Date: 10-06-2017

Case Style:

Case Number: 17-1017

Judge: Benton

Court: United States Court of Appeals for the Eight Circuit on appeal from the Eastern District of Missouri (St. Louis County)

Plaintiff's Attorney: James C. Delworth and Edward Lawrence Dowd, III

Defendant's Attorney: Lucille G. Liggett - FPD

Description: Antonio Minnis pled guilty to possessing heroin with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(i). Finding Minnis a career
offender under U.S.S.G. § 4B1.1, the district court1 sentenced him to 188 months’
imprisonment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Minnis argues he is not a career offender, claiming his prior conviction for
attempted first-degree assault is not a crime of violence. See § 565.050 RSMo. This
court reviews de novo whether a prior conviction is a crime of violence. United
States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015).
Under U.S.S.G. § 4B1.1(a), “a defendant is a career offender if”:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense.
A “crime of violence” is “any 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.”
U.S.S.G. § 4B1.2(a)(1). A “crime of violence” includes “attempting to commit such
offenses.” U.S.S.G. § 4B1.2 cmt. n. 1. “To determine whether a prior conviction was
for a crime of violence,” this court applies “a categorical approach, looking to the
elements of the offense as defined in the . . . statute of conviction rather than to the
facts underlying the defendant’s prior conviction.” United States v. Rice, 813 F.3d
704, 705 (8th Cir. 2016) (citation omitted). A conviction may be a crime of violence
“only if the statute’s elements are the same as, or narrower than, those of the generic
offense.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). See United
1The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
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States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (“To determine whether a
previous conviction is a crime of violence under § 4B1.2(a), we often have looked to
the case law interpreting 18 U.S.C. § 924(e)(2)(B), a provision of the Armed Career
Criminal Act (ACCA) that defines the term ‘violent felony’ using similar language.”).
Relying on State v. Lammers, 479 S.W.3d 624, 636 (Mo. banc 2016), Minnis
believes: “The elements of attempted first degree assault in Missouri are
unmistakably broader than the generic crime.” In Missouri, “attempt” is “a substantial
step towards commission of the offense.” State v. Whalen, 49 S.W.3d 181, 186 (Mo.
banc 2001), citing State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). In Lammers,
the court found sufficient evidence for attempted first-degree assault where the
defendant purchased two assault rifles, took target practice, and admitted planning “to
carry out a mass shooting, with Walmart in mind as a specific target.” See Lammers,
479 S.W.3d at 632-33. Minnis relies on the dissenting opinion that argued Lammers’s
conduct was not a substantial step. See id. at 637 (Teitelman, J., dissenting).
Lammers did not modify Missouri’s attempt analysis. See id. at 632 (“[T]o be
convicted of attempted first-degree assault, Defendant must have . . . committed some
act that is a substantial step toward completing that offense. . . . ‘Substantial step’ is
defined as conduct which is strongly corroborative of the firmness of the actor’s
purpose to complete the commission of the offense.” (internal quotation marks
omitted) (citing Whalen, 49 S.W.3d at 186)). Lammers—applying well-established
law—did not lower the threshold for proving attempt. See id. at 633-34 (“The trial
court did not err in finding sufficient evidence that Defendant’s conduct constituted
a substantial step under section 564.011.” (emphasis added)).
The Government invokes United States v. Alexander, 809 F.3d 1029 (8th Cir.
2016). There, this court found that Alexander’s conviction for second-degree assault
under RSMo § 565.060.1(2) was a violent felony under the ACCA. See id. at 1032-
33. Alexander argued that “criminalizing a ‘substantial step’ is over-inclusive because
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it expands beyond the traditional understanding of a generic assault attempt.” Id. at
1033. This court noted: “We have found no case in which the Missouri Supreme
Court has construed attempt under § 565.060(1)(2) in an overinclusive manner.” Id.
Lammers, decided after Alexander, does not modify the substantial-step analysis, and
thus does not construe attempt in an overinclusive manner. Alexander controls here.2
The elements of attempted first-degree assault under Missouri law are not broader
than the generic crime.
Minnis claims that because “Missouri statutes defining first degree attempted
assault do not require proof of ‘physical force’ within the contemplation of §
4B1.2(a)(1),” his prior conviction cannot be a crime of violence. First-degree assault
in Missouri requires that a defendant “knowingly causes or attempts to cause serious
physical injury to another person.” § 565.050 RSMo. Minnis emphasizes
hypothetical scenarios, but this court has rejected a similar argument under the ACCA:
Physical force . . . 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 § 924(e)(2)(B)(i).
United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017), citing United States v.
Castleman, 134 S. Ct. 1405, 1414-15 (2014). Because Minnis’s prior conviction for
2In a rule 28(j) letter, Minnis asserts that United States v. Fields, 863 F.3d 1012
(8th Cir. 2017) “undermines the authority that the government assigns to Alexander.”
This assertion has no merit. The defendant in Fields was convicted under RSMo §
565.060.1(3)—“[r]ecklessly causes serious physical injury to another person”—not
§ 565.060.1(2)—“[a]ttempts to cause or knowingly causes physical injury to another
person by means of a deadly weapon or dangerous instrument.” Fields does not cite
Alexander, nor does it discuss or modify Missouri’s attempt or substantial step
analysis.
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attempted first-degree assault is a crime of violence, the district court properly found
that he is a career offender under U.S.S.G. § 4B1.1.
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Outcome: The judgment of the district court is affirmed.

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