Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Welch

United States Court of Appeals, Eighth Circuit

January 5, 2018

United States of America Plaintiff- Appellee
v.
Joe L. Welch Defendant-Appellant

          Submitted: November 13, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

          PER CURIAM.

         Joe 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[1] 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).

         A crime 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)).

         This 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.

         At the 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 instrument; or
(3) Recklessly causes serious physical injury to another person; or
(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 himself; or
(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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.