Submitted: November 13, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
Welch pleaded guilty to being a felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). At
sentencing, the district court imposed an enhancement under
United States Sentencing Guideline § 2K2.1(a)(4) because
Welch had a previous conviction for Missouri second-degree
assault that the district court determined was a crime of
violence. Welch appeals that determination, which we review
de novo. United States v. Harrison, 809 F.3d 420,
425 (8th Cir. 2015).
of violence is "any 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 . . . ." USSG § 4B1.2. To determine whether
a prior conviction qualifies as a crime of violence, we
"start with the formal categorical approach and 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). But if the
statute "criminalizes both conduct that does and does
not qualify as a [crime of violence], " the statute is
divisible, and we must determine which section of the statute
"supplied the basis for a defendant's
conviction." Id. (quoting United States v.
Jordan, 812 F.3d 1183, 1186 (8th Cir. 2016)).
court has previously held that the Missouri second-degree
assault statute is divisible because it defines multiple
offenses. See United States v. Alexander, 809 F.3d
1029, 1031 (8th Cir. 2016). Welch asks us to reconsider this
determination in light of Mathis v. United States,
136 S.Ct. 2243 (2016). Rather than undermining our previous
holdings, however, Mathis confirms our analysis. In
Mathis, the Court explained that "[a] single
statute may list elements in the alternative, and thereby
define multiple crimes." 136 S.Ct. at 2249. Elements are
the "constituent parts of a crime's legal
definition-the things the prosecution must prove to sustain a
conviction, " id. at 2248 (quotation omitted),
and can be contrasted with the "various factual means of
committing a single element." Id. at 2249.
time of Welch's prior conviction, the Missouri
second-degree assault statute stated "[a] person commits
the crime of assault in the second degree if he:"
(1) Attempts to kill or knowingly causes or attempts to cause
serious physical injury to another person under the influence
of sudden passion arising out of adequate cause; or
(2) Attempts to cause or knowingly causes physical injury to
another person by means of a deadly weapon or dangerous
(3) Recklessly causes serious physical injury to another
(4) While in an intoxicated condition or under the influence
of controlled substances or drugs, operates a motor vehicle
in this state and, when so operating, acts with criminal
negligence to cause physical injury to any person other than
(5) Recklessly causes physical injury to another person by
means of discharge of a firearm.
Mo. Rev. Stat. § 565.060.1 (2001). Each subsection is
its own crime with different elements, rendering the statute
divisible. See United States v. Fields, 863 F.3d
1012, 1014 (8th Cir. 2017) (analyzing only the subsection of
Mo. Rev. Stat. ...