UNITED STATES of America, Plaintiff-Appellee, v. Phillip D. FIELDS, Defendant-Appellant.
No. 16-4140
United States Court of Appeals, Eighth Circuit.
Submitted: June 9, 2017. Filed: July 20, 2017.
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III. Conclusion
The district court did not abuse its discretion in awarding PPKM attorney‘s fees for its work at all stages of this litigation, Lefemine, 133 S.Ct. at 10, and PPKM‘s recovery in this case was not so techniсal as to render the award an abuse of discretion, cf. Farrar, 506 U.S. at 114, 113 S.Ct. 566. Therefore, we affirm.
Alison D. Dunning, Asst. U.S. Atty., Kansas City, MO, argued (Thomas M. Larson, Acting U.S. Atty., on the brief), for appellee.
Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
Phillip Fields pleaded guilty to one count of being a felon in possession of a firearm in violation of
I.
Fields‘s presentence investigation report (“PSR“) concluded that he had one prior felony conviction for a controlled substance offense and one prior felony conviction for a crime of violence. The PSR thus recommended a base offense level of 24. See
Fields objected. He argued before the district court that his second-degree assault conviction under
The district court concluded that the assault conviction was a crime of violence and overruled Fields‘s objection. After aсceptance-of-responsibility adjustments, the district court found that Fields had a total offense level of 21 and a criminal history category of II. This resulted in a Guidelines range of 41 to 51 months. The district court sentenced Fields to the bottom of this range: 41 months in prison. If the district court had sustained Fields‘s crime-of-violence objection, the resulting Guidelines range would have been 27 to 33 months.
II.
“We review de novo a district court‘s determination that an offеnse qualifies as a crime of violence under the Guidelines.” United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015). As material to the present case, the Guidelines define a crime of violence as “any offense under federal
“To determine whether a prior conviction was for a crime of violence, ‘we apply a categorical approach, looking to the elements of the offense as defined in the ... statute of cоnviction rather than to the facts underlying the defendant‘s prior conviction.‘” United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016) (alteration in original) (quoting United States v. Dawn, 685 F.3d 790, 794 (8th Cir. 2012)). “If the statute of conviction ... encompasses multiple crimes, some of which are crimes of violence and some of which are not, we apply a modified categorical approach to ‘look at the charging document, plea colloquy, and comparable judicial records’ for determining which pаrt of the statute the defendant violated.” Id. (quoting Dawn, 685 F.3d at 794-95). “We then determine whether a violation of that statutory subpart is a crime of violence.” Id.
Here, the parties have simplified our analysis. There is no dispute that Fields was convicted of second-degree assault under
Fields argues that our decision in United States v. Ossana, 638 F.3d 895 (8th Cir. 2011), provides the controlling answer. In Ossana, we held that a conviction under an Arizona assault statute was not categorically a crime of violence under the Guidelines because the assault statute also criminalized reckless driving rеsulting in injury. Id. at 903. In so holding, we reasoned from the Supreme Court‘s decision in Begay v. United States, 553 U.S. 137, 139, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which held that a conviction for driving under the influence of alcohol was not a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA“). Wе have reaffirmed Ossana on at least two occasions. See United States v. Boose, 739 F.3d 1185, 1187 (8th Cir. 2014) (“So long as ... Arkansas[‘s first-degree battery] statute ... encompasses reckless driving which results in serious injury, [a] conviction [under that statute] [i]s not a qualifying crime of violence under the force clаuse of the Guidelines.“); Dawn, 685 F.3d at 795 (applying Ossana and holding that a conviction under Arkansas‘s second-degree battery statute did not categorically qualify as a crime of violence because the statute also encompassed reckless driving).
The government, however, argues that Ossana is no longer binding on this Court. To support this argument, the government points to the Supreme Court‘s decision in Voisine v. United States, 136 S.Ct. 2272 (2016), and our subsequent decision in United States v. Fogg, 836 F.3d 951 (8th Cir. 2016). In Voisine, the Supreme Court considered whether a misdemeanor assault conviction with a mens rea of recklessness is a “misdemeanor crime of domestic violence” for purposes of triggering the firearms ban under
The government argues that Voisine and Fogg abrogated Ossana such that Fields‘s assault conviction is now a crime of violence. Because Voisine held that a crime with a reckless mens rea may qualify as a “misdemeanor crime of domestic violence,” the government contends, it follows that reckless driving resulting in injury is a crime of violеnce under the Guidelines. But, unlike Voisine, our decision in Ossana did not turn on whether a reckless mens rea inherently disqualifies an offense as a crime of violence. See United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (“We did not say in Ossana that crimes with a reckless mens rea categorically do not qualify as crimes of violence under the Guidelines.“). Rather, we specifically limited our holding to “crimes ... which encompass[] the unadorned offense of reckless driving resulting in injury. This crime is distinct from other crimes of recklessness....” Ossana, 638 F.3d at 901 n.6.
Under Ossana, it is the crime that matters. Id. This is similar to the Supreme Court‘s decision regarding DUI crimes in Begay. See 553 U.S. at 144-48. The Supreme Court in Voisine, by contrast, merely decided whether a crime with the mental state of recklessness may be a “misdemeanor crime of domestic violence.” 136 S.Ct. at 2276. The Court did not decide that all crimes with a reckless mens rea are crimes of violence in all circumstances. See, e.g., id. at 2280 n.4 (“[O]ur decision today concerning § 921(a)(33)(A)‘s scope does not resolve whethеr [18 U.S.C.] § 16 includes reckless behavior. Courts have sometimes given those two statutory definitions divergent readings in light of differences in their contexts and purposes, and we do not foreclose that possibility with respect to their required mental states.“). The Fogg court, moreover, considered a crime limited to the reckless discharge of a firearm. 836 F.3d at 954. Neither Voisine nor Fogg considered whether a conviction under a statute that also criminalizes reckless driving is categorically a crime of violence under the Guidelines.
Ossana thus remains dispositive of the present appeal. Because Missouri Revised
LOKEN, Circuit Judge, dissenting.
Paragraph 27 of Phillip Fields‘s Presentence Investigation Report recites that, in March 2003, Fields “hit [Sylvester] Newman in the head with a large bottle and stabbed him several times with a butcher knife,” requiring Newman to be treated “for two large lacerations to his scalp, a puncture wound to his shoulder, stab wounds to his hand, [and] various contusions to his head and face.” Fields was charged with first degree assault and armed criminal action. He pleaded guilty to second degree assault in violation of
The court concludes that the district court erred in imposing the sentencing enhancement in
The court reaches its conclusion by relying on three prior decisions holding that recklessly driving a motor vehicle can never be a “crime of violence.” In my view, those dеcisions were wrongly overbroad when decided, and they have been overruled or significantly restricted by subsequent Supreme Court and Eighth Circuit decisions. Therefore, they are not controlling precedent in this case.
Accordingly, I respectfully dissent.