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United States v. Hataway

United States Court of Appeals, Eighth Circuit

August 12, 2019

United States of America Plaintiff- Appellee
v.
Matthew Trent Hataway Defendant-Appellant

          Submitted: April 19, 2019

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.

          LOKEN, Circuit Judge.

         Matthew 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[1] 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.

         I. The Sentencing Issues.

         The 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).[2] 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).

         If the 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).

         A. The Arkansas Aggravated Assault Conviction.

         The 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 ...

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