Submitted: March 6, 2017
from United States District Court for the District of
Minnesota - St. Paul
WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Mata pled guilty to possessing with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(viii), and being an armed career criminal in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1). In his plea agreement,
Mata stipulated to three previous convictions: (1)
first-degree possession with intent to deliver a controlled
substance in Dallas County, Texas in 2001; (2) first-degree
possession with intent to deliver a controlled substance in
Dallas County, Texas in 2001; and (3) third-degree criminal
sexual conduct with force or coercion in Rice County,
Minnesota in 2004. As a result, the district
court applied the fifteen-year mandatory minimum
sentence found in 18 U.S.C. § 924(e)(1). Mata appeals,
arguing that his 2004 Minnesota conviction does not qualify
as a predicate felony under the Armed Career Criminal Act
(ACCA). Exercising de novo review, see United States v.
Irons, 849 F.3d 743, 746 (8th Cir. 2017), we affirm.
individual pleads guilty to, or is convicted of, violating
§ 922(g), the ACCA imposes a fifteen-year mandatory
minimum sentence if that individual "has three previous
convictions . . . for a violent felony or a serious drug
offense." 18 U.S.C. § 924(e)(1). Under the statute,
"the term 'violent felony' means 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." Id. § 924(e)(2)(B)(i).
"[T]he phrase 'physical force' means
violent force-that is, force capable of causing
physical pain or injury to another person." Johnson
v. United States, 559 U.S. 133, 140 (2010). Thus, in
order for Mata's Minnesota conviction to qualify as a
predicate felony, the statute under which he was convicted
must have as an element the use, attempted use, or threatened
use of force capable of causing physical pain or injury to
another person. See id.
determination of whether Mata's conviction meets the
statutory definition begins with the categorical approach,
under which we "look only to the fact of conviction and
the statutory definition of the prior offense."
United States v. Headbird, 832 F.3d 844, 846 (8th
Cir. 2016) (internal quotation marks omitted). But where
"the statute criminalizes both conduct that does and
does not qualify as a violent felony and the statute is
divisible, we apply the modified categorical approach and may
review certain judicial records to identify which section of
the statute supplied the basis for a defendant's
conviction." Id. (internal quotation marks
Minn. Stat. § 609.344(1)(c) (2004)
pled guilty to a violation of Minnesota Statute section
609.344(1)(c). This statute states: "A person who
engages in sexual penetration with another person is guilty
of criminal sexual conduct in the third degree if . . . the
actor uses force or coercion to accomplish the
penetration." Minn. Stat. § 609.344(1)(c) (2004).
We conclude the statute is divisible. See Mathis v.
United States, 136 S.Ct. 2243, 2249 (2016) (declaring a
statute divisible because it "prohibited 'the lawful
entry or the unlawful entry' of a premises with intent to
steal, so as to create two different offenses, one more
serious than the other"); Descamps v. United
States, 133 S.Ct. 2276, 2281 (2013) (noting that a
"divisible . . . statute sets out one or more elements
of the offense in the alternative-for example, stating that
burglary involves entry into a building or an
automobile."). The Minnesota Supreme Court has noted
that "[t]he plain language of the elements of the
offense indicates that third-degree criminal sexual conduct
can be committed by coercion alone, force alone, or both
force and coercion." State v. Leake, 699 N.W.2d
312, 323-24 (Minn. 2005); see Mathis, 136 S.Ct. at
2248 ("'Elements' are the 'constituent
parts' of a crime's legal definition . . . .").
In a prosecution under section 609.344(1)(c), the factfinder
is required to determine which of the three
possibilities-force, coercion, or both-was present because,
under Minnesota law, the use of force constitutes a more
serious offense. See Minn. Stat. §
609.106(1)(a)(3) (stating that a violation of section 609.344
becomes a "heinous crime . . . if the offense was
committed with force"); 10 Minn. Practice Jury
Instr. Guides-Criminal § 12.21 & cmt. (2015).
Accordingly, because Minnesota Statute section 609.344
"list[s] elements in the alternative, and thereby
define[s] multiple crimes, " it is a divisible statute.
See Mathis, 136 S.Ct. at 2249. Because this offense
can be committed by coercion rather than force, we will
assume that subsection (1)(c) is also
therefore apply the modified categorical approach to
determine whether Mata pled guilty to using force, coercion,
or both to accomplish the offense. See Headbird, 832
F.3d at 846. "Under that approach, " we may
"look to a limited class of documents (for example,
the indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a
defendant was convicted of." Mathis, 136 S.Ct.
at 2249. The record evidence in this case includes Mata's
2014 plea agreement and the plea colloquy from the 2004
Minnesota state case. In the transcript of the plea colloquy
from the 2004 conviction, the following exchange between Mata
and the state court judge is recorded:
The Court: First of all, when you had sex with her, she was