Submitted: June 16, 2016
from United States District Court for the District of
Minnesota - St. Paul
MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.
MURPHY, Circuit Judge.
found Corey Fogg guilty of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The
district court enhanced his sentence under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on
his three prior violent felony convictions and sentenced him
to 235 months imprisonment. Fogg appeals, arguing that the
district court abused its discretion in excluding evidence
during his trial and that his prior conviction for attempted
drive by shooting is not a violent felony under the ACCA. We
affirm Fogg's conviction and sentence.
30, 2014 two police officers were dispatched to north
Minneapolis on a report that two men had been seen with a
gun. When the police approached the men, one of them fled,
later identified as Corey Fogg. Officer Richard Walker chased
Fogg on foot into an alley where he pulled out what appeared
to be a gun and looked back toward the officer. Walker then
fired two shots at Fogg, striking him in the foot and lower
back. Walker testified that as Fogg fell he threw the object
in his hand over a fence and into an adjacent yard. Police
officers later found a handgun in that yard.
was indicted on one count of being a felon in possession of a
handgun. The government filed a motion in limine seeking to
exclude officer Walker's alleged use of excessive force
while Fogg moved to admit evidence of Walker's alleged
use of such force in previous cases. The district court
allowed Fogg to present evidence that an officer who uses
excessive force can face serious consequences, but any
evidence attempting to show Walker's alleged use of
excessive force in previous cases was excluded under Rule
403. The jury found Fogg guilty.
presentence report concluded that Fogg was an armed career
criminal due to his prior convictions for first degree
manslaughter, simple robbery, and attempted drive by
shooting. Fogg objected to this finding at sentencing,
arguing that his attempted drive by shooting conviction under
Minn. Stat. § 609.66, subd. le did not qualify as a
violent felony under the ACCA. The district court rejected
this argument, determined that Fogg was an armed career
criminal, and sentenced him to 23 5 months imprisonment.
argues that the district court abused its discretion by
excluding evidence under Rule 403 of prior allegations of
excessive force by officer Walker. We review evidentiary
rulings for abuse of discretion. United States v.
Condon, 720 F.3d 748, 754 (8th Cir. 2013). A district
court's application of Rule 403 is entitled to great
deference unless it "unfairly prevent[s] a party from
proving" its case. Id. (internal quotation
marks omitted). Fogg contends that this evidence was relevant
to his defense theory that the officers had planted a gun in
the yard to cover up their own excessive use of force. The
court did not abuse its discretion in excluding this evidence
because Fogg was entitled to present his defense theory.
next argues that the district court erred by concluding that
his prior conviction under Minnesota's drive by shooting
statute, Minn. Stat. § 609.66, subd. le, qualifies as a
violent felony under the force clause of the ACCA. The ACCA
requires a mandatory minimum fifteen year sentence if a
defendant has been convicted as a felon in possession of a
firearm "and has three previous convictions ... for a
violent felony." 18 U.S.C. § 924(e)(1). A prior
conviction "cannot qualify as an ACCA predicate offense
if its elements are broader than, " the definition of a
"violent felony." See Mathis v. United
States, 136 S.Ct. 2243, 2251 (2016). A violent felony
under the ACCA's force clause must have "as an
element the use, attempted use, or threatened use of physical
force against the person of another." 18 U.S.C. §
first contends that the drive by shooting statute is not an
ACCA violent felony because it does not criminalize the use
of force "against the person of another."
See 18 U.S.C. § 924(e)(2)(B)(i). We review this
issue de novo. See United States v. Cole, 778 F.3d
1055, 1055 (8th Cir. 2015). In determining whether a prior
conviction's elements are broader than the ACCA's
definition of "a violent felony, courts should start
with the formal categorical approach and look only to the
fact of conviction and the statutory definition of the prior
offense." See United States v. Schaffer, 818
F.3d 796, 797 (8th Cir. 2016) (internal quotation marks
omitted). When a "statute criminalizes both conduct that
does and does not qualify as a violent felony and the statute
is divisible, we apply the modified categorical approach and
may review certain judicial records to identify which section
of the statute supplied the basis for a defendant's
conviction." United States v. Headbird, F.3d,
No. 15-3718, 2016 WL 4191186, at *1 (8th Cir. Aug. 9, 2016)
(internal quotation marks omitted).
begin our analysis by determining the elements of Fogg's
predicate offense of drive by shooting. A person is guilty of
drive by shooting under subdivision le(a) if "while in
or having just exited from a motor vehicle, [he] recklessly
discharges a firearm at or toward another motor vehicle or a
building." Minn. Stat. § 609.66, subd. 1 e(a). A
conviction under subdivision 1 e(a) is a felony with a
maximum punishment of three years imprisonment, but the
maximum penalty is increased to twenty years imprisonment
under subdivision le(b) if the defendant discharged the
firearm "at or toward a person, or an occupied building
or motor vehicle" Id. subd. le. A review of
Fogg's plea hearing transcript shows that he was
convicted under subdivision 1 e(b) because his offense
involved firing a gun at a person. See United States v.
Vinton, 631 F.3d 476, 485 (8th Cir. 2011).
State v. Hayes, 826 N.W.2d 799');">826 N.W.2d 799, 803-05 (Minn. 2013),
the Minnesota Supreme Court discussed the relationship
between subdivision le(a) and le(b). The court concluded that
subdivision le(b) is not a "separate, aggravated
offense" which can be charged by itself, rather
"subdivision le(b) operates only when all of the
elements in subdivision le(a) have been satisfied."
Id. at 804-06. The Hayes court adopted the
straightforward reading of Minn. Stat. § 609.66 that
"subdivision le(b) provides for a sentence enhancement
when a person, while committing a drive-by shooting [under
subdivision le(a)], discharges a firearm at or toward an
occupied building, an occupied motor vehicle, or
person." 826 N.W.2d at 804.
subdivision le(a) and le(b) are linked to each other, we must
determine whether subdivision le(b) supplies an additional
"element" to subdivision le(a) in cases where the
state is attempting to impose a higher fine or increase the
statutory maximum. See 18 U.S.C. §
924(e)(2)(B)(I). An element of a crime is something "the
prosecution must prove to sustain a conviction, "
meaning either something the jury must find beyond a
reasonable doubt or something the defendant must admit during
a guilty plea. Mathis, 136 S.Ct. at 2248 (internal quotation
marks omitted). The United States Supreme Court has held that
"when the term 'sentence enhancement' is used to
describe an increase beyond the maximum authorized statutory
sentence, it is the functional equivalent of an element of a
greater offense than the one covered by the jury's guilty
verdict." Apprendi v. New Jersey, 530 U.S. 466,
494 n.19 (2000). Subdivision le(b) is thus considered an
additional element to subdivision le(a) because it increases
the statutory maximum punishment for a drive by shooting from
three years to twenty years. See Mathis, 136 S.Ct.
at 2256 (noting that" [i]f statutory alternatives carry
different punishments, then under Apprendi they must
be elements" under the ACCA).
dissent argues that subdivision le(b) is not an element
because Hayes labeled that subdivision a
"sentence-enhancement provision." 826 N.W.2d at
805. The dissent misreads Hayes. The court used the
phrase "sentence-enhancement provision" only as a
label to distinguish between two rival interpretations of the
statute. Id. at 804-05. It went on to conclude that
Hayes's conviction for first degree murder while
committing a drive by shooting should be reversed because the
state had not established the elements of subdivision le(a),
even though it had established the elements of subdivision
le(b). Id. at 804-06. The court was not considering
the application of Apprendi to the Minn. Stat.
§ 609.66. See 826 N.W.2d at 799-808. If it had, it would
have concluded that subdivision le(b) is an element because
the Minnesota Supreme Court has stated in no uncertain terms
that a sentencing enhancement that increases the statutory
maximum term of imprisonment must either be "found by a
jury beyond a reasonable doubt" or admitted by the
defendant. State v. Dettman, 719 N.W.2d 644');">719 N.W.2d 644, 649
(Minn. 2006); see also State v. Shattuck, 704 N.W.2d
131, 153 n.4 (Minn. 2005) (citing Apprendi, 530 U.S.
at 494 n.19).
Mathis and Hayes we conclude that
subdivision le(b) of Minnesota's drive by shooting
offense contains the following elements: 1) the defendant
"was in or had just exited a motor vehicle"; 2) the
defendant "recklessly discharged a firearm at or toward
another motor vehicle or a building"; and 3) the
defendant fired "at or toward a person, or an occupied
building or motor vehicle." See Haves, 826
N.W.2d at 806; Minn. Stat. § 609.66, subd. le; Minn.
Jury Instruction Guides-Criminal (CRIMJIG) § 32.04
(2016). In determining whether subdivision le(b)'s
elements are ...