United States v. James Arender

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, C. Arlen Beam and Duane Benton (UNPUBLISHED) [4167164] [13-3438]

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[Unpublished]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