not clearly err — four-level enhancement affirmed. |
Key Cases Cited
- United States v. Boman, 810 F.3d 534 (8th Cir. 2016) (prior appellate decision in this case)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility and limits on the modified categorical approach)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (distinguishing elements from means; limits on record review)
- United States v. Rodriguez-Moreno, 526 U.S. 275 (1999) (elements of § 924(c)(1))
- United States v. McFee, 842 F.3d 572 (8th Cir. 2016) (discussion of § 924(c) definitional issues and divisibility)
- United States v. Prickett, 839 F.3d 697 (8th Cir. 2016) (addressing § 924(c)(3)(B) residual-clause application)
- United States v. Taylor, 813 F.3d 1139 (8th Cir. 2016) (example of an offense qualifying under § 924(c)(3)(B) but not ACCA force clause)