United States v. Hamilton

46 F.4th 864

UNITED STATES of America, Plaintiff - Appellee

v.Levi HAMILTON, Defendant - Appellant

No. 21-2369

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2022

Filed: August 30, 2022

Counsel who presented argument on behalf of the appellant and appeared on the appellant brief was Nathan S. Lab, of Omaha, NE.

Counsel who presented argument on behalf of the appellee and appeared on the appellee brief was Ron Timmons, AUSA, of Sioux City, IA.

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

Levi Hamilton pleaded guilty to conspiracy to distribute methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846, and possession with intent to distribute methamphetamine, see § 841(a)(1). He appeals the district court's¹ application of the career-offender sentencing enhancement, see U.S.S.G. § 4B1.1, and the substantive reasonableness of his sentence. We affirm.

I.

Hamilton was indicted for conspiracy to distribute methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846, and possession with intent to distribute methamphetamine, see § 841(a)(1). He pleaded guilty to both counts. The presentence investigation report recommended applying the career-offender sentencing enhancement, see U.S.S.G. § 4B1.1, based on Hamilton's two prior Iowa convictions: terrorism and assault on a police officer. Hamilton objected to the classification of his conviction for assault on a police officer as a crime of violence under U.S.S.G. § 4B1.2. He also moved for a downward variance or departure. See § 4B1.1, cmt. n.4.

At sentencing, the district court applied the career-offender sentencing enhancement under § 4B1.1. The district court calculated an advisory sentencing guidelines range of 262 to 327 months and sentenced Hamilton to 262 months’ imprisonment. Hamilton appeals the application of the career-offender enhancement and the substantive reasonableness of his sentence.

II.

First, we review the district court's application of the career-offender sentencing enhancement. Under § 4B1.1, a defendant is considered a career offender and subject to an enhanced offense level if, among other things, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." We review de novo whether a predicate offense qualifies as a crime of violence as defined in § 4B1.2. United States v. Hollis , 447 F.3d 1053, 1054 (8th Cir. 2006).

"Under the so-called ‘force clause’ of the career-offender guideline, a conviction qualifies as a ‘crime of violence’ if it is an ‘offense under federal or state law, 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.’ " United States v. Tinlin , 20 F.4th 426, 427 (8th Cir. 2021), petition for cert. filed , ––– U.S.L.W. –––– (U.S. June 21, 2022) (21-8191) (quoting §§ 4B1.1(a) and 4B1.2(a) ). "If a statute contains alternatives, some of which do not have a force element, then we must determine whether the statute is divisible into alternative elements—separate crimes—or instead sets forth alternative factual means to commit a single offense." United States v. Fisher , 25 F.4th 1080, 1083 (8th Cir. 2022) (citing Mathis v. United States , 579 U.S. 500, 505-06, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) ). "When making the means-or-elements determination, we may consider authoritative state court decisions." Id. at 1084.

"If the statute underlying the predicate conviction creates a single crime by listing a single set of elements, it is indivisible, and we follow the categorical approach, looking to the elements of the offense rather than the defendant's actual conduct to determine if it has a physical-force element." United States v. Quigley , 943 F.3d 390, 393 (8th Cir. 2019) (internal quotation marks omitted). For an offense to lack a physical-force element under the categorical approach, "there must be a non-fanciful, non-theoretical manner to commit [the offense] without so much as the threatened use of physical force." Id. at 394 (internal quotation marks omitted).

At sentencing, the Government agreed with Hamilton that assault on a police officer under Iowa Code section 708.3A(3) is indivisible. Now, Hamilton and the Government agree that section 708.3A(3) is divisible. Nevertheless, we conclude that the statute is indivisible. See id. (acknowledging the parties’ agreement that the statute is divisible but concluding that it is indivisible).

Section 708.3A(3) provides that

[a] person who commits an assault, as defined in section 708.1, against a peace officer ... who knows that the person against whom the assault is committed is a peace officer ..., and who causes bodily injury or mental illness, is guilty of an aggravated misdemeanor.

In turn, the assault statute, section 708.1(2), states that

[a] person commits an assault when, without justification, the person does any of the following:

a. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.

b. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

c. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.

Section 708.3A(3) lists alternatives, some of which do not have a force element. To violate section 708.3A(3), a person must commit assault and cause bodily injury or mental illness, meaning that the provision contains two sets of alternatives: the three assault alternatives and the alternatives of causing bodily injury or causing mental illness. See § 708.3A(3). Assault as defined in section 708.1 can be committed without physical force by committing "any act which is intended to ... result in physical contact which will be insulting or offensive to another." Cf. United States v. Ossana , 638 F.3d 895, 900 (8th Cir. 2011) (holding that committing assault under Arizona law does not require the use of physical force because it can be committed "with any degree of contact by [k]nowingly touching another person with the intent to ... insult or provoke such person" (internal quotation marks omitted)). Additionally, causing "mental illness" does not necessarily involve physical force. Therefore, we must determine whether section 708.3A(3) is divisible into alternative crimes or means. See Mathis , 579 U.S. at 505-06, 136 S.Ct. 2243. To do so, we must determine whether the assault alternatives are separate crimes or means and whether the alternatives of causing bodily injury or causing mental illness are separate crimes or means. See § 708.3A(3). If either set of alternatives lists separate crimes, then section 708.3A(3) is divisible; otherwise, it is indivisible. See Quigley , 943 F.3d at 393.

Even though section 708.1(2) lists three alternatives, that does not make section 708.3A(3) divisible. In United States v. Quigley , we addressed whether an Iowa statute was divisible where it required "assault, as defined in section 708.1, with the intent to inflict a serious injury upon another" and both assault and serious injury contained alternatives found in other statutes. 943 F.3d 390, 394 (8th Cir. 2019) ; see Iowa Code § 708.1(2) (assault); Iowa Code § 702.18(1) (serious injury). Although Iowa assault and serious injury contained alternatives, some of which lack a force element, we concluded that the "assault with intent to inflict serious injury" statute is indivisible: "[t]he alternatives listed in sections 708.1(2) and 702.18(1) are merely different means of satisfying the ‘assault’ and ‘serious injury’ elements, respectively, of the singular ‘assault with intent to inflict serious injury’ crime." Quigley , 943 F.3d at 394. So, here, the crime of assault against a peace officer, § 708.3A(3), is not divisible on the ground that assault has alternatives, some of which lack a force element. The assault alternatives in section 708.1(2) are merely different means of satisfying the assault element of section 708.3A(3).

Nor is section 708.3A(3) divisible on the ground that it can be committed by causing bodily injury or mental illness. The Iowa Supreme Court has stated that causing bodily injury and causing mental illness are alternatives that comprise a single element of the crime. It has explained that "[u]nder Iowa Code sections 708.1 and 708.3A(3), a defendant commits the crime of assault on a correctional officer, causing bodily injury when the defendant: (1) does an act ‘which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive’ to a correctional officer, (2) the defendant has ‘the apparent ability to execute the act,’ (3) the defendant knows the person he assaulted is a correctional officer, and (4) the assault causes bodily injury or mental illness to the correctional officer ." State v. Palmer , 791 N.W.2d 840, 851 (Iowa 2010) (emphasis added) (citing §§ 708.1(1), .3A(3)). Therefore, section 708.3A(3) is indivisible because the assault alternatives and the bodily injury and mental illness alternatives are alternative means of committing the offense of assault against a peace officer.

Because section 708.3A(3) is indivisible, we must apply the categorical approach. See Quigley , 943 F.3d at 393. "Under the categorical approach, we restrict our inquiry to the abstract requirements for a conviction, rather than the defendant's actual conduct, and ask whether a conviction necessarily had a physical-force element for the offense to qualify as a crime of violence under the force clause." Id. at 394 (internal quotation marks omitted). "Physical force" is "force capable of causing physical pain or injury to another person." Johnson v. United States , ...