United States v. Anthony Abari

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, KERMIT E. BYE and AUDREY G. FLEISSIG. Roger L. Wollman, Authoring Judge (PUBLISHED) [3777041] [10-2447]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-2447
___________
United States of America,
Appellee,
v.
Anthony Akeum Abari,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Minnesota.
*
*
*
___________
Submitted: February 18, 2011
Filed: April 14, 2011
___________

Before WOLLMAN and BYE, Circuit Judges, and FLEISSIG,1 District Judge.
___________
WOLLMAN, Circuit Judge.
Anthony Akeum Abari asserts that the district court2 erred when it determined
that he qualified as an armed career criminal pursuant to 18 U.S.C. § 924(e)(2)(B).
We affirm.

1

The Honorable Audrey G. Fleissig, United States District Judge for the Eastern
District of Missouri, sitting by designation.
2

The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

Appellate Case: 10-2447

Page: 1

Date Filed: 04/14/2011 Entry ID: 3777041

Abari pleaded guilty to being a felon in possession of a firearm, in violation of
§ 922(g)(1). Pursuant to the plea, he agreed that his prior robbery and second degree
assault convictions constituted violent felony offenses pursuant to § 924(e), but
asserted that his prior Minnesota theft from person conviction did not. He reserved
his right to argue that his theft from person conviction was not a prior violent felony
and that he thus was not an armed career criminal. The district court determined that
the Minnesota theft from person conviction constituted a prior violent felony and
sentenced Abari as an armed career criminal pursuant to § 924(e).
I. Discussion
“We review de novo a district court’s determination that a defendant’s prior
conviction constitutes a violent felony for purposes of § 924(e).” United States v.
Boaz, 558 F.3d 800, 806 (8th Cir. 2009) (citation omitted).
The Armed Career Criminal Act provides that a person who violates § 922(g)
for being a felon in possession of a firearm and who has three prior violent felony
convictions that were committed on separate occasions, is considered an armed career
criminal subject to a statutory mandatory minimum sentence of fifteen years.
18 U.S.C. § 924(e)(1). Section 924(e)(2)(B) defines a violent felony as any crime
punishable by imprisonment for a term exceeding one year that either “(i) has as an
element the use, attempted use, or threatened use of physical force against the person
of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury to
another[.]”
Under Minnesota law, a theft from person felony offense occurs when someone
intentionally and without claim of right takes possession of movable property of
another without the other’s consent and with intent to deprive the owner permanently
of possession of the property and “the property [was] taken from the person of
-2-

Appellate Case: 10-2447

Page: 2

Date Filed: 04/14/2011 Entry ID: 3777041

another.” Minn. Stat. § 609.52, subds. 2(1) & 3(3)(d)(i); see United States v. Hudson,
414 F.3d 931, 934 n.2 (8th Cir. 2005) (citations omitted). Because the offense does
not have a use-of-force element nor is equivalent to the enumerated offenses in
§ 924(e)(2)(B)(ii), it constitutes a violent felony only if it involves conduct that
presents a serious potential risk of physical injury to another. In Begay v. United
States, 553 U.S. 137 (2008), the Supreme Court limited offenses that fall within the
residual clause of § 924(e)(2)(B)(ii) to those “that are roughly similar, in kind as well
as in degree of risk posed,” to the enumerated crimes in that they “typically involve
purposeful, ‘violent,’ and ‘aggressive’ conduct.” 553 U.S. at 143-45.
A. Serious Potential Risk of Physical Injury to Another
We have previously held that Minnesota’s theft from person offense constitutes
a violent felony for purposes of sentencing under the Armed Career Criminal Act. See
Hudson, 414 F.3d at 935-36. Relying on United States v. Griffith, 301 F.3d 880, 885
(8th Cir. 2002), and United States v. Payne, 163 F.3d 371, 375 (6th Cir.1998), we
described the potential for risk of physical injury created by theft from person as
follows:
This is clearly the type of situation that could result in violence. Any
person falling victim to a crime involving such an invasion of personal
space would likely resist or defend in a manner that could lead to
immediate violence. Whether or not violence or harm actually results in
any given instance is not relevant. We agree with the First Circuit that
although larceny from the person typically involves no threat of
violence, the risk of ensuing struggle is omnipresent.
Hudson, 414 F.3d at 935 (citation omitted). Abari contends that in light of Begay, we
should revisit Hudson and conclude that theft from person is not a violent felony.
Abari acknowledges that we have held, post-Begay, that Missouri’s theft from person

-3-

Appellate Case: 10-2447

Page: 3

Date Filed: 04/14/2011 Entry ID: 3777041

statute is a violent felony, but argues that the Missouri statute is distinguishable. See
United States v. Hennecke, 590 F.3d 619, 620 (8th Cir. 2010).
We begin by determining what effect, if any, Begay has had on our holding in
Hudson. Begay added the requirement that the prior offense conduct be purposeful,
violent, and aggressive. Abari highlights the Minnesota state court decisions in which
the victim was unaware of the theft and did not resist and points to the Minnesota
legislature’s grouping of the theft from person offense with theft from a corpse or
from a grave containing a corpse. He asserts that this grouping indicates that there is
no serious potential risk of physical injury because theft from person is listed with
thefts in which the person is no longer alive and is incapable of resisting or being
injured. We find these arguments unpersuasive given that there is still a serious
potential of risk of physical injury to the victim during a theft from person offense, as
well as to third parties attempting to prevent the ensuing theft. In Hennecke, we
determined that Begay did not overrule our prior determination in Hudson that
Minnesota’s theft from person offense involves conduct that presents a serious
potential risk of physical injury to another. 590 F.3d at 622.
Abari asserts Hennecke does not foreclose his argument that the theft from
person offense does not present a serious potential risk of physical injury to another
because the Missouri statute criminalizing theft from a person is different from the
Minnesota statute. The Missouri statute requires that the “actor physically takes the
property appropriated from the person of the victim.” Mo. Rev. Stat. § 570.030.3(2).
Abari argues that the Missouri statute is distinguishable because it requires 1) physical
force that is violent to constitute a violent felony and 2) that the property be taken
directly from the victim.
Relying on Johnson v. United States, 130 S. Ct. 1265 (2010), Abari asserts that
the “physically takes” Missouri statutory language, which is absent from the
Minnesota statute, was a necessary predicate to our determination that the offense
-4-

Appellate Case: 10-2447

Page: 4

Date Filed: 04/14/2011 Entry ID: 3777041

qualified as a violent felony. We disagree. In Johnson, the Court determined that the
definition of violent felony under § 924(e)(2)(B)(i) required that the phrase “physical
force” must mean “violent force—that is, force capable of causing physical pain or
injury to another person.” Johnson, 130 S. Ct. at 1271 (citation omitted). In
Hennecke, we determined that the Missouri statute satisfied the definition of violent
felony pursuant to the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) because of the
serious potential risk of physical injury to another, not because it had a use-of-force
element, as would be required to satisfy § 924(e)(2)(B)(i). 590 F.3d at 621. The
Supreme Court in Johnson specifically did not interpret the residual clause of
§ 924(e)(2)(B)(ii). Johnson, 130 S. Ct. at 1274. Accordingly, we conclude that
Abari’s reliance upon the “physically takes” language is inconsequential to our
analysis under § 924(e)(2)(B)(ii), because we apply Begay, not Johnson, to determine
whether the offense constituted a violent felony pursuant to § 924(e)(2)(B)(ii).
Abari also asserts that Hennecke does not apply because the Missouri statute
requires that the stolen property must have been taken directly from the victim. See
Hennecke, 590 F.3d at 623 (describing the “direct, unlawful contact” that occurs
during the theft from a person offense). The Minnesota statute does not impose such
a requirement, and the Minnesota Supreme Court has held that theft from a person
includes theft of property that was in the victim’s immediate presence. In re Welfare
of D.D.S., 396 N.W.2d 831, 832-33 (Minn. 1986). Although the Minnesota statute
criminalizes additional conduct, Hennecke remains persuasive. Whether the property
was touching the victim or in the immediate presence of the victim, the offense
conduct nevertheless poses a serious potential risk of physical injury to another
because of the potential for confrontation by the victim or a third party. None of
Abari’s arguments persuades us otherwise. Returning to our Begay analysis, then, we
must determine whether Minnesota’s theft from person offense is roughly similar to
burglary, in kind as well as in degree of risk posed, which turns on whether it typically
involves purposeful, violent, and aggressive conduct.

-5Appellate Case: 10-2447

Page: 5

Date Filed: 04/14/2011 Entry ID: 3777041

B. Minnesota’s Theft from Person Offense is Roughly Similar to Burglary
Abari concedes that the theft from person offense involves purposeful conduct,
but asserts that the offense is not roughly similar to burglary, in kind as well as in
degree of risk posed. He contends that the offense does not typically involve violent
or aggressive conduct, arguing that victims are usually unaware and thus unable to
resist. Abari cites to a Minnesota crime report to demonstrate that the offense
involves nonviolent, nonaggressive conduct. Abari’s argument is foreclosed by our
opinion in Hennecke, which held that “felony theft from a person poses a risk of
violent confrontation with the victim or a third person at least equal to that posed by
attempted burglary” and is a crime of violence under the residual clause of
§ 924(e)(2)(B)(ii). 590 F.3d at 623-24 (“Physically stealing from a person poses the
same risk of violent confrontation with the victim or a third person as attempted or
completed burglary.”). Accordingly, we conclude that Minnesota’s theft from person
offense is a violent felony because it is roughly similar to burglary, in kind as well as
in degree of risk posed, in that it typically involves purposeful, violent, and aggressive
conduct.
The judgment is affirmed.
______________________________

-6-

Appellate Case: 10-2447

Page: 6

Date Filed: 04/14/2011 Entry ID: 3777041