United States v. Richard McFee
2016 U.S. App. LEXIS 20593
| 8th Cir. | 2016Background
- On May 10, 2015 Richard Angelo McFee fired a gun into an occupied residence and later pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
- At sentencing the district court treated McFee as an Armed Career Criminal under the ACCA based on three prior convictions, including a Minnesota terroristic threats conviction (Minn. Stat. § 609.713, subd. 1 (2004)).
- The ACCA imposes a 15-year mandatory minimum if the defendant has three prior "violent felony" convictions as defined by 18 U.S.C. § 924(e)(2)(B), including offenses that "have as an element the use, attempted use, or threatened use of physical force against the person of another" (the force clause).
- Minnesota's terroristic threats statute criminalizes threatening to "commit any crime of violence," and defines "crime of violence" by reference to a separate statute listing various offenses (Minn. Stat. § 609.1095, subd. 1(d)).
- The Eighth Circuit examined whether the terroristic threats statute is divisible (allowing the modified categorical approach) or indivisible (requiring categorical analysis), and whether the prior conviction therefore qualified as an ACCA predicate.
- The court concluded the statute is indivisible because the phrase "crime of violence" is an element while the separate statutory list constitutes alternative means; McFee's terroristic threats conviction therefore is not an ACCA predicate and he had only two qualifying priors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Minnesota's terroristic threats statute is divisible for ACCA force-clause analysis | McFee: statute not divisible; conviction does not have force-clause element | Government: statute is divisible; record (and Jorgenson) show particular predicate must be proved | Court: statute indivisible; "crime of violence" is an element and the separate list are means |
| Whether a terroristic threats conviction qualifies as an ACCA "violent felony" under the force clause | McFee: not a predicate because statute covers crimes broader than force clause | Government: prior conviction counts as a violent felony | Court: does not qualify; conviction not an ACCA predicate |
| Whether the modified categorical approach may be used here | McFee: no, because statute is indivisible | Government: yes, statute divisible so modified approach appropriate | Court: no modified approach; indivisible statute precludes it |
| Remedy: whether sentence under ACCA must be vacated | McFee: yes, because only two ACCA predicates remain | Government: argues conviction qualified so ACCA sentence stands | Court: vacated ACCA sentence and remanded for resentencing |
Key Cases Cited
- United States v. Headbird, 832 F.3d 844 (8th Cir. 2016) (division/means vs. elements framework for categorical analysis)
- United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (categorical approach and modified categorical approach application)
- United States v. Dawn, 685 F.3d 790 (8th Cir. 2012) (categorical approach precedent)
- United States v. Jordan, 812 F.3d 1183 (8th Cir. 2016) (distinguishing force clause and enumerated clause)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility test: elements v. means; limited use of conviction record)
- United States v. Sanchez-Martinez, 633 F.3d 658 (8th Cir. 2011) (noting some listed state offenses qualify as ACCA predicates and some do not)
- United States v. Brown, 765 F.3d 185 (3d Cir. 2014) (concluding similar terroristic-threats statute was indivisible)