United States v. Julian Collin

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, James B. Loken and Diana E. Murphy (UNPUBLISHED) [4199781] [14-1515]

United States Court of Appeals
For the Eighth Circuit
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No. 14-1515
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Julian Jerome Collins
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 12, 2014
Filed: September 24, 2014
[Unpublished]
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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Julian Collins pleaded guilty to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Collins appeals his sentence, arguing

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that the district court1 incorrectly applied a greater base offense level on the basis of
a determination that Collins’s prior Iowa conviction for aggravated assault constituted
a “crime of violence” under United States Sentencing Guidelines (U.S.S.G. or
Guidelines) § 2K2.1(a)(2). We affirm.
After Collins pleaded guilty to being a felon in possession of a firearm, a
probation officer prepared a presentence investigation report (PSR). The PSR applied
§ 2K2.1(a)(2), which provides for a base offense level of 24 for possession of a
firearm by a felon if the defendant was previously convicted of two felony crimes of
violence. The PSR based its application of § 2K2.1(a)(2) on two of Collins’s previous
state court convictions that it classified as crimes of violence: first degree theft and
aggravated assault. Collins objected to the offense level calculated in the PSR,
arguing, among other things, that his prior state conviction for aggravated assault did
not constitute a crime of violence. Collins renewed this objection at sentencing, and
the parties submitted several documents regarding Collins’s aggravated assault
conviction.
These documents included relevant portions of the Iowa Code defining
aggravated assault and dangerous weapon, Iowa’s jury instructions for aggravated
assault and dangerous weapon, the trial information for Collins’s aggravated assault
conviction, the minutes of testimony relied upon by the state court in accepting
Collins’s guilty plea, and the transcript of the plea proceeding. Collins agreed that the
minutes of testimony, which incorporated a police report, formed the factual basis for
his plea. According to the police report, Collins grabbed a baseball bat from the
victim and pushed her into a wall. Witnesses also reported that Collins attempted to
swing the bat at the victim.

1

The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
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The district court reviewed the documents and determined that Collins’s
aggravated assault conviction constituted a crime of violence for purposes of
§ 2K2.1(a)(2), resulting in a base offense level of 24. The district court then
calculated a total offense level of 29 and a criminal history category IV, which
provided an advisory Guidelines sentencing range of 121 to 151 months, capped by
the statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2). The district court
sentenced Collins to 90 months’ imprisonment, to be followed by two years of
supervised release.
Collins concedes that the theft conviction constitutes a crime of violence, but
maintains that the aggravated assault conviction does not. We review de novo a
district court’s determination that a defendant’s prior conviction constitutes a crime
of violence. See United States v. Sampson, 606 F.3d 505, 511 (8th Cir. 2010).
“In construing the term ‘crime of violence’ under § 2K2.1(a)(2), we look to the
definition provided by U.S.S.G. § 4B1.2(a)[.]” Id. A “crime of violence” is defined
in § 4B1.2(a) as:
any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
“[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).

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To determine whether the offense for which Collins was convicted qualifies as
a crime of violence, we look only to the offense’s statutory definition and disregard
the factual underpinnings of his conviction. See Sampson, 606 F.3d at 511; see also
Begay v. United States, 553 U.S. 137, 141 (2008). To identify the precise statute and
subsection to which Collins pleaded guilty, however, “we may look to ‘the charging
document, the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the defendant, or
to some comparable judicial record of this information.’” United States v. Williams,
537 F.3d 969, 973 (8th Cir. 2008) (quoting Shepard v. United States, 544 U.S. 13, 26
(2005) (plurality opinion)); see also United States v. Vinton, 631 F.3d 476, 484 (8th
Cir. 2011) (“When a statute of conviction encompasses several different crimes, some
of which qualify as crimes of violence and some of which do not, we may use a
‘modified categorical approach’ to determine which part of the statute was the basis
for conviction.”).
Collins’s trial information alleged that he committed the crime of aggravated
assault in violation of Iowa Code §§ 708.1 and 708.2(3) and explained: “The said
JULIAN J. COLLINS on or about September 24, 2008 in the County of Des Moines,
and State of Iowa, did assault the person of Wendy Littrell and in doing so displayed
a dangerous weapon in a threatening manner.” The judgment likewise reflected that
Collins pleaded guilty to aggravated assault in violation of Iowa Code §§ 708.1 and
708.2(3).
Section 708.1 provides the three ways in which a person can commit an
assault.2 In turn, § 708.2(3) provides: “A person who commits an assault, as defined
2

Under § 708.1, a person commits an assault when 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
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in section 708.1, and uses or displays a dangerous weapon in connection with the
assault, is guilty of an aggravated misdemeanor.” Also relevant is the definition of
dangerous weapon found in Iowa Code § 702.7. Section 702.7 defines “dangerous
weapon” in the following two ways:
A “dangerous weapon” is any instrument or device designed primarily
for use in inflicting death or injury upon a human being or animal, and
which is capable of inflicting death upon a human being when used in
the manner for which it was designed, except a bow and arrow when
possessed and used for hunting or any other lawful purpose.
Additionally, 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 injury upon the other, and which, when so
used, is capable of inflicting death upon a human being, is a dangerous
weapon.
It is not clear from the relevant documents which subpart of § 708.1 formed the
basis of Collins’s conviction. The documents, however, clearly indicate that Collins
displayed a dangerous weapon in connection with the assault in violation of
§ 708.2(3). Further, the minutes of testimony reveal that the dangerous weapon
Collins displayed was a baseball bat. Accordingly, the second definition of dangerous
weapon applies. This definition of dangerous weapon has an element of threatened
use of physical force—that is, force capable of causing physical pain or injury to
another person—because to be a dangerous weapon, the baseball bat must have been
“used in such a manner as to indicate that the defendant intend[ed] to inflict death or
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.
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serious injury upon the other[.]” Iowa Code § 702.7. Collins’s Iowa conviction for
aggravated assault thus constitutes a crime of violence under § 2K2.1(a)(2).
The sentence is affirmed.
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