UNITED STATES of America v. Antonio MINNIS
No. 17-1017
United States Court of Appeals, Eighth Circuit
October 6, 2017
November 16, 2017
872 F.3d 889
We further note that Dokes‘s motion for leave to file untimely objections was no doubt futile. First, he only objected to PSR paragraphs recommending a six-level increase based on amount of loss, not the paragraphs stating facts supporting that recommendation (the SSA determination that overpayments began in October 2010 when the agency sustained Dokes‘s appeal and the payment of continued benefits, based on misrepresentations as to his lifestyle and work capabilities). Unless a party objects “with specificity and clarity” to fact statements in the PSR, the district court may accept those facts as true at sentencing. See United States v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008), cert. denied, 555 U.S. 1193, 129 S.Ct. 1365, 173 L.Ed.2d 624 (2009). Second, Dokes argued in the Sentencing Memorandum that overpayments did not start until July 2011 because that was when he first successfully functioned in employment activity. But overpayments began when he became capable of substantial gainful activity, regardless of when he began earning income. Third, for purposes of the increase in § 2B1.1(b)(1), “loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1, comment. (n.3(A)). Had the district court allowed Dokes to raise an untimely objection to the amount of loss, the government could have presented evidence addressing when Dokes was able to engage in substantial gainful activity, see
The judgment of the district court is affirmed.
Edward Lawrence Dowd, III, Stephen R. Casey, Assistant U.S. Attorney, Allison Hart Behrens, Assistant U.S. Attorney, U.S. Attorney‘s Office, Eastern District of Missouri, Saint Louis, MO, for Plaintiff-Appellee.
Michael Gross, Saint Louis, MO, for Defendant-Appellant.
Antonio Minnis, Federal Correctional Institution, Memphis, TN, Pro Se.
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
Antonio Minnis pled guilty to possessing heroin with intent to distribute in violation of
Under U.S.S.G. § 4B1.1(a), “a defendant is a career offender if“:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
A “crime of violence” is “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). A “crime of violence” includes “attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. n. 1. “To determine whether a prior conviction was for a crime of violence,” this court applies “a categorical approach, looking to the elements of the offense as defined in the ... statute of conviction rather than to the facts underlying the defendant‘s prior conviction.” United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016) (citation omitted). A conviction may be a crime of violence “only if the statute‘s elements are the same as, or narrower than, those of the generic offense.” Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). See United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (“To determine whether a previous conviction is a crime of violence under § 4B1.2(a), we often have looked to the case law interpreting
Relying on State v. Lammers, 479 S.W.3d 624, 636 (Mo. banc 2016), Minnis believes: “The elements of attempted first degree assault in Missouri are unmistakably broader than the generic crime.” In Missouri, “attempt” is “a substantial step towards commission of the offense.” State v. Whalen, 49 S.W.3d 181, 186 (Mo. banc 2001), citing State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). In Lammers, the court found sufficient evidence for attempted first-degree assault where the defendant purchased two assault rifles, took target practice, and admitted planning “to carry out a mass shooting, with Walmart in mind as a specific target.” See Lammers, 479 S.W.3d at 632-33. Minnis relies on the dissenting opinion that argued Lammers‘s conduct was not a substantial step. See id. at 637 (Teitelman, J., dissenting).
Lammers did not modify Missouri‘s attempt analysis. See id. at 632 (“[T]o be convicted of attempted first-degree assault, Defendant must have committed some act that is a substantial step toward completing that offense. ... ‘Substantial step’ is defined as conduct which is strongly corroborative of the firmness of the actor‘s purpose to complete the commission of the offense.” (internal quotation marks omitted) (citing Whalen, 49 S.W.3d at 186)). Lammers—applying well-established law—did not lower the threshold for proving attempt. See id. at 633-34 (“The trial court did not err in finding sufficient
The Government invokes United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016). There, this court found that Alexander‘s conviction for second-degree assault under RSMo § 565.060.1(2) was a violent felony under the ACCA. See id. at 1032-33. Alexander argued that “criminalizing a ‘substantial step’ is over-inclusive because it expands beyond the traditional understanding of a generic assault attempt.” Id. at 1033. This court noted: “We have found no case in which the Missouri Supreme Court has construed attempt under § 565.060(1)(2) in an overinclusive manner.” Id. Lammers, decided after Alexander, does not modify the substantial-step analysis, and thus does not construe attempt in an overinclusive manner. Alexander controls here.2 The elements of attempted first-degree assault under Missouri law are not broader than the generic crime.
Minnis claims that because “Missouri statutes defining first degree attempted assault do not require proof of ‘physical force’ within the contemplation of § 4B1.2(a)(1),” his prior conviction cannot be a crime of violence. First-degree assault in Missouri requires that a defendant “knowingly causes or attempts to cause serious physical injury to another person.” § 565.050 RSMo. Minnis emphasizes hypothetical scenarios, but this court has rejected a similar argument under the ACCA:
Physical force ... need not be applied directly to the body of the victim. Hypothetical scenarios involving no physical contact by the perpetrator (luring a victim to drink poison or infecting a victim with a disease) do not avoid coverage under § 924(e)(2)(B)(i).
United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017), citing United States v. Castleman, 572 U.S. 157, 134 S.Ct. 1405, 1414-15, 188 L.Ed.2d 426 (2014). Because Minnis‘s prior conviction for attempted first-degree assault is a crime of violence, the district court properly found that he is a career offender under U.S.S.G. § 4B1.1.
The judgment of the district court is affirmed.