United States v. John Winston

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Michael J. Melloy and Bobby E. Shepherd AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4488208] [15-3739]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3739
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
John Gary Winston,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 19, 2016
Filed: January 10, 2017
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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
John Gary Winston pleaded guilty to unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Under the Armed
Career Criminal Act, a defendant with three or more prior convictions for a serious
drug offense or violent felony is subject to a statutory minimum of 15 years’
imprisonment and a maximum of life. 18 U.S.C. § 924(e)(1). At sentencing, the

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district court1 determined that Winston had sustained four qualifying prior felony
convictions—one serious drug offense and three violent felonies. Winston
acknowledges two qualifying prior convictions, but he argues on appeal that his
Arkansas convictions for second-degree battery and first-degree terroristic
threatening are not violent felonies under the statute.
The term “violent felony” means, among other things, “any crime punishable
by imprisonment for a term exceeding one year . . . that—(i) has as an element the
use, attempted use, or threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B). The “physical force” required is “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).
To determine whether a crime of conviction is a violent felony under this
subsection, we apply a “categorical approach” and determine whether the elements
of the crime of conviction necessarily require the use, attempted use, or threatened
use of physical force. See United States v. Lindsey, 827 F.3d 733, 738-39 (8th Cir.
2016). If the statute of conviction defines more than one crime by listing alternative
elements, we apply a “modified categorical approach” to determine which of the
alternatives was the offense of conviction. Mathis v. United States, 136 S. Ct. 2243,
2249 (2016). The court may consider a limited class of documents in the judicial
record, including the charging document, written plea agreement, and plea colloquy
transcript, to make the determination. Shepard v. United States, 544 U.S. 13, 26
(2005). The district court applied the modified categorical approach and concluded
that both disputed convictions qualified as violent felonies.

1

The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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Winston argues that the district court erred because neither statute defining the
two offenses of conviction requires the use, attempted use, or threatened use of
physical force against the person of another. Because Winston acknowledges two
qualifying prior convictions, the government need only establish that one of the other
two also counts. We conclude that the battery offense qualifies and need not address
the conviction for terroristic threatening.
The Arkansas second-degree battery statute under which Winston was
convicted includes four alternative offenses.2 Winston’s charging document shows
adequately that he was convicted under the second alternative: “A person commits
battery in the second degree if . . . [w]ith the purpose of causing physical injury to
another person, he causes physical injury to any person by means of a deadly weapon
other than a firearm.” Ark. Code Ann. § 5-13-202(a)(2) (1997). Although the
charging document mistakenly referred at one point to “Battery in the First Degree,”
the cover sheet and the summary of the charge referred to “Battery in the Second
Degree,” and Winston concedes that he was convicted of the second-degree offense.
The charging document alleged that Winston acted with “the purpose of causing
physical injury” by means of a “deadly weapon,” and subsection (a)(2) is the only

2

The statute provided as follows:
(a) A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, he
causes serious physical injury to any person;
(2) With the purpose of causing physical injury to another person, he
causes physical injury to any person by means of a deadly weapon other
than a firearm;
(3) He recklessly causes serious physical injury to another person by
means of a deadly weapon; or
(4) He intentionally or knowingly without legal justification causes
physical injury to one he knows to be: [a member of one of the listed
protected classes].
Ark. Code Ann. § 5-13-202(a) (1997).
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provision that pairs those two elements. The charge did omit the statutory phrase
“other than a firearm” after “deadly weapon,” but the allegation still would have
satisfied subsection (a)(2) as long as the proof involved a weapon other than a
firearm. The charge that Winston caused physical injury with the purpose of causing
physical injury points to subsection (a)(2). We discern no error in the district court’s
conclusion on this point.
Winston contends, however, that physical injury is not the equivalent of
physical force, and that a defendant might cause physical injury without using
physical force. For this reason, Winston asserts that the battery offense does not
contain the necessary element that he used physical force. We reject Winston’s
position for the reasons given by Justice Scalia’s concurring opinion in United States
v. Castleman, 134 S. Ct. 1405 (2014): “[P]hysical force” means force “capable of
causing physical pain or injury to another person,” Johnson, 559 U.S. at 140, and “it
is impossible to cause bodily injury without using force ‘capable of’ producing that
result.” 134 S. Ct. at 1416-17 (Scalia, J., concurring). “Physical force” is “force
exerted by and through concrete bodies,” as opposed to “intellectual force or
emotional force,” Johnson, 559 U.S. at 138, and it need not be applied directly to the
body of the victim. Hypothetical scenarios involving no physical contact by the
perpetrator (luring a victim to drink poison or infecting a victim with a disease) do
not avoid coverage under § 924(e)(2)(B)(i). See Castleman, 134 S. Ct. at 1414-15
(opinion of the Court). Winston’s effort to show daylight between physical injury
and physical force is therefore unsuccessful. See United States v. Vinton, 631 F.3d
476, 485-86 (8th Cir. 2011). The district court properly counted the battery
conviction as a violent felony.
For these reasons, the district court did not err in concluding that Winston had
been convicted of at least three violent felonies or serious drug offenses, and that he

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was subject to enhanced punishment as an armed career criminal. The judgment of
the district court is affirmed.
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