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Date: 12-08-2021
Case Style:
United States of America v. Brennen Smith
Case Number: 18-3696
Judge: Diane Sykes
Court:
United States Court of Appeals
For the Seventh Circuit
Appeal from the United States District Court
for the Central District of Illinois.
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Chicago, IL - Criminal defense lawyer represented defendant with unlawfully possessing a firearm as a felon and possession of stolen goods charges.
In November 2016 Smith briefly worked as a salesman at
Lindquist Ford in Bettendorf, Iowa. When he started, he was
given a master key that opened a lockbox that held the keys
to every vehicle on the lot. Smith quit after only a week on
the job and did not turn in his master key. Instead, about
two months later, he returned to the dealership and stole a
2016 Ford F250 truck. He placed stolen license plates on the
truck and drove it across state lines into Illinois. A few days
later he crashed the truck into a median in Rock Island
County, Illinois. He fled the scene, leaving a stolen pistol in
the truck. A week later Smith was arrested. He admitted that
he stole the truck, wrecked it, and left the firearm inside.
A grand jury in the Central District of Illinois returned a
two-count indictment charging Smith with unlawfully
possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and
possessing stolen goods that traveled across state lines, id.
§ 2315. He pleaded guilty to both counts without a plea
agreement.
For the firearm count, the presentence report (“PSR”)
recommended a base offense level of 24 under § 2K2.1(a)(2),
which applies when the defendant has “at least two felony
convictions of either a crime of violence or a controlled
4 No. 18-3696
substance offense.” The PSR listed three possible qualifying
predicates: a 2009 Iowa conviction for delivery of cocaine, a
2008 Iowa conviction for aggravated assault, and a 2013
Iowa conviction for domestic-abuse assault. The PSR also
recommended a two-level increase in the offense level
because the firearm was stolen, raising the offense level to
26. See U.S.S.G. § 2K2.1(b)(4).
At sentencing the parties agreed that the Iowa cocaine
offense is a qualifying controlled-substances crime for
purposes of § 2K2.1(a)(2). The debate centered on the two
assault convictions. Smith argued that neither the aggravated assault nor the domestic-abuse assault could be counted
as predicate crimes of violence; the government argued that
both crimes qualify. The judge concluded that the
aggravated-assault offense is a crime of violence, which
made it unnecessary for her to address the domestic-abuse
assault; the cocaine offense and the aggravated assault
provided the two convictions needed to support the recommended base offense level of 24. The judge added two levels
because the firearm was stolen, then awarded a three-level
reduction for acceptance of responsibility, resulting in a final
offense level of 23. With Smith’s criminal-history category of
VI, the advisory Guidelines sentencing range was 92 to
115 months. The judge imposed concurrent sentences of
115 months on each count.
II. Discussion
Smith reprises his argument that neither of his Iowa assault convictions is a crime of violence for purposes of the
elevated base offense level under § 2K2.1(a)(2). Although the
Guidelines are purely advisory, a correctly calculated Sentencing Guidelines range is the required first step in the
No. 18-3696 5
sentencing process, so a mistake in the calculation is a
procedural error. United States v. Hurlburt, 835 F.3d 715, 723
(7th Cir. 2016). Classifying prior convictions for sentencing
purposes is a legal determination; our review is therefore de
novo. United States v. Edwards, 836 F.3d 831, 834 (7th Cir.
2016).
As relevant here, 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.” § 4B1.2(a)(1). Whether a conviction
qualifies under this definition depends entirely on the
statutory elements of the crime. Edwards, 836 F.3d at 834–35.
The inquiry is therefore legal and categorical: If the statute
underlying the conviction defines the offense more broadly
than the Guidelines definition, then the prior conviction
cannot be counted; if the statutory elements of the offense
match or are narrower than the Guidelines definition, then
the conviction qualifies as a crime of violence. Id.
Many criminal statutes contain multiple parts, which
adds a layer of complexity to the categorical analysis. A
multipart statute may create more than one crime, each with
its own set of elements, or it may list several different factual
means of committing a single element of the offense. Mathis
v. United States, 136 S. Ct. 2243, 2249 (2016). If a multipart
statute defines multiple crimes—i.e., if the subparts are legal
elements rather than alternative factual means of committing
an element of the crime—then the statute is considered
“divisible” and a modified form of the categorical approach
applies. The modified approach requires an examination of
the charging document or other court records “to determine
6 No. 18-3696
what crime, with what elements, [the] defendant was convicted of.” Id. If, on the other hand, the various alternatives
in a multipart statute are simply alternative factual means of
committing a single element—so that a jury need not unanimously agree on how the defendant committed that element in order to convict—then the statute is not divisible. Id.
An indivisible statute that sweeps more broadly than the
Guidelines definition is not a categorical match, and a
conviction under it does not qualify as a crime of violence.
Edwards, 836 F.3d at 834–35.
Our recent opinion in Carter applied these principles to
the Iowa assault statutes at issue here. Like Smith, the defendant in Carter pleaded guilty to unlawfully possessing a
firearm as a felon in violation of § 922(g)(1), and his base
offense level under § 2K2.1(a)(2) hinged on whether his
conviction for aggravated assault under section 708.2(3) of
the Iowa Code qualified as a crime of violence. Carter,
961 F.3d at 956–59. Section 708.2(3) provides: “A person who
commits an assault, as defined in section 708.1, and uses or
displays a dangerous weapon in connection with the assault,
is guilty of an aggravated misdemeanor.” Under Iowa law
an aggravated misdemeanor is punishable by up to two
years in prison, see IOWA CODE § 903.1(2), so the pivotal
question in Carter was whether the Iowa aggravated-assault
offense as defined in section 708.2(3) “has as an element the
use, attempted use, or threatened use of physical force,”
§ 4B1.2(a)(1); Carter, 961 F.3d at 957.
The section 708.2(3) offense has two elements: (1) the defendant used or displayed a dangerous weapon; (2) in
connection with an assault as defined in section 708.1. As
No. 18-3696 7
relevant here, section 708.1, Iowa’s version of the crime of
simple assault, provides in part:
2. 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.
IOWA CODE § 708.1.1
Because section 708.1(2) contains multiple subparts, the
first step in our analysis in Carter concerned the question of
divisibility. Carter, 961 F.3d at 956–57. We looked to the Iowa
Supreme Court for guidance, noting that the state high court
reads the separate subsections of section 708.1(2) to create
distinct crimes. Id. at 957 (citing State v. Fountain, 786 N.W.2d
1 The version of section 708.1 in effect in 2008 used a different numbering
system for these three separate subdivisions. The text was the same,
however. For ease of reference, we use the current numbering, as we did
in Carter. United States v. Carter, 961 F.3d 953, 957 (7th Cir. 2020).
8 No. 18-3696
260, 265 (Iowa 2010)). Accordingly, we concluded that the
statute is divisible and applied the modified categorical
approach. Id.
The next step in the analysis required an examination of
the court records from the defendant’s underlying case to
determine which of the three basic assault crimes in section 708.1(2) formed the basis for his conviction for aggravated assault. Some of the court records were
unilluminating, but the defendant had admitted in his plea
agreement that he displayed a knife during an altercation
with the victim. Id. at 958. The version of the assault crime
defined in subsection (2)(c) of the statute covers
“[i]ntentionally point[ing] any firearm toward another, or
display[ing] in a threatening manner any dangerous weapon
toward another.” We therefore concluded that
“[s]ection 708.1(2)(c) … provided the basis for [the defendant’s] aggravated assault conviction.” Id.
The defendant insisted that merely displaying a dangerous weapon does not imply a threat of physical force, but we
rejected that argument. Carter, 961 F.3d at 958. We noted that
the Supreme Court had recently clarified that “the threat of
physical force ‘does not require any particular degree of
likelihood or probability that the force used will cause
physical pain or injury; only potentiality.’” Id. (quoting
Stokeling v. United States, 139 S. Ct. 544, 554 (2019)). Putting
these pieces together, we concluded that an “[a]ggravated
assault under § 708.2(3) of the Iowa Code, with a predicate
assault under § 708.1(2)(c), necessarily involves at least the
threat to use physical force.” Id. at 959. So the defendant’s
conviction was properly counted as a crime of violence. Id.
No. 18-3696 9
That holding controls here. Like in Carter, some of the
court records in Smith’s 2008 aggravated-assault case are
unilluminating. For instance, the judgment says only that he
was sentenced for the crime of “assault with a dangerous
weapon” in violation of sections 708.1 and 708.2(3). But the
charging document holds the key, stating that Smith “did:
assault [the victim] by using or displaying a dangerous
weapon, to-wit: [a] metal bat.” Substitute “knife” for “metal
bat” and this case is Carter. Applying Carter’s reasoning here,
we conclude that subsection 708.1(2)(c) provides the basis
for Smith’s aggravated-assault conviction under section 708.2(3), and the conviction was properly counted as a
crime of violence.
We have just a few additional observations in closing.
Subsection (2)(c) of section 708.1 is not only divisible from
subsections (2)(a) and (2)(b), but it’s also internally divisible.
Recall that it contains two parts, one criminalizing the act of
intentionally pointing a firearm and a second criminalizing
the act of displaying a dangerous weapon in a threatening
manner. The second internal subpart has different and
additional elements than the first. To convict under the first,
a jury would need to unanimously agree that the defendant
(1) intentionally pointed a firearm (2) at another person. In
contrast, to convict under the second internal subpart, a jury
would need to unanimously agree that the defendant
(1) displayed a dangerous weapon (2) in a threatening
manner (3) toward another person. The term “dangerous
weapon” is defined broadly to include “any instrument or
device designed primarily for use in inflicting death or
injury” and “any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that
the defendant intends to inflict death or serious bodily
10 No. 18-3696
injury.” IOWA CODE § 702.7. The second subpart plainly
contains different elements than the first and thus defines a
distinct crime.
Carter did not expressly hold that subsection (2)(c) is internally divisible, but our analysis implicitly treated it as
such. As we’ve noted, the defendant there admitted in his
plea agreement that he displayed a knife during an altercation with the victim, so his aggravated-assault conviction
necessarily involved the second internal subpart of section 708.1(2)(c), not the first. The distinction does not matter
here, but it may be important in a future case. Under current
circuit precedent, pointing a firearm, without more, is not a
crime of violence. Portee v. United States, 941 F.3d 263, 268
(7th Cir. 2019).
Portee is hard to reconcile with the Supreme Court’s reasoning in Stokeling, which (to repeat) held that a threat of
physical force in this context does not require any particular
degree of likelihood of injury or pain, “only potentiality.”
Stokeling, 139 S. Ct. at 554. Portee does not mention Stokeling,
and Carter does not mention Portee. But resolving the apparent tension between Portee and Stokeling is a question for
another day. Smith’s 2008 Iowa aggravated-assault conviction is materially identical to the conviction at issue in Carter.
It follows that the conviction was properly classified as a
crime of violence for purposes of the enhanced base offense
level in § 2K2.1(a)(2).2 There was no procedural error.
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
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