Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Wollman, Circuit Judge.
Submitted: February 18, 2011
Before WOLLMAN and BYE, Circuit Judges, and FLEISSIG,*fn1
Anthony Akeum Abari asserts that the district court*fn2
erred when it determined that he qualified as an armed career
criminal pursuant to 18 U.S.C. § 924(e)(2)(B). We
Abari pleaded guilty to being a felon in possession of a firearm, in violation of § 922(g)(1). Pursuant to the plea, he agreed that his prior robbery and second degree assault convictions constituted violent felony offenses pursuant to § 924(e), but asserted that his prior Minnesota theft from person conviction did not. He reserved his right to argue that his theft from person conviction was not a prior violent felony and that he thus was not an armed career criminal. The district court determined that the Minnesota theft from person conviction constituted a prior violent felony and sentenced Abari as an armed career criminal pursuant to § 924(e).
"We review de novo a district court's determination that a defendant's prior conviction constitutes a violent felony for purposes of § 924(e)." United States v. Boaz, 558 F.3d 800, 806 (8th Cir. 2009) (citation omitted).
The Armed Career Criminal Act provides that a person who violates § 922(g) for being a felon in possession of a firearm and who has three prior violent felony convictions that were committed on separate occasions, is considered an armed career criminal subject to a statutory mandatory minimum sentence of fifteen years.
18 U.S.C. § 924(e)(1). Section 924(e)(2)(B) defines a violent felony as any crime punishable by imprisonment for a term exceeding one year that either "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]"
Under Minnesota law, a theft from person felony offense occurs when someone intentionally and without claim of right takes possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property and "the property [was] taken from the person of another." Minn. Stat. § 609.52, subds. 2(1) & 3(3)(d)(i); see United States v. Hudson, 414 F.3d 931, 934 n.2 (8th Cir. 2005) (citations omitted). Because the offense does not have a use-of-force element nor is equivalent to the enumerated offenses in § 924(e)(2)(B)(ii), it constitutes a violent felony only if it involves conduct that presents a serious potential risk of physical injury to another. In Begay v. United States, 553 U.S. 137 (2008), the Supreme Court limited offenses that fall within the residual clause of § 924(e)(2)(B)(ii) to those "that are roughly similar, in kind as well as in degree of risk posed," to the enumerated crimes in that they "typically involve purposeful, 'violent,' and 'aggressive' conduct." 553 U.S. at 143-45.
A. Serious Potential Risk of Physical Injury to Another
We have previously held that Minnesota's theft from person offense constitutes a violent felony for purposes of sentencing under the Armed Career Criminal Act. See Hudson, 414 F.3d at 935-36. Relying on United States v. Griffith, 301 F.3d 880, 885 (8th Cir. 2002), and United States v. Payne, 163 F.3d 371, 375 (6th Cir.1998), we described the potential for risk of physical injury created by theft from person as follows:
This is clearly the type of situation that could result in violence. Any person falling victim to a crime involving such an invasion of personal space would likely resist or defend in a manner that could lead to immediate violence. Whether or not violence or harm actually results in any given instance is not relevant. We agree with the First Circuit that although larceny from the person typically involves no threat of violence, the risk of ensuing struggle is omnipresent.
Hudson, 414 F.3d at 935 (citation omitted). Abari contends that in light of Begay, we should revisit Hudson and conclude that theft from person is not a violent felony. Abari acknowledges that we have held, post-Begay, that Missouri's theft from person statute is a violent felony, but argues that the Missouri statute is ...