United States v. Eason

907 F.3d 554

UNITED STATES of America, Plaintiff - Appellee

v.Marcus Lamont EASON, Defendant - Appellant

No. 17-1402

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2018

Filed: May 25, 2018

Counsel who represented the appellant was Nicole Lybrand, AFPD, of Little Rock, AR.

Counsel who represented the appellee was Alexander D. Morgan, AUSA, of Little Rock, AR.

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Marcus Lamont Eason of two counts of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and 3147(1). At sentencing the district court¹ determined that Eason had at least three prior convictions for a violent felony or serious drug offense, making him subject to sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court determined that his advisory guidelines sentencing range was 262-327 months imprisonment and imposed a 300-month sentence. Eason timely appealed. With the appeal pending, the Supreme Court decided Johnson v. United States, which invalidated the "residual clause" of the ACCA. ––– U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). We affirmed Eason’s conviction but, in light of Johnson, vacated his sentence and remanded for resentencing because the record did not establish that, without the residual clause, he had at least three prior ACCA predicate convictions. United States v. Eason, 829 F.3d 633, 640-42 (8th Cir. 2016).

On remand, the district court reopened the sentencing record. The government introduced state court records addressing whether Eason’s 2006 convictions for third degree domestic battery under Ark. Code Ann. § 5-26-305, and first degree battery under Ark. Code Ann. § 5-13-201, are violent felonies under the ACCA’s force clause. The district court considered this evidence, applying the modified categorical approach used to determine whether violations of these divisible statutes constitute violent felonies for ACCA purposes. See United States v. Parrow, 844 F.3d 801, 802 (8th Cir. 2016). The court again concluded that Eason is an armed career criminal with a 262-327 month advisory guidelines range. Taking into account his rehabilitative conduct after the initial sentence, the court imposed a reduced 262-month sentence. Eason appeals, raising three sentencing issues. We affirm.

I. Reopening the Sentencing Record

At the original sentencing, Eason objected to the ACCA’s residual clause as unconstitutionally vague but conceded that he qualified as an armed career criminal if the residual clause was valid. The district court overruled his objection to the residual clause and determined that Eason’s Arkansas robbery and battery convictions were ACCA violent felony predicates, without explaining whether it was ruling under the residual clause, the force clause, or both. On appeal, Eason conceded his conviction for delivery of cocaine was an ACCA predicate drug offense. We concluded that his conviction for robbery under Ark. Code Ann. § 5-12-102 did not qualify under the force clause as construed in Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Eason, 829 F.3d at 641-42. Thus, whether Eason has three ACCA predicate convictions turned on whether his Arkansas convictions for third degree domestic battery and first degree battery are violent felonies under the ACCA force clause. We remanded for resentencing because the record did not include state court judicial records establishing which subdivision of the Arkansas third degree domestic battery statute Eason violated. Id. at 642, 642 n.8.

On appeal, Eason argues the district court erred in allowing the government to supplement the record at resentencing with state court judicial records establishing that his prior third degree domestic battery conviction was for a violation of Ark. Code Ann. § 5-26-305(a)(1), and his first degree battery conviction was for a violation of Ark. Code Ann. § 5-13-201(a)(8). Our remand did not instruct the district court whether it could or could not reopen the record. Id. at 642. The law in this circuit is well established:

Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing. The sentencing court must, however, adhere to any limitations imposed on its function at resentencing by the appellate court.

United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992) (citations omitted); see United States v. Dunlap, 452 F.3d 747, 749-50 (8th Cir. 2006) ("Because nothing in our original remand order precluded the government from presenting its evidence at resentencing, we cannot say that the district court erred in allowing it to do so.").

Ignoring these controlling authorities, Eason relies on cases where, in remanding for resentencing, we did direct the district court not to reopen the record. In these cases, we focused on whether the government and the district court had relied on a mistaken understanding of the governing sentencing principles and, in particular, whether we deemed the government’s failure of proof at the initial sentencing to be excusable. See United States v. Dawn, 685 F.3d 790, 798 (8th Cir. 2012) ; United States v. Williams, 627 F.3d 324, 329 (8th Cir. 2010) ; United States v. King, 598 F.3d 1043, 1050 (8th Cir. 2010). When we have not given this direction, the district court "can hear any relevant evidence ... it could have heard at the first hearing." Cornelius, 968 F.2d at 705. Whether to allow either party to expand the sentencing record is of course an exercise of the court’s substantial evidentiary discretion.

Here, the district court carefully considered whether to reopen the record to admit state court records relevant to the force clause question. The court noted that Eason’s resentencing took place in light of significant changes in the law that now required the government to establish that Eason’s prior battery convictions were violent felony predicates under the force clause. "It did not occur to me that the residual clause would be declared void for vagueness because other courts had upheld it," the court explained. The court concluded it was appropriate to reopen the record because this change in the law obliged it "to consider evidence that I didn’t think I had to consider before." This ruling was not an abuse of the court’s discretion.

II. The Force Clause Issues

Even assuming the record was properly reopened on remand, Eason argues the district court erred in ruling that his 2006 convictions for third degree domestic battery under Ark. Code Ann. § 5-26-305(a)(1), and first degree battery under Ark. Code Ann. § 5-13-201(a)(8), are violent felonies under the ACCA’s force clause. Reviewing this issue de novo , we disagree. The force clause defines violent felonies to include "any crime punishable by imprisonment for a term exceeding one year ... 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). The Supreme Court has defined the word "force" as meaning "violent force -- that is, force capable of causing physical pain or injury to another person." Curtis Johnson, 559 U.S. at 140, 130 S.Ct. 1265. However, the force required is "only that degree of force necessary to inflict pain -- a slap in the face, for example." Id. at 143, 130 S.Ct. 1265.

Eason’s conviction for third degree domestic battery was a violation of § 5-26-305(a)(1) of the Arkansas Code : "(a) A person commits domestic battering in the third degree if: (1) With the purpose of causing physical injury to a family or household member, the person causes physical injury to a family or household member." In United States v. Starks, 674 Fed. Appx. 580, 582 (8th Cir. 2016), decided after our remand in Eason, we held that third degree domestic battery in violation of Ark. Code Ann. § 5-26-305(a)(1) is a violent felony under the force clause. Accord United States v. Moore, 713 Fed. Appx. 511, 514 (8th Cir. 2017).

Eason’s conviction for first degree battery was a violation of § 5-13-201(a)(8) of the Arkansas Code : "(a) A person commits battery in the first degree if ... (8) With the purpose of causing physical injury to another person, the person causes physical injury to any person by means of a firearm." According to the charging document, confirmed by the plea hearing transcript, Eason was charged with purposefully causing physical injury to a person with a firearm. In United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017), we held that second degree battery in violation of Ark. Code Ann. § 5-13-202(a)(2) is a violent felony, concluding that "[p]hysical force means force capable of causing physical pain or injury to another person ... and it is impossible to cause bodily injury without using force ‘capable of’ producing that result."

These prior decisions are controlling and establish that Eason’s battery convictions were violent felony convictions under the ACCA force clause. Eason argues that other circuits distinguish between the infliction of physical injury and the use of physical force, but our decision to the contrary in Winston is controlling. He further argues that either statute could be violated without the use of violent physical force, such as by poisoning, or with the use of minor force, such as inflicting a bruise. However, "the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, involves the use, attempted use, or threatened use of physical force against the person of another." United States v. Pyles, 888 F.3d 1320, 1322 (8th Cir. 2018) (quotation omitted). Eason has not cited, and we have not found, any Arkansas case in which the defendant was charged with violating either statute by the use...