Submitted: November 11, 2019
from United States District Court for the Western District of
Missouri - Jefferson City
GRUENDER, KELLY, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
district court revoked Ronald Brown's supervised
release and sentenced him to 36 months' imprisonment for
assault of a law enforcement officer. Brown appeals asserting
that the sentencing judge erred when he found that Brown had
committed a grade A supervised release violation. We affirm.
County Sheriff's deputies arrested Ronald Brown on an
active federal parole violation warrant and, believing that
Brown was under the influence of a controlled substance and
in need of medical attention, transported him to the
hospital. Once hospitalized Brown was handcuffed to his
Brown asked to use the bathroom, the deputy guarding him
("the Deputy") took off Brown's handcuff. Once
the handcuff was removed, Brown stated that he "needed
to get out of here" and began looking around the room.
The Deputy told Brown to get back in bed. Brown looked toward
the door and then at the Deputy's gun. After repeating
that he "needed to get out of here," Brown lunged
toward the gun, getting a hand on the gun's handle and on
the Deputy's holster. The Deputy used his hands to
prevent Brown from taking the gun and pushed Brown away with
his shoulder. Hospital security staff eventually restrained
revocation hearing, Brown stipulated to five grade C
violations. Brown did not admit to the assault, arguing that
he did not intend to hurt the Deputy. The district court
determined Brown had committed a grade A violation, finding
by on a preponderance of the evidence that there was an
assault on a law enforcement officer. The court found that
Brown was in Criminal History Category VI, resulting in an
advisory Sentencing Guideline range of 33-36 months.
explaining its decision, the court stated, "so it's
my finding that there was an assault, and assault is not that
you intended to take the gun or that you intended to hurt
him. That's not an element of assault." The court
also found that the five grade C violations "in and of
themselves . . . allow me to make my findings." The
court then noted that the purpose of supervised release was
to attempt to get the person being supervised to conform his
behavior to society's expectations and that Brown's
repeated violations "show that's not working."
Taking all of Brown's noncompliance into consideration
the court imposed a 36-month sentence. Brown appeals his
district court's decision to revoke supervised release is
reviewed for abuse of discretion. United States v.
Boyd, 792 F.3d 916, 919 (8th Cir. 2015). We review the
court's findings of fact that a violation was committed
for clear error. Id. "Under clear error review,
we may reverse only if we have a definite and firm conviction
that the District Court was mistaken." Id.
argues that the district court erred in finding a grade A
violation because, at most, the court found he committed a
simple assault, which would not qualify as a grade A
violation. Grade A violations include "a federal, state,
or local offense punishable by a term of imprisonment
exceeding one year that . . . is a crime of violence."
USSG § 7B1.1(a)(1)(A)(i). Under Missouri law,
"second-degree assault is a crime that has as an element
of use, attempted use, or threatened use of physical
force against the person of another." United States
v. Alexander, 809 F.3d 1029, 1032 (8th Cir. 2016)
(cleaned up); see Mo. Rev. Stat. §
565.052(1)(2). A law enforcement officer assaulted in the
performance of his or her official duties is classified as a
"special victim," a Class B felony with a maximum
sentence of twenty years. Mo. Rev. Stat. §§
565.002(14)(a), 565.052(1)(2), 557.021(3)(1)(b). "In
Missouri, attempt is a substantial step towards commission of
the offense." United States v. Minnis, 872 F.3d
889, 891 (8th Cir. 2017) (cleaned up). "Substantial step
is defined as conduct which is strongly corroborative of the
firmness of the actor's purpose to complete the
commission of the offense." Id. (cleaned up).
claims that because he did not intend to hurt the Deputy he
could not have committed the offense of second-degree assault
on a law enforcement officer in performance his duties.
Brown's argument ignores that the offense can be
completed by attempt. In State v. Ransburg, 504
S.W.3d 721 (Mo. 2016) (en banc) the court was confronted with
a situation where the defendant charged at the victim while
holding a stick described as being like a broom stick.
Ransburg, like Brown, argued that the government failed to
establish intent to use the stick as a dangerous weapon.
Id. at 723. The Missouri Supreme Court rejected this
argument noting "[b]ecause Ransburg never reached the
man due to the man's escape, he never had an opportunity
to use the stick on the man in any particular manner."
Id. at 724. Holding that intent could be inferred
from the aggressive act, the court found the evidence
sufficient to convict. Id. at 724; see State v.
Reese, 436 S.W.3d 738, 742-43 (Mo.Ct.App. 2014) ("A
defendant does not need to have the ...