United States of America v. Cortrell Ramey

St. Louis, MO - Criminal defense lawyer represented defendant with an unlawful possession of a firearm as a previously convicted felon charge.

Cortrell Ramey pleaded guilty to unlawful possession of a firearm as a

previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the

district court increased Ramey's base offense level under USSG § 2K2.1(a)(4)(A) 1

The Honorable Rodney W. Sippel, Chief United States District Judge for the

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Eastern District of Missouri.

based on a prior conviction. The court concluded that Ramey's 2009 conviction for

second-degree assault under Mo. Rev. Stat. § 565.060.1(5) was a prior felony

conviction for a "crime of violence” under the guidelines. Ramey appeals, arguing

that the district court committed procedural error in making this determination. We

affirm.

The sentencing guidelines provide for a base offense level of 20 if the

defendant unlawfully possessed a firearm "subsequent to sustaining one felony

conviction of either a crime of violence or a controlled substance offense.” USSG

§ 2K2.1(a)(4)(A). The guidelines define "crime of violence” to include an offense

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

against the person of another.” USSG § 4B1.2(a)(1).

The Missouri second-degree assault statute under whichRamey was convicted

includes six subsections. Mo. Rev. Stat. § 565.060.1 (2009). The parties appear to

agree that each subsection defines a separate offense, and they agree that Ramey was

convicted of second-degree assault under § 565.060.1(5). That subsection forbids

"[r]ecklessly caus[ing] physical injury to another person by means of discharge of a

firearm.” Id. We accept the assumption that the six subsections set forth separate

offenses rather than means of committing a single offense. The Missouri Court of

Appeals held in In re J.L.T., 441 S.W.3d 183 (Mo. Ct. App. 2014), that subsections

(2) and (3) define "separate and distinct offense[s].” Id. at 188 (quoting J.D.B. v.

Juvenile Officer, 2 S.W.3d 150, 156 (Mo. Ct. App. 1999)). The Missouri approved

jury instructions likewise direct the trial court to insert only one subsection from the

statute when defining the elements of assault. MAI-CR 3d 319.12. The notes on use

specify that different subsections should not be included in the same jury instruction.

Id., Notes on Use 4.

Ramey argues that his conviction under § 565.060.1(5) is not for a crime of

violence because the Missouri statute criminalizes reckless conduct, rather than

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intentional or purposeful acts, so he did not "use” physical force within the meaning

of the guideline. In Voisine v. United States, 136 S. Ct. 2272 (2016), however, the

Supreme Court rejected Ramey's proffered distinction between intentional and

reckless conduct. Applying 18 U.S.C. § 921(a)(33)(A)(ii) and the term"misdemeanor

crime of domestic violence,” the Court held that a "person who assaults another

recklessly 'use[s]' force, no lessthan one who carries out thatsame action knowingly

or intentionally.” Voisine, 136 S. Ct. at 2280. Following Voisine, this court

considered a similar issue under the Armed Career Criminal Act, which defines

"violent felony” to include an offense that "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). Applying Voisine's reasoning, we held that reckless conduct

"constitutes a 'use' of force under the ACCA because the force clauses in 18 U.S.C.

§ 921(a)(33)(A)(ii) and the ACCA both define qualifying predicate offenses asthose

involving the 'use . . . of physical force' against another.” United States v. Fogg, 836

F.3d 951, 956 (8th Cir. 2016) (alteration in original).

Like the term "violent felony” under the ACCA, the definition of "crime of

violence” under the guidelines includes an offense that "has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

USSG § 4B1.2(a)(1). We see no reason why "use” of force under the guidelines

would mean something different from "use” of force under the ACCA. Consistent

with Voisine and Fogg, we conclude that reckless conduct causing injury to another

by use of a firearm constitutes a use of force under the guidelines. Section

565.060.1(5) requires proof that the defendant's reckless discharge of a firearm

caused physical injury to another person, so Ramey understandably does not dispute

that the statute meets the guideline's requirement that the defendant's offense have

as an element the use of physical force "against the person of another.”

Ramey points to United States v. Dawn, 685 F.3d 790 (8th Cir. 2012), and

United States v. Boose, 739 F.3d 1185 (8th Cir. 2014), where this court followed

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circuit precedent in United States v. Ossana, 638 F.3d 895 (8th Cir. 2011), and held

that reckless driving causing serious injury is not a crime of violence under the

guidelines. Ossana relied on the Supreme Court's application of the former residual

clause of 18 U.S.C. § 924(e)(2)(B)(ii) in Begay v. United States, 533 U.S. 137 (2008),

to limit the scope of the "force” clause of USSG § 4B1.2(a). 638 F.3d at 900-03.

Whatever the merit of Ossana and its progeny as a limitation on the term "use” in the

force clause, and whatever the vitality of those decisions after Voisine and Fogg,

compare United States v. Fields, 863 F.3d 1012, 1015-16 (8th Cir. 2017), with id. at

1016 (Loken, J., dissenting), they do not apply here. By its terms, Ossana was

limited to "the unadorned offense of reckless driving,” 638 F.3d at 901 n.6, and it

does not extend to Ramey's conviction for recklessly causing physical injury to

another person by means of discharge of a firearm.

The judgment of the district court is affirmed.