United States v. Ryan William McMillan
2017 U.S. App. LEXIS 13256
| 8th Cir. | 2017

Background

  • McMillan pled guilty (Nov 2015) to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
  • Presentence report treated a 2009 Minnesota conviction for third-degree riot (Minn. Stat. § 609.71(3)) as a "crime of violence," producing a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2).
  • McMillan objected, arguing the riot conviction did not qualify under the Guidelines’ force clause (U.S.S.G. § 4B1.2(a)(1)).
  • District court overruled the objection, sentenced McMillan to 84 months (May 2016); McMillan appealed.
  • Eighth Circuit majority held the riot statute’s phrase "person or property" lists alternative means (not elements), so the modified categorical approach cannot identify a force-against-person element; thus the conviction does not categorically qualify under the force clause.
  • The court vacated the sentence and remanded for the district court to consider (in the first instance) whether the conviction qualifies under the Guidelines’ residual clause and whether to consider the Sentencing Commission’s pending amendment removing that clause.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Minnesota third-degree riot (Minn. Stat. § 609.71(3)) is a "crime of violence" under the Guidelines’ force clause McMillan: statute is not divisible; "person or property" are alternative means, so conviction doesn't necessarily involve physical force against a person Government: term "person or property" separates alternatives; conviction can involve threatened/used physical force against a person Held: "person or property" are alternative means (not elements); statute indivisible; conviction does not categorically qualify under the force clause
Whether the court may apply the modified categorical approach to identify which alternative McMillan was convicted of McMillan: cannot use modified categorical approach because statute indivisible Government: record could show conviction involved force against a person Held: modified categorical approach unavailable because statute is indivisible; record cannot be used to pick an element
Whether the error was harmless because the conviction qualifies under the Guidelines’ residual clause McMillan: (implicitly) relied on force-clause challenge; argued residual clause interpretation problematic Government: even if not force-clause, conviction qualifies under residual clause Held: remanded — district court should decide in first instance whether the conviction qualifies under the residual clause and whether to consider the Sentencing Commission’s pending amendment deleting that clause
Whether the Sentencing Commission’s pending amendment deleting the residual clause should be considered McMillan: not directly argued below; amendment could affect final outcome Government: district court could consider pending amendment but applied 2015 Guidelines at sentencing Held: district court must apply Guidelines in effect at sentencing (2015) but may consider pending amendment; on remand court should address residual-clause issue and the amendment question

Key Cases Cited

  • United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (categorical approach standard for crime-of-violence determinations)
  • United States v. Jordan, 812 F.3d 1183 (8th Cir. 2016) (distinguishing force and residual/ enumerated clauses)
  • Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility analysis: elements vs. means)
  • United States v. McArthur, 850 F.3d 925 (8th Cir. 2017) (statutory alternatives can be means despite disjunctive language)
  • Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause unconstitutionally vague)
  • Beckles v. United States, 137 S. Ct. 886 (2017) (Guidelines’ residual clause not subject to vagueness due to advisory nature)
  • United States v. Benedict, 855 F.3d 880 (8th Cir. 2017) (affirming career-offender enhancement via Guidelines’ residual clause)
  • United States v. Craig, 630 F.3d 717 (8th Cir. 2011) (residual-clause analysis: offenses that create substantial risk of violent confrontation qualify)
  • United States v. Watson, 650 F.3d 1084 (8th Cir. 2011) (comparability-to-enumerated-offenses test for residual clause)
  • United States v. Hennecke, 590 F.3d 619 (8th Cir. 2010) (residual-clause comparability to burglary)
  • United States v. Hudson, 577 F.3d 883 (8th Cir. 2009) (residual-clause analysis for resisting arrest)
  • United States v. Lawin, 779 F.3d 780 (8th Cir. 2015) (district court applies Guidelines in effect at time of sentencing)
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