United States of America v. Donte Kent
No. 21-3879
United States Court of Appeals For the Eighth Circuit
August 10, 2022
MELLOY, Circuit Judge.
Submitted: May 10, 2022; Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids
Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
Donte Kent pleaded guilty to possessing a controlled substance with intent to distribute and being a felon in possession of a firearm. The district court1 determined that Mr. Kent was a career offender under
I.
To determine if a crime satisfies the force clause, we apply the categorical approach. United States v. Roman, 917 F.3d 1043, 1045–46 (8th Cir. 2019). Under the categorical approach, we look to the elements of the crime, as listed in the statute, rather than the acts a defendant committed to satisfy those elements. United States v. Schneider, 905 F.3d 1088, 1090 (8th Cir. 2018). “Elements” are those “things the prosecution must prove to sustain a conviction.” Id. (quoting Mathis v. United States, 579 U.S. 500, 504 (2016)). If the elements of a crime can only be satisfied by conduct involving physical force, that crime is a crime of violence. Id. But “[i]f any—even the least culpable—of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard” and the crime is not a crime of violence. Borden v. United States, 141 S. Ct. 1817, 1822 (2021) (Kagan, J., plurality opinion).
Whether the statute is divisible or indivisible, once we have determined which crime the defendant committed, we determine whether the elements of that crime require “the use, attempted use, or threatened use of physical force against the person of another.”
We review whether a crime is a crime of violence de novo. United States v. Harris, 950 F.3d 1015, 1017 (8th Cir. 2020). The parties agree that Mr. Kent has at least one predicate conviction. They debate whether two other convictions qualify as crimes of violence. Mr. Kent has a conviction for interference with official acts inflicting bodily injury, in violation of then-section 719.1(1)(d) (now section 719.1(1)(e)) of the Iowa Code. He also has a conviction for domestic abuse assault, second offense, in violation of
II.
We start with the conviction that the district court found was a crime of violence: Mr. Kent‘s 2013 conviction for interference with official acts, in violation of
1. A person commits interference with official acts when the person knowingly resists or obstructs anyone known by the person to be a peace officer, emergency medical care provider under chapter 147A, or fire fighter, whether paid or volunteer, in the performance of any act which is within the scope of the lawful duty or authority of that officer, emergency medical care provider under chapter 147A, or fire fighter, whether paid or volunteer, or who knowingly resists or obstructs the service or execution by any authorized person of any civil or criminal process or order of any court.
. . . .
d. If a person commits an interference with official acts, as defined in this subsection, and in so doing inflicts bodily injury other than serious injury, that person commits an aggravated misdemeanor.
. . . .
3. The terms “resist” and “obstruct“, as used in this section, do not include verbal harassment unless the verbal harassment is accompanied by a present
ability and apparent intention to execute a verbal threat physically.
We previously held that interference with official acts inflicting bodily injury was a crime of violence. United States v. Malloy, 614 F.3d 852 (8th Cir. 2010) (interpreting a prior version of
“Recklessness” is a less culpable state of mind than purpose or knowledge. Id. at 1823–24. A person who acts purposely or knowingly “makes a deliberate choice with full awareness of” the potential consequences. Id. at 1823. While knowledge and purpose require an awareness of the outcome, recklessness involves “insufficient concern with a risk of injury.” Id. at 1824. A person acts recklessly “when he ‘consciously disregards a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Id. (quoting Model Penal Code § 2.02(2)(c)). The risk of harm may be significantly less than a likelihood of harm. Id. Crimes that can be committed recklessly cannot satisfy the force clause because the force clause‘s requirement that force be used “against another” “demands that the perpetrator direct his action at, or target, another individual.” Id. at 1825. Because reckless conduct is not directed or targeted, it is not the use of force against the person of another. Id.
We must determine what mental state is required to commit interference with official acts causing bodily injury in violation of then-section 719.1(d) (now section 719.1(e)). The mental state requirement is not clear in the statute, which has two parts. The first part describes the basic crime of interference with official acts. To be guilty of this offense, the offender must “knowingly resist[] or obstruct[]” an official.
We find that this offense cannot be committed recklessly. The statute requires that the defendant “inflict” bodily injury. We addressed the use of the word “inflict” in Malloy, 614 F.3d at 860. “‘Inflict’ means ‘to cause or carry out by aggressive action, as physical assault.‘” Id. (quoting Webster‘s II New College Dictionary 568 (2001)). Thus, the word “inflict” “cover[s] only active interference.” Id. (internal quotations omitted). The defendant in Malloy
The Iowa Court of Appeals has similarly held that the word “inflict” requires a level of active and intentional conduct. That court has held that the word “inflict,” as used in
Mr. Kent argues that this offense can be committed recklessly. He presents the hypothetical example of a person who, while fleeing from law enforcement, knocked a bystander to the ground and caused bodily injury. Mr. Kent argues that this person would be guilty of interference with official acts inflicting bodily injury. We disagree because Mr. Kent‘s hypothetical is not distinguishable from Dudley. In Dudley, a police officer suffered an injury when he tackled a fleeing suspect off a bicycle. 2012 WL 170738 at *1. The Iowa Court of Appeals vacated Dudley‘s conviction because, it held, the prosecution “was required to show some affirmative action by Dudley directed at the officer.” Id. at *5. In that case, the evidence did not show Dudley directed any act toward the person injured—it showed only that his resistance resulted in bodily injury. Therefore, Dudley did not “inflict” bodily injury and could not be convicted. The same would be true in Mr. Kent‘s proposed hypothetical. Although the flight would “result” in the bystander‘s injury, it would not be an “affirmative action” directed at the bystander. It would, therefore, not satisfy the “inflicting” element of interference with official acts inflicting bodily injury.
Interference with official acts inflicting bodily injury, in violation of
III.
Because we have found that interference with official acts causing bodily injury is a crime of violence, we do not need to resolve the issue of whether Mr. Kent‘s conviction for domestic abuse assault, second
MELLOY, Circuit Judge.