United States of America v. Cornelius Coleman, a/k/a Cornbread

Cornelius Coleman pleaded guilty to one count of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced

Coleman under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to 15

years of imprisonment, the statutory minimum sentence. Coleman appeals,

challenging the ACCA enhancement. Because Coleman did not object to the

enhancement at sentencing, we review for plain error, affirming his sentence unless

he can show (1) an error; (2) that is plain; (3) that affects his substantial rights; and

(4) that seriously affects “the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)).

To enhance a defendant’s sentence under the ACCA, the court must identify

three predicate convictions, either violent felonies or serious drug offenses, in the

defendant’s criminal history. Here, the district court applied the ACCA based on

Coleman’s 2006 Arkansas conviction for kidnapping and two prior convictions for

serious drug offenses. On appeal, Coleman challenges the use of the kidnapping

conviction as a predicate. Kidnapping is not an enumerated offense under the ACCA,

so it may qualify as a violent felony only if it satisfies the ACCA’s force clause, that

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

against the person of another.” § 924(e)(2)(B)(i). To determine whether a prior

conviction meets this definition, “courts look to the elements of the crime of

conviction, not the underlying facts.” Boman, 873 F.3d at 1040 (citing Mathis v.

United States, 136 S. Ct. 2243, 2248 (2016)).

Arkansas Code § 5-11-102, the statute that criminalizes kidnapping, provides:

(a) A person commits the offense of kidnapping if, without consent, the

person restrains another person so as to interfere substantially with the

other person’s liberty with the purpose of:

(1) Holding the other person for:

(A) Ransom or reward; or

(B) Any other act to be performed or not performed for the

other person’s return or release;

(2) Using the other person as a shield or hostage;

(3) Facilitating the commission of any felony or flight after the

felony;

(4) Inflicting physical injury upon the other person;

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(5) Engaging in sexual intercourse, deviate sexual activity, or

sexual contact with the other person;

(6) Terrorizing the other person or another person; or

(7) Interfering with the performance of any governmental or

political function.

(b)(1) Kidnapping is a Class Y felony.

The government concedes that § 5-11-102 is overbroad, as one may commit the

offense of kidnapping without using, attempting to use, or threatening to use physical

force. But the government argues that § 5-11-1 1 02 is divisible—that is, that the

nefarious “purposes” listed in subsections (a)(1) through (a)(7) are elements of seven

different crimes—and that Coleman was convicted under subsection (a)(6), which has

as an element the use of physical force. To determine whether a statute lists elements

of different crimes, or instead lists alternative means of committing a single crime,

we look to the statute itself and state court decisions interpreting the statute. See

Mathis, 136 S. Ct. at 2256.

The text of § 5-11-102 names only one offense—kidnapping—and defines that

offense as “a class Y felony” regardless of which nefarious purpose is used. The

statutory text suggests, therefore, that subsections (a)(1) through (a)(7) list means, not

elements. Cf. id. (“If statutory alternatives carry different punishments, then . . . they

must be elements.”).

Arkansas courts treat the nefarious purposes listed in § 5-11-102(a) as means,

not elements. In Hill v. State, the defendant was originally charged with kidnapping

in violation of § 5-11-102(a)(4); an amended information was later filed, which

included new allegations under subsections (a)(3) and (a)(6). 257 S.W.3d 534, 537

(Ark. 2007). The Supreme Court of Arkansas explained that “the amendment did not

1The overarching element of “restraint” listed in subsection (a) might seem to

be the most logical element to satisfy the force clause, but Arkansas defines

“restraint” to include restraint by “deception.” See Ark. Code Ann. § 5-11-101(3)(A).

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change the nature of the kidnapping charge; rather, it amended the manner in which

the alleged kidnapping took place.” Id. at 538. Arkansas’s appellate court conceives

of § 5-11-102 similarly. See Singleton-Harris v. State, 439 S.W.3d 720, 723 (Ark.

Ct. App. 2014) (“The State need only prove that the accused restrained the victim so

as to interfere with the victim’s liberty, without consent, for a specific purpose

outlined in the statute.”).

Arkansas’s model jury instructions reinforce the treatment of the nefarious

purposes as means, not elements. See United States v. McMillan, 863 F.3d 1053,

1057 (8th Cir. 2017) (“We may use a state’s model jury instructions to ‘reinforce’ our

interpretation of the means or elements inquiry.”). The model instructions list only

two elements: first, restraining the victim without consent so as to interfere

substantially with the victim’s liberty; and second, doing so with a specific purpose.

The nefarious purposes are then listed in the alternative, suggesting that they are

alternative means to fulfill a single element. Ark. Model Jury Instr. Crim. 2d 1101.

Arkansas trial courts have at times instructed the jury on multiple nefarious purposes

in the disjunctive, see, e.g., Sasser v. State, 993 S.W.2d 901, 908 (Ark. 1999) (per

curiam), further supporting the conclusion that the purposes are means. Cf. Mathis,

136 S. Ct. at 2257 (explaining that jury instructions “referencing one alternative term

to the exclusion of all others” could indicate “that the statute contains a list of

elements”).

Because § 5-11-102 lists alternative means, it is indivisible. The government

concedes that without division, Arkansas’s kidnapping statute does not qualify as a

violent felony. Therefore, Coleman does not have three predicate offenses and the

district court plainly erred in sentencing him under the ACCA. The error affects

Coleman’s substantial rights and the fairness and integrity of judicial proceedings,

because without the ACCA enhancement, his statutory maximum sentence is five

years shorter than the sentence he received, and his advisory Guidelines range is

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likely shorter, too. See Boman, 873 F.3d at 1043.

Thus, we reverse and remand for resentencing in accordance with this opinion.