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United States v. Doyal

United States Court of Appeals, Eighth Circuit

July 5, 2018

United States of America Plaintiff- Appellee
v.
Keidell L. Doyal Defendant-Appellant

          Submitted: February 12, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          LOKEN, Circuit Judge.

         Keidell Doyal pleaded guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, based on Doyal's prior conviction for second degree domestic assault in violation of Mo. Rev. Stat. § 565.073, the district court[1] increased Doyal's base offense level to level 20 because he "committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). This resulted in an advisory guidelines range of 37 to 46 months imprisonment. Applying the sentencing factors in 18 U.S.C. § 3553(a), the district court sentenced Doyal to 40 months imprisonment. He appeals his sentence, arguing that a prior Missouri conviction for second degree domestic assault is not, categorically, a crime of violence under the Guidelines. Reviewing this issue de novo, we affirm. United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015) (standard of review).

         I.

         As relevant here, "crime of violence" is defined to include any offense punishable by a term of imprisonment exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. §§ 2K2.1, comment. (n.1), 4B1.2(a)(1). In determining whether Doyal's conviction for Missouri second degree domestic assault is a crime of violence under this "force clause," we look, categorically, at the generic elements of the offense, not the facts of Doyal's conviction. United States v. McGee, 890 F.3d 730, 735 (8th Cir. 2018). If the statute contains alternative elements, it is divisible, and we use a modified categorical approach to determine which statutory element was the basis of the conviction by consulting a limited universe of trial records such as charging documents, plea agreements and verdict forms. Id. at 735-36. However, the modified categorical approach may not be used when a statute specifies various means of fulfilling the crime's elements. Mathis v. United States, 136 S.Ct. 2243, 2253 (2016). When a statute lists alternative means, one of which does not fall within the force clause, a prior conviction for that offense is not a crime of violence for purposes of applying § 2K2.1(a)(4)(A) of the Guidelines. Id. at 2257.[2]

         In 2004, Doyal was convicted of domestic assault in the second degree, a violation of Mo. Rev. Stat. § 565.073, which at that time provided:

1.A person commits the crime of domestic assault in the second degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor . . . and he or she:
(1)Attempts to cause or knowingly causes physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation; or
(2) Recklessly causes serious physical injury to such family or household member; or
(3) Recklessly causes physical injury to such family or household member by means of any deadly weapon.

         2. Domestic assault in the second degree is a class C felony.

         In United States v. Phillips, 817 F.3d 567, 569 (8th Cir. 2016), we concluded that the three subsections of ยง 565.073.1 are divisible and, applying the modified categorical approach, that Phillips's two prior convictions under ...


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