UNITED STATES оf America, Plaintiff-Appellee, v. Cody James HORSE LOOKING, Defendant-Appellant.
No. 15-2739
United States Court of Appeals, Eighth Circuit.
July 11, 2016
828 F.3d 744
Submitted: February 12, 2016
In this case, the officers had reasonable suspicion that the copper pipes that Montgomery had in his possession were stolen.2 First, the area was notorious and known to the officers for use in scrap-metal theft. The officers had recently arrested a man in the very same backyard who was actively dismantling a stolen car in order to sell the parts and scrap metal. The officers drove through the public alley to investigate the backyard that morning basеd on knowledge gained from that prior arrest. Moreover, the officers patrolled the neighborhood aware of its notoriety for scrap-metal theft. In fact, other officers were simultaneously investigating a copper theft in the area. Second, the circumstances observed by the officers strongly suggested that the copper pipes were stolen. The van bore no markings of a plumbing or construction business. The absence of such markings suggested that the copper pipes were pоtential scrap and were not part of a legitimate business. The fact that Montgomery was using the vehicle and the backyard for sleeping also raised suspicion of unlawful activity.
Accordingly, the district court correctly concluded that the totality of thе circumstances provided the officers with reasonable suspicion that the copper pipes in Montgomery‘s possession were stolen. The subsequent brief detention, questioning, and eventual arrest pursuant to outstanding warrants were therefore рermissible under the Fourth Amendment.
III. Conclusion
For these reasons, we affirm the district court‘s denial of Montgomery‘s motion to suppress and therefore his conviction.
Before SMITH and COLLOTON, Circuit Judges, and GRITZNER,1 District Judge.
COLLOTON, Circuit Judge.
Cody James Horse Looking was charged in August 2014 with unlawful possession of a firearm by a person “who has been convicted in any court of a misdemeanor crime of domestic violence.” See
Under
In 2010, a grand jury in Hughes County, South Dakota, charged Horse Looking with “Simple Assault Domestic Violence.” The South Dakota simple assault statute provides in relevant part:
Any person who:
(1) Attempts to cause bodily injury to another and has the actual ability to cause the injury;
(2) Recklessly causes bodily injury to another;
(3) Negligently causes bodily injury to another with a dangerous weapon;
(4) Attempts by physical menace or credible threat to put another in fear of imminent bodily harm, with or withоut the actual ability to harm the other person; or
(5) Intentionally causes bodily injury to another which does not result in serious bodily injury;
is guilty of simple assault.
To determine whether a conviction qualifies as a misdemeanor crime of domestic violence, we must apply the Supreme Court‘s “categorical approach.” United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 1413, 188 L.Ed.2d 426 (2014). In that analysis, we look to the statute of conviction to determine whether it “necessarily ‘ha[d], as an element, the use or attempted use of physical force, or the threatеned use of a deadly weapon.‘” Id. (alteration in original) (quoting
The South Dakota assault statute effectively lists at least five separate crimes with different elements. It is, in the parlance of the field, a “divisible statute.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In that situation, we are directed to apply the “modified categorical approach” to determine which alternative formed the basis for the defendant‘s conviction. Id. at 2285. We may examine charging documents, plea agreements, plea colloquies, and comparable judicial records to make the determination. Id.; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The “sole permissible purpose of the modified categorical approach is ‘to determine which statutory phrase was the basis for the conviction.‘” United States v. Martinez, 756 F.3d 1092, 1097 (8th Cir. 2014) (quoting Johnsоn v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)).
The parties agree that subsections (1) and (5) of the South Dakota statute qualify as misdemeanor crimes of domestic violence. Subsection (5) requires proof that the defendant intentionally caused bodily injury; subsection (1) requires an attempt to do so. Because “intentional causation of bodily injury necessarily involves the use of physical force,” Castleman, 134 S.Ct. at 1414, these two offenses have, as an element, the use or attempted use of physical force.
The parties also agree, however, that subsection (4) does not qualify as a predicate offense. This alternative forbids an attempt “by physical menace or credible threat to put another in fear of imminent bodily harm.” An offender might use physical force when attempting by “physical menace” to put another in fear of harm. But he also could violate subsection (4) without using or attempting to use force, and without threatening the use of a deadly weapon, as required by the definition of “misdemeanor crime of domestic violence.” Pumping a fist in an angry manner could be sufficient. Cf. United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999) (holding that a statute forbidding “[a]ny act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive” did not have, as an element, the use or attempted use of force); United States v. Larson, 13 Fed.Appx. 439, 439-40 (8th Cir. 2001) (per curiam). Thus, if Horse Looking was convicted under
We look to judicial records of the state court proceeding in an effort to determine which subsection was the basis for Horse Looking‘s conviction. See Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). In Castleman, that inquiry was “straightforward“: the state-court indictmеnt specified which of several alternative offenses formed the basis for the defendant‘s conviction. 134 S.Ct. at 1414. Not so here. The indictment charged Horse Looking with violating subsections (1), (4), and (5) of the South Dakota statute in the alternative. The order suspending imposition of sentence and a later order revoking suspended imposition of sentence do not help either. Both say that Horse Looking pleaded guilty “to the charge of Simple Assault Domestic Violence (SDCL 22-18-1),” without specifying under which subsection he was cоnvicted.
The government relies on the guilty plea colloquy to urge that Horse Looking was convicted under subsection (5). At the plea hearing, the court summarized the charges against Horse Looking by stating that “you attempted to cause — you threatened tо cause, or you intentionally caused bodily injury to [your wife].” This summary cov-
The plea colloquy establishes that Horse Looking could have been convicted under subsection (5). His attorney admitted that the victim testified to suffering bodily injury in the form of abrasions. Horsе Looking‘s admission that he pushed the victim down supported an inference that he acted intentionally and thus satisfied the general intent element of the offense. Cf. State v. Boe, 847 N.W.2d 315, 323 (S.D. 2014) (explaining that aggravated assault is a general intent crime).
But the colloquy does not exсlude the possibility that Horse Looking was convicted under subsection (4) — i.e., attempting by physical menace to put another in fear of imminent bodily harm. Horse Looking‘s push of his wife is sufficient to establish a “physical menace.” Physical menace requires “some physical act,” People ex rel. R.L.G., 707 N.W.2d 258, 261 (S.D. 2005) (per curiam), and it can include the use of physical force. People ex rel. A.D.R., 499 N.W.2d 906, 911 (S.D. 1993) (applying
Unlike the situation in United States v. Fischer, 641 F.3d 1006 (8th Cir. 2011), we cannot say that convictions under the two alternatives are mutually exclusive. In Fischer, the defendant was convicted under a divisible Nebraska assault statute that forbade both (1) intentionally causing bodily injury and (2) threatening another in a menacing manner. Id. at 1008. Where the factual basis established that the defendant struck the victim‘s face and bit her nose, we concluded that “the biting of a victim‘s nose is an intentional act causing bodily harm and not merely a threatening act.” Id. at 1009 (emphasis added). On that bаsis, the court ruled that the defendant necessarily was convicted of intentionally causing bodily injury. Under the South Dakota statute, however, the physical menace offense in subsection (4) requires a physical act by the defendant, not merely a threat, so Horse Looking‘s intentional push does not preclude a conviction under subsection (4). That the victim suffered abrasions on her knee or ankle does not foreclose a conviction for attempting by physical menace to put her in fear of greater bodily harm.
We have been instructed time and again that the categorical approach introduced by Taylor created a “demand for certainty” when determining whether a defendant was convicted of a qualifying offense. Mathis v. United States, No. 15-6092, — U.S. —, 136 S.Ct. 2243, 2256-57, 195 L.Ed.2d 604, 2016 WL 3434400, at *11 (U.S. June 23, 2016); see Descamps, 133 S.Ct. at 2290 (asking whether the defen-
***
The judgment of the district court is reversed.
ACA International, Amicus on Behalf of Appellee(s)
No. 15-2984
United States Court of Appeals, Eighth Circuit.
Submitted: March 15, 2016
Filed: July 11, 2016
Rehearing and Rehearing En Banc Denied Sept. 15, 2016.
Domick NELSON, Plaintiff-Appellant v. MIDLAND CREDIT MANAGEMENT, INC., Defendant-Appellee.
National Association of Consumer Bankruptcy Attorneys, Amicus on Behalf of Appellant(s)