United States v. James Myers, 896 F.3d 866

Defendant James D. Myers pled guilty to being a felon in possession of a firearm; district court sentenced him as an Armed Career Criminal to 188 months.
Sentencing enhancement under the Armed Career Criminal Act (ACCA) requires three prior convictions for a ‘‘violent felony’’ or serious drug offense.
District court relied on three prior Arkansas convictions: first-degree terroristic threatening (Ark. Code § 5-13-301(a)(1)(A)) and second-degree battery (Ark. Code § 5-13-202(a)(1)).
Myers challenged both state convictions as not qualifying as ACCA violent felonies under the ACCA force clause (use/attempted use/threatened use of physical force).
The primary legal questions involved (a) whether the Arkansas terroristic threatening statute is divisible (necessitating the modified categorical approach) and whether the conviction involved threatening physical force against a person, and (b) whether second-degree battery under subsection (a)(1) constitutes a violent felony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether first-degree terroristic threatening (§ 5-13-301(a)(1)(A)) is a violent felony under the ACCA	Myers: statute is overbroad because it covers threats to cause substantial property damage and thus may not involve threatened physical force against a person	Government: conviction record shows Myers threatened to kill his girlfriend while holding a knife to her throat; statute divisible so apply modified categorical approach	Court: Affirmed — statute is divisible; record shows he threatened to kill a person, so conviction is a violent felony
Whether the Arkansas terroristic threatening statute is divisible (categorical vs modified categorical)	Myers: Mathis requires reanalysis and Arkansas law is ambiguous, so statute may be indivisible	Government: Eighth Circuit’s Boaz controls; statute defines alternative elements and is divisible	Court: Treated statute as divisible (Boaz controls); when state law ambiguous, court may look to records of conviction and did so here
Whether second-degree battery (§ 5-13-202(a)(1)) is a violent felony under the ACCA	Myers: subsection (a)(1) need not require force equivalent to ACCA’s force clause	Government: (and precedent) subsection (a)(1) requires causing physical injury, which equates to use of physical force	Court: Affirmed — subsection (a)(1) is divisible and the conviction qualifies as a violent felony

Descamps v. United States, 570 U.S. 254 (categorical/modified categorical approach framework)
Mathis v. United States, 136 S. Ct. 2243 (elements v. means analysis for divisibility)
United States v. Boaz, 558 F.3d 800 (8th Cir. 2009) (Ark. terroristic threatening is divisible)
United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (Ark. second-degree battery divisible and can be a crime of violence)
United States v. Winston, 845 F.3d 876 (8th Cir. 2017) (battery subsection requiring physical injury is a crime of violence)
United States v. Lamb, 847 F.3d 928 (8th Cir. 2017) (Mathis did not disturb Boaz as to force-clause analysis)
United States v. McMillan, 863 F.3d 1053 (8th Cir. 2017) (use of state jury instructions in divisibility analysis)
United States v. Naylor, 887 F.3d 397 (8th Cir. 2018) (when state law provides clear answer, no need to ‘‘peek’’ at conviction record)