Submitted: April 19, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
LOKEN, WOLLMAN, and STRAS, Circuit Judges.
Hataway pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). The district court concluded that Hataway had at
least three prior violent felony convictions, subjecting him
to a mandatory minimum fifteen-year sentence under the Armed
Career Criminal Act ("ACCA"), and at least two
prior crime of violence convictions, which increased his
guidelines base offense level under USSG § 2K2.1(a)(2).
The district court sentenced Hataway to the bottom of the
resulting advisory guidelines range -- 262 months --followed
by five years of supervised release. He appeals the sentence,
arguing that his prior Arkansas conviction for aggravated
assault and South Carolina conviction for pointing a firearm
at another person are not ACCA "violent felonies"
or "crimes of violence" under the Guidelines. He
also appeals a special condition of supervised release
requiring him to abstain from use of alcohol during substance
abuse treatment. We affirm.
The Sentencing Issues.
definitions of "violent felony" in the ACCA and
"crime of violence" in the Guidelines both include
an offense that "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)(i); USSG
§ 4B1.2(a)(1). Hataway argues the district court erred in
determining that his Arkansas conviction for aggravated
assault and his South Carolina conviction for pointing a
firearm at another person satisfy these force clauses. In
making this determination, we use a formal categorical
approach that focuses on the elements of the state offense,
rather than on the crime the defendant in fact committed, to
determine whether a violation "necessarily
satisfies" the federal definition of violent felony and
crime of violence in the force clauses. See United States
v. Swopes, 886 F.3d 668, 670 (8th Cir. 2018) (en banc).
state statute is "divisible," meaning that it
"list[s] elements in the alternative, and thereby
defines multiple crimes," we apply a modified
categorical approach that examines a limited universe of
judicial records "to determine what crime, with what
elements, a defendant was convicted of." Mathis v.
United States, 136 S.Ct. 2243, 2249 (2016). If
conviction under that alternative required the use or
threatened use of physical force, then Hataway was convicted
of a violent felony. "Before we conclude that a state
statute sweeps more broadly than the federal definition of
violent felony, there must be a realistic probability, not a
theoretical possibility, that the statute encompasses conduct
that does not involve use or threatened use of violent
force." Swopes, 886 F.3d at 671 (cleaned up).
The Arkansas Aggravated Assault Conviction.
Presentence Investigation Report recommended that Hataway be
sentenced as an armed career criminal based on three prior
violent felony convictions, including a 2014 conviction for
aggravated assault in violation of Ark. Code Ann. §
5-13-204(a). The statute then provided that -
(a) A person commits aggravated assault if, under
circumstances manifesting extreme indifference to the value
of human life, he or she purposely:
(1) Engages in conduct that creates a substantial danger of
death or serious physical injury to another person;
(2) Displays a firearm in such a manner that creates a
substantial danger of death or serious physical injury to
another person; or
(3) Impedes or prevents the respiration of another person or
the circulation of another person's blood by applying
pressure on the throat or neck or by blocking ...