United States v. Levi HamiltonUnited States v. Levi Hamilton
Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
Levi Hamilton pleaded guilty to conspiracy to distribute methamphetamine, see
I.
Hamilton was indicted for conspiracy to distribute methamрhetamine, see
At sentencing, the district court applied the career-offender sentencing enhancement under
II.
First, we review the district court‘s application of the career-offender sentencing enhancement. Under
“Under the so-called ‘force сlause’ of the career-offender guideline, a conviction qualifies as a ‘crime of violence’ if it is an ‘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.‘” United States v. Tinlin, 20 F.4th 426, 427 (8th Cir. 2021), petition for cert. filed, --- U.S.L.W. --- (U.S. June 21, 2022) (21-8191) (quoting
“If the statute underlying the predicate conviction creates a single crime by listing a single set of elements, it is indivisible, and we follow the categorical approach, looking to the elements of the offense rather than the defendant‘s actual conduct to determine if it has a physical-force element.” United States v. Quigley, 943 F.3d 390, 393 (8th Cir. 2019) (internal
At sentencing, thе Government agreed with Hamilton that assault on a police officer under Iowa Code section 708.3A(3) is indivisible. Now, Hamilton and the Government agree that section 708.3A(3) is divisible. Nevertheless, we conclude that the statute is indivisible. See id. (acknowledging the parties’ agreement that thе statute is divisible but concluding that it is indivisible).
Section 708.3A(3) provides that
[a] person who commits an assault, as defined in section 708.1, against a peace officer . . . who knows that the person against whom the assault is committed is a peace officer . . . , and who causes bodily injury or mental illness, is guilty of an аggravated misdemeanor.
In turn, the assault statute, section 708.1(2), states that
[a] person commits an assault when, without justification, the person does any of the following:
- Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with thе apparent ability to execute the act.
- Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
- Intentionally pоints any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
Section 708.3A(3) lists alternatives, some of which do not have a force element. To violate section 708.3A(3), a person must commit assault and cause bodily injury оr mental illness, meaning that the provision contains two sets of alternatives: the three assault alternatives and the alternatives of causing bodily injury or causing mental illness. See
Even though section 708.1(2) lists three alternatives, that does not make section 708.3A(3) divisible. In United States v. Quigley, we addressed whether an Iowa statute was divisible where it required “assault, as defined in section 708.1, with the intent to inflict a serious injury upon another” and both assault and serious injury
Nor is section 708.3A(3) divisible on the ground that it can be committed by causing bodily injury or mental illness. The Iowa Supreme Court has stated that causing bodily injury and causing mental illness are alternatives that comprise a single element of the crime. It has explained that “[u]nder Iowa Code sections 708.1 аnd 708.3A(3), a defendant commits the crime of assault on a correctional officer, causing bodily injury when the defendant: (1) does an act ‘which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive’ to a correctional officer, (2) the defendant has ‘the apparent ability to execute the act,’ (3) the defendant knows the person he assaulted is a correctional officer, and (4) the assault causes bodily injury or mental illness to the correctional officer.” State v. Palmer, 791 N.W.2d 840, 851 (Iowa 2010) (emphasis added) (citing
Because section 708.3A(3) is indivisible, we must apply the categоrical approach. See Quigley, 943 F.3d at 393. “Under the categorical approach, we restrict our inquiry to the abstract requirements for a conviction, rather than the defendant‘s actual conduct, and ask whether a conviction necessarily had a physical-force element for the offense to qualify as a crime of violence under the force clause.” Id. at 394 (internal quotation marks omitted). “Physical force” is “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010). “If only conduct involving physical force can support a conviction under the statute, then the crime has a physical-force element.” Quigley, 943 F.3d at 394 (internal quotation marks omitted). “Conversely, if the crime can be committed without even the threatened use of physical force, it does not have a physical-force element.” Id. “Mere speculation that [the statute of conviction] could be applied to conduct not involving physical force does not take the offense outside the scope of the force clause; rather, there must be a non-fanciful, non-theoretical manner to commit [the offense] without so much as the threatened use of physical force.” Id. (internal quotation marks omitted). To make this showing, a defendant “must at least point to his own case or other cases in which the statе courts did in fact apply the statute in the special (nongeneric) manner for which he argues.”2 Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see Quigley, 943 F.3d at 394.
Hamilton does not identify any Iowa cases or his own case where section 708.3A(3) was applied in a way that did not involve at least the threatened use of physical force. He argues that the offense can be committed by “causing mental illness against the victim by placing him in fear through the use of insulting and offensive language.” But this is merely a fanciful and theoretical manner of committing the offense that does not satisfy Hamilton‘s burden. See Quigley, 943 F.3d at 394.
Our decision in Ossana does not require us to conclude otherwise. See 638 F.3d at 900. There, applying the categorical approach, we held that an Arizona assault statute that can be violated “with any degree of contact by knowingly touching another person with the intent to . . . insult or provoke such person . . . does not qualify as the use of physical fоrce because it is not violent force.” Id. (internal quotation marks omitted). But Ossana‘s brief cited Arizona caselaw holding that assault can be committed without the use of violent force. Brief of Appellant-Defendant, Ossana, 638 F.3d 895 (No. 10-2205), 2010 WL 3388994, at *15-17 (8th Cir. Aug. 20, 2010); see, e.g., In re P.D., 166 P.3d 127, 130 (Ariz. Ct. App. 2007) (affirming an assault conviction “when Juvenile placed urinal water into S.B.‘s cup аnd she subsequently drank from it“). Here, by contrast, Hamilton has not identified any case holding that section 708.3A(3) can be committed without at least the threatened use of physical force. Therefore, unlike Ossana, Hamilton has failed to show that there is a nonfanciful, nontheoreticаl way of violating 708.3A(3) without at least the threatened use of physical force.
In sum, section 708.3A(3) is indivisible, and Hamilton has not identified any case where the statute was applied in a way that did not involve at least the threatened use of physical force. Thus, Hamilton‘s conviсtion of assault on a peace officer qualifies as a crime of violence under
III.
Next, we review the substantive reasonableness of Hamilton‘s sentence. Hamilton argues that his sentence of 262 months’ imprisonment is unreasonable because the district court gave too much weight to his criminal history and not enough weight to mitigating factors such as his difficult upbringing.
We review “the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). The sentence must be “sufficient, but not greater than necessary” to satisfy the purposes in
Hamilton‘s sentence is not substantively unreasonable. The advisory guidelines range was 262 tо 327 months’ imprisonment, and Hamilton was sentenced to 262 months’ imprisonment. Therefore, we presume that Hamilton‘s sentence is substantively reasonable. See id. at 920. Further, the district court considered the
IV.
For the foregoing reasons, we affirm Hamilton‘s sentence.