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United States v. Boleyn

United States Court of Appeals, Eighth Circuit

July 8, 2019

United States of America Plaintiff - Appellee
v.
Kyle Dwayne Boleyn Defendant-Appellant United States of America Plaintiff - Appellee
v.
Erwin Keith Bell Defendant-Appellant United States of America Plaintiff - Appellee
v.
Justin Scott Vasey Defendant-Appellant United States of America Plaintiff - Appellee
v.
Demetrius Marcellus Green Defendant-Appellant United States of America Plaintiff - Appellee
v.
Robert Joseph Fisher Defendant-Appellant

          Submitted: January 17, 2019

          Appeals from United States District Courts for the Northern and Southern Districts of Iowa

          Before LOKEN, GRASZ, and STRAS, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         We consolidated these five sentencing appeals because they present a common issue: whether a prior conviction under Iowa Code § 124.401 qualifies as a predicate offense warranting sentence enhancements under the Armed Career Criminal Act ("ACCA"), the Controlled Substances Act ("CSA"), and the career offender provisions of the Sentencing Guidelines if the Iowa law of aiding and abetting liability is "overly broad." Five judges of the United States District Courts for the Northern and Southern Districts of Iowa concluded that a conviction under § 124.401 is a "serious drug offense" under the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii); a "felony drug offense" under the CSA, 21 U.S.C. § 841(b)(1)(D); or a "controlled substance offense" under § 4B1.2(b) of the Guidelines.[1] Separately considering the three enhancement provisions, we agree with the district courts' conclusions and therefore affirm each of the five sentences.[2]

         I. The Common Issue.

         Kyle Dwayne Boleyn and Erwin Keith Bell each pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district courts concluded that their multiple prior convictions under Iowa Code § 124.401 were "serious drug offenses" under the ACCA. This determination increased their advisory guidelines ranges and subjected them to the ACCA's mandatory minimum fifteen-year sentence, rather than the maximum ten-year sentence under § 922(g). See 18 U.S.C. § 924(a)(2).

         Justin Vasey, Robert Fisher, and Demetrius Green each pleaded guilty to possession with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) or (D). The district courts determined they were subject to the career offender enhancement under § 4B1.1 of the Guidelines because their prior convictions under § 124.401 were "controlled substance offenses." This significantly increased their advisory guidelines ranges. The district court also determined that one of Green's two convictions under § 124.401 qualified as a prior "felony drug offense" under the CSA, 21 U.S.C. § 802(44). This increased the statutory maximum sentence for his marijuana offense of conviction from five to ten years under § 841(b)(1)(D).

         On appeal, each defendant argues that the district court erred in determining that his prior convictions under § 124.401 warrant a drug offense enhancement under the ACCA, the career offender guidelines provisions, or the CSA. The Iowa statute at issue provides:

it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance.

         Iowa Code § 124.401(1). Raising an issue of first impression in this circuit, defendants argue that no conviction under this statute can be a predicate prior conviction under the ACCA, the CSA, or the career offender guidelines because aiding and abetting liability is inherent in the definition of all drug offenses, and Iowa's doctrine of aiding and abetting is broader than "the generic definition of aiding and abetting." More specifically, defendants argue that a "vast majority of relevant authorities -- the federal courts, 45 state jurisdictions, and the Model Penal Code --[hold] that a defendant cannot be convicted on an aiding and abetting theory on only a 'knowledge' mens rea." By contrast, Iowa is one of the few States that "only requires mere knowledge that one's actions will facilitate a crime." Because "knowledge" is a lesser mens rea than "intent," defendants posit, "it follows, with respect to aiding and abetting liability, that Iowa § 124.401 is broader than" drug offenses as defined in the ACCA, the CSA, or the career offender guidelines.

         We review de novo the determination that a prior conviction qualifies as a sentence enhancing predicate. See United States v. Jones, 574 F.3d 546, 549 (8th Cir. 2009) (ACCA); United States v. Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008) (CSA); United States v. Eason, 643 F.3d 622, 623 (8th Cir. 2011) (USSG). Though creative, we conclude defendants' contention is unsound.

         II. The Analytical Framework.

         In determining whether a prior § 124.401 conviction qualifies as a predicate offense for purposes of these federal sentencing enhancements, we apply a categorical approach that looks to the statutory definition of the prior offense, not to the facts underlying a defendant's prior convictions. Taylor v. United States, 495 U.S. 575, 600-02 (1990). In Taylor, the Court considered whether a burglary conviction fell within the ACCA provision defining violent felony to include certain enumerated offenses. See 18 U.S.C. ยง 924(e)(2)(B)(ii) ("is burglary"). If the state statute "sweeps more broadly" than the generic crime enumerated, a conviction "cannot count ...


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