Submitted: September 19, 2016
from United States District Court for the Eastern District of
Arkansas - Little Rock
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
Gary Winston pleaded guilty to unlawful possession of a
firearm as a previously convicted felon, in violation of 18
U.S.C. § 922(g)(1). Under the Armed Career Criminal Act,
a defendant with three or more prior convictions for a
serious drug offense or violent felony is subject to a
statutory minimum of 15 years' imprisonment and a maximum
of life. 18 U.S.C. § 924(e)(1). At sentencing, the
district court determined that Winston had sustained four
qualifying prior felony convictions-one serious drug offense
and three violent felonies. Winston acknowledges two
qualifying prior convictions, but he argues on appeal that
his Arkansas convictions for second-degree battery and
first-degree terroristic threatening are not violent felonies
under the statute.
term "violent felony" means, among other things,
"any crime punishable by imprisonment for a term
exceeding one year . . . that-(i) 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).
The "physical force" required is
"violent force-that is, force capable of
causing physical pain or injury to another person."
Johnson v. United States, 559 U.S. 133, 140 (2010).
determine whether a crime of conviction is a violent felony
under this subsection, we apply a "categorical
approach" and determine whether the elements of the
crime of conviction necessarily require the use, attempted
use, or threatened use of physical force. See United
States v. Lindsey, 827 F.3d 733, 738-39 (8th Cir. 2016).
If the statute of conviction defines more than one crime by
listing alternative elements, we apply a "modified
categorical approach" to determine which of the
alternatives was the offense of conviction. Mathis v.
United States, 136 S.Ct. 2243, 2249 (2016). The court
may consider a limited class of documents in the judicial
record, including the charging document, written plea
agreement, and plea colloquy transcript, to make the
determination. Shepard v. United States, 544 U.S.
13, 26 (2005). The district court applied the modified
categorical approach and concluded that both disputed
convictions qualified as violent felonies.
argues that the district court erred because neither statute
defining the two offenses of conviction requires the use,
attempted use, or threatened use of physical force against
the person of another. Because Winston acknowledges two
qualifying prior convictions, the government need only
establish that one of the other two also counts. We conclude
that the battery offense qualifies and need not address the
conviction for terroristic threatening.
Arkansas second-degree battery statute under which Winston
was convicted includes four alternative
offenses. Winston's charging document shows
adequately that he was convicted under the second
alternative: "A person commits battery in the second
degree if . . . [w]ith the purpose of causing physical injury
to another person, he causes physical injury to any person by
means of a deadly weapon other than a firearm." Ark.
Code Ann. § 5-13-202(a)(2) (1997). Although the charging
document mistakenly referred at one point to "Battery in
the First Degree, " the cover sheet and the summary of
the charge referred to "Battery in the Second Degree,
" and Winston concedes that he was convicted of the
second-degree offense. The charging document alleged that
Winston acted with "the purpose of causing physical
injury" by means of a "deadly weapon, " and
subsection (a)(2) is the only provision that pairs those two
elements. The charge did omit the statutory phrase
"other than a firearm" after "deadly weapon,
" but the allegation still would have satisfied
subsection (a)(2) as long as the proof involved a weapon
other than a firearm. The charge that Winston caused physical
injury with the purpose of causing physical injury points to
subsection (a)(2). We discern no error in the district
court's conclusion on this point.
contends, however, that physical injury is not the equivalent
of physical force, and that a defendant might cause physical
injury without using physical force. For this reason, Winston
asserts that the battery offense does not contain the
necessary element that he used physical force. We reject
Winston's position for the reasons given by Justice
Scalia's concurring opinion in United States v.
Castleman, 134 S.Ct. 1405 (2014): "[P]hysical
force" means force "capable of causing physical
pain or injury to another person, " Johnson,
559 U.S. at 140, and "it is impossible to cause bodily
injury without using force 'capable of' producing
that result." 134 S.Ct. at 1416-17 (Scalia, J.,
concurring). "Physical force" is "force
exerted by and through concrete bodies, " as opposed to
"intellectual force or emotional force, "
Johnson, 559 U.S. at 138, and it need not be applied
directly to the body of the victim. Hypothetical scenarios
involving no physical contact by the perpetrator (luring a
victim to drink poison or infecting a victim with a disease)
do not avoid coverage under § 924(e)(2)(B)(i). See
Castleman, 134 S.Ct. at 1414-15 (opinion of the Court).
Winston's effort to show daylight between physical injury
and physical force is therefore unsuccessful. See United
States v. Vinton, 631 F.3d 476, 485-86 (8th Cir. 2011).
The district court properly counted the battery conviction as
a violent felony.
these reasons, the district court did not err in concluding
that Winston had been convicted of at least three violent
felonies or serious drug offenses, and that he was subject to
enhanced punishment as an armed career criminal. The judgment
of the district court is affirmed.
The Honorable Susan Webber Wright,
United States District Judge for the Eastern District of