United States of America v. William Ike Libby, Jr.

St. Louis, MO - Criminal defense lawyer represented defendant charged with violating the Armed Career Criminal Act.

A. Standard of Review



We review de novo whether a prior conviction is a predicate offense felony

for the purposes of the ACCA, 18 U.S.C. § 924(e). United States v. Shockley, 816

F.3d 1058, 1062 (8th Cir. 2016) (citation omitted).

B. The ACCA Framework

The ACCA dictates that if a defendant has "three previous convictions . . . for

a violent felony or a serious drug offense,” that individual shall be sentenced to no

less than fifteen years in prison. 18 U.S.C. § 924(e)(1). The statute defines "violent

felony” as "any crime punishable by imprisonment for a term exceeding one

year . . . that [] has as an element the use, attempted use, or threatened use of physical



2The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota.

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force against the person of another . . . .” 18 U.S.C. § 924(e)(2)(B)(i). "Physical

force 'means violent force—that is, force capable of causing physical pain or injury

to another person.'” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016)

(quoting Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 176 L. Ed.

2d 1 (2010)). Thus, in order to uphold the district court's classification of Libby's

conviction as a predicate felony, we must find that Minn. Stat. § 609.245, subd. 1

contains as an element the use, attempted use, or threatened use of force capable of

causing pain or injury to another.

When assessing whether a state statute qualifies as a "violent felony” for the

purposes of the ACCA, we employ the categorical approach, looking only to the

elements of the statute in question. See Jones v. United States, 870 F.3d 750, 752–

753 (8th Cir. 2017) (citations omitted). A defendant's real world conduct is of no

relevance to our review and is not to be considered. See id. (citing Mathis v. United

States, __ U.S. __, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604 (2016) ("How a given

defendant actually perpetrated the crime—what we have referred to as the

'underlying brute facts or means' of commission—makes no difference . . . .”)

(citation omitted)).

Where a statute is indivisible—that is, it "sets out a single . . . set of elements

to define a single crime”—we need not look beyond the statute of conviction.

Mathis, 136 S. Ct. at 2248. If the elements of Libby's statute of conviction, Minn.

Stat. § 609.245, subd. 1, criminalize conduct that does not require the use of violent

force, then it cannot be considered a predicate offense for the purposes of the ACCA.

See Jones, 870 F.3d at 753.

However, statutes deemed divisible are treated differently. When a statute

"list[s] elements in the alternative, and thereby define[s] multiple crimes,” it is

divisible. Mathis, 136 S. Ct. at 2249. When we are faced with a divisible statute,

we are permitted a constrained inspection of "a limited class of documents . . . to

determine what crime, with what elements, a defendant was convicted of.” Id.

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(citing Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205

(2005)). This approach, called the modified categorical approach, is limited in its

application and is not required here, as discussed below.

C. Minn. Stat. § 609.245, subd. 1

Libby challenges the district court's conclusion that his conviction for first

degree aggravated robbery was a "violent felony” under the ACCA.3 Minnesota's

first degree aggravated robbery statute criminalizes a defendant's commission of

simple robbery while "armed with a dangerous weapon or any article used or

fashioned in a manner to lead the victim to reasonably believe it to be a dangerous

weapon, or inflicts bodily harm upon another . . . .” Minn. Stat. § 609.245, subd. 1.

Simple robbery is defined as:

Whoever, having knowledge of not being entitled thereto, takes

personal property from the person or in the presence of another and

uses or threatens the imminent use of force against any person to

overcome the person's resistance or powers of resistance to, or to

compel acquiescence in, the taking or carrying away of the

property . . . .

Minn. Stat. § 609.24. A conviction under Minn. Stat. § 609.245, subd. 1 carries a

punishment of not more than twenty years in prison.

In considering a conviction under Minn. Stat. § 609.245, subd. 1 for the

purposes of the ACCA, we are required to examine whether the elements of simple



3Libby's conviction for first degree aggravated robbery occurred in October

1997, under the 1994 version of the statute. Minn. Stat. § 609.245, subd. 1 (1994).

Our analysis here focuses on the law as codified at the time of conviction, see

McNeill v. United States, 563 U.S. 816, 821–23, 131 S. Ct. 2218, 180 L. Ed. 2d 35

(2011), which happens to be the same as that which exists today.

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robbery or the aggravating factors under first degree aggravated robbery necessarily

require proof of violent force in order to convict. See Johnson, 559 U.S. at 140.



1. Divisibility



Our assessment here requires that we first determine if Minn. Stat. § 609.245,

subd. 1 lays out elements in the alternative or merely lists separate factual means by

which the crime may be accomplished. See United States v. Boman, 873 F.3d 1035,

1040 (8th Cir. 2017). Neither party disputes that the elements, as defined in both

Minn. Stat. § 609.245, subd. 1 and Minn. Stat. § 609.24, present an indivisible

offense. Together, the statutes list separate factual means by which a defendant may

accomplish four distinct elements: 1) a taking, 2) with knowledge, 3) by use of force

or threat of imminent force, 4) while armed. Minn. Stat. § 609.24; Minn. Stat. §

609.245, subd. 1. If our examination of these elements reveals that Minnesota law

necessarily requires proof of violent force, we too must hold that a conviction under

Minn. Stat. § 609.245, subd. 1 constitutes a "violent felony.”

2. Violent Force

In the absence of a demonstration by Libby that there is "a realistic

probability, not a theoretical possibility, that the State would apply its statute to

conduct that falls outside” the definition of a "violent felony,” see Moncrieffe v.

Holder, 569 U.S. 184, 206, 133 S. Ct. 1678, 185 L. Ed. 2d 727 (2013) (citation

omitted), we conduct a plain language reading of Minn. Stat. § 609.24 to determine

if it "has as an element the use, attempted use, or threatened use of physical force

against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i). Because we hold that

simple robbery, Minn. Stat. § 609.24, a constituent part of the crime defined under

Minn. Stat. § 609.245, subd. 1, implicates violent force, Johnson, 559 U.S. at 140,

we affirm the district court's ruling.

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Minn. Stat. § 609.24 minimally requires that a defendant "threaten[] the

imminent use of force” in order to either "compel acquiescence” or "to overcome

the person's resistance or powers of resistance . . . .” While a threat on its own may

not present the requisite degree of force, see, e.g., United States v. McFee, 842 F.3d

572, 575–76 (8th Cir. 2016), a statute that contains as an element a threat of violent

force will. See Johnson, 559 U.S. at 140. Minnesota's express requirement that a

defendant communicate a threat to "overcome . . . resistance” or to "compel

acquiescence” necessarily implicates such violent force.

Confirming our reading, Minnesota's pattern jury instructions require proof

of "the intentional creation in [the victim's] mind of an understanding that if the

person resisted or refused to cooperate, force would immediately be used against the

person.” 10 Minn. Prac., Jury Instr. Guides—Criminal CRIMJIG 14.02 (6th ed.

2017). Important here is not the "mental state of the victim,” Schaffer, 818 F.3d at

798, but the defendant's "intentional creation” of a threat intended to overpower or

dissuade a victim's resistance. Such a threat "communicate[s] intent to inflict

harm,” id. (quoting Threat, Black's Law Dictionary (10th ed. 2014)), for fear that

were the victim to resist, violent force may befall them. As such, simple robbery in

Minnesota—and as a result, first degree aggravated robbery—qualifies as a

predicate offense under the ACCA.

In an attempt to show that simple robbery can also encompass less than violent

force, Libby points to only one case that squarely considers force under Minn. Stat.

§ 609.24: State v. Nelson, 297 N.W.2d 285 (Minn. 1980).

4 Yet, that case does not

stand for the proposition Libby asserts. With a short recitation of the facts, the



4Two other Minnesota Supreme Court cases referenced by Libby, State v.

Slaughter, 691 N.W.2d 70 (Minn. 2005) and Duluth St. Ry. Co. v. Fidelity & Deposit

Co. of Md., 161 N.W. 595 (Minn. 1917), do not inform our analysis. One, Duluth

St. Ry. Co., 161 N.W. at 595–96, is entirely inapposite as it interpreted the language

of an insurance policy, not that of the law in question here. The other, Slaughter,

691 N.W.2d at 76–78, considered a conviction for theft from the person under a

different statute than that which defines simple robbery.

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Nelson court upheld a simple robbery conviction where the defendants, two "young

adults,” "forcefully” "grabbed” and "jostled” a thirteen-year-old victim before he

was able to escape. Id. at 286. Counter to Libby's proposed reading, simply because

the boy avoided actual violent force by fleeing, that does not mean that violent force

was not threatened. Rather, it is clear that the Nelson defendants did at least

threaten—if not intend to employ—violent force. Thus, we do not take Nelson to

hold that non-violent force can support a conviction under Minn. Stat. § 609.24.

Libby also argues that we are required to follow our decision in United States

v. Eason, 829 F.3d 633, 640–42 (8th Cir. 2016), which he claims would compel a

holding that Minn. Stat. § 609.245, subd. 1 is categorically not a "violent felony.”

We disagree.5

While the state statute analyzed there contemplated the threat of any

quantum of force, Ark. Code Ann. § 5-12-102, Libby's statute of conviction requires

a threat of considerably more force. Specifically, whereas the Arkansas statute at

issue in Eason criminalized a "[t]hreat of any bodily impact, restraint, or

confinement,” Ark. Code Ann. § 5-12-101 (emphasis added), Minn. Stat. § 609.24

requires proof of a threat of "the imminent use of force . . . to overcome the person's

resistance . . . .” Thus, the statutes are distinguishable and we are not bound by

Eason's holding.



5Nor are we compelled to follow, as Libby urges, United States v. Bell, 840

F.3d 963 (8th Cir. 2016), a non-ACCA case. That case considered whether

Missouri's second-degree robbery statute constituted a "crime of violence” under a

similarly worded federal sentencing statute, U.S.S.G. § 4B1.2(a). Id. at 964–65.

While both Bell and the case at hand call for a similar application of the categorical

approach, see id. at 965 n.3 (explaining that both seek to resolve the inquiry as to the

use of violent force), for Bell to apply here, Libby would have to show a realistic

probability that Minnesota prosecutes conduct involving less than violent force

under Minn. Stat. § 609.24. Id. at 966 ("Although the 'theoretical possibility' that a

state may apply its statute to conduct falling short of violent force is not enough to

disqualify a conviction, a 'realistic probability' will suffice.” (citation omitted)). As

discussed above, Libby has failed to do just that.

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By its terms, Minn. Stat. § 609.245, subd. 1 minimally requires that a

defendant communicate a threat of violent force. As such, the elements of Minn.

Stat. § 609.245, subd. 1 categorically present a "violent felony” under the ACCA.

The district court did not err in holding that Libby’s conviction under Minn.

Stat. § 609.245, subd. 1 qualifies as a “violent felony” for the purposes of the ACCA

and we, therefore, uphold its sentence.