48 F.4th 884
8th Cir.2022Background:
- Dreshon Frazier was convicted of drug trafficking and two firearms offenses and sentenced to 240 months after the district court treated him as a Guidelines career offender under USSG § 4B1.1.
- The career-offender designation rested in part on a prior Iowa conviction for "Intimidation with a Dangerous Weapon," Iowa Code § 708.6(2).
- § 708.6(2) has two alternatives: (1) shooting/throwing a dangerous weapon at/into/inside an occupied building or vehicle and thereby placing occupants in reasonable apprehension of serious injury; and (2) threatening to commit such an act. Frazier was convicted under the "threatens" alternative.
- Under the Guidelines "force clause," a prior felony is a "crime of violence" if it "has as an element the use, attempted use, or threatened use of physical force against the person of another," applying the categorical approach.
- The district court relied on precedent (United States v. Langston) to treat § 708.6(2) as a force-clause offense, but the Supreme Court's decision in Borden v. United States (2021) narrowed the force clause to exclude offenses that can be committed recklessly.
- The Eighth Circuit concluded that § 708.6(2) (as applied to the "threatens" alternative) can be violated with mere recklessness as to causing fear and thus does not satisfy the force clause; Frazier therefore is not a career offender on that basis. The sentence was vacated and remanded for resentencing.
Issues:
| Issue | Frazier's Argument | Gov't's Argument | Held |
|---|---|---|---|
| Whether a conviction under Iowa § 708.6(2) (the "threatens" alternative) qualifies as a "crime of violence" under the Guidelines force clause for career-offender treatment | § 708.6(2) does not require intentional targeting of a person with force and thus is not a force-clause crime | The statute criminalizes threats to commit violent acts and should qualify; the alternatives may be separate and the "threatens" alternative is intentional and therefore covers threatened force | The offense can be committed recklessly as to causing fear; under Borden reckless conduct is not a use/attempted use/threatened use of physical force against another, so § 708.6(2) (threatens) is not a crime of violence and cannot support career-offender status |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (plurality holding that crimes committed with a mens rea of recklessness do not satisfy the force clause)
- United States v. Langston, 772 F.3d 560 (8th Cir. 2014) (prior Eighth Circuit decision treating Iowa § 708.6 as involving violent force; court reconsidered post-Borden)
- United States v. Vinton, 631 F.3d 476 (8th Cir. 2011) (noting identical text of the Guidelines force clause and section 924(e))
- United States v. Kent, 44 F.4th 773 (8th Cir. 2022) (explaining application of the categorical approach to force-clause analysis)