United States of America v. Brennen Smith

Chicago, IL - Criminal defense lawyer represented defendant with unlawfully possessing a firearm as a felon and possession of stolen goods charges.

In November 2016 Smith briefly worked as a salesman at

Lindquist Ford in Bettendorf, Iowa. When he started, he was

given a master key that opened a lockbox that held the keys

to every vehicle on the lot. Smith quit after only a week on

the job and did not turn in his master key. Instead, about

two months later, he returned to the dealership and stole a

2016 Ford F250 truck. He placed stolen license plates on the

truck and drove it across state lines into Illinois. A few days

later he crashed the truck into a median in Rock Island

County, Illinois. He fled the scene, leaving a stolen pistol in

the truck. A week later Smith was arrested. He admitted that

he stole the truck, wrecked it, and left the firearm inside.

A grand jury in the Central District of Illinois returned a

two-count indictment charging Smith with unlawfully

possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and

possessing stolen goods that traveled across state lines, id.

§ 2315. He pleaded guilty to both counts without a plea

agreement.

For the firearm count, the presentence report ("PSR”)

recommended a base offense level of 24 under § 2K2.1(a)(2),

which applies when the defendant has "at least two felony

convictions of either a crime of violence or a controlled

4 No. 18-3696

substance offense.” The PSR listed three possible qualifying

predicates: a 2009 Iowa conviction for delivery of cocaine, a

2008 Iowa conviction for aggravated assault, and a 2013

Iowa conviction for domestic-abuse assault. The PSR also

recommended a two-level increase in the offense level

because the firearm was stolen, raising the offense level to

26. See U.S.S.G. § 2K2.1(b)(4).

At sentencing the parties agreed that the Iowa cocaine

offense is a qualifying controlled-substances crime for

purposes of § 2K2.1(a)(2). The debate centered on the two

assault convictions. Smith argued that neither the aggravated assault nor the domestic-abuse assault could be counted

as predicate crimes of violence; the government argued that

both crimes qualify. The judge concluded that the

aggravated-assault offense is a crime of violence, which

made it unnecessary for her to address the domestic-abuse

assault; the cocaine offense and the aggravated assault

provided the two convictions needed to support the recommended base offense level of 24. The judge added two levels

because the firearm was stolen, then awarded a three-level

reduction for acceptance of responsibility, resulting in a final

offense level of 23. With Smith's criminal-history category of

VI, the advisory Guidelines sentencing range was 92 to

115 months. The judge imposed concurrent sentences of

115 months on each count.

II. Discussion

Smith reprises his argument that neither of his Iowa assault convictions is a crime of violence for purposes of the

elevated base offense level under § 2K2.1(a)(2). Although the

Guidelines are purely advisory, a correctly calculated Sentencing Guidelines range is the required first step in the

No. 18-3696 5

sentencing process, so a mistake in the calculation is a

procedural error. United States v. Hurlburt, 835 F.3d 715, 723

(7th Cir. 2016). Classifying prior convictions for sentencing

purposes is a legal determination; our review is therefore de

novo. United States v. Edwards, 836 F.3d 831, 834 (7th Cir.

2016).

As relevant here, 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.” § 4B1.2(a)(1). Whether a conviction

qualifies under this definition depends entirely on the

statutory elements of the crime. Edwards, 836 F.3d at 834–35.

The inquiry is therefore legal and categorical: If the statute

underlying the conviction defines the offense more broadly

than the Guidelines definition, then the prior conviction

cannot be counted; if the statutory elements of the offense

match or are narrower than the Guidelines definition, then

the conviction qualifies as a crime of violence. Id.

Many criminal statutes contain multiple parts, which

adds a layer of complexity to the categorical analysis. A

multipart statute may create more than one crime, each with

its own set of elements, or it may list several different factual

means of committing a single element of the offense. Mathis

v. United States, 136 S. Ct. 2243, 2249 (2016). If a multipart

statute defines multiple crimes—i.e., if the subparts are legal

elements rather than alternative factual means of committing

an element of the crime—then the statute is considered

"divisible” and a modified form of the categorical approach

applies. The modified approach requires an examination of

the charging document or other court records "to determine

6 No. 18-3696

what crime, with what elements, [the] defendant was convicted of.” Id. If, on the other hand, the various alternatives

in a multipart statute are simply alternative factual means of

committing a single element—so that a jury need not unanimously agree on how the defendant committed that element in order to convict—then the statute is not divisible. Id.

An indivisible statute that sweeps more broadly than the

Guidelines definition is not a categorical match, and a

conviction under it does not qualify as a crime of violence.

Edwards, 836 F.3d at 834–35.

Our recent opinion in Carter applied these principles to

the Iowa assault statutes at issue here. Like Smith, the defendant in Carter pleaded guilty to unlawfully possessing a

firearm as a felon in violation of § 922(g)(1), and his base

offense level under § 2K2.1(a)(2) hinged on whether his

conviction for aggravated assault under section 708.2(3) of

the Iowa Code qualified as a crime of violence. Carter,

961 F.3d at 956–59. Section 708.2(3) provides: "A person who

commits an assault, as defined in section 708.1, and uses or

displays a dangerous weapon in connection with the assault,

is guilty of an aggravated misdemeanor.” Under Iowa law

an aggravated misdemeanor is punishable by up to two

years in prison, see IOWA CODE § 903.1(2), so the pivotal

question in Carter was whether the Iowa aggravated-assault

offense as defined in section 708.2(3) "has as an element the

use, attempted use, or threatened use of physical force,”

§ 4B1.2(a)(1); Carter, 961 F.3d at 957.

The section 708.2(3) offense has two elements: (1) the defendant used or displayed a dangerous weapon; (2) in

connection with an assault as defined in section 708.1. As

No. 18-3696 7

relevant here, section 708.1, Iowa's version of the crime of

simple assault, provides in part:

2. A person commits an assault when, without

justification, the person does any of the following:

a. 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 the apparent

ability to execute the act.

b. 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.

c. Intentionally points any firearm toward another, or displays in a threatening manner any

dangerous weapon toward another.

IOWA CODE § 708.1.1

Because section 708.1(2) contains multiple subparts, the

first step in our analysis in Carter concerned the question of

divisibility. Carter, 961 F.3d at 956–57. We looked to the Iowa

Supreme Court for guidance, noting that the state high court

reads the separate subsections of section 708.1(2) to create

distinct crimes. Id. at 957 (citing State v. Fountain, 786 N.W.2d

1 The version of section 708.1 in effect in 2008 used a different numbering

system for these three separate subdivisions. The text was the same,

however. For ease of reference, we use the current numbering, as we did

in Carter. United States v. Carter, 961 F.3d 953, 957 (7th Cir. 2020).

8 No. 18-3696

260, 265 (Iowa 2010)). Accordingly, we concluded that the

statute is divisible and applied the modified categorical

approach. Id.

The next step in the analysis required an examination of

the court records from the defendant's underlying case to

determine which of the three basic assault crimes in section 708.1(2) formed the basis for his conviction for aggravated assault. Some of the court records were

unilluminating, but the defendant had admitted in his plea

agreement that he displayed a knife during an altercation

with the victim. Id. at 958. The version of the assault crime

defined in subsection (2)(c) of the statute covers

"[i]ntentionally point[ing] any firearm toward another, or

display[ing] in a threatening manner any dangerous weapon

toward another.” We therefore concluded that

"[s]ection 708.1(2)(c) ... provided the basis for [the defendant's] aggravated assault conviction.” Id.

The defendant insisted that merely displaying a dangerous weapon does not imply a threat of physical force, but we

rejected that argument. Carter, 961 F.3d at 958. We noted that

the Supreme Court had recently clarified that "the threat of

physical force 'does not require any particular degree of

likelihood or probability that the force used will cause

physical pain or injury; only potentiality.'” Id. (quoting

Stokeling v. United States, 139 S. Ct. 544, 554 (2019)). Putting

these pieces together, we concluded that an "[a]ggravated

assault under § 708.2(3) of the Iowa Code, with a predicate

assault under § 708.1(2)(c), necessarily involves at least the

threat to use physical force.” Id. at 959. So the defendant's

conviction was properly counted as a crime of violence. Id.

No. 18-3696 9

That holding controls here. Like in Carter, some of the

court records in Smith's 2008 aggravated-assault case are

unilluminating. For instance, the judgment says only that he

was sentenced for the crime of "assault with a dangerous

weapon” in violation of sections 708.1 and 708.2(3). But the

charging document holds the key, stating that Smith "did:

assault [the victim] by using or displaying a dangerous

weapon, to-wit: [a] metal bat.” Substitute "knife” for "metal

bat” and this case is Carter. Applying Carter's reasoning here,

we conclude that subsection 708.1(2)(c) provides the basis

for Smith's aggravated-assault conviction under section 708.2(3), and the conviction was properly counted as a

crime of violence.

We have just a few additional observations in closing.

Subsection (2)(c) of section 708.1 is not only divisible from

subsections (2)(a) and (2)(b), but it's also internally divisible.

Recall that it contains two parts, one criminalizing the act of

intentionally pointing a firearm and a second criminalizing

the act of displaying a dangerous weapon in a threatening

manner. The second internal subpart has different and

additional elements than the first. To convict under the first,

a jury would need to unanimously agree that the defendant

(1) intentionally pointed a firearm (2) at another person. In

contrast, to convict under the second internal subpart, a jury

would need to unanimously agree that the defendant

(1) displayed a dangerous weapon (2) in a threatening

manner (3) toward another person. The term "dangerous

weapon” is defined broadly to include "any instrument or

device designed primarily for use in inflicting death or

injury” and "any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that

the defendant intends to inflict death or serious bodily

10 No. 18-3696

injury.” IOWA CODE § 702.7. The second subpart plainly

contains different elements than the first and thus defines a

distinct crime.

Carter did not expressly hold that subsection (2)(c) is internally divisible, but our analysis implicitly treated it as

such. As we've noted, the defendant there admitted in his

plea agreement that he displayed a knife during an altercation with the victim, so his aggravated-assault conviction

necessarily involved the second internal subpart of section 708.1(2)(c), not the first. The distinction does not matter

here, but it may be important in a future case. Under current

circuit precedent, pointing a firearm, without more, is not a

crime of violence. Portee v. United States, 941 F.3d 263, 268

(7th Cir. 2019).

Portee is hard to reconcile with the Supreme Court's reasoning in Stokeling, which (to repeat) held that a threat of

physical force in this context does not require any particular

degree of likelihood of injury or pain, "only potentiality.”

Stokeling, 139 S. Ct. at 554. Portee does not mention Stokeling,

and Carter does not mention Portee. But resolving the apparent tension between Portee and Stokeling is a question for

another day. Smith's 2008 Iowa aggravated-assault conviction is materially identical to the conviction at issue in Carter.

It follows that the conviction was properly classified as a

crime of violence for purposes of the enhanced base offense

level in § 2K2.1(a)(2).2 There was no procedural error.

AFFIRMED

Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.



Re: MoreLaw National Jury Verdict and Settlement
Counselor:


MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.


MoreLaw will publish litigation reports submitted by you free of charge.



Info@MoreLaw.com - 855-853-4800