United States v. James Arender


PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, C. Arlen Beam and Duane Benton (UNPUBLISHED) [4167164] [13-3438]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-3438 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. James Andrew Arender lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau ____________ Submitted: May 23, 2014 Filed: June 20, 2014 [Unpublished] ____________ Before WOLLMAN, BEAM, and BENTON, Circuit Judges. ____________ PER CURIAM. James Andrew Arender appeals a ruling of the district court1 designating him an armed career criminal under 18 U.S.C. § 924(e). Having jurisdiction under 28 U.S.C. § 1291, this court affirms. 1 The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri. Appellate Case: 13-3438 Page: 1 Date Filed: 06/20/2014 Entry ID: 4167164 Arender pled guilty to one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). At the plea he preserved the right to appeal his designation as an armed career criminal under § 924(e). He argues his prior Tennessee conviction for aggravated assault is not a violent felony under 18 U.S.C. § 924(e)(2)(B). “We review de novo a district court’s determination that a defendant’s prior conviction constitutes a violent felony.” United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012). A violent felony “(i) has an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is a burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). “[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). As Arender notes, the Tennessee statute at issue is divisible. See United States v. Cooper, 739 F.3d 873, 880 (6th Cir. 2014). Thus, the “modified categorical approach” determines whether the conviction is a crime of violence. See United States v. Tucker, 740 F.3d 1177, 1179-80 (8th Cir. 2014) (en banc) (“If one alternative in a divisible statute qualifies as a violent felony, but another does not, we apply the ‘modified categorical approach’ to determine under which portion of the statute the defendant was convicted.”). “[T]he modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Descamps v. United States, 570 U.S. ___ ,133 S.Ct. 2276, 2281 (2013). Arrender pled guilty to the indictment, which states he “intentionally or knowingly, did cause [the victim] to reasonably fear imminent bodily injury, by use or display of a deadly weapon, namely, a baseball bat.” See Tenn. Code Ann. § 39-2- Appellate Case: 13-3438 Page: 2 Date Filed: 06/20/2014 Entry ID: 4167164 13-102(a)(1)(B) (2006); referencing § 39-13-101 (a)(2). This crime has as an element the threatened use of physical force against another person, capable of causing pain or injury. Arrender’s Tennessee conviction for aggravated assault is a violent felony under § 924(e)(2)(B). Accord Cooper, 739 F.3d at 882-83 (finding a conviction under the same version of Tenn. Code Ann. § 39-13-102(a)(1)(B) qualifies as a crime of violence). The judgment is affirmed. ______________________________ -3- Appellate Case: 13-3438 Page: 3 Date Filed: 06/20/2014 Entry ID: 4167164

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