United States of America v. James Dwayne Myers
No. 17-2415
United States Court of Appeals For the Eighth Circuit
July 23, 2018
Submitted: February 16, 2018
Appeal from United States District Court for the Western District of Arkansas - Fayetteville
Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
James D. Myers pled guilty to being a felon in possession of a firearm, in violation of
The Armed Career Criminal Act (ACCA) enhances sentences for those who possess firearms after three convictions for a “violent felony or a serious drug offense.”
I.
Myers maintains his Arkansas first-degree terroristic threatening conviction is not a violent felony under the ACCA. The parties agree Myers was convicted under
(a)(1) A person commits the offense of terroristic threatening in the first degree if:
(A) With the purpose of terrorizing another person, the person threatens to cause death or serious physical injury or substantial property damage to another person; or
A violent felony under the ACCA is “any crime punishable by imprisonment for a term exceeding one year . . . that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another.”
The parties disagree whether the categorical or modified categorical approach applies. This depends on whether
A.
In United States v. Boaz, this court held
B.
Even if this court undertook a Mathis analysis, the same result would apply. Mathis held that in determining whether a statute lists elements or means, courts look to a number of sources. Id. at 2256-57. “[T]he statute on its face” or state court decisions interpreting it “may resolve the issue.” Id. at 2256. A court also can look to “a state‘s model jury instructions to ‘reinforce’ its interpretation. United States v. McMillan, 863 F.3d 1053, 1057 (8th Cir. 2017), citing Lamb, 847 F.3d at 932. See Mathis, 136 S. Ct. at 2257. If none of these provides “clear answers,” the court may “peek” at the records of conviction. Mathis, 136 S. Ct. at 2256.
Arkansas case law is similarly unhelpful. In Adams v. State, the Arkansas Court of Appeals said that “the State bore the burden to prove that appellant acted with the purpose of terrorizing Karen and threatened to cause death or serious physical injury or substantial property damage to Karen. ... What is prohibited is the communication of a threat with the purpose of terrorizing another person.” Adams, 435 S.W.3d 520, 523-24 (Ark. App. 2014). Myers argues this statement shows the statute has two indivisible elements: (1) the purpose of terrorizing; and (2) threatening to cause death or serious physical injury or property damage. But, in Mason v. State, the Arkansas Supreme Court held that the elements of the statute were satisfied where a defendant threatened to cause death or serious physical injury to another person, without any proof of a threat to substantial property damage. Mason, 206 S.W.3d 869, 873-74 (Ark. 2005). This suggests the state must establish, as an element of the offense, that the defendant either threatened to cause death or serious physical injury or threatened to cause substantial property damage to another person. See Ta v. State, 459 S.W.3d 325, 328 (Ark. App. 2015) (omitting the element of substantial property damage and stating that “[a] person commits the offense of first-degree terroristic threatening if, with the purpose of terrorizing another person, he threatens to cause death or serious physical injury to another person“); Knight v. State, 758 S.W.2d 12, 14 (Ark. App. 1988) (“Under our statute it is an element of the offense that the defendant act with the purpose of terrorizing another person, i.e., it must be his ‘conscious object’ to cause fright.“).
The Arkansas jury instructions also are ambiguous. The jury instructions say:
____________________ (Defendant(s)) [is] [are] charged with the offense of terroristic threatening in the first degree. To sustain this charge the State must prove beyond a reasonable doubt that ____________________ (defendant(s)), with the purpose of terrorizing ____________________ (another person):
[threatened to cause (death to) (or) (serious physical injury to) (or) (substantial damage to the property of) ____________________ (another person);]
[or]
[threatened to cause (physical injury) (property damage) to a (teacher) (____________________) other school employee) acting in the line of duty.]
AMI Crim. 2d 1310 (emphasis in original). Each parenthetical word or phrase may be included or excluded based on the evidence. See Anderson v. State, 108 S.W.3d 592, 607 (Ark. 2003) (noting that a parenthetical in the criminal jury instructions indicates its inclusion is optional).
Myers argues the instruction could direct the jury to determine whether a defendant
Because under the Mathis analysis, Arkansas state law fails to provide “clear answers” on whether the categorical or modified categorical approach applies, this court may look to “the record of a prior conviction itself.” Mathis, 136 S. Ct. at 2256. Cf. United States v. Naylor, 887 F.3d 397, 406 (8th Cir. 2018) (en banc) (holding that “Missouri law provides a clear answer” to the elements/means inquiry and the court “need not resort to taking a ‘peek at the record documents‘“), quoting Mathis, 136 S. Ct. at 2256. Thus, under either the modified categorical approach (as Boaz directs this court to apply) or the Mathis analysis (which Myers argues applies), this court must look to the record of conviction to determine whether Myers’ conviction for terroristic threatening is a crime of violence.
C.
A review of permissible materials shows Myers was convicted of threatening to kill his girlfriend. The “Felony Information” charges:
with the purpose of terrorizing another person, he threatened to cause death or serious physical injury or substantial property damage to another person, in violation of ACA § 5-13-301, to-wit: The Defendant threatened to kill his girlfriend while holding a knife to her throat, against the peace and dignity of the State of Arkansas.2
The “Sentencing Order” confirms that Myers was convicted of threatening his girlfriend. This conviction is a violent felony under § 924(e) because it “has as an element the ... threatened use of physical force against the person of another.”
Myers also argues his Arkansas second-degree battery conviction is not a violent felony under the ACCA. The parties agree Myers was convicted under subsection (a)(1). At the time of his conviction,
(a) A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, the person causes serious physical injury to any person;
(2) With the purpose of causing physical injury to another person, the person causes physical injury to any person by means of a deadly weapon other than a firearm;
Myers argues Winston is distinguishable because subsection (a)(2) requires the use of a deadly weapon. However, Winston did not hold that a conviction under subsection (a)(2) was a violent felony because it required the use of a deadly weapon. Rather, it held that the statute required a showing of physical injury, which is equivalent to physical force. Id. Because subsection (a)(1), like subsection (a)(2), “has as an element the use, attempted use, or threatened use of physical force” against another person,
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The judgment is affirmed.