879 F.3d 324
8th Cir.2018Background
- Defendant Joe Welch pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- At sentencing, the district court applied a Sentencing Guidelines enhancement under USSG § 2K2.1(a)(4) based on a prior Missouri second-degree assault conviction.
- The district court found that the Missouri conviction qualified as a "crime of violence," which triggers the enhancement.
- Welch appealed the classification of his prior Missouri second-degree assault conviction as a crime of violence; this Court reviews that legal determination de novo.
- The relevant Missouri statute (Mo. Rev. Stat. § 565.060.1) lists alternative subsections defining different forms of second-degree assault; Welch had pleaded guilty under subsection (2) (causing or attempting to cause physical injury by means of a deadly weapon or dangerous instrument).
- The core dispute: whether subsection (2) of the Missouri statute requires the use of "physical force" as defined in Johnson and thus qualifies as a federal Guidelines "crime of violence."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Missouri second-degree assault is divisible such that the court may look to the specific subsection of conviction | Government: statute lists alternative elements, so divisible; court may identify subsection of conviction | Welch: urges reconsideration post-Mathis that statute may not be divisible | Court: statute is divisible; subsections are distinct crimes (divisible) |
| Whether subsection (2) of Missouri second-degree assault qualifies as a "crime of violence" under USSG § 4B1.2 | Government: subsection (2) requires knowingly causing or attempting to cause physical injury by a deadly weapon, satisfying "physical force" requirement | Welch: Missouri definition of "physical injury" may encompass less than the "violent force" required by Johnson | Court: subsection (2) involves the use/attempted use of physical force and is a crime of violence; enhancement affirmed |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defines "physical force" as "violent force" capable of causing pain or injury)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements vs. means; statutes listing alternative elements create multiple crimes)
- United States v. Harrison, 809 F.3d 420 (8th Cir.) (standard of review: de novo for legal classification of prior offenses)
- United States v. Headbird, 832 F.3d 844 (8th Cir.) (explains categorical/divisible analysis for prior convictions)
- United States v. Jordan, 812 F.3d 1183 (8th Cir.) (discusses determining which statutory alternative supported conviction when statute is divisible)
- United States v. Vinton, 631 F.3d 476 (8th Cir.) (holding that subsection (2) of Missouri second-degree assault is a crime of violence)
- United States v. Alexander, 809 F.3d 1029 (8th Cir.) (holding Missouri § 565.060 divisible and analysis of subsection convictions)
- United States v. Fields, 863 F.3d 1012 (8th Cir.) (analyzing only the subsection under which defendant was convicted)
- United States v. Scott, 818 F.3d 424 (8th Cir.) (reiterating that subsection (2) qualifies as a crime of violence)
Accordingly, the district court's sentence enhancement was affirmed.