Submitted: February 12, 2018
from United States District Court for the Western District of
Missouri - Kansas City
LOKEN, BENTON, and ERICKSON, Circuit Judges.
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 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).
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.
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.
Domestic assault in the second degree is a class C felony.
United States v. Phillips, 817 F.3d 567, 569 (8th
Cir. 2016), we concluded that the three subsections of §
565.073.1 are divisible and, applying the modified
categorical approach, that Phillips's two prior
convictions under ...