UNITED STATES of America, Plaintiff-Appellee, v. John Gary WINSTON, Defendant-Appellant.
No. 15-3739
United States Court of Appeals, Eighth Circuit.
Submitted: September 19, 2016. Filed: January 10, 2017.
845 F.3d 876
Counsel who represented the appellee was Stephanie Mazzanti, AUSA, of Little Rock, AR.
Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
John Gary Winston pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of
The term “violent felony” means, among other things, “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.”
To determine whether a crime of conviction is a violent felony under this subsection, we apply a “categorical approach” and determine whether the elements of the crime of conviction necessarily require the use, attempted use, or threatened use of physical force. See United States v. Lindsey, 827 F.3d 733, 738-39 (8th Cir. 2016). If the statute of conviction defines more than one crime by listing alternative elements, we apply a “modified categorical approach” to determine which of the alternatives was the offense of conviction. Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). The court may consider a limited class of documents in the judicial record, including the charging document, written plea agreement, and plea colloquy transcript, to make the determination. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The district court applied the modified categorical approach and concluded that both disputed convictions qualified as violent felonies.
Winston argues that the district court erred because neither statute defining the two offenses of conviction requires the use, attempted use, or threatened use of physical force against the person of another. Because Winston acknowledges two qualifying prior convictions, the government need only establish that one of the other two also counts. We conclude that the battery offense qualifies and need not address the conviction for terroristic threatening.
The Arkansas second-degree battery statute under which Winston was convicted includes four alternative offenses.2 Winston‘s
Winston contends, however, that physical injury is not the equivalent of physical force, and that a defendant might cause physical injury without using physical force. For this reason, Winston asserts that the battery offense does not contain the necessary element that he used physical force. We reject Winston‘s position for the reasons given by Justice Scalia‘s concurring opinion in United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014): “[P]hysical force” means force “capable of causing physical pain or injury to another person,” Johnson, 559 U.S. at 140, 130 S.Ct. 1265, and “it is impossible to cause bodily injury without using force ‘capable of producing that result.‘” 134 S.Ct. at 1416-17 (Scalia, J., concurring). “Physical force” is “force exerted by and through concrete bodies,” as opposed to “intellectual force or emotional force,” Johnson, 559 U.S. at 138, 130 S.Ct. 1265, and it 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
For these reasons, the district court did not err in concluding that Winston had been convicted of at least three violent felonies or serious drug offenses, and that he was subject to enhanced punishment as an armed career criminal. The judgment of the district court is affirmed.